### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs A pril 1, 200 3 FRANKLIN IRON & METAL RECYCLING, INC. v. WORLEY ENTERPRISES, INC., ET AL 

### . Appeal from the Chancery Court for Williamson County No. I-25915 R.E. Lee Davies, Chancellor

No. M2002-02361-COA-R3-CV - Filed June 4, 2003

Defendants appeal

the action of the trial court denying a Tennessee Rule of Civil Procedure 59.04 motion seeking to set as ide a pr evious grant of summary judgment. We have determined that the trial court did not abuse its discretion in denying the motion and therefore affirm the judgment. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

W IL LI AM B. C AIN , J., delivered the opinion of the court, in which B EN H. C ANT RELL , P.J., M.S., and P AT RICIA J. C OTT RELL , J., joined.

J. Britt Phillips, Franklin, Tenn ess ee, for the appellants, Worley Enterprises, Inc. and Johnny Wo rl ey. J. Nick Shelton, Franklin, Tennessee, for the appellee, Fr anklin Iron & Metal Rec ycling, I nc.
OPINION

The only is s ue befor

e the Cour

t in this ca se is whet

her or not the tria

l court a bused its discretion in denying D efendants’ Rule 59 Motion to Set Aside an Orde r Granting Summary Judgmentto Plaintiff. Tenn. R. Civ. P. 59.04. To answer this question, we consider the following chronology

of events as disclosed by the record.

Defendant

Johnny Worley

was President and Chief Executive Officer of Worley Enterpr ises, Inc. Prior to November 8, 1995, Worley Enter prises, Inc. was owner

of a scrap metal business with equipment

used in such business located at 242 Second Avenue North in Franklin, Tennessee. On Novem ber

8, 1995, Franklin Iron & Metal Recyc ling, Inc. purcha sed the business from Worl e y Enterprises, Inc. by

an extensive asset purchase agree ment for a consideration of $150,000.00.1 Also j oined as a D efend ant in the c omp laint was P hillip M etals, Inc . an O hio co rpo ration w hich sub sequ ently

filed for b ankru ptcy an d wa s dism issed a s a de fenda nt.
-2- In t he yea

rs immediately following the pur chase, Franklin I

ron & Metal Recycling, Inc. became disencha nted with the business and, on December 22, 1998, filed suit in the Chancery Court of Willi amson County, Tennessee a gainst Worley Enter

prises, Inc. and Johnny Wo rl ey, in di vi du al ly. 1 In this compla

int, Def en da nt s a re ch ar ge d w it h b re ac h o f c on tr ac t, br ea ch of wa rr an ty, misrepresentation, fraud in the inducement to the contract and violation of the Tennessee Consumer Protection Act. Eighteenmonths late

r on June 22, 2000, Def

endants Wo

rle y Enterpri ses, Inc. and Johnny Worley , individua

lly, filed the

ir answer to the complaint. On December 17, 2001, Plaintiff filed a Motion for Summa

ry Judgment pursuant t

o Rule 56, s ubmitt

ing th erewith an extensive statement of undispute d facts, togethe r with an a

ffidavit of Catherine Gividen, one of the owners of Franklin Iron & Metal, I

nc. No response was filed by the Defendants. On February

13, 2002, the trial court entered the following order :
On 11 February

2002, before the Honor

able R.E. Lee Davies, I

II , Plaintiff’s Motion fo r S um ma ry J ud gm en t a ga in st Wo rl ey Enterpr ises, Inc., an d J oh nn y Wo rl ey, Ind iv id ua ll y, was heard. Said Plaintiff/Movant complied with Tenn. R. Civ. P. 56. That said, the Respondents, Worley Enterpr ises , Inc., an d J oh nn y Wo rl ey, in di vi du al ly, failed to

file a re sponse to m

ovant’s Tenn. R. Civ . P. 56 M otion for Summary Judgment a

fter two (2) settings. IT IS, THEREFORE, OR DERED, ADJUDGED AND DECREED that the Pla intiff i s granted a judgment ag ainst Johnny Worley , individually, and Worley Enterpr ises, Inc., for damag es incurred totaling one hundred fifty thousand dollar s ($150,000.00) plus Tennessee Statutory I nterest from the C ontr act date of 28 October 1995 for the claims of Fraudulent Representation, Gross Negligence, violation of the Tennessee Consumer Protection Act, and Brea ch of Contract. No genuine issue of
m ateri al facts exists regarding these four ( 4) claims and said defendants, Johnny Wo rl ey, individually, and Worley Enterprises, Inc., have

fai led to comply with the Rule 56 of the Tennessee Rules of Civil Procedure. [sic]

After the entry of this order Honorable Jeffrey D. Germany , counsel for the Defendants, filed a Motion to Withdraw. Then, on M arch 14, 2002, Mr. Germany filed on b ehalf of

the Defe ndants
a “Motion to Reconsider Or der Grant ing Plaintiff’s Motion for Summary Judgment.” G ermany made no response to the Plaintiff’s Motion for Summary Judgment but asse rted that the notice of hearing sent

by Plaintiff disclosed inaccur ate dates on which the hearing was to be held. This motion concluded

with the pr

ay er: “Whe

refore , premise s considered, Defend ant prays that a n order be entered granting Defendant’s Motion to Set Aside Orde r Granting Plaintiff’s Motion for Summary Judgmentonly

until such time a s Defen dants’ counsel can withdraw.” As an exhibit to this motion, Mr. Germany

attached the following letter from counsel for Plaintiff dated March 6, 2002:-3-

De ar Je ff re y: The original Summary Judgment Motion was se t for 28 January 2002. I gave
more than ample notice to you and y our client regarding same

. The Ho norab le Ju dge R.E. Lee Davies, I

II , was ready

to grant that motion to me on said 28 January 2002 date. However, I informed him that I wanted to giveyou one last chanc e to respon[d] so the matter was reset for 11 Februa ry 2002. The extension f

rom 28 Janua

ry 2002 was a

mere courtesy

by me in case the

re was some p ressi ng matt er keep ing youfrom answering the motion. However, the only response I have he ard since that date is y our Motion to Withdraw of which I have no objection to. Therefore, I will not set aside the final Order as y ou had over fifty (50) da

ys advance

notice of same. Thank you for y our time and attention to this mat ter. You may contact me directly if y ou have a

ny q uestions.

The motion of Defendant was further supported by the affidavit of Janet M. Love, leg al assistant to counsel for the Defendant, which dealt only with the hearing mix-up as to the date for the Plaintiff

’s motion. T

he motion to

reconsi d er was heard on April 22 pursuant to Defendant’s notice filed on March 21. After that hearing the trial court entered the following order :
On April 22, 2 002, bef

ore the H onorable

R.E. L ee Davi es, I

II , the Motio n to Reco nsider filed by Attorney Jeffrey D. Ge

rmany was g

ranted. Plaintiff’s Order Granting Summary Judgment was thereforeset aside and set for rehearing on June 10, 2002. Further, said Attorney Germany w as granted his Motion to Withdraw as counsel for Plaintiff as of April 22, 2002.

IT IS THEREFORE, ORDERED, AD JUDGED an d DECREED a ll of the fo llowing, to wit: 1) T hat

the Order of Summary Judgment signed by t h e Honorab le Judge R.E. Lee Davies, II

I, on Februar

y 13, 2002 is set aside; 2) That

Jeffrey D. Ge

rmany is allowed to withdraw as counsel for plaintiff in this matter effective April 22, 2002; and 3) That Plaintiff’s Motion for summa ry Judgment i s reset to be heard on the 10th

day of June, 200 2 with notic e of same to be givento Defendant, Johnny Worley at his last known

address of 2055 Highway

51 North, Nesbitt, MS 38651. Said notice sh al l consist of first class mail of this order as well as regist ered ce rtified mail to said

last known

address

. The record discloses no action at all between the orde r of May 2, 2002 a

nd the hea

ring o n June 10, 2002, after which the trial court entered its order of June 28, 2002:

On June 10, 200 2, Plaintif f’s Tenn . R. Civ . Pro. 56 Motion for Summary Ju dgment was heard before the Honorable R.E. Lee Davies, I

II . No response w a s-4-

filed by defenda

nts as required by

Rule 56 of the TennesseeRules of Civil Procedure. Plaintiff’s Motion for Summary Judgment is, therefore , granted and an Orde r of Summary Judgment hereby entered. IT IS HEREBY, ORDERED, ADJUDGED and DECREED that a Judgment in the amount of $150,000.00 for breach o f co ntract, plus interest at ten percent (10%) per annum from December 23, 1998, (date of suit filing ) be awa

rded Fr anklin Iron & Metal Recy cling, Inc., ag ainst de f endants Worley Enterpr

ises, Inc., and Jo hn ny W or le y, In di vi du al ly. Costs of this matter shall be assessed to plaintiff.
Thereafter, on July 22, 2002, Defendants filed their “Motion to Alteror Amend Summary Judgmentand Memorandum of Law.” This motion accompanied by De fendant’s own affidavit and statement of undisputed facts represents Defendant’ s first response to the merits of the Plaintiff’s Motion for Summary

Judgment f

iled on December

17, 2001. M

r. Germa ny’ s affida

vit asser ted in pertine nt part:
2. I

was the attorney

of record for th e Defe

ndant, Wor

ley Enterpr ises, Inc. and Joh nny Worley, individually , in matter number I-25915 of the Chanc ery Courtfor Williamson County, Tennessee sty led Frankl in Iron & me tal Recycling, Inc. v. Worley

En terprises, Inc. and Johnny Worley , Individually. By an Order entered on May 2, 2002, I

wit hdrew a s counsel

of reco rd for the defendants in th is matter. Further

more, this Order

set aside the Order

granti ng Plaintiff’s Motion for Summary Judgmen t and rese

tting Pla intiff’s Motion for June 10, 2002. 3. At the time of

submission o f the abo ve-desc rib ed Order , April 22, 2002, Defendant

was sent t

hrough first-c lass, U.S. mail a copy of the Order . I had
no direct communication with Defendant concerning this matter other than the Order which was sent on April 22, 2002. 4. The week prior to June 10, 2002, but less tha n five (5 ) day s prior to the hearin g, Mr. Johnny Worley contacted me and stated

he had been out of town and had just received and read the above- described Order

. He stated to me that he did notrealize there was a Motion for S ummary J

udgment se t. He also

asked me

to reconsider

withdrawing from

the case, but I could not at the time underta ke his matter and also felt he would be better served to hire another a t torney . I a

dvised him

to immediate

ly seek and retain another attorney due to the time constrai nts involved with the Pla

intiff’s Motion

. On August 15, 2002, the trial court overruled the motion. Defenda nts appealed.

When a motion fo

r summary

judgmen t is made and

supporte d as provi ded in this rule, an

adverse party may not rest u

pon the me

re alleg atio ns or denials of the adverse party’s p leadi ng, but his orher response, by affidavits or otherwise provided in this rule, must setforth specific fa cts showing that th

ere is a genuine issue f

or trial.-5-

If the adverse party

does not so respond, summary judgment, if appropriate, shall be
en te re d a ga in st th e a dv er se pa rt y.
Tenn. R. Civ. P. 56.06.

No response

of any kind comply

ing with Rule 56.06 was filed until after the court had heard the Motion for Summary Judgment on June 10, 2002, and filed its order granting the summary judgment on June 28, 2002. It was not until July 22 , 2002, when Defendants filed their motion pursuant to Rule 59.04 to alter or amend the June 28, 2002 order granting summary judgmen t, that Defend ants in any way

responded to the merits of the summary judgment motion that had been filed December

17, 2001. T

he suppor ting documentatio n to the July 22, 2002 motion provided no proof in response to the merits of Plaintiff’s motion that was not well kno wn to the D efenda nts at the t ime the summary judgme

nt motion itself was filed. Indeed, the trial court had already

granted Plaintiff’s Motion for Summary Judgment on Fe bruary13, 2002, a

nd therea fter, in r esponse to the Def

endants’ motion concerning the alleged mix-up as to the hearing date, had se t aside the order and reset the hearing on the motion. Nothing in the record establishes any reason why

a Rule 56.06 response was notfiled by the Def

endants between December 17, 2001 an d M ay 28, 2002, when the trial court specific ally

re-set t he summar

y ju dgment m

oti on forhearing on June 10, 2002. Because of the failure of the Defendants to respo nd to the me rits of the summary judgment motion prior to the hearing on June 10, 2002, nothing was before the court except the pleadings and the documentation supporting the motion. A Rule 59.04 motion cannot be used to un-ring this bell. Bradley v. McLeod , 984 S.W.2d 929 (Tenn. Ct. App. 1998). In its sound discretion, the trial court could have set aside the summary judg ment but, likewise in his sound discretion, he could refuse to do so.

The following excerpt f

rom Bradley exemplifies this discretion and describes the underly ing problems :
Unfortun ately not all lawyers heed Tenn. R. Civ. P. 56 .06's c lear wa rning. With increasing frequency , they do not take a motion for summar y judgment seriously until after it has been granted. Then, re lying on Sch aefer v. Larsen , 688 S.W.2d 430 (Ten

n. Ct. App. 1984) an d its prog eny , they file a Te nn. R. Civ. P. 59.04 motion seeking to set aside the summary judgme nt using evidentiary mate rials that should have been submitted to the trial court before the summary jud gment was granted. In some instances, these lawy ers have b een su ccessf

ul in overt urnin g a previous ly

granted summary

judgment, see Richland Country Club, Inc. v. CRC Equities, Inc. , 832 S.W.2d 55 4, 557-58 (Tenn. Ct . App. 199 1); Schaefer v. Larsen , 688 S.W.2d at 433-34, but in other instances they have not. See Marr

v. Montgo mery Elevator Co. , 922 S.W.2d 526, 528 (Tenn. Ct. App. 1995). Of tentimes, l awyer s seeking to overturn a summary judgment after it has been granted overlook the fact that the trialc ourts may deny a Tenn. R. Civ. P. 59.04
m otion seeking

to introdu ce new e

vidence if there is no part

icularize d showin g o f due diligence or of the reasons why the new evidence

could not have been discovered and presented prior

to the initial consideration of the summary judg ment motion. S ee-6-

Marr v. Montgo mery Ele vator Co ., 922 S.W.2d at 528. While the panel that decided S chaefer v. Larsen expressed some inclination to relax the strict require m ent s associated

with motions for new trial based on newly discovered evidence, no court has heldthat the is sues of di ligenc e and av ailability cannot or

should not b e considered

whe n a pa rt y s eeks to alter or amend a summary judgment using new evidence.

. . . . The McLeod’s Tenn. R . C iv. P. 59.04 motion con

tains two f

laws. Fi rst, it seeks to introduce a new legal defense that was not presented to the trial court before it grant ed the summary judgment. Second, it seeks to present evidence not introducedprior to the original summary judgment hearing. Both Paul McCord and James McCord have been aware of this evidence since 1988, and thus the McLeods have not demonstrated even theminimal diligence needed in order to be entitled to relief from a summary

judgment under Tenn. R. Civ. P. 59.04. Accordingly , the trial court did notabuse its discretion when it denied the McLe ods’ Tenn. R. Civ. P. 59.04 motion. As a consequence, we will review the pr opriety of the summary

judgment without considering the affidavits submitted by Paul and James McCord. Bradley v. McLeod , 984 S.W.2d 929, 932-33 (Tenn. Ct. App. 1998).

The trial court did not abuse its discretion in overruling the Rul e 59.04 motion of the Defendants and the judgment of the trial court is af firmed.

Costs of the

cause a re taxed to

the Appellants.

___________________________________ WILL IAM B. CAI

N, JUDGE