### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Septem ber 4, 2002

Session PACIFIC DESIGN VENTURES, INC., ET AL 

### . v. BIG RIVER BR EWERIES, INC., ET AL 

### . Appeal from the Chancery Court for Davidson County No. 96-438-I Irvin H. Kilcrease, Jr., Chancellor

No. M2001-02395-COA-R3-CV - Filed Mar ch 28, 2003

The Chancery

Court of Davidson County gra nted summary

judgmen t and dismis sed appe

llants’ su it. On appeal, the app ellants a rgue the Chancellor erred in striking their response to appellees’ statement of undisputed facts, amended complaint and affidavit supporting the a mended complaint

as being late-filed. We find the Chancellor did not abuse his discretion, and we also find summary judgme

nt was appr opriate . There fore, w e affir m. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded
A LLEN W. W ALLACE , S P
. J., delivered the opinion of the court, in which B E N H. C ANT RELL , P.J., M.S. and P ATRIC IA J. C OTT RELL , J., joined. Kenneth R. Jones, Jr., Nashville, Tennessee, for the appella nts, Pacific Design Ventures, I nc., Randall A. Waters, Jack F. Smart, and Kevin L. McGhe e. Robert E. Boston and W. Travis Parham, Nashville, Tennessee, for the a p pell ees, Big River Brewe ries, Inc., 111 Broadw ay Partner s, L.P., Leo nard Ki nsey & A ssociates, Ltd., Randy Hammock, and Tim P. Hennen. OPINION I. Pacific Design Ventures, I

nc., a Nashville co stume and prop-building company leased a warehouse located at 111 Broadway that it hoped to turn into a nightcl ub. While seeki ng fina ncing, the c ompany ’s p rincipals met representatives of a Chattanooga restaurant chain, Big River Brewe ries, Inc., looking for a

Nashville location. The two companies formed a limited partnership, 111 Broadway

Partners, with Big River as gene ral partner, for the purpose of impro ving the warehouse so the first floor could serve as a restaurant whi le the top two f loors would be a-2-

restaur ant, retail, or entertainment venture run by Pacific Design. As construction bega n, though, the parties’ relation ship quickly deterio rated. B oth sides b lamed the other fo r failing to satisfy their initial obligations. Pacific Des ign lost funding and claimed Big River commenced building in such a way as to driv e it out. Big River claimed Pacific Design misrepresented its financing and failed to meet its partner ship oblig ations. II. The complaint was filedin this case on the 8 th day of F ebruary 1996. After

the case had been pending for almost a yea

r, the trial court entered an order on Fe bruary 5, 1997 r

equiring that

the case be disposed of o r set for trial by Ma y 12, 1997. On June 3, 1997, the trial court enter ed an orde r dismissing the case for failure to prosecute. The trial court subsequently set a side this order on June 27, 1997. Various orders not pertinent to theissues at hand were filed by

the trial court throughout 1997, 1998 and 1999. On July 3, 2000, Big River Br eweries Inc., 111 B roadway Partners, L .P., and ot

h er defenda nts filed moti ons for su

mmary judgmen t with a sta

tement of undispute d facts, pursuant to Rule 56.03 of the TennesseeRules of Civil Procedure. These motions were scheduled to be heard on August 18, 2000. On August 14, 2000, Pacific Design f iled a motion for addi tional time to respond, and, over Big River’s objections, the trial court granted Pacific Design’ s request and set the hearing for October 6, 2000. On October

2, 2000, the Pacifi c Design plaintiffs filed an affidavit of Randall A. Waters and a moti on for leave t o file a lengt hy amended compl aint. On Oct ober 4 , 2000 , Paci fic Des ign responded

to Big River’s statement of undisputed facts. This was two (2) da ys before the scheduled hearing, and the next day Big River filed a motion to strikePacific Design’s Rule 56.03 response and Mr. Wa

ters’s a ffidavit

. At the scheduled hearing on October 6, 2000, the parties ap pear ed, but due to the court’s schedule, the motionscould not b e heard . The cou rt “thus f roze the rec ord herein as it stood on October 6, 2000" and rescheduled the he arings for October 23, 2000. After hearing oral

argume nts on Octo

ber 23, 2 000, the c ourt gr anted B ig River’s m

otion to strike Pacific Design’s Rule 56.03 response and Mr. Waters’s a ffidavit. The trial court

then denied Pacific Design’s motion for leave to file its amended complaint. Based u

pon the record bef

ore it, the trial court granted summary judgment to Big River on the claims aga inst it, reserving Big River’s counter claims. The cour

t certif ied its judg

ment as final pursu ant to Ten n. R. Civ. P. 54.02. Thus, this appeal presents two questions: (1) whether the trial court properly struc

k, or refused to consider, Pacific Design’s response to Big River’ s statement of undisputed facts, and (2) whether, acc epting Big River’s statement

of undisputed facts as undisputed, the trial court correctly determinedthat Big River was entitled to a judgment of the claims against it as a matter of law.-3- III. T HE M OTION TO S TRIKE The first issue in this case is whether the trial cou rt abuse d its discreti on in striking Paci fic Design Venture s, In c.’s re sponse to B ig River Breweries, I nc.’s statement of undisputed facts, and deny ing Pac ific Des ign Ven

tures, I nc.’s mot ion for le ave to fi le their a mended c omplaint.

A . T HE A MENDED C OMPLAI NT When a motion to amend has been filed after a motion for summary judgment, the motion is then reviewed under a more restrictive standard than the “freely given”langua

ge pro vided in Ru le 15.01 of the Tennessee Rules of Civil Procedure. See Harris v. City of Aubu rn , 27 F.3d 1284 (7th Cir. 1994) and the unpublished opinion of this Court in Kwan v. Doe , App. No. M2000-03208-COAR3-CV, filed February

14, 2002. The complaint in this case was filed in February of 1996. The defendants filed a motion for summary judgment on July 3, 2000 and scheduled it for a hea ring on August 18, 2000. The plaintiffs succeeded

in staving

off the hearing

until O ctober 6. On October 2, almost two months later, the plaintiffs filed a

mo tion to amend the complaint. We fail to see any justification in the record for the dela y of four and a half y ears in mo ving to

amend the complaint. Therefore, we think the trial court acted within its discretion in denying the m otion to amend. See Geo rge v. Bld g. Materi als Corp. , 44 S.W.3d 481 (Tenn. 2001).

B . T HE R ULE 56.03 R ESPONSES Tenness ee Rule o f Civil Proc edure 56 .03 provid es: Any party opposing

the motion f

or summary judgment must, not later than five days befor

e the hearing, serv e and file a response to each fact set for th by the movant either (i) agr

eeing t hat the f act is und isputed, (ii) agr

eeing t hat the f act is undisputed for

purposes of ruling on themotion for summary judgmen t only , or (iii) demonstrating that the f

act is disp

uted. Ea ch dispute d fact must be supported by specific citation to the reco rd. Such r esponse s hall be f

iled with th

e paper s in opposition

to the motio n for summa ry judgmen t. This cour t recen tly e mphasized

the import

ance of this secti on of our r

ules: “[T]he statements of material facts filed by the parties on a motion for summary judgment are not merely

superfluous abstracts of the evidence. Rather, the y are intended to alert t

he court to preci sely

what factual questions are in dispute and point the court to the specific evidence in the recor d that supports a party’s position o n-4-

eachof these questions. There are, in short, roadmaps, and without them the court should not have to procee d furthe r, reg ardless of how re adily it might be

able to distill the relevant information from the record on its own.” Owens v. Bristol Motor Speedway, 77 S.W.3d 771 (Tenn. Ct. App. 2001). Thus, even if the record does contain disput ed materi al facts , the burd en is on the

party relying on the dispute to put the fa cts befo re the c ourt in

a timely fashion in order

to avoid summary judgmen t. The cour

t also said that the fact that the plaintiffs’ response to the defendants’ statement of materia l facts w as not file d until the d ay before the hear ing woul d have jus tified the court in disregarding it “on that basis alone.” Id. at 775.
It would do little good to recite once again how much time had passed since the filing of the co mplaint. If w e focus s olely on the time

that pass ed afte

r the def endants f iled th eir motion fo r summary judgment we find that theplaintiffs failed not once, not twice, but three tim es to timel

y f ile their response to the statement

of undispu

ted fac ts. In stead of

approxima

tely twenty -five da

ys t o file the response i n th e normal case, the plaintiffs had approximately ninety day s in this case, and the response, when it

finally arrive d, consisted of an affidavit that attempted to adopt the facts rec ited in an ame nded comp laint.
We think the trial court was justified in refusing to consider the plaintiffs’ res ponse to the defenda nts’ state ment of un disputed f

acts. IV. Having determined that the trial c ourt act ed within its dis cretion

in striking the late-filed response to statement of undisputed facts, w e must now determine whether, under those undisputed facts, Big River was entitled to judgment as a matter of law. The standards governing

an appellate court’s review of a Motion for Summary Judgment are well settled. S ince our

inquiry involves purely

a questio n of law, no presum ptio n of corr ectness attaches to the lower court’s judgment, and our task is confined to reviewing the record to dete rmine whether th e requiremen ts of Rule 5 6 of the Te nnessee Rules of Civ

il Proced ure have been met

. Staples v. CBL & Assos., Inc., et al ., 15 S.W.3d 83 (Tenn . 2000); Hunter v . Brown , 955 S.W.2d 49 (Tenn. 1997); Cowden v. Sovran Ba nk/Centra l South , 816 S.W.2d 741 (Tenn. 1991). On appea l, this court must view the e

vidence in the lig ht most fav orable t

o the non-m

oving pa rty and must dr

aw all reasonable inferences in the non-moving party’s fa

vor. Staples v . CBL &Assoc., s upra . The defenda

nts raised the defense of unclean hands in th

eir motion

for summa

ry judgmen t. The plaintiffs did not add

ress this i ssue in

their responsive memorandum. We would, therefore, be justified in disregarding their arg ument on this issue on appeal. See Alexander v. Armentrout , 24 S.W.3d 267 (Ten

n. 2000); Lawrence

v. Stanfor

d , 655 S.W.2d 927 (Tenn. 1983). But beyond that-5-

threshol d we have reviewed the defenda nts’ basis for the defense and have found that the undisputed facts support the defense.
In July o f 1994 Pac ific Des ign pre pared a nd sent to t

heir proposed financier a

letter setting forth a description of the ev ents that h ad taken place up to that point. The letter, signed by all of the Paci fic De sign principals, stated in s tartling detail ho w Big Ri ver had b een misle d by Pacific De si gn ’s “g ro up ” a bo ut it s s ol id ar it y an d t he bu il d- ou t c os t o f t he fa ci li ty. An unclean hands defense defea ts a claim where the claimant “ha s hi mself been guilty of unconsc ientious, inequita ble , or immoral conduct . . . or if his claim to relief grows out of, or depends upon, or is inseparably c onnected with his own prior fraud.” Continenta l Bankers Life Ins. Co. v. Simmons , 561 S.W.2d 460, 4 65 (Tenn . Ct. App. 1977). Although this defense is most often applied in casesseeking

equitabl e relief

, it also ap

plies to le ga l claims. Id. at 464; Farmers & Merchants Bank v. Templeton , 646 S.W.2d 920 (Tenn. Ct. App. 1982).
We think the undisputed facts also show that the plaintiffs had committed a material breach of the contr act. Pac ific Des ign could not sec ure fina ncing a nd faile d to pay the

invoices submitted to it by Big River, despite repeated demands and assertions of de fault. For this additional reason we hold that summary judgment for the defendants was properly granted. V. The judgment of

the trial court

is affirmed and the cause remanded to the Chancery Court of Davidson County for any further proceedings nece ssary. Costs of thi s appeal are taxe d equally

to Pacific Des ign Venture s, Inc ., Randall A. Water s, Jack F. Smart, an d Kevin L . McGhee , and thei r su re ty f or wh ic h e xe cu ti on ma y is su e i f n ec es sa ry.

_________________________________________ ALL EN W. WALLACE, SPECI AL JUDGE