### IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE April 13, 2015 Session

CONNIE RABY v. COVENANT HEALTH, ET AL



### .

Appeal from the Circuit Court for Anderson County
No. B4LA0015 Donald R. Elledge , Judge

No. E2014

- 01399

- COA

- R3

- CV

- FILED

- JUNE 9, 2015

This appeal arises from a construction negligence case. Connie Raby (“Plaintiff”)

, sued Covenant Health, Rentenbach Engineering Company, and TEG Architects, LLC, (“Defendants,” collectively) in the Circuit Court for Anderson County (“the Trial
Court” ). Plaintiff alleged that the absence of shielding in a portion of the radiology
facili ties in the new emergency department at Meth odist Hospital caused Plaintiff to suffer damages from excessive r adiation exposure . Defendants fil ed motions for summary judgment asserting the statute of repose, Tenn. Code Ann. § 28

- 3

- 202 (2000),

as a complet e defense. The Trial Court granted Defendants‟ motions f or summary judgment. Plaintiff appeal s to this Court arguing

, in part

, that the statute of repose did not run because the absence of the required shielding in the radiology facilities meant the proj ect was not substantially completed on the date as found by the Trial Court . We hold,
inter alia , that the radiology facilities, while perhaps defective, were used for their intended purpose and were substantially complete as found by the Trial Court . Th e construction statute of repose expired and serves to defeat Plaintiff‟s claims. We affirm
the Trial Court.

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

D. M ICHAEL S WINEY
, J. , delivered the opinion of the court, in which J OHN W.
M C C LARTY and T HOMAS R. F RIERSON
, II, JJ. , joined.

John D. Agee

, Clinton

, Tennessee, for the appellant, Connie Raby

.

F. Michael Fitzpatrick and Rachel Park Hurt

, Knoxville , Tennessee, for the appellee

, Covenant Health.

Howard E. Jarvis, Dean T. Howell, and April A. Carr, Knoxville, Tennessee, for the appellee, Rentenbach Engineering Company.- 2

-

R. Loy Waldrop, Jr., W. Paul Whitt, and Janet S. Hayes, Knoxville, Tennessee, for the appellee, TEG Architects, LLC.

OPINION

Background

The background facts of this case are relativ ely straightforward. Plaintiff

, along with several other similarly situated parties, filed a compla int in Ja nuary 2014 against Defendants alleging that Plaintiff was exposed to excessive radiation from the radiology facilities at Metho dist Hospital

. Defendants were involved with the
construction project at Methodist Hospital, including the radiology facilities, in some capacity. Plaintiff allege d that portions of walls lacked the necessary lead shielding

, and
that this defect led to Plaintiff‟s exposure to excessive radiation

. Defendant s filed

answers i n opposition

. Certain of Defendants raised comparative fault against Methodist Medical Center of Oak Ridge (“ MMC ”)

, or , alternatively

, that Covenant Health owned the facilities. Defendants later filed motions for summary judgment in which they
asserted t hat the construction statute of repose w as a complete defense . Plaintiff filed a Motion for Leave to File Amended Complaint and Motion to Quash Notices of Hearing.
Plaintiff sought to add MMC as a Defendant to the complaint. The Trial Court granted
Plai nt iff‟s Motion to Quash, allowing additional time to take discovery on the issues of substantial completion and the statute of repose.

In June 2014, the Trial Court heard Defendants‟ motions for summary judgment as well as Plaintif f‟s motion to add MMC as a party. The Trial Court granted Defendants‟ motions for summary judgment and denied Plaintiff‟s Motion to Amend. The Trial Court incorporated its oral ruling into its order , which we quote from:

We‟re here today on the case of Michael Phillips, Cas e No. B4LA0014, Connie Raby, B4LA0015, Mary Ridenour, et al., B4LA0016, Keith Gillis, B4LA0017, and Micah Lewellen, et al., B4LA0018, all versus Covenant Health, Rentenbach Engineering, doing business as Rentenbach Constructors, Inc., and TEG Architects, L LC.

We‟re here as a result of a motion for summary judgment being filed under Rule 56 and, would advise counsel, under Rule TCA 20

- 16

- 101, which basically reversed the finding in Hanna [ n ] vs. Alltel , where the parties who do not bear the burden of proof, it reversed

- - it went from putting it on

- - or reversing it to trial. And I was a part of that. Martin vs.
Southern Railroad and Hanna [ n ] vs. Alltel were both debated on the floor.- 3

-

But it takes us back to what it was before Hanna [ n ] vs. Alltel

. It‟s back to “put up or shut up.” That‟s the language that‟s used in the discussion.

It is uncontroverted that litigation in each of these cases was filed on or about January 13, 2014, or thereafter. It is uncontroverted that in each of these litigatio ns, specifically in paragraph 9, that the emergency department was substantially completed and opened in February of 2006.

I read the complaint again twice yesterday, and nowhere in the complaint could I find any allegation of fraud or wrongful concealme nt. It is undisputed that this is a construction lawsuit, and when you read the allegations set out in the complaint, it‟s a construction lawsuit. It‟s an errors and omissions lawsuit, where one panel of lead

- lined Sheetrock was
left out of the x

- ray roo m.

And it‟s uncontroverte d and undisputed that the imag ing center was substantially complete to the point of making it available for its intended use as an emergency room no later than March 23, 2006. That‟s the affidavit of Anthony Pettitt that attache d the Certificate of Compliance under Exhibit A. It‟s undisputed that the code enforcement supervisor, Danny Boss, for the City of Oak Ridge issued a use permit for the emergency room on or about April 4, 2006. But, factually, the emergency
room was in f

act being used at the end of March through December of 2013, at which time the lead

- lined wall was then constructed. December 2013, they added lead shielding that was omitted. That‟s in the deposition of David Newman, page 11, line 3 through 6, page 15, line 5 through 9.

I have read the report of Roy Osborne. I find that that report and several of the items submitted by Plaintiff in response to the statement of facts and their allegations of additional statements of facts do not comply
with Tennessee Rules of Civil Proced ure 56.06. But even taking into consideration Roy Osborne‟s report, it does not set out and does not mention the absence of any lead

- lined wall or knowledge

- - and that‟s important, knowledge

- - that the lead

- lined wall was not appropriately
built. To the contrary, it said it had adequate lead

- lined shielding. So even if I took it into consideration, it doesn‟t rise to the effect of fraud or concealment, which hasn‟t been pled.

We‟re here on the statute of repose, and I‟ll remind counsel, and it
b ecomes a part of my ruling today, that under 28

- 3

- 201 under “Definitions,” “Substantial completion means that degree of completion of- 4

-

a project, improvement, or a specified area or portion thereof (in accordance with the contract documents, as modified by any change orders agreed to by the parties) upon attainment of which the owner can use the same for the purpose for which it was intended.” It also says, “The date of substantial completion may be established by written agreement between
the contractor an d owner.”

We had a notification, pursuant to the statute, that was filed and is considered by the Court a notice of substantial completion on March 23, 2006, between the contractor and the owner. We had the fact that from
March of 2006 till December of 2013, it was used for the purpose for which
it was intended. It was an x

- ray room, it was a CT room, and that‟s what it
was used for.

Then we look at “Limitation of Actions,” and this is where the statute of repose comes in, TCA 28

- 3

- 202. “All actions to recover damages for any deficiency in the design, planning, supervision, observation of construction, or construction of an improvement to real property must be”

-

- it goes on

- - “must be brought against the person performing or furnishing the design, planning, supervision, construction within four years after substantial completion of such an improvement.”

TCA 28

- 3

- 203 says if you suffer the injury in the fourth year, then, of course, it adds a year to it.

And then 28

- 3

- 205 specifically sets out “ Limitation not defense for party in possession, guilty of fraud, who conceals cause of action.” Under subparagraph (b), “The limitation provided shall not be available as a defense to any person who shall have been guilty of fraud in performing or
furnish ing the design, planning, supervision, observation of construction, construction of”

- - and then it goes on about land

- - “who shall wrongfully conceal any such action.”

As mentioned before, that‟s not an issue before the Court, but even if it were, th ere is nothing that this Court can find of any allegation of wrongful concealment.

The Court finds that the case that most appropriately matches, to the
Court

- - and I know intelligent minds differ frequently on what a case says, but that‟s why we have courts of appeals, and this c ame out of the Court of Appeals. Counts Company vs. Praters, Inc. , 392 S.W.3d 80, goes through- 5

-

case after case that specifically addresses each of the issues that we have
here.

And let me first go over substantial completion, and it defines substantial completion on page 84. It defines it under TCA 28

- 3

- 201, just as I have. And in this case, it argued about the flooring was installed in 2006, and they resurfaced it in 2007. It talks about two different incidences, just as w e‟ve talked about here. But the Counts court recites Watts v. Putnam County , where it says that TCA 28

- 3

- 202 “explained that it was a statute that was designed to create an „outer limit‟”

- - quotations, their quotations, not mine

- - “of liability to all potential actions based on injury to the property, „without regard to the date of the discovery.‟ 28

- 3

- 202 did not extend any statute of limitations, but rather was „superimposed‟ on existing statutes, and was unrelated to the accrual of any cause of act ion since it expressly stated that it began to run on the date of substantial completion rather than the date of injury or damage. The Court agreed with the decision from the Federal Court for the Eastern District of Tennessee,
wherein it was held that th e legislative intent in passing 28

- 3

- 202 was to „insulate contractors, architects, engineers and the like from liability for their defective construction or design of improvements to property where either the occurrence giving rise to the cause of action o r injury happens more than four years after substantial completion of the improvement.‟”

So as it pertains to fraud and concealment, the plaintiff in this case , it was argued that “defendant was guilty of fraudulent
concealment/concealment sufficient to toll TCA 28

- 3

- 202,” pursuant to, of course, TCA 28

- 3

- 205, and it cites Cunha and Conley . “However, p laintiff failed to properly plead this claim. Plaintiff did allege in its amended complaint that they „led parties to believe that the repair work it perf ormed in 2007‟”

- - that‟s where we go to the two different dates

- - “ „had resolved the problem. Praters knew or should have known that these representations were false as the floor cupping did not correct itself after moisture problems,‟” etcetera. It says, “In order to toll the statute, plaintiff must allege „the cause of action was known to the defendant and fraudulently concealed by him.‟”

I have nothing in the record, nothing, that says that, not in the pleadings, not in the affidavits, not in th e depositions that have been filed.

“Tennessee Rules of Civil Procedure 9.02 requires that „in pleadings averring fraud, the circumstances constituting fraud „shall be stated with- 6

-

particularity‟.‟ Plaintiff failed to state circumstances constituting
fra udulent concealment with particularity, as the only circumstances alleged by the plaintiff was the problem did not resolve as defendant said it would.” Again, it goes on.

It‟s a good case. I researched it and couldn‟t find where it‟s been
modified as i t pertains to the issues before the Court today. I think Counts Company vs. Prater hits on all four corners on this case.

I think and I so find that as set out, I have nothing that contradicts the date of completion, of substantial completion, as defined by statute and case law being on or about March 23, 2006. I find nothing, nothing, in the
record that contradicts the fact that none of the defendants in this case knew or attempted to fraudulently conceal any cause of injury that is allegedly
suf fered by the plaintiffs in each of these five cases.

The ownership of the property is clear, but the fact is, Methodist Medical Center is not a party to this litigation, and if they were, it would apply to them also. The undisputed, verified, pursuant t o Rule 56,
information before the Court for the Court to take into consideration is
Methodist Medical Center owned the property, Jan McNall y, as president of the corporation, signed the contract with the engineers and the construction company. The deed to the property, as presented to the Court, is owned by Methodist Medical Center. It‟s a separate corporate entity that is not a party to this litigation, but, obviously, even if it were, the ruling of the Court would apply to them also. We have pending a motion to join
Methodist Medical Center.

Even in the proposed amended complaint that‟s been filed in this case, nowhere does it mention fraud or concealment that I can recall. And, again, I read it all again yesterday. I read the complaints again yeste rday to
ensure that the statutes and case law as I read them was consistent with the proof that had been submitted to me under Rule 56.

For those reasons, I find that the motions for summary judgment filed in each of the five cases by each of the defenda nts in this cause of action are valid, and the Court would grant the same. I would tax the cost to the plaintiffs.

Plaintiff appeal s

.- 7

- Discussion

Although not st ated exactly as such, Plaintiff raise s the following issues on appeal: 1) whether the Tr ial Court erred in granting summary judgment to Defendants
when , according to Plaintiff

, issues of fact existed concerning the substantial completion of the project at question and whether exceptions to the statute of repose applied; 2)
whether the Trial C o urt erred in denying Plaintiff‟s motion to amend to add MMC as a party; and, 3) whether the Trial Court erred in limiting discovery to the date of substantial completion when other relevant issues were before the Trial Court.

With regard to summary judgments, this Court explained in Estate of Boote v. Roberts :

The trial court‟s resolution of a motion for summary judgment is a conclusion of law, which we review de novo on appeal, according no deference to the trial court‟s decision. Martin v. Norfolk S. Ry. Co. , 271 S.W.3d 76, 84 (Tenn. 2008). Summary judgment is appropriate only when the moving party can demonstrate that there is no genuine issue of material fact, an d that it is entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.04; see Hannan v. Alltel Publ’g Co. , 270 S.W.3d 1, 5 (Tenn. 2008); Byrd v. Hall , 847 S.W.2d 208, 214 (Tenn. 1993).

This action was filed [after July 1, 2011]. Therefore, the trial court was required to apply the summary

- judgment standard set forth in Tennessee Code Annotated § 20

- 16

- 101. That statute provides:

In motions for summary judgment in any civil action in Tennessee, the moving party who does not bear the burden of proof at trial shall prevail on its motion for summary judgment if it:

(1) Submits affirmative evidence that negates an essential element of the nonmoving party‟s claim; or (2) Demonstrates to the court that the nonmoving party‟s evidence is insufficient to establish an essential element of the nonmoving party‟s claim.

Tenn. Code Ann. § 20

- 16

- 101 (Supp. 2012).- 8

-

Estate of Boote v. Roberts , No. M2012

- 00865

- COA

- R3

- CV, 2013 WL 1304493, at **8

- 9 (Tenn. Ct. App. March 28, 2013), no appl. perm. appeal filed (footno tes omitted).

The construction statute of repose states as follows:

All actions to recover damages for any deficiency in the design, planning, supervision, observation of construction, or construction of an improvement to real property, for injury to p roperty, real or personal, arising out of any such deficiency, or for injury to the person or for wrongful death arising out of any such deficiency, shall be brought against any person performing or furnishing the design, planning, supervision, observation of construction, construction of, or land surveying in connection with, such an improvement within four (4) years after substantial completion of such an improvement.

Tenn. Code Ann. § 28

- 3

- 202 (2000 ) (emphasis added)

.

Substantial completion is defi ned as follows:

“Substantial completion” means that degree of completion of a project, improvement, or a specified area or portion thereof (in accordance with the contract documents, as modified by any change orders agreed to by the parties) upon attainme nt of which the owner can use the same for the purpose for which it was intended; the date of substantial completion may be established by written agreement between the contractor and the owner.

Ten n. Code Ann. § 28

- 3

- 201(2) (2000 ).

We first address wh ether the Trial Court erred in granting summary judgment to Defendants when , according to Plaintiff

, issues of fact existed concerning the
date of the substantial completion of the project at question and whether exceptions to the statute of repose applied

. Plaintiff argue s that the absence of the shielding in the wa ll
means that the construction project was not substantially completed until that defect was
corrected . Th erefore, according to Plaintiff , the statute o f repose did not expire because it

never started running until the defect was corrected

.

To resolve this issue, we must consider the definition of substantial completion. Substa ntial completion does not mean perfect completion accordi ng to the exact specifications. Otherwise, the qualifying word “substantia l” before “completion” would have no meaning. Rather, as reflected in the statutory definition quoted above,
sub stantial completion means that the project or improvement can be used for its in tended purpose. The undisputed evidence in th e record on appeal is that the emergency- 9

-

department, including the CT room at issu e, was used from March 2006. The fact that the improvement allegedly was defe ctive does not prevent that improvement from being
substantial ly complete . This Court in addres sing this issue has stated:

This Court again reiterated that in Meyer , the Court rejected the argument that substantial completion cannot occur until all defects have been repaired, and stated that a building is substantially complete when it can be used for its intended purpose, even if it has some defects, and thus subseq uent repairs do not affect the date of substantial completion. Id

.
In this case, plaintiff‟ s allegation that the attempted repairs by defendant would change the date of substantial completion is a conclusion, not accepted by the courts. The above cases make clear that the date of substantial completion is determined by the date upon which the improvement can be used for that which it was intended, and there is no dispute herein that these floors were completed, i.e. installed, by May 2006.
The fact that a repair was attempted by Praters one year later does not change the date of substantial comple tion under case law. Plaintiff‟ s attempt to characterize the work done in 2007 as “additional work” rather than a “repair” is misguided. There can be no serio us argument that the additional work done in 2007 was anything more than an attempt to repair a floor that was unsatisfactory.

Counts Co. v. Praters, Inc. , 392 S.W.3d 80, 86 (Tenn. Ct. App. 2012).

I n our view, adopting Plaintiff‟s argument would vitiate the very purpose of
the construction statu te of repose. Under Plaintiff‟s position , every defective
construction project w ould be considered not substantially complete for purposes of the
relevant statute of repose. This surely is not what our General As semb ly intended. Rather, it is clear that our General Assembly intended through the construction statute of repose to set an outer limit to liability arising from defective work on improvements to real property

. The undisputed evidence is that the CT roo m was, in fact, used for its intended purpose starting in 2006 . The Trial Court did not err when it found there was no genuine dispute that the date of substantial completion was “ on or about March 23, 2006.”

Plaintiff argue s further that exceptions to the statute of repose apply. The exceptions are stated as follows:

(a) The limitation provided by this part shall not be asserted as a defense by any person in actual possession or the control, as owner, tenant, or- 10

-

otherwise, of such a n improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury or death for which it is proposed to bring an action.

(b) The limitation hereby provided shall not be available as a defense to any person who sh all have been guilty of fraud in performing or furnishing the design, planning, supervision, observation of construction, construction of, or land surveying, in connection with such an improvement, or to any person who shall wrongfully conceal any such cau se of action.

Tenn. Code Ann. § 28

- 3

- 20 5 (2000 ).

As found by the Trial Court, n o exception applies . First, it is undisputed
from the record that Methodist Hospital was in ownership, posses sion

, and control of the
CT room at all relevant times in this ca se. Regarding fraud or wrongful concealment, we
find , as did the Trial Court, that Plaintiff did not plead this with sufficient particul arity. Although Plaintiff allege d that Defendants falsely or deceptively omitted material facts regarding the defect, Plaintiff do es not speci fy how . The fact that a construction defect

e xists and goes unnoticed does not in itself constitute fraud or wrongful concealment. To hold o therwise would mean that most every construction defect could be considered a species of f

raud which would, once again, vitiate the intention and purpose of the construction statute of repose . Plaintiff‟s argument ignores the underlying intention and purpose of the statute of repo se and the exceptions thereto. Our General Assembly made

a publ ic policy decision when it enacted the improvement to real property statute of repose, as is its responsibility.

The evidence in the record is undisputed, as found by the Trial Court, that the relevant CT room project was substantially comp leted by March 2006. Plaintiff filed the present lawsuit in January 2014. The four year statute of repose had long expired

, and t his serves to defeat Plaintiff‟s claims. We hold , as did the Trial Court, that the
construction statute of repose applies to defeat Plainti ff‟s claims and that none of the

statuto ry exceptions apply

.

We next address whether the Trial Co urt erred in denying Plaintiff‟s motion

to amend to add MMC as a party. The abuse of discretion standard applies. Our Supreme Court has stated:

The grant or denial of a motion to amend a pleading is discretionary
with the trial court. Harris v. St. Mary’ s Med. Ctr., Inc. , 7 26 S.W.2d 902, 904 (Tenn. 1987). Generally, trial courts must give the proponent of a
motion to amend a full chance to be hea rd on the motion and must consider- 11

-

the motion in light of the amendment policy embodied in Rule 15.01 of the Tennessee Rules of Civil Procedure that amendments must be freely allowed; and, in the event the motion to amend is denied, the trial court must gi ve a reasoned explanat ion for its action. Henderson v. Bush Bros. &
Co. , 868 S.W.2d 236, 238 (Te nn. Workers‟ Comp. Panel 1993). Although permission to amend should be liberally granted, the decision “will not be
reversed unless abuse of discretion has be en shown.” Welch v. Thuan , 882
S.W. 2d 792, 793 (Tenn. Ct. App. 1994). Factors the trial court should consider when deciding whether to allow amendments include “[u]ndue delay in filing; lack of notice to the opposing party; bad faith by the moving party, repeated failure to cure deficiencies by previous amendments, undue prejudice to the opposing par ty, and futility of amendment.” Merriman v. Smith , 599 S.W.2d 548, 559 (Tenn. Ct. App. 1979).

Cumulus Broadcasting, Inc., v. Shim , 226 S.W.3d 366

, 374 (Tenn. 2007).

In Lee Medical, Inc. v. Beecher , 312 S.W.3d 515 (Tenn. 2010), the Supreme Court discussed the abuse of discretion standard at length, stating:

The abuse of discretion standard of review envisions a less rigorous
review of the lower court‟s decision and a decreased likelihood that the decision will be reversed on appeal. Beard v. Bd. of Prof’l Responsibility

, 288 S.W.3d 838, 860 (Tenn. 2009); State ex rel. Jones v. Looper , 86 S.W.3d 189, 193 (Tenn. Ct. App. 2000). It refle cts an awareness that the decision being reviewed involved a choice among several acceptable
alternatives. Overstreet v. Shoney’s, Inc. , 4 S.W.3d 694, 708 (Tenn. Ct. App. 1999). Thus, it does not permit reviewing courts to second

- guess the court below, W

hite v. Vanderbilt Univ. , 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999), or to substitute their discretion for the lower court‟s, Henry v.
Goins , 104 S.W.3d 475, 479 (Tenn. 2003); Myint v. Allstate Ins. Co. , 970 S.W.2d 920, 927 (Tenn. 1998). The abuse of discretion standard of review does not, however, immunize a lower court‟s decision from any meaningful appellate scrutiny. Boyd v. Comdata Network, Inc. , 88 S.W.3d 203, 211 (Tenn. Ct. App. 2002).

Discretio nary decisions must take the applicable law and the relevant
facts into account. Konvalinka v. Chattanooga

- Hamilton County Hosp.
Auth. , 249 S.W.3d 346, 358 (Tenn. 2008); Ballard v. Herzke , 924 S.W.2d 652, 661 (Tenn. 1996). An abuse of discretion occurs wh en a court strays beyond the applicable legal standards or when it fails to properly consider the factors customarily used to guide the particular discretionary decision.- 12

-

State v. Lewis , 235 S.W.3d 136, 141 (Tenn. 2007). A court abuses its
discretion whe n it causes an injustice to the party challenging the decision by (1) applying an incorrect legal standard, (2) reaching an illogical or unreasonable decision, or (3) basing its decision on a clearly erroneous
assessment of the evidence. State v. Ostein

, 293 S.W.3d 519, 526 (Tenn. 2009); Konvalinka v. Chattanooga

- Hamilton County Hosp. Auth. , 249 S.W.3d at 358; Doe 1 ex rel. Doe 1 v. Roman Catholic Diocese of
Nashville , 154 S.W.3d at 42.

To avoid result

- oriented decisions or seemingly irreconcilable preced ents, reviewing courts should review a lower court‟s discretionary decision to determine (1) whether the factual basis for the decision is properly supported by evidence in the record, (2) whether the lower court properly identified and applied the most ap propriate legal principles applicable to the decision, and (3) whether the lower court‟s decision was within the range of acceptable alternative dispositions. Flautt & Mann v. Council of Memphis , 285 S.W.3d 856, 872

- 73 (Tenn. Ct. App. 2008) (quoting BIF, a Div. of Gen. Signal Controls, Inc. v. Service Constr. Co.

, No. 87

- 136

- II, 1988 WL 72409, at *3 (Tenn. Ct. App. July 13, 1988) (No Tenn. R. App. P. 11 application filed)). When called upon to review a lower court‟s discretionary decision, the reviewing c ourt should review the underlying factual findings using the preponderance of the evidence standard contained in Tenn. R. App. P. 13(d) and should review the lower court‟s legal determinations de novo without any presumption of

correctness. Johnson v. Nis san N. Am., Inc. , 146 S.W.3d 600, 604 (Tenn. Ct. App. 2004); Boyd v. Comdata Network, Inc. , 88 S.W.3d at 212.

Beecher , 312 S.W.3d at 524

- 25.

In its written order, the Tri al Court stated that Plaintiff‟s motion was “futile.” In addition, the Trial Court elaborated on its reasoning in its oral ruling as quoted above. The Trial Court did not commit reversible error in dec lining to add MMC as a party bec ause to have granted the motion would not have altered the outcome of Plaintiff‟s case against Defendant s . The statute of repos e still would have served to
defeat Plaintiff‟s claims against Defendants. We find no abuse of discretion by the Trial
Court on this issue.

The final issue we address is whether the Trial Court erred in limiting discovery to the date of substantial completion when other relevant issues were before the
Trial Court. “ Decisions concerning pretrial discovery are matters well within the
discretion of the trial court and thus are reviewed under an abuse of discretion standard. ”- 13

-

Frye v . St. Thomas Health Servs. , 227 S.W .3d 595, 600 (Tenn. Ct. App. 2007). Plaintiff
fail s to adequately articulate what additional discovery Plaintiff believe s was necessary for the resolution of this case. We also note that it appears from the record that Plaintiff

was , in fact

, given suffici ent opportunity for discovery as to the dispositive issue before the Trial Court, that of the date of substantial completion. We hold that the Trial Court
did not abuse its discretion in limiting discovery thusly

.

Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial Court for collection of the costs below. The costs on appeal are assessed against the Appellant

, Connie Raby

, and her surety, if any.

_________________________________ D. MICHAEL SWINEY , JUDGE