IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

April 30, 2001 Session

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 Vision Care Properties,

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

owned by, and kept at the home of, defendant Billy Ray Pinkley, which residence was leased to

Pinkley by defendant Vision Care Properties, Inc. Subsequent to the grant of summary judgment,

plaintiffs sought Rule 60.02 relief based upon an affidavit of Pinkley which was inconsistent with

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

JOE G. RILEY, Sp. J., delivered the opinion of the court, in which W. FRANK CRAWFORD, P. J., W.

S., and DAVID R. FARMER, J., joined.

Scott G. Kirk, Jackson, Tennessee, for the appellants, Cassie Gilliland and Angie Gilliland.

Wesley A. Clayton and Michael A. Carter, Jackson, Tennessee, 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

friend and 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 minor

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 granted 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 judgment. Attached to the motion was an affidavit by Pinkley conceding that his
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prior affidavit stated that no agent of Vision Care had reason to know that the dog was vicious.

However, in the instant affidavit Pinkley stated he had not thoroughly reviewed the prior 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 examination of the record reveals the following procedural and factual history:

1. The complaint alleged that the minor plaintiff was attacked by defendant Pinkley’s

dog on land bordering the property rented 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 had no notice of the dog’s vicious nature, nor the ability

to remove the dog from the premises. 

4. There was no written lease agreement between Pinkley and 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 she was

unaware that Pinkley kept a dog on the premises and had received no complaints

concerning the dog. The affidavit and deposition of the property manager indicated

that even though he knew the 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

aware of the dog’s vicious nature; however, none of them indicated that this

information had been relayed to any agent of Vision Care. 

7. Pinkley’s affidavit, filed with Vision Care’s motion for summary judgment, indicated

that he “never told ... any agent of Vision Care that my chow dog 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.” 
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 8. Summary judgment was granted 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 motion requesting relief from the

summary judgment and attached a second affidavit from Pinkley. Plaintiffs

contended they were unaware of the inaccuracy of Pinkley’s first affidavit until

Pinkley testified at the defaultjudgment hearing. Pinkley’s second affidavit indicated

that he had not reviewed the first affidavit thoroughly, and his statement that no agent

of Vision Care had any reason to know that the dog was vicious was an untrue

statement. Pinkley then stated the property manager of Vision Care had observed

him restrain his dog on a prior occasion and observed him remove the dog from the

carport on subsequent occasions in order to keep the dog away from the property

manager. 

11. The trial court denied Rule 60.02 relief finding the plaintiffs had sufficient

opportunity to discover Pinkley’s testimony prior to the grant of summary judgment,

and Pinkley’s second affidavit was insufficient to justify relief. 

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 appeal. McClung v. Delta Square Ltd. Partnership, 937 S.W.2d 891, 894 (Tenn. 1996). We

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 granted

where there is no genuine, material factual dispute, and when the moving party is entitled 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 evidence in the light most favorable to the party

opposing the motion, drawing all 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 Tennessee 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 premises to afford an opportunity for the

landlord to require the tenant to remove the dog or safely restrain it. Barbara McKenna v. Jackie

Jackson, No. 01AO1-9510-CV-00438, 1996 WL 140496, at *2 (Tenn. App. filed March 29, 1996,
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at Nashville), perm. to app. denied (Tenn. 1996); Kandie Blackwell v. Bobby Westerwall, No.

01AO1-9410-CV-00493, 1995 WL 153351, at *3 (Tenn. App. filed April 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 affirmed 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 new 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. However, 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

the summary judgment, the undisputed proof indicates that there was no written lease between

Pinkley and Vision Care and no authority of Vision Care to retain control over the leased premises.

Such is a requirement for liability of a landlord. McKenna, 1996 WL 140496, 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 (Tenn. App. 1950). In both

Blackwell and Dionne cited 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 the denial of Tenn. R. Civ. P. 60.02 relief was stated by the

Tennessee Supreme Court in 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 court is to determine if that discretion was abused. Id. at 97. The

burden is on the party seeking relief pursuant to Rule 60.02 to show that relief should be granted.

Steioff v. Steioff, 833 S.W.2d 94, 97 (Tenn. App. 1992). 
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The party 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 arise 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 discretion by the trial court in denying Rule 60.02 relief. The second

affidavit of Pinkley came after default judgment had been granted against him and was contradictory

to his first affidavit. 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

specifically, “[t]wo sworn inconsistent statements by a party are of no probative value in establishing

a disputed issue of material fact.” Price v. Becker, 812 S.W.2d 597, 598 (Tenn. App. 1991).

Accordingly, the trial court did not err in denying 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 affirmed. Costs of appeal are

assessed against the plaintiffs-appellants, Cassie Gilliland and Angie Gilliland, and their surety, for

which execution may issue if necessary.

___________________________________ 

JOE G. RILEY, SPECIAL JUDGE