IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

JULY 19, 2011 Session

DAVEY MANN, and wife, TERESA MANN v. ALPHA TAU OMEGA

FRATERNITY, ET AL.

Direct Appeal from the Circuit Court for Shelby County

No. CT-003646-07 John R. McCarroll, Judge

No. W2010-02316-COA-R3-CV - Filed August 2, 2011

Plaintiffs sued Defendants in an amended complaint following the expiration of the statute

of limitations. Defendants moved for summary judgment/judgment on the pleadings based

on the expiration of the statute of limitations. Subsequently, co-defendants alleged

Defendants’ comparative fault in an amended answer. Defendants’ motions for summary

judgment and for judgment on the pleadings were granted, but were not made final. Based

on co-defendants’ answer, Plaintiffs again amended their complaint to name Defendants

pursuant to Tennessee Code Annotated section 20-1-119. However, Defendants claimed that

section 20-1-119 could not be utilized as they were already parties to the lawsuit, and they

moved for summary judgment and to dismiss. The trial court granted said motions, and we

affirm.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed

ALAN E. HIGHERS, P.J., W.S., delivered the opinion of the Court, in which HOLLY M. KIRBY,

J., and J. STEVEN STAFFORD, J., joined.

Herschel L. Rosenberg, Memphis, Tennessee, for the appellants, Davey Mann and wife,

Teresa Mann

Scott C. Campbell, Joseph L. Broy, Memphis, Tennessee, for the appellees, Nicholas Beaver

and Zachary Beaver

Darryl D. Gresham, Harry W. Lebair, IV, Memphis, TN, for the appellee, E. J. Cox

Russell C. Rutledge, Germantown, TN, for the appellees, Daniel Kelly and John Condon, III
OPINION

I. FACTS & PROCEDURAL HISTORY

On July 22, 2006, Davey Mann and Teresa Mann (“Plaintiffs”) were injured in an

automobile accident when Jeffrey Callicutt allegedly crossed the centerline, causing a headon collision. Prior to the accident, Callicutt had allegedly consumed alcoholic beverages at

the home of Eric and Lori Cox during a social gathering of members/prospective members

of Alpha Tau Omega Fraternity (“ATO”).

On July 17, 2007, Plaintiffs sued Jeffrey Callicutt and his parents, William and

Deborah Callicutt, ATO, Tennessee Zeta Rho Chapter (“ZR Chapter”), Eric and Lori Cox,

and “John Doe, A through Z[.]” Count four of Plaintiffs’ complaint alleged as follows:

Your Plaintiffs, Davey Mann and Teresa Mann[,] would furthermore

state an[d] show unto the Court that on July 22, 2006, the Defendant, Jeffrey

Callicutt, was twenty (20) years of age, being born on February 18, 1986, and

that the Defendant, John Doe, A through Z, provided him with alcohol[ic]

beverages, of which some of the John Doe’s [sic] A through Z, were members

of the Tennessee Zeta Rho Chapter the University of Memphis, of the Alpha

Tau Omega Fraternity, knowing that he was underage and continued to provide

him with alcoholic beverages knowing his state of intoxication, and

furthermore allowed him to drive his vehicle in an intoxicated state.

In its December 5, 2007 Answer, ZR Chapter responded to this allegation as follows:

Defendant ZR Chapter denies that it provided alcoholic beverages to

Defendant Jeffrey Callicutt or let Mr. Callicutt drive his vehicle. Defendant

ZR Chapter admits that some of its members were at a social gathering at the

Cox residence on July 22, 2006. The roster of members of ZR Chapter [is]

listed on Exhibit A, attached hereto. Some of the members of Defendant ZR

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Chapter were in attendance at the social function and others were not.

Defendant ZR Chapter is without knowledge or information sufficient to form

a belief as to the truth of the remaining allegations contained in paragraph 2,

Count Four, of the Complaint.

Based on ZR Chapter’s answer and pursuant to Tennessee Code Annotated section 20-1-119,

which allows a non-party to be added as a defendant within ninety days of his identification

Exhibit A is not included in the record on appeal.

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in an answer as an alleged comparative tortfeasor, Plaintiffs amended their complaint, on

March 3, 2008, (“First Amended Complaint”) to add as defendants, among others, ATO

members E.J. Cox, Daniel Kelly, John Condon, III, Nicholas Beaver, and Zachary Beaver

(collectively, “Defendants”).

Based on the one-year statute of limitations for personal injury, Cox, Kelly, and

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Condon filed motions for summary judgment, and the Beavers filed a motion for judgment

on the pleadings. Defendants argued that Tennessee Code Annotated section 20-1-119 was

inapplicable, as ZR Chapter’s answer had failed to allege their comparative fault. However,

before their respective motions were heard, William and Debra Callicutt moved to amend

their answer to allege the comparative fault of Defendants, whom they referred to as “codefendants[.]”

In orders dated October 16 and 18, 2009, the trial court granted the Defendants’

motions for summary judgment and for judgment on the pleadings finding “there are no

allegations in th[e] Answers which would support the application of the provisions of T.C.A.

§ 20-1-119 to these circumstances so as to prevent the application of Tennessee’s one-year

statute of limitations, T.C.A. § 28-3-104.” However, these orders were not made final

pursuant to Tennessee Rule of Civil Procedure 54.02. Thereafter, on October 22, 2009, the

Callicutts filed their amended answer, specifically alleging Defendants’ comparative fault.

On November 12, 2009, Plaintiffs moved for interlocutory appeals regarding the

grants of summary judgment and judgment on the pleadings. Based on the allegations of

comparative fault against Defendants in the Callicutts’ amended answer, and again

attempting to utilize Tennessee Code Annotated section 20-1-119, Plaintiffs amended their

complaint on January 11, 2010, to assert claims against Defendants (“Second Amended

Complaint”). Jeffrey, William and Deborah Callicutt were dismissed via a consent order on

February 18, 2010.

Defendants then filed motions to dismiss and for summary judgment arguing that

Plaintiffs could not utilize Tennessee Code Annotated section 20-1-119. Specifically, they

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contended that section 20-1-119 provides only for the addition of non-parties, and because

the October 16 and 18, 2009 orders granting summary judgment and judgment on the

Tenn. Code Ann. § 28-3-104. 

2

Specifically, Nicholas and Zachary Beaver filed a motion to dismiss for failure to state a claimupon 3

which relief could be granted and for judgment on the pleadings on February 22, 1010, and E.J. Cox filed

a motion to dismiss for failure to state a claim upon which relief could be granted on April 1, 2010. John

Condon, III, and Daniel Kelly filed motions for summary judgment on April 1, 2010 and April 4, 2010,

respectively. 

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pleadings were not “final,” they contended they were already parties to the lawsuit when

Plaintiffs moved to amend their complaint on December 8, 2009.

On September 14, 2010, the trial court entered orders denying Plaintiffs’ motion for

an interlocutory appeal and granting Defendants’ motions for summary judgment and to

dismiss. In granting Defendants’ motions, the trial court stated “‘the fact that Callicutt may

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have named them Callicutt’s now out. I don’t think that gives the plaintiffs any right then

to again sue the same people. I’m basing my ruling on the fact that the plaintiff’s attorney

has told me that there are no new claims, they’re the same claims that we had before.’”

Plaintiffs timely appealed the September 14, 2010 order granting Defendants’ motions for

summary judgment and to dismiss.

II. ISSUE PRESENTED

On appeal, Plaintiffs challenge the trial court’s grant of Defendants’ motions for

summary judgment and to dismiss. For the following reasons, we affirm the decision of the

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trial court.

III. STANDARD OF REVIEW

Although defendants Nicholas and Zachary Beaver and E.J. Cox filed motions to

dismiss pursuant to Tennessee Rule of Civil Procedure 12.02(6) for failure to state a claim

upon which relief could be granted, we find that the trial court converted these motions into

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motions for summary judgment by considering matters outside the pleadings.

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The order granting Defendants’ motions for summary judgment and to dismiss was made final as 4

to Defendants pursuant to Tennessee Rule of Civil Procedure 54.02. 

In their brief, Plaintiffs state that “[i]t is [their] position that the original answer of Tennessee Zeta

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RHO Chapter to the original Complaint [] was sufficient for your Appellants to file their Amended

Complaint as to the Defendants[.]” However, this argument is not further developed, it is not listed as an

issue on appeal, and Plaintiffs seemed to concede at oral argument before this Court that the trial court’s

grant of summary judgment/judgment on the pleadings with regard to the First Amended Complaint was not

at issue on appeal. Accordingly, we will not address this issue.

“When a motion for judgment on the pleadings is made by the defendant, it is in effect a motion to 6

dismiss for failure to state a claim upon which relief can be granted.” Waldron v. Delffs, 988 S.W.2d 182,

184 (Tenn. Ct. App. 1998). 

The trial court’s order states that in addition to the motions and their supporting memoranda, it 7

considered “the arguments of counsel in open court and the entire record in this cause[.]” Additionally,

(continued...)

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A motion forsummary judgmentshould be granted only “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. “The party seeking the summary

judgment has the burden of demonstrating that no genuine disputes of material fact exist and

that it is entitled to a judgment as a matter of law.” Green v. Green, 293 S.W.3d 493, 513

(Tenn. 2009) (citing Martin v. Norfolk S. Ry., 271 S.W.3d 76, 83 (Tenn. 2008); Amos v.

Metro. Gov't of Nashville & Davidson County, 259 S.W.3d 705, 710 (Tenn. 2008)). “When

ascertaining whether a genuine dispute of material fact exists in a particular case, the courts

must focus on (1) whether the evidence establishing the facts is admissible, (2) whether a

factual dispute actually exists, and, if a factual dispute exists, (3) whether the factual dispute

is material to the grounds of the summary judgment.” Id. Not every factual dispute requires

the denial of a motion for summary judgment. Id. at 514. To warrant denial of a motion for

summary judgment, the factual dispute must be material, meaning “germane to the claim or

defense on which the summary judgment is predicated.” Id. (citing Eskin v. Bartee, 262

S.W.3d 727, 732 (Tenn. 2008); Luther v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999)).

When the party moving for summary judgment is a defendant asserting an affirmative

defense, he or she may shift the burden of production by alleging undisputed facts that show

the existence of the affirmative defense. Hannan v. Alltel Publ'g Co., 270 S.W.3d 1, 9 n.6

(Tenn. 2008). “If the moving party makes a properly supported motion, then the nonmoving

party is required to produce evidence of specific facts establishing that genuine issues of

material fact exist.” Martin, 271 S.W.3d at 84 (citing McCarley v. W. Quality Food Serv.,

960 S.W.2d 585, 588 (Tenn. 1998); Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993)). The

nonmoving party may satisfy its burden of production by:

(1) pointing to evidence establishing material factual disputes that were overlooked or ignored by the moving party; (2) rehabilitating the evidence attacked

by the moving party; (3) producing additional evidence establishing the

existence of a genuine issue for trial; or (4) submitting an affidavit explaining

the necessity for further discovery pursuant to Tenn. R. Civ. P., Rule 56.06.

Id. (citing McCarley, 960 S.W.2d at 588; Byrd, 847 S.W .2d at 215 n. 6).

The resolution of a motion for summary judgment is a matter of law, which we review

de novo with no presumption of correctness. Martin, 271 S.W.3d at 84. However, “we are

required to review the evidence in the light most favorable to the nonmoving party and to

(...continued) 7

defendants Nicholas and Zachary Beaver seem to concede that the trial court considered matters outside the

pleadings, and the Plaintiffs’ brief cites only the summary judgment standard of review. 

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draw all reasonable inferences favoring the nonmoving party.” Id. (citing Staples v. CBL

& Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000)). Summary judgment is appropriate “when

the undisputed facts, as well as the inferences reasonably drawn from the undisputed facts,

support only one conclusion--that the moving party is entitled to a judgment as a matter of

law.” Green, 293 S.W.3d at 513 (citing Griffis v. Davidson County Metro. Gov't, 164

S.W.3d 267, 283-84 (Tenn. 2005); Pero's Steak & Spaghetti House v. Lee, 90 S.W.3d 614,

620 (Tenn. 2002)).

IV. DISCUSSION

As we outlined above, Defendants were initially brought into this lawsuit on March

3, 2008, beyond the one-year statute of limitations, when they were named in Plaintiffs’ First

Amended Complaint. However, because their comparative fault had not yet been alleged in

an answer, the trial court granted their motions for summary judgment and for judgment on

the pleadings on October 16 and 18, 2009. Subsequently, William and Deborah Callicutt

filed an amended answer on October 22, 2009, in which they alleged the comparative fault

of Defendants. Based on this allegation, Plaintiffs, on January 11, 2010, filed their Second

Amended Complaint, which is at issue in this appeal, asserting claims against Defendants

pursuant to Tennessee Code Annotated section 20-1-119, which provides in relevant part:

(a) In civil actions where comparative fault is or becomes an issue, if a

defendant named in an original complaint initiating a suit filed within the

applicable statute of limitations, or named in an amended complaint filed

within the applicable statute of limitations, alleges in an answer or amended

answer to the original or amended complaint that a person not a party to the

suit caused or contributed to the injury or damage for which the plaintiff seeks

recovery, and if the plaintiff's cause or causes of action against that person

would be barred by any applicable statute of limitations but for the operation

of this section, the plaintiff may, within ninety (90) days of the filing of the

first answer or first amended answer alleging that person's fault, either:

(1) Amend the complaint to add the person as a defendant pursuant to Tenn.

R. Civ. P. 15 and cause process to be issued for that person; or

(2) Institute a separate action against that person by filing a summons and

complaint. If the plaintiff elects to proceed under this section by filing a

separate action, the complaint so filed shall not be considered an original

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complaint initiating the suit or an amended complaint for purposes of this

subsection (a).

(emphasis added).

Thus, under section 20-1-119, when a non-party comparative tortfeasor is identified

in an answer or an amended answer outside of the original statute of limitations for the

underlying action, a plaintiff may, within ninety days, elect either to institute a separate

action against that person or to amend his complaint to add that person. Tenn. Code Ann.

§ 20-1-119(a). On appeal, it is undisputed that Plaintiffs’ Second Amended Complaint was

timely filed following the Callicutts’ amended answer. However, Defendants maintain that

they are not “non-parties” who may be added pursuant to section 20-1-119. According to

Defendants, because the trial court’s orders granting their motions for summary judgment

and for judgment on the pleadings failed to state that they were “final orders,” they remained

parties to the suit when Plaintiffs moved to amend their complaint on December 8, 2009. 

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The middle section of this Court considered a similar fact pattern in Townes v.

Sunbeam Oster Co., Inc., 50 S.W.3d 446, 448 (Tenn. Ct. App. 2001). Following a grill

explosion, the plaintiffs sued, among others, grill manufacturer Sunbeam, propane tank

manufacturer Manchester, and seller Wal-Mart. The plaintiffs then voluntarily non-suited

Sunbeam on the mistaken belief that Sunbeam was not involved in manufacturing the grill’s

propane tank. Id. at 449. After discovering their mistake, the plaintiffs filed a second

amended complaint asserting new claims against Sunbeam, but Sunbeam moved forsummary

judgment based on the expiration of the statute of limitations. Id. at 449-50. Meanwhile,

Manchester filed an answer alleging the comparative fault of Sunbeam. Id. at 450. The trial

court dismissed the claims against Sunbeam as time-barred, finding section 20-1-119

inapplicable because Sunbeam was not an “unknown party” when the second amended

complaint was filed. Id.

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“[A]n added defendant’s status as a party should be determined, not when the original defendant 8

names the added defendant as an additional comparative tortfeasor in its answer or amended answer, but

rather when the plaintiff either seeks to amend its complaint to name the additional tortfeasor as an additional

defendant or to file a separate complaint against the additional comparative tortfeasor.” Townes v. Sunbeam

Oster, Co., Inc., 50 S.W.3d 446, 454 (Tenn. 2001). 

On appeal, the middle section of this Court concluded that Tennessee Code Annotated section 20-1- 9

119 is not restricted to unknown comparative tortfeasors. Townes, 50 S.W.3d at 452-53. However, the

eastern section of this Court declined to follow this interpretation in McClendon v. Bunick, No. E1999-

02814-COA-R3-CV, 2001 WL 536614, at *6-7 (Tenn. Ct. App. E.S. May 21, 2001), as did the Sixth Circuit

in Schultz v. Davis, 495 F.3d 289, 295 (6 Cir. 2007). th

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Based on Manchester’s allegation of comparative fault, the plaintiffs sought to file a

third amended complaint to add Sunbeam pursuant to section 20-1-119, arguing that

“Sunbeam was no longer a party to the litigation in light of the trial court’s dismissal of the

claims against Sunbeam in their second amended complaint.” Id. The trial court denied the

plaintiffs’ motion to amend, but the middle section of this Court reversed. Id. at 448. The

Court noted that Sunbeam became a party to the case when the plaintiffs filed their second

amended complaint. Id. at 454. Thus, when Sunbeam asserted its statute of limitations

defense to this complaint, the plaintiffs could not take advantage of section 20-1-119. Id.

However, after the trial court granted Sunbeam’s motion for summary judgment with regard

to the second amended complaint and “dismissed” Sunbeam from the case, “Sunbeam was

no longer a party when the [plaintiffs] moved to file their third amended complaint[.]” Id.

Accordingly, the Court found that the trial court erred in denying the plaintiffs’ motion to file

a third amended complaint. Id.

In the instant case, Defendants attempt to distinguish Townes in that the comparative

fault allegations that permitted the plaintiff to bring Sunbeam back into the lawsuit under

section 20-1-119 were based on new facts and theories, whereas Plaintiffs concede that they

are merely attempting to re-assert the claims previously raised against Defendants. In fact,

Defendants contend that Townes “stands for the proposition that T.C.A. § 20-1-119 permits

the addition of a previously dismissed defendant beyond the statute of limitations when the

comparative fault allegations are based on facts and/or theories that are different than those

that were previously dismissed.”

We agree that Townes is distinguishable from the instant case; however, we find it

distinguishable for a reason not discussed by the parties. Tennessee Rule of Civil Procedure

54.02 provides:

When more than one claim for relief is present in an action, whether as a

claim, counterclaim, cross-claim, or third party claim, or when multiple parties

are involved, the court, whether at law or in equity, may direct the entry of a

final judgment as to one or more but fewer than all of the claims or parties

only upon an express determination that there is no just reason for delay and

upon an express direction for the entry of judgment. In the absence of such

determination and direction, any order or other form of decision, however

designated, that adjudicates fewer than all the claims or the rights and

liabilities of fewer than all the parties shall not terminate the action as to any

of the claims or parties, and the order or other form of decision is subject to

revision at any time before the entry of the judgment adjudicating all the

claims and the rights and liabilities of all the parties.

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(emphasis added). Based upon this plain language, because the trial court, in the instant case,

failed to “direct the entry of a final judgment” when it granted Defendants’ motions for

summary judgment and for judgment on the pleadings with regard to Plaintiffs’ First

Amended Complaint, the action did not terminate as to Defendants. In fact, following the

trial court’s orders of October 16 and 18, 2009, Plaintiffs moved for interlocutory appeals,

which Defendants actively opposed, and which were not disposed of until September 14,

2010–the same date that Defendants’ motions for summary judgment and to dismiss,

regarding the Second Amended Complaint, were granted.

Although the Townes opinion does not expressly state that the trial court’s grant of

summary judgment to Sunbeam was made final pursuant to Tennessee Rule of Civil

Procedure 54.02, based upon the lack of argument and analysis concerning the issue, finality

seems apparent. Hence, we find Townes distinguishable from the instant case. Here, because

no final order had been entered against Defendants, they remained parties to the lawsuit when

Plaintiffs sought to assert claims against them in their Second Amended Complaint. Since

the original statute of limitations had expired and Tennessee Code Annotated section 20-1-

119 could not be utilized to extend the limitations period against the party Defendants, the

trial court properly granted Defendants’ motions for summary judgment and to dismiss. The

decision of the trial court is affirmed.

V. CONCLUSION

For the aforementioned reasons, we affirm the decision of the circuit court. Costs of

this appeal are taxed to Appellants, Davey Mann and Teresa Mann, and their surety, for

which execution may issue if necessary.

ALAN E. HIGHERS, P.J., W.S.

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