### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON April 30, 2001 Sessi

on CASSIE GILLILAND, ET AL 

### v. BILLY RAY PINKLEY, ET AL

Appeal from the Circuit Court for Madison County No. C-99-9 Roy B. Morgan, Jr., Judge

No. W2000-00982-COA-R3-CV - Filed May 23, 2001
Plaintiffs appeal from a grant of summary judgment in favor

of defendant Vis

ion Care Propertie

s, Inc., and the refusal of the trial court to subsequently grant relief under Tenn. R. Civ. P. 60.02. The complaint alleged that the minor child, Cassie Gilliland, was attacked and injured by

a vicious dog ownedby, and kept at the home of, defendant Billy Ray Pinkley, which residenc e was leased to Pinkley by defendant

Vision Care Proper

ties, Inc. Subseque

nt to the grant of

summary judg

ment, plaintiffs sough

t Rule 60.02 relief

based upon an aff

idavit of Pinkley whic

h was inconsistent w

ith his prior affidavit. We affirm the trial court in all respects. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J OE G. R ILEY , Sp. J., delivered the opinion of the court , in which W

. F RANK C RAWFORD , P. J., W. S., and D AVID R. F ARMER , J., joined. Scott G. Kirk, Jackson, Tennessee, for the appellants, Cassie Gilliland and Angie Gilliland. Wesley A. Clayton an

d Michael A. Carte

r, Jackson, Tennes se e, for the appellee, Vision Care Properties, Inc. OPINION This is an appeal by the plaintiffs, Cassie Gilliland, a minor child, by and through her next friendand mother, Angie Gilliland, and Angie Gilliland, individually, from an order of the trial court granting summary judgment in favor of

defendant Vision Care Properties, Inc. (hereinafter “Vision Care ”). Plaintiffs brought suit against Billy Ray Pinkley and Vision Care alleging that the mino r child was attacked

by a vicious dog owned by Pinkley , and that Pinkley

resided on property leased to him by Vision Care. Summary judgment was gr anted in favor

of Vision Care with the trial court concluding that it was undisputed that Vision Care had no notice of the viciousness of Pinkley's dog. Plaintiffs then took default judgment against defendant

Pinkley. Shortly after the entry of the order granting summary judgment to Vision Care, plaintiffs filed a Tenn. R. Civ. P. 60.02 motion seeking relief from the judgmen

t. Attached to the m

otio n was an affidavi

t by Pinkley

conceding that

his-2-

prior affidavit stated that no agent of Vision Care had r eason to know that t he dog was vicio

us. However, in the instant affidavit Pinkley stated he had not thoroughly reviewed theprior

affidavit before signing it,

and that an agent of Vision Care did, in fact, have reason to believe the dog was vicious. The trial court denied plaintiffs' request for Rule 60.02 relief. Upon review of the record, we affirm the judgment of the trial court.

BACKGROUND Our exa min ati on o f th e rec ord reve als the fol low ing p roce dur al a nd f act ual his tor y: 1. The complaint alleged that the minor plaintiff was attacked by defendant Pinkley’s dog on land bordering the prop erty re nted by Pinkley from defendant Vision Care. The complaint

further alleged that, although the dog was chained, the chain was not long enough to confine the dog to Pinkley’s property

. 2. The complaint further alleged that both Pinkley and Vision Care were aware of the vicious nature of the dog and failed to take proper action to secure it. 3. Vision Care filed a motion for summary judgment contending the undisputed facts revealed that Vision Care ha

d no notice of the d

og’s v icious na ture, nor the abil ity to remove the dog from the premises. 4. There was no written lease agreement between Pinkley a nd Vision Care and no other agreement relating to the possession and control of the property by Pinkley. 5. The affidavit and deposition of the president of Vision Care indicated s he was unawareth a t Pinkley kept a dog on the prem

ises and had rec

eived no complaint

s concerning the dog. The affidavit and deposition of the property manager indicated that even though he knewthe dog was on the premises, he never observed the dog act viciously, nor had he received any complaints concerning the dog.
6. Various neighbors and a process server had prior problems with the dog and/or were awareof the dog’s vicious na ture; however, n

one of them indica

ted that this information had been relayed to any agent of Vision Care.
7. Pinkley’s aff

idavit, filed with Vision Care’s motion for summary judgment, indicat e d that he “never told

.. . any age nt of Vision Care th

at my chow do

g was vicious, dangerous,

or that it had ever bitten anyone ..., [and] I had no reason to believe that

... any agent of

Vision Care knew or should have known that my chow dog could be considered vicious.”-3-

8. Summary

judgment was gr

anted in favor of Vision Care based upon the undisputed fact that it had no notice of the dog’s vicious tendencies. 9. Thereafter, plaintiffs secured a default judgment against Pinkley

. 10. Plaintiffs then filed a Tenn. R. Civ. P. 60. 02 m otion requesting relief from the summary judgment and attached a second affidavit from Pinkley. Plaintiffs contended they were

unaware of the i

naccuracy of Pinkley’s

first affidavit u

ntil Pinkley testified at t

he default judgment

hearing. Pinkley’s second affidavit indicated that he hadnot reviewed the first affidavit thoroughly, and his statement that no agent of Vision Care had any reason to k now that the dog was vicious was an untrue statement. Pinkley then stated the property manag er of Vision Care had observe d him restrain his dog on a prior occasion and observed him remove the dog from the carport on subsequent occ

asions in order to k

eep the dog awa

y from the pr

operty manager. 11. The trial court denied Rule 60.02 relief finding the plaintiff s h ad sufficient opportunity

to discover Pinkley’s testimony pri or to the grant of summ

ary judgme

nt, and Pinkley’s second affidavit was insufficient to justify r elief.

LANDLORD’S LIABILITY FOR DOG ATTACK A. Standard of Review The trial court’s grant of summary judgment is not entitled to a presumption of correctness on appe al. McClung v. Delta Square Ltd. Pa

rtnership , 937 S.W.2d 891, 894 (Tenn. 1996 ). W e review de novo whether the requirements of Tenn. R. Civ. P. 56 have been met. Mason v. Seaton , 942 S.W.2d 470, 472 (Tenn. 1997). Pursuant to Rule 56, summary judgment may only be gr anted where there is no genuine, material factual dispute, and when the movin g party is e ntitled to judgment as a matter of law. Bain v. Wells , 936 S.W.2d 618, 622 (Tenn. 1997). When ruling on a motion for summary judgment, we must view the evide

nce in the light most favorable to the party opposing the motio n, drawing a ll reasonable inferences in favor of the nonmoving party and discarding all countervailing evidence. White v. Lawrence , 975 S.W.2d 525, 529 (Tenn. 1998). B. Analysis There is no published Tenn essee authority

relating to the liability of a landlord for injury to a third person by a dog owned and kept by the tenant. However, unpublished opinions of this court indicate that the liability of a landlord requires (1) knowledge or notice of the vicious propensity of the dog, and (2) sufficient retained control over the leased premi

ses to afford an o

pportunity

for the landlord to require the tenant to remove the dog or safe ly r estrain it. Barbara McKe nna v. Jackie Jackson , No. 01AO1-9510-CV-00438, 1996 WL 140496, at *2 (Tenn. App. filed March 29, 1996,-4-

at Nashville), perm. t o app. denied (Tenn. 1996); Kandie Blackwe ll v. Bobby We

sterwall , No. 01AO1-9410-CV-00493, 1995 WL 153351, at *3 (Tenn. App. filed A pril 7, 1995, at Nashville); Michelle Dionne v. Darin Brown , No. 01A01-9202-CV-00048, 1992 WL 184929, at *2 (Tenn. App. filed August 5, 1992, at

Nashville); see also Cronin v. Chrosniak , 536 N.Y.S.2d 287, 288 (1988). We adopt these two requirements in order to establish liability of the landlord.
We conclude that

the undisputed proof at the time of the hearing of the motion for summary judgment established that no agent of Vision Care had notice or knowledge of the vicious tendencies of Pinkley’s dog. The fact that neighbors and others might have been aware of such tendencies does not impute knowledge to any agent of the landlord.
In McKenna

this court affirm

ed the dismissal of a

suit against

the landlord where there was no evidence that the landlord had any notice that the dog had vicious tendencies. In Blackwell this court remanded for a n

ew trial in a comparative negligence case where the jury could have found that an agent for the landlord had prior knowledge of the dog’s vicious tendencies. The Dionne case reversed a directed verdict in favor of the landlord. Ho wever, in Dionne the landlord had actual notice of a prior attack by

the dog. Thus, we

conclude that McKenna

is similar to the case at bar and further conclude the trial court properly granted summary judgment to Vision Care based upon lack of knowledge and/or notice of the dog’s vicious tendencies. We further conclude that, although the trial court did not rely upon this ground in granting th e summary judgment, the undisputed proof indicates that there was no written lease betwe en Pinkley and Vision Care and no authority of Vision Care to retain control over the leased p

remises. Such is a requirement for liability of a landlord. McKenna , 1996 WL 140 496, at *2. A tenant is entitled to the exclusive possession of the leased premises against the landlord for a landlord retains no rights over leased premises, except such as are reserved in clear and express terms. Southern Bell Telephone & Telegraph Co. v. Yates , 232 S.W.2d 796, 798-99 (Te nn. App. 1950) . In both Blackwell

and D ionne ci ted above, there was a written lease relating to the tenant’s keeping of animals. Thus, these two cases are distinguishable. Accordingly, we conclude the trial court properly granted summary judgment.

RULE 60.02 MOTION A. Standard of Review Our standard of review for t he denial of

Tenn. R. Civ. P. 60.02 relief was stated by the Tennessee Supreme

Courtin Underwood v. Zurich Ins. Co. , 854 S.W.2d 94 (Tenn. 1993). A motion for relief based on Rule 60.02 grounds addresses itself to the sound discretion of the trial judge, and the scope of review

of an appellate c

ourt is to determine if that discretion was abused. Id . at 97. The bu rden is on the pa rty seeking reli ef pursuant to Rule 60. 02 to show t hat relief s hould be gr anted

. Steioff v. Steioff, 833 S.W.2d 94, 97 (Tenn. App. 1992).-5-

The part y seeking relief from a judgment bears a heavy burden. Rule 60.02 provides an “exceptional remedy.” Nails v. Aetna Ins. Co. , 834 S.W.2d 289, 294 (Tenn. 1992). Its function is “to strike a proper balance between the competing principles of finality

and justice.” Jerkins v. McKinney , 533 S.W.2d 275, 280 (Tenn. 1976). It is “an escape valve from possible inequity that might otherwise a

rise from the unrelenting imposition of the principle of finality imbedded in our procedural rules.” Thompson v. Firemen’s Fund Ins. Co. , 798 S.W.2d 235, 238 (Tenn. 1990). B. Analysis
We find no abuse of discret ion by the tri

al court in

denying Rule 60.02 relief. The second affidavit of Pinkley ca

me after defau

lt judgment had be

en granted ag

ainst him and was contradictory to his first affidav

it. Generally

, contradictory

statements by

a witness with

respect to the same issue of fact cancel or negate each other. Bowers v. Potts , 617 S.W.2d 149, 155 (Tenn. App. 1981). More spe cif ica lly, “[t]wo sworn inconsis tent statements by

a party are of no probative value in establishing a d isputed issue of material fact.” Price v. Becker , 812 S.W.2d 597, 598 (Tenn. App. 1991). Accordingly, the trial court did not err in deny ing Rule 60.02 relief.

CONCLUSION The granting of summary judgment in favor of Vision Care Properties, Inc. is affirmed. Further, the trial court’s denial of Tenn. R. Civ. P. 60.02 relief is af firmed. Costs of appeal are assessedagainst the plaintiffs-appellants, Cassie Gilliland and Angie Gilliland, and their surety, for whi ch ex ecut ion may i ssu e if nece ssa ry.

___________________________________ JOE G. RILEY, SPECIAL JUDGE