### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE July 7, 2000 Sessi

on SUSAN R. GODFREY, ET AL 

### . v. JESUS RUIZ, ET AL 

### . Appeal from the Circuit Court for Davidson County No. 97C-503 Barbara N. Haynes, Judge

No. M2000-00101-COA-R3-CV - Filed October 4, 2001

This case arises f

rom an aut omobile accident resulting in personal injuries to plaintiffs. The defendants,

Mr. & Mrs. Ruiz, filed a motion for summary judgment on the grounds that their cousin, Mr. Corpu s, was driving their vehicle without their permission or knowledge at the time of the accident. The trial court

granted the motion and plaintiffs appeal. Plaintiffs assert that under Tenn. Code Ann. § 55-10-311, defendants are not entitled to summa

ry judgmen

t based solely

on their own self-serving a

ffidavits and dep

ositions. We affirm

the summary

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

Affirmed and Remanded

P ATRICIA J. C OTTRELL , J., delivered the opinion of the court, in which B EN H. C ANTRELL , P.J., M.S., joined. W ILLI

AM B. C AIN , J., filed a dissenting opinion. Joseph M. Dalton, Jr., Cathe rine S. Hughes, N

ashville, Tennes see, for the app ell ants, Susan R. God frey a nd R ick ey E. God frey.
Clifton B. Sobel,

Jr., Nashv

ille, Tenn essee, fo r the appe llees, Jes us Ruiz and w

ife, Shaw anda Ruiz.
OPINION

This case arises

from an automobile

accident which occurred on August 4, 1996. Ricardo Corpus was operati ng a 1984 Chevrolet van owned by Jesus

Ruiz and hiswife Shawanda Ruiz when it collided with the vehicle in which Rickey Godfrey andhis wife Susan Godfrey were riding. Mr. Corpus is the cousin of Mr. Ruiz and had been living with Mr. and Mrs. Ruizfor app rox ima tel y a month and a half prior

to this accident. B othMr. and Mrs. Ruiz testified that they have not seen Mr. Corpus since the a

ccident.
Mr. and Mrs. Ruiz both testified that they were away from

home attending to

personal family business at the time of the accident and had no k nowledge that Mr. Corpus was driving their van. They testified

that the key

s to the van were kept in a drawer in their bedroom and that Mr. Corpus1 After summary judgment was granted and permission to appeal deni ed by th e trial court, the G odfreys voluntarily dismissed the cause of action aga inst Mr. Corpus.
-2- did not have their permission to drive the vehicle. The Ruizes testified that Mr. Corpus had never been givenpermission to drive the vehicle. In fact, they asser ted, they learned that

Mr. Corpus was driving the vehicle for the first time after the accident that afternoon.
Mr. Ru iz is an independent contractor who h

angs dryw

all for a living.

Mr. and Mrs. Ruiz testified that the van Mr. Corpus was driving was maintained for Mr. Ruiz’s work in the construction business. Mr. Ruiz did not maintain his own business,

but instead was emp

loyed by Quality Dry

wall in Dickson, Tennessee at the time of the accident. Mr. Ruiz testified that Mr. Corpus was not employed by Mr. Ruiz. How

ever, Mr. Ruiz had h

elped Mr. Corpus obtai n employment in the construction business, and Mr. Corpus was working with him in the days before the accident. Mr. Ruiz admits thathe paid Mr. Corpus for the work he did on the job. However, Mr. Ruiz testified that they were both employe

d by and answ

ered to the same b

oss, Don Cards, of Q

uality Dry

wall.
The Godfreys sued the driver of the van, Mr. Corpus, and the owners, Mr. and Mrs. Ruiz, for the injuries they sustained as a result of the accide nt. The record in this case consists of the pleadings,

the Godfreys’ depositions under oath, the Ruizes’ depositions under oath, a nd their affidavits in support of their motion for summary judgme nt. The trial court granted summary judgment to defendants, Mr

. and Mrs. Ruiz, findin

g there was no ma

terial fact in

controversy and that Mr. and Mrs. Ruiz were entitled to judgment as a matter of law. 1

I.
A trial court’s grant of a motion for summary judgment presents a question of law that we review de novo without a presumption of correctness. Goodloe v. State , 36 S.W.3d 62, 65 (Tenn. 2001); Mooney v. Sneed , 30 S.W.3d 304, 306 (Tenn. 200 0); Finister v. Humbolt Gen. Hosp., Inc. , 970 S.W.2d 435, 437 (Tenn. 1998). Accordi ngly, the a

ppellate court mu

st make a fresh determination concerning whether the m ovant has met the requirements of Tenn. R. Civ. P. 56. Hunter v. Brown , 955 S.W.2d 49, 50-51 ( Tenn. 1997); Mason v. Seaton , 942 S.W.2d 470, 47 2 (Tenn. 1997). When faced with a motion for summary

judgment, “parties may neither ignore it nor treat it lightly.” Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993). Summary judgment is appro

priate if the plea

dings, deposit

ions, answers to interrogatories andadmissions on file, together with the affidavi

ts, if any, sh

ow there is

no genuine issue as to any material facts and the movi ng party is

e ntitled to a judgme

nt as a matter of la

w. Tenn. R. Civ. P. 56.04 ; Bain v. Well

s , 936 S.W.2d 618, 622 (T enn. 1997); Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995); Byrd v. Hall, 847 S.W.2d at 214. A disputed fact is material for summary judgment purposes if it must be decide d in order to resol

ve a substantive c

laim or defen se underlying the summary judgment motion. Id

.2 The complaint did not allege any specific t heory of liability

but merely asserted liability against Mr. and M rs. Ruiz on the basis t

hat the vehicl

e was owned by them and being operated with their perm ission. Mr. and M rs. Ruiz first asserted that permissive use alone doe s not establish a basis for imposition of li ability upon theowner of t he vehicl e for the actions of the user, ci ting Hamrick v. Spri

ng City Motor Co. , 708 S.W .2d 383 , 385 (T enn. 198 6). In any eve nt, a
cause of action based

on permissive use requires a showing of use by permission,

and they asser

ted there was n

o evidence they ever gave Mr. Corpus permi ssion t o drive t he van for

any purpos e. Second,they ar gued that a cause of

action based
on negligent

entrustment

requires th

at defendants entrusted the vehicle to the driver with knowledge t

he driver was incompetent to use it. Nichols v. A tnip , 844 S.W.2d 655, 659 (Tenn. Ct. App. 1992). Agai n, Mr. and Mrs. Ruiz tes tified they did not give Mr. Co rpus perm ission to use the v an. Similarly, the fam ily purpose d octrine, in order for liab ility to attach to the owner, requires that the head of the household maintai n the vehicle for the purpose of providing pleasure
or comfort to his

or her family

and that the driver

must h ave been using the ve hicl e at t he ti me of the inju

ry in fur therance of that purpose with the express or implied pe rmission of the owner. Camper v. Minor , 915 S.W.2d 437 , 447 (Tenn. 1996). Mr. and Mrs. Ruiz asse rted that the van was maintained for bu siness purposes, not for fami ly use, an

d there was
no proof whi

ch could be

produced that Mr. Corpus was using t he van in fur

therance of any

family purpos e. Again, t hey relied on thei

r testimony

that they

had never given Mr. Corpus per mission to use the van for an y purpose. -3- In reviewing a gran

t of summa

ry judgmen

t, we must view the e

vidence in the lig

ht most favorable to the Godfreys and

must also draw all r

easonable inferences in their favor. Robinson v. Ome r , 952 S.W.2d 423, 426 (T enn. 1997); Mike v. Po Group, Inc. , 937 S.W.2d 790, 792 (Tenn. 1996). Thus, summary

judgmen t should be grant ed only when

the undisputed fac

ts reasonably support one conclusion, namely, tha t Mr. and Mrs. Ruiz ar

e entitled to a judg

ment as a matter of law. McCall v. Wilder , 913 S.W.2d 150, 153 (T enn. 1995); Carvell v. Bottoms , 900 S.W.2d at 26.
II.

In their complaint, the Godfreys alleged that Mr. Corpus was operating the van owned by Mr. andMrs. Ruiz with their permission and, consequently, his negligence was imputed to them. Mr. andMrs. Ruiz moved for summary judgment on the basis that Mr. Corpuswas driving thei r vehicle at the time of the accident without their permission or knowledge. They argued that in the face of their testimony that they

never gave Mr. Corpus permission to drive their van, no evidence existed to e sta bli sh a bas is f or t hei r li abi lit y und er an y the ory o f im put ed l iab ili ty. 2

As to the issue relevant in this appeal, Mr. and M rs. Ruiz ar gued that their undisputed testimonyestablished that th ere was no age

ncy relati onship between them and Mr. Corpus, thereby overcoming the presumption, or prima facie evidence, of an

agency r ela tionshi p created by the statute relied upon by the Godfreys, Te nn. Code Ann. § 55-10-311. The Godfreys used that statute to establish proof that the van was being operated with the knowledge and consent of Mr. andMrs. Ruiz and by the

ir agent. That s

tatute provides, i

n pertinent part:

In all actions for injury to persons and/or to property c a u sed by the negligent operation or use of any automobile, auto truck,motorcycle, or other motor propelled vehicle within this state, proof o f ownersh ip of such vehicle

shall be prima fac

ie evidence that the vehicle at the time of the cause of action s ued on was being operated and used with authority, consent and knowledge of t he o wner in the very transaction out of which the injury or cause of action arose, and such proof of-4-

ownership

likewise shall be prima facie evidence that the vehicle was then and there being operated by the owner, or by the owner’s servant, for th e owner’s use and benefit and within

the course and sc

ope of the serva

nt’s employme

nt. Tenn. Code Ann. § 55-10-311(a) (1998 & Supp. 2000).
The Godfreys assert that the statute meets their burden of proof and that summary judgment for defendants was improper. The prima facie case of agency created by

the statute can be rebutted by “credible proof that the driver was in fact operating a v ehi cle without authority of the owner.” Hunter v. Burke , 958 S.W. 2d 751, 755 (Tenn. Ct. App. 1997) (quoting Ferguson v. Tomerlin , 656 S.W.2d 378, 381-82 (Tenn. Ct. App. 1983)). Theburden of overc oming the statutor

y prima facie case rests upon th

e owner, once pr

oof of ownership

is established. Id . That burden can be met by presenting credible eviden ce that the drive

r took the car with

out the owner’s kn

owledge or con

sent. Id. Consequent ly, “[i]f it can b e said as a matter of law that there was no agency , a motion for summary judgment on that

issue should be sustained.” Yearby v. Shannon , No. 03A01-9509-CV00345, 1996 WL 87446, at *5 (Tenn. Ct. App. Feb. 29, 1996) (no Tenn. R. App. P. 11 application filed) (citing Haggard v. Jim Clayton Motors, I nc. , 393 S.W.2d 292 (Tenn. 1965)(“before a trial judge may take the

question from the ju

ry, the evid

ence must be such that it can be said, as a matter of law, that there was no agency”)). Uncontradicted evidence that there was no agency displaces the statutorily created prima facie case of such agency “wheresuch eviden ce is uncontradicted and comes from witnesses whose credibility is not in issue.” Id. (citing McConnell v. Jones , 33 Tenn. App. 14, 228 S.W.2d 117 (194 9); McParland v. Pruit

t , 39 Tenn. App. 399, 284 S.W.2d 299 (1955); Sadler v. Draper , 46 Tenn. App. 1, 326 S.W.2d 148 (1959)).
The question of whethe

r th e statute’ s prima facie case of agency pr ecludes summary judgment was answered by

this court in Ferguson v. Tomerl in , 656 S.W.2d 378, 381 (Tenn. Ct. App. 1983), wherein this court set aside a jury verdict against the owner of a car on the basis that the trial court should have gra

nted summary judgment to the owner prior to trial. At the time of the defendant owner’s moti

on for s ummary judgment, the record consisted of the pleadings and interrogatories with the owner’s answers thereto. The owner answere d he had furnishe

d the car to his daughter for h

er use only a

nd with specific

instructions not to allow anyone else to drive it. Id

. at 380. The daughter had loaned the car to a friend , co ntr ary t o her father’s instructions, and the friendwas driving when the accident occurred. In analy zing the situation at the time the motion was made, this court stated:
More specifically, Mr. Tomer lin conten ds that at t he summary jud gment stage plaintiff was relying solely on the statutory presumption of agency; that the record then contained undisputed, uncontradicted and u nimpeached evidence that no agency relationship

existed between Mr. Tomerlin and Mr. Luna; that therefore the statutory presumption of agency disappeared; that plaint if f was then obliga

ted but failed to offer independent proo

f of agency ; and that, conseq uently, def

endant was entitle

d to judgment as a matter of law. We agree.3 Tenn. Code Ann. § 55-10- 311 also appl ies “i n cases of

the negl igent ope

ration of a vehicle bein

g test-dr iven by a prospect

ive purch

aser wit h the knowl

edge and cons ent of t

he sell er or his agent whe

ther or not the seller or his agent is present in the v ehicle at the time of the alleged negligent op eration.” -5- Id . at 381.
This court relied on well-settled aut hority that uncontradicted and unimpeached evidence showing a lack of agency causes the statutory presumption, or prima facie case, to disappear. Id

. at 381. Such evidence, to justify removing the question fr om t he j ury, must be uncontradicted and unimpeached. As the Godfreys point out, after Ferguson v. Tomerl in , the S upreme Court of Tennessee questi one d whether summary judgment is appropriate in cases involving the statutorily -created prima facie evidence

of agency in Hamrick v. Spring City Motor Co., 708 S.W.2d 383 (Tenn. 1986). In that opinion, the Suprem

e Court specifica

lly stated, “

Because the sta

tuteits elfcrea tes ini tia lly a sufficient case of master-servant status upon proof of ownership, a serious question is presented as to whether or not this

prima facie

case can be overcome pre-trial by motion for summary judgment.” Id . at 387. The Hamrick

court stated that ordinarily the prima facie evidence established by proof of ownership

is sufficient to ove

rcome a motion for directed verdict as well as a motion for summary judgment. Id . at 388. However, the Court also stated, “ We do not find it necessary expressly to overrule Ferguson v. Tomerlin , 656 S.W.2d 378 (Tenn. App. 1983), because there are so many ty pes of cases that arise under the statute involved here. There may be som e instances w

here summary disposition could be warranted.” Id . at 389.
The factual dispute in Hamrick involved that portion of the statute relating to test drives by prospective purchasers, 3 a distinction from Ferguson recognized by the Supreme Court. Id . at 388. In Hamrick , the driver’s le ngthy depo

sition left i

t possible t o draw differe nt conclusions as to “whether Mr. Champion was still ‘test-driving’ the automobile . . . or whether he had so far finalized the purchase that heshould be deemed t he owner and no lo

nger within

the purview of the statute.” Id

. at 388. There were also inconsistences in testimony regarding aspects of the tran sacti on. The court held that, at the point of considering summary judgment, the plaintiffs were entitled to the most favorable view of the evidence as well as reliance on the statute for e stablishment of the masterservant relationship. Id. at 389. Based up on the record at that time, the court found that it was “premature” f

or the trial court

to grant summary

judgment. Later, in Warrenv. Estate of Kirk , 954 S.W.2d 722, 724 (Tenn. 1997), our Supreme Court acknowledged

that the Ha mrick

decision stopped short of holding that proof of ownership will defeat
a summary judgment motion and recognized that there are some in stances when it would be appropriate. In Warren, the Court found that summary judgment was not appropriate in that

case, however, not because summary judgment was never appropriate, but because there was a genuine issue of fact because the record-6-

does not show the purpose of the trip on which the owner’s employee was driving the owner’s vehicle. Kirk had Dunca n’s express permission to operate the vehicle during work, traveling to and from work, an d t ransporting other employees to and from work. The prohibitions on the use of the vehicle stated by Duncan in his deposition andaffidavit do not necessarily proscribe Kirk’s operation of

the truck at the time of the accident in th

e course and sco

pe of his employment. . . . In summary, he [Kirk]
was responsible for all the duties incident to his job as foreman for an absentee
owner. As to tho se duties, Kirk had at least implicit permission to use the pickup truck. . . . The evidence presented on the

motion for summary

judgment is no t c onclusive proof that Kirk was not acting within the course and scope of hi s employment a

t the time of the ac

cident.
Id . at 725.
The Godfreys rely on Hamick andEstate of Kirk for the proposition that summary judgment is not appropriate for defendant owners in the face of Tenn. Code Ann. § 55-10-311. We think that relianceis misplaced. As those cases make clear, sum mar y j udgment may

be warranted in

some situations. In those two ca ses, the facts we

re in dispute or ins

ufficient to cons

titute uncontradicted evidencethat no permission and no agency existed. Thus, we conclude that a motion for summary judgment in a case involving liability imputed to an owner of a vehicle driven

by another

on the basis of permissive use through a master-servan t or agency relationship is to be analy zed just as such a
mo tion in any other case. Where a plaintiff meets her initial burden of establishing suc h a relationship

by reliance on Tenn. Code Ann. § 55-10-311, the qu e stion becomes whether the defendant presents credible evidence which, if uncontradicted, is sufficient to rebut the prima f

acie
case established by the

statute. One way

to do that is to present proof that the driver was operating the vehicle without the knowledge or permission of the owner. Hunter

v. Burke , 958 S.W.2d at 755.
Once the Ruizes provided test imony that Mr.

Corpus did not have p

ermission from the

m to ever drive their van a

nd that he did so

without their knowledge, the burden shifted to t he G odf reys “to produce evidence which would establish a genuine factual dispute.” Brown v. J. C. Penney Life Ins. Co. , 861 S.W.2d 834, 837 (Tenn. Ct. App. 1992).
When the party

seeking summary judgment makes a properly supported motion, the burden then shifts to the nonmoving party to set for th specific facts, not legal conclusions,

by u sing affidavits or the discovery materials listed in Rule 56.03, establishing that there are i ndeed disputed, material facts creating a genuine issue that needs to be r esolved by the trier of fact and that a trial is therefore necessary. The nonmoving party may not rely upon the al legations o

r denials of his ple

adings in carrying out this burden as mandated by Rule 56.05. Byrd v. Hall , 847 S.W.2d at 215. The Godfreys came forward with no such facts. They continued to rely only on the evidence of a gency presumed from ownership by virtue of the statute. We ar e awareof the significance of the legislative action changing “presumption” to “prima facie case,” as4 For example, if a defendant presented evidence

demonstrating

that her car

had been stolen, t

hrough her own affidavit and evidence from oth er, disint erested source s, the ab solute positi on taken by

the Godfreys would pre clude summary judgment. In addi tion, owner ship of a vehic le alone does not cr eate liabi

lity f or negligent

acts of anoth

er operating the vehic le. In fa c t, permissive use alone do es not create such liability. As the S upreme C ourt stated in Hamrick : “Permissive u se, standi ng alone, est

ablishesonly a bailment . In and of

itsel f it is not a bas

is for the imposi

tion of persona

l liabi lity upon the own

er of a veh

icle. ” 708 S.W.2d at 385.

-7- explained in Hamrick, but we do n ot believe t hat change allows the plaintiffs to rest only on the statute in opposition to a motion for summary judgment with supporting evidence disproving an agency or master-servant relationship. In the case before us, the Godfrey s did not attend or take part in the depositions of M

r. and Mrs. Ruiz. Thus, they did not ask them any questions designed to lead to other proof relevant to the issues of permission, employment, or scope of employment. The record does not include any

other discovery

efforts on the pa

rt of the Godfrey

s, and they do

not assert that they made any. T

heir position is that

they could r

ely on the sta

tute regardle

ss o f any ev idence presented by def endants in support of

their moti

on for summ

ary ju dgment. W

e do notagree that the summary judgment procedure is ineffective in this situation to require plaintiffs to come forward with evidence contradicting that supplied by defendants or risk a judg ment of dismissal. Thus, contrary to t

he argumen ts presented by the Godfreys, w e conclude that summary judgment is available to an owner who presents uncontradicted evidence disprovin g agency or permission. To hold otherwise i s to suggest that pr

oof of ownership i

s always suf

ficient to overc

ome summary judgment, regardless of the facts presented by the defendant ow

ners. 4 We simply do not believe that every case where a plaintiff ca n show ownership is required to proceed to trial.

In fact, summary judgment has been granted w here evidence

disproving agency was provided by the owner and

remained uncontradicted by plaintiffs. Yearby v. Shannon , 1996 WL 87446, at *4- 6; Dillard v. Rubin , No. 01A01-9102- CV-00052, 1991 WL

119059, at *2 (Ten

n. Ct. App. Jul. 5, 1991) (no Tenn. R. App. P. 1 1 application file d); Vise v. Swift

, no docket no., 1989 WL 89752, at *2-3 (Tenn. Ct. App. Aug. 8, 1989) (no Tenn. R. App. P. 11 application filed); Monroe v. Craddock , No. 88-102-II, 1988 WL 746 18, at *1-2 (Tenn. Ct. App. Jul. 20, 1988) (no Tenn. R. App. P. 11 application filed); Redd v. Air-Conditioning Serv., Inc. , No. 88-149-II, 1988 WL 97227, at *3 (Tenn. Ct. App. Sept. 23, 1988) (no Tenn. R. App. P. 11 application filed).

I n Vi se v. Swift, the defendant owners of the vehicle involved in the accident, Ricky and RhondaFord, su

bm itted affidavits establishing that neither the driver nor their friend who had borrowed the car “was on their business or acting on their behalf at the time of the accident.” 1989 WL 89752, at *2. Their affida

vits were supporte

d by the depositions of the drive r and the friend t

o the effect that the driver did not have the owners’ permission to drive their car and t hat nei ther of themhad used the car

in performing any business or service for the owner s. Summary judgment was sustained because the plaintiffs failed to produce any proof on the issue of ag ency andthe affidavits anddepositions established that there was no agency upon which to impose liability

. Id . at *2-3. This court fou nd that the evidence submitted by the defendants stood unimpeached and
un contradicted, effectively rebutting the prima facie evidenc e created by statute and rel ied upo n exclusively b

y plaintiffs

.-8-

Sim ila rly, in Redd v. Air-Conditioning Serv., Inc. the defendant driver of the vehicle was an employee of the defendant owner. 1988 WL 97227, at *1. The testimony supporting the summary judgment motion stated that the driver was assigned the truck to perform his duties during working hours. On the day of the

accident, the driver learned that his personal car was missing and we

nt to look for it in the company vehicle. H e drank f ive beers while lo

oking for his ca

r. There was a written policy that the vehicles were not to be used for personal use, including taking them home, although, super

visors did not seem to object

when employees did take the vehicles home. After a long analysis of cases on point, summary judg ment was sustained because
this case presents an

instance where summary judgment is the proper procedure. No question of credibil

ity of wit nesses is involved. The evidence here is clear and unrebuttedthat Brian Allen Smith was not in the bus iness of his employer. He was not “in the course and scope of employment at the time of the accident.”
Id

. at *2-3. We further stated, “If the plaintiffs had other evidence, they were bound to come forward with it or face having the motion for summary judgment sustained.” Id . at *3. Thus, summary judgment is not precluded in favor of a defendant owner of a vehicle when plaintiff relies on Tenn. Code Ann. § 55-10-311(a) to est ablish an agency or master-servant relationship

in order to impute a driver’s negligence to the owner. Summary judg

ment is appropria

te when the owner prese

nts uncontradicte

d, unimpeached e

vidence that the d

river was o

peratin g the vehicle without the permission, knowledge, or authority of the owner. We turn now to the question of whether theevidence presented by Mr. and Mrs. Ruiz was sufficient to supp

ort the grant of

summary judg

ment.
III.
In this case, Mr. and

Mrs. Ruiz submitted simil ar affidavits

in support of their motion for summary judgme nt statin g the follow ing: 1. Ricardo Corpus is not and has never been my [husband’s] employee. 2. The automobile which is the subject of this cause of action was purch

ased by me [my husband] for

the purposes of conductingmy [his] business as a drywall hanger. 3. The keys t

o the 1984 Chevrole

t van were kept in

my bedroom and they were not availabl e for any one to use

but me [my

husband]. 4. At no time while Mr. Corpus was visiting in my home did h e have permission

to use or otherwise operate the van involved in the accident

which is the subjec

t of this action. 5. On the date of this accident, my wife, Shawanda Ruiz, [my husband, Jesus Ruiz] andI had been out of the

home conducting

personal business , and the last time I saw the van in q ues tio n, i t wa s pa rked in m y dri vew ay.5 The depositions were conducted by the attorney for the Godfreys’ uninsured motorist carrier.

6 We note, how

ever, t hat the plaint iffs do not argu

e or rely on Tenn. Code Ann. § 55 -10-312 anywhere in the ir brief other than this one conclusory sentenc e. Consequently, we will only address the issues arisi ng under § 55-10-311. In any event, T enn. Cod e Ann. § 5 5-10-31 2 states that pro of of registration of a motor-propelled vehicle is prim a facie evidence of ownersh ip of the vehicl e and is also pri

ma facie evidence

that the v

ehicle wasbeing operated by t he owner
or by the owner’s serv ant in the cours e and sco pe of the serv ant’s emplo yment. Thu s, we do no t interpret this statute as adding a diff

erent or additiona l basis for liability. Fergus on v. Tom lin , 656 S.W .2d at 379 n.3 (“for purp oses of this appeal we need o nly consider T .C.A. § 55 -10-311 since the pres umption ra is ed by both statu tes is i dentical.” ) Additiona lly, the Godfreys do not argue in their brief t he applicability of the t he ories of per mis sive use, negligent entrustment

or famil

y purpose doct

rine, a nd inst ead focus so lely on imput ed negligence ar

ising th rough agency established in Tenn. C ode Ann . § 55-10 -311. -9- After the affidavits we

re signed and su

bmitted in support of the motion for summary judgment, Mr. and Mrs. Ruiz were deposed under oath. The attorney for the Godfrey s was not present at the depositions and did not cross examine Mr. or Mrs. Ruiz as to any statements contained in the affidavits despite knowledge of the pending motion for summary judgment. 5 The deposition testimonyof both Mr . and Mrs. Ruiz was consistent with their affidavits. Essentially, they reaffirmed

that they had never given Mr. Corpus permission to drive the van and that he was doing so on the day of the accident without their knowledge or permission. However, at his d

eposition, Mr. Ruiz te

stified as follows: Q: Can you read English? A: No. Q: Okay. All right. I have an af fidavit here from you. Is that y our signature? A: Yes. Q: Did somebody read the affidavit to you? A: No. Q: Okay. All right. How did yo u get the informa tion? How do you k

now what it says then? A: I just signe

d it.
The Godfreys argue that the affidavits submitted by Mr. and Mrs. Ruiz are self-serving and that their credibility was impeached during the deposition of Mr. Ruiz when he admitted to having notread the affida

vit before signi

ng it. They assert that “simply deny ing that Corpus had permission to use the subject vehicle, while admitting to signing an affidavit and having no idea of its

contents leaves open questions invo lving credibility

and bias. . . . In sum, the

subject vehicle i

s registered to bothMr. and Mrs. Ruiz and their self-serving, unread affidavits, should be insufficient proo f to
overcome the prima facie

case established by Tenn. Code Ann. §§ 55-10-311 and 55-10-312.” 6 In other words, the Godfreys assert that the testimony submitted by Mr. and Mrs. Ruiz cannot overcome the statutory evidence of agency becaus e the tes timony is self-serving and the credibility of the defendants has been impeached.
IV.-10-

We fir st n ote tha t th e su mma ry ju dgme nt w as n ot b ased sol ely o n the affi dav it t est imo ny; depo sit ion testimony was submitted. The Godfreys offer ed no testimony to contradict the defendants’ sworn statements that Mr. Corpus was operating t heir vehicl e without t heir knowl edge or permission. Their

uncontradicted evidence that there was no agency is a sufficient basisfor summary judgment in

their favor “where such evidence is uncontradicted and comes from witnesses whose credibility is not in issue.” Yearby v. Shannon , 1996 WL 87446, at *5 (citing McConnell v. Jo nes , 33 Tenn. App. 14, 22 8 S.W.2d 117 (1949); McParland v. Pruit t , 39 Tenn. App. 399, 284 S.W.2d 299 (1955); Sadler v. Draper , 46 Tenn. App. 1, 326 S.W.2d 148 (1959)). Testimony

may not be dis

regarded ar

bitrarily or

capriciously ; and the testimony of
a witness who is n ot discredited in any of the modes recognized by law, must be accepted as true. Ferguson v. Tomerlin , 656 S.W. 2d at 382 (q uoting Haggard v. Jim Clayton Motors, Inc ., 216 Tenn. at 631, 393 S.W.2d at 295) (quoting Phillips-Buttorff Mfg. Co. v. McAlexander , 15 Tenn. App. 618, 627 (1932)). Conversely, [o]rdinarily

the testimonyof a witness who is not contradicted, impeached, or discredited must be

accepted as tru

e, but that if

the witness relied uponto establish
a given fact be impeached (by evidence directed against his general character for
vera cit y) or discredited in any of the modes recognized by law, that fact may not be treated as established as a matter of lawor for purposes of a motion for peremptory instructions.
Ford v. Reeder Chevrolet Co. , 663 S.W.2d 803, 804 (Tenn. C t. App. 198 3) (quotin g Welch v. Young , 11 Tenn. App. 431, 439 (1930)).
The issue of whether

“self-serving

” testimo ny, o r testimony of an interested party, ca n support a motion for summary judgment where the only contradictory evidence is that presented by the statute has been settled adversely to the Godfrey s’ position i n that summary judgment has routinely been granted based upon the self-serving affidavits and deposition testimony of t h e defendant owner. For

example, in Ferguson v. Tomerl in , summary judgment

was determined to be appropriate

on the basis of the defendant owner’s testimony that he had let hi s daughte r use the vehicle with s pecif ic ins truct ions n ot to let an yone el se dri ve it. In Monroe v. Craddo c k , the only evidenceof ownership of th e vehicle was the

title stating that C

lyde Craddo

ck owned the vehi

cle involved in the accident. 1988 WL 74618, at *2. However, in the only deposition in the record, Clyde Craddoc k testified, without contradiction, that he had given the vehicle to his son several months prior. The plaintiff asserted that this

contradiction or question of ownership should preclude summary judgme nt. The cour t disagreed, holding:

even if Clyde Craddock were the owner of the van, the motion for summary judgment under this theory [Tenn. Code Ann. § 55-10-311] must be sustained. Clyde C raddock testified unequivocally that Phillip Craddock was using the v an for hi s-11-

(Phillip’s)benefit. He was not the agent of, or on the business of, Clyde Craddock. Plaintiff offered no proof to support her claim that Phillip Craddock was acting on any business or purpose for Clyde Craddoc k.
Id

. Also in Yearby v. Shannon , summary judgme nt was affirmed based on the self serving affidavits of the defendant

owners, obviously interested parties. 1996 WL 87446, at *4. In Yearby , the defendant owner submitted an affidavit stating that the defendant driver was not his employee andwas not on any business of his at the time of the accid ent. Id . This court held that the owner
was not impeached, nor his credibility attacked, in any mode recognized

by law and that there was
no evidence to contradict the statements made by the owner. Therefore, there was no g enuine issue of material fact on the issue of agency and reasonable

minds could

not differ in concluding that there was no agency relationship. Id . at *5.
We note that in

other contexts self-serving testimony, or testimony from a party interested in the outcome of the

case, has been f

ound sufficient to

support a motion for

su mmary ju

dgment when it remains uncontradicted. See, e.g., Gonzales v. Alman Construction Co., 857 S.W.2d 42, 48- 49 (Tenn. Ct. App. 1993); Armes v. Hulett, 843 S.W.2d 427, 431-32 (Tenn. Ct. App. 1992)

. See also Dillard v. Rubin , No. 01-A01-9102-CV-00052, 1991 WL 119059, at *2 ( Tenn. Ct. App. July 5, 1991) (no Tenn. R. App. P. 11 applicat ion filed) (citing Smith v. Graves , 672 S.W.2d 787 (Tenn. Ct. App. 1984)). The fact that the Mr. and Mrs. Ruiz did not read their affidavits prior to signing may leave open to question whether the affidavits are valid or in compliance with the rules of civil procedure. We do not condone the execution or filing of anaffidavit which has not been read by the affiant. Mr. Ruiz’s statement that he had not read the affi davit before sig ning it might ser

ve to make it inadmissible

for pu rposes of summary

judgment. See Tenn. R. Civ. P. 56.06. However, both Mr. and M rs. Ruiz confirmed the facts contained in the affidavit at their deposition under oath, an d absolutely

no contradiction of

the information contained therein was brought out at the deposition
or otherwise. Thus,

in view of the circumstances of this situation, including Mr. Ruiz’s testimony that he ca nno t re ad E ngli sh a nd t he t ota l co nsi ste ncy b etw een t he af fid avi t an d hi s la ter tes tim ony, we cannot conclude that the cr edibili ty of Mr. Ruiz’s deposition testimony has been raised sufficiently to preclude summary judg ment based thereon. Summary judgment should not

be undermined by

credibility concerns “unless they r ise to a level higher than the normal credibility questions tha t arise whenever a witness takes the stand.” Jennings v. Case , 10 S.W.3d 625, 638 (Tenn. Ct. App. 1999) (dissent) (citing Hepp v. Joe B’s, Inc. , No. 01A01-96

04-CV-00 183, 1997 W

L 266839, at *2 (Tenn. Ct. App . May 21, 1997 ) (no Tenn. R. App. P. 11 application filed)). Moreover, we find that the credibility of Mr. and Mrs. Ruiz has not been impeached “by any of the mode s recognized by law.” See Yearby v. Shannon , 1996 WL 87446, at *5 (citi ng Haggard v. Jim Clayton Motors, Inc. , 216 Tenn. 625, 393 S.W.2d 292; Buck v. West , 434 S.W.2d at 616; Ford v. Reeder Chevrolet , 663 S.W.2d at 804 (quoti ng Yellow Cab, Inc.-12-

of Morristown v. York

, 58 Tenn. App. 177, 427 S.W.2d 854 (1967)); Welch v. Young , 11 Tenn. App. at 440.
V.
Parties are not to take summary judgment lightly, Byrd , 847 S.W.2d at 210, and when Mr. andMrs. Ruiz rebutted the prima facie evidence, the burden then shifted back to t he Godfrey s to present evidence to impeach, contradict, or otherwise

establish a genuine issue of fact material to the elementsof agency. “If

the plaintiffs had other evidence, they were bound to come forw

ard with it
or face having the motion

for summary judgment sustained.” Redd v. Air-Conditioning Serv., Inc. , 1988 WL 97227, at * 3 (citing Moman v. Walden , 719 S.W.2d 531, 533 (Tenn. Ct. App. 1986)). As this court stated in Ferguson v. Tomerl in :
Plaintiff stood on the presumption only to have it be effectively re butted by t he uncontradicted, unimpeached and unrefuted proof of lack of agency contained in the interrogatory

answers of Mr. Tomerlin, a wi tne ss whose credibili ty was not put

in issue by the plaintiff

at the summary

judgment stage . Under these circumstances we think it clear that the presumption was displ aced and, age ncy not bein

g otherwise shown, defendant was entitled to judgment as a matter of law.
656 S.W.2d at 382.
The situation before

us is the same. Ther

e is absolutely no evidence in the record to refut

e the assertions made by Mr. and Mrs. Ruiz that Mr. Corpus was not an employee of Mr. Ruiz, was
n oton any busine

ss of Mr. or Mrs. Ruiz a

t the time of the ac

cident, and was dr

iving the vehic

l e without their perm

ission. Therefor

e, we must affirm

the summary

judgment.
This cause is remanded to the trial court for further action notinconsistent with this opinion. The costs of this appeal are taxed to t he appe llants, Susan R. Godfrey and Rickey E. Godfre y, for whi ch ex ecut ion may i ssu e, i f nec ess ary.

_______________________________ PATRICIA J. COTTRELL, JUDGE