### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE July 12 , 201 6 Session

CHRISTY GAIL BOWMAN V

. MOUNIR BENOUTTAS ET AL

.

Appeal from the Circuit Court for Coffee County

No. 40417 Walter C. Kurtz, Judge

No. M20 15

- 01723

- COA

- R3

- CV

– Filed S eptember 9, 2016

At issue in this case is whether a defendant

, which claims to be merely the broker of a shipment that w as being delivered

, may be held vicariously liable for the negligence of

the delivery driver. This action arises out of a motor vehicle accident in volvin g a tractor

trailer that was owned and operated by Mounir Benouttas

. At the time of the accident,

Mr. Benouttas was delivering a shipment pursuant to a contractual arrangement with

MGR Freight Systems, Inc

. In addition to suing Mr. Benouttas and MGR , Plain tiff sued AllStates Trucking, Inc. , which had contracted with MGR to deliver the shipment to

AllStates ‟ customer . Plaintiff claimed All S tates was vicariously liable under the doctrines of respondeat superior and joint venture. Plaintiff later amended her c omplaint to include the additional theory of implied partnership. T he trial court summarily dismissed all claims against All S tates because Plaintiff could not establish an agency relationship

, joint

venture , or implied partnership

. Plaintiff appeals contend ing summary judgment was inappropriate because material fact s are at issue. Plaintiff also challenges the trial court ‟ s decision to consider only the legal theories Plaintiff explicitly stated in her complaint, the

court ‟ s partial denial of Plaintif f ‟ s motion to amend her complaint

, denial of her motion for summary judgment, and its decision to allow AllS tates to rely on untimely filings. Finding no error with the trial court ‟ s decisions, we affirm.

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

F RANK G. C LEMENT

, J R

. , P.J., M.S., delivered the opinion of the Court, in which

R ICHARD H

. D INKINS and W. N EAL M C B RAYER

, JJ., joined

.

Ronald J. Berke

, Jeremy M. Cothern, & Charles A. Flynn

, Chattanooga, Tennessee, for the appellant, Christy Gail Bowman.

Terrill L. Adkins & Hannah S. Lowe, Knoxville

, Tennessee, for the appellee, AllStates Trucking, Inc.- 2

- OPINION

On July 16, 2012, Christy Gail Bowman (“Plaintiff”) was injured in a multivehicle

accident on Interstate 24 in Coffee County, Tennessee

, when her car collided with a

tractor

- trailer that was owned and being operated by Mounir Benouttas

. At the time of the accident, Mr. Benouttas was hauling freight pursuant to a contract with MGR Freight System s , Inc. (“MGR”). 1

Th e shipment being delivered by Mr. Benouttas had been “brokered” to MGR by

AllStates Trucking, Inc. (“ AllStates ”). AllStates is a freight company that ships goods on behalf of its customers using its own fleet . AllStates is also a licensed broker of general

commodities

, and whe n demand for AllStates ‟ shipping services exceeds its fleet capacity, AllStates “brokers” the shipments by contracting with carriers such as MGR to complete the deliveries pursuant to a “broker

- carrier” agreement

.

On June 6, 2013, Plaintiff commenced this action in which she named Mr.

Benouttas , MGR, and AllStates as defendants, among others. 2 Plaintiff alleged that Mr.

Benouttas was negligent in the operation of his tru ck and caused the accident that injured

Plaintiff. Plaintiff also a lleged that Mr. Benouttas was acting as an agent of MGR and

AllStates at the time of the accident and that MGR and AllStates were vicariously liable

un der the principles of agency or joint venture. 3

After discovery, AllStates filed a motion for summary judgment arguing that it

could not be he ld vicariou sly liable because there was not an agency relationship between

AllStates and Mr. Benouttas or MGR, and the parties were not engaged in a j oint venture. In support of this motion, AllStates presented a statement of undisputed facts in which it

identified its contractual relationship with MGR and the lack of any contractual relationship with Mr. Benouttas

. Specifically, AllStates identified the “independent brokerage contract” it had with MGR

, pursuant to which MGR agreed to provide transportation services. Under the terms of this contract “ MGR agreed to employ all persons necessary to perform its services under the contract and agreed to acc ept the

1 MGR Freight Systems, Inc., previously used the name MGR Express, Inc., and there was some initial confusion between the parties as to whether MGR Freight and MGR Express were the same entity. The parties now agree, however, that for purposes of this action, MGR Freight Systems and MGR Express can be considered one and the same.

2 The issues on appeal are limited to Plaintiff‟s claims against AllStates. The claims against Mr. Benouttas and MGR remain in the trial court while the claims against the other defendants were

dismissed. P laintiff was entitled to appeal the dismissal of her claims against AllStates because the order dismissing AllStates was designated as a final, appealable judgment pursuant to Tenn. R. Civ. P. 54.02.

3 On June 12, 2013, Plaintiff filed an amended complain t that asserted the same general allegations and claims for relief.- 3

-

responsibilities of an independent contractor and explicitly stated that nothing in the contract created an employee

- employer relationship between the broker and the

carrier [.] ” Further, “[t] he agreement

. . . provided that neither party was author ized to act for or in any manner represent itself as an agent of the other or to conduct or enter into any agreement for or on behalf of the other party[.] ”

AllStates ‟ statement also identified facts to establish that on January 1, 2012,

MGR contracted w ith Mr. Benouttas to transport the shipment in question. According to

AllState s ‟ statement of undisputed facts , “ Mr. Benouttas was not an employee of

AllState s ,” “ did not receive any payment or compensation from AllStates related to the load he was hauling ,” “[had] never entered into a contract with AllStates ,” and “[had]

never even heard of AllStates before the accident giving rise to this litigation[.] ” Additionally, AllStates stated that it had no communication with Mr. Benouttas , gave him

no i nstruction s regarding the load he was hauling

, provided no equipment, and “did not exercise any control whatsoever over the handling of the cargo, loading or unloading, or transportation of the cargo carried out by [ Mr. Benouttas .]” 4

Plaintiff filed a response to AllStates ‟ motion for summary judgment in which she argued that AllStates should be held vicariously liable und er the legal theories of agency

and joint venture . Additionally, Plaintiff asserted that AllStates could be held vicariously

liable under the the ories of implied partnership, loaned servant , and vicarious liability for an independent contractor

. Further, Plaintiff argued that AllStates should be liable for its own negligence under a theory of negligent hiring and “other theories that may be

identif ied through additional discovery.”

Additionally, in her response to A llStates ‟ statement of undisputed material facts

, Plaintiff admitted that MGR was responsible for employing the persons necessary to satisfy its duties under the brokerage contract wit h AllStates but denied that the brokerage contract created an independent contractor relationship between AllStates and MGR. Plaintiff also admitted that the brokerage agreement provided that neither party was authorized to act or represent itself as the a gent of the other but denied that such

statement was representative the actual relationship of the parties. Further, Plaintiff

denied AllStates ‟ claim that Mr. Benouttas was not its employee and that he did not receive any payment from AllStates but admitted that Mr. Benouttas had never entered

into a contract with AllStates , had never heard of AllStates before the accident , received

no communication or instruction from AllStates regarding the load he was hauling, and received no equipment from A llStates for use in his hauling activities. Plaintiff also

denied AllStates ‟ assertion that it did not exercise any control over the handling or transportation of the cargo by Mr. Benouttas

.

4 This statement of facts was accompanied by several exhibits, including the brokerage contract, the operating agreement between MGR and Mr. Benouttas, and Mr. Benouttas‟ deposition.- 4

-

Plaintiff also submitted a statement of additional material fac ts that identified facts regarding AllStates ‟ business practices. Specificall y, Plaintiff stated that “ AllStates

brokers over half of the loads that they receive [and] . . . uses a „core group‟ of outside shipping companies that [it ] will broker ship ments to, which includes [MGR.]” W hen brokering shipments to third parties, AllStates frequently contact s multiple companies who could potent ially deliver the brokered load. A fter inquiring about each company ‟ s availability, AllStates makes a determinatio n as to who to select following a price negotiation

.

Plaintiff also identified facts to establis h that once AllStates contracts with a client for a specific shipment, Allstates ‟ local delivery driver picks up the freight from the

customer and bring s the freight to A llStates ‟ facility, w here the loads are assembled.

AllStates then provides the brokered company , such as MGR, with the bill of lading provided by the customer , which informs the delivery driver of when the freight needs to

be delivered . Plaintiff ‟ s st atement of additional facts goes on to provide that “[o] nce the shipment is brokered to another company, AllStates does not participate in

. . . selecting the time of pick

- up or the rou te that the driver will take[.]” Further, “AllStates does not have any role in selecting the delivery route, and did not control the manner in which the delivery occurred[.]” Once the brokered shipment is completed, AllStates is paid by its

customer . Thereafter, AllStates pays MGR the agreed upon fee for its services

, and

All States retains the rest. Mr. Benouttas is compensated for his services by MGR, not

AllStates.

On March 2, 2015, an agreed order was entered setting the motion for summary judgment for hearing on May 4, 2015; however, Plaintiff subsequently filed a motio n for continuance asking for additional time for further discovery. The trial court grant ed

Plaintiff ‟ s motion and set the summary judgment hearing for July 7, 2015. The court

direc ted the parties to complete discovery by June 10, 2015, and instructed Plai ntiff to file any additional response to the motion for summary judgment by June 26, 2015. Any reply by AllStates was to be filed by July 2, 2015.

On June 26, 2015, Plaintiff filed a supplemental response in opposition to

AllStates ‟ motion for summary judgment , arguing once again that AllStates should be held vicariously liable under the theories of agency, joint venture, implied partnership,

loaned servant , vicarious liability for an independent contractor, and negligent hiring

. Pla intiff argued that these theories of recover y involved questions of fact for the jury to

resolve ; therefore, summary judgment was improper.

Accompanying this additional response, Plaintiff filed a supplemental statement of

material facts in which Plaint iff specifically incorporated the assertions set forth in her previous statement of facts. Plaintiff also stated that MGR had been cited multiple times for inadequate safety measures by the United States Department of Transportation and- 5

-

that the records of these citations were available to the public at large, including brokers like Allstate, when mak ing hiring decisions. Further, Plaintiff stated that “ [MGR] and

AllStates entered into a perpetual contract for freight services with each delivery to be

negot iated separat ely at some point in the 2000s,” and between the years 2010 and 2015, approximately 350 deliveries were made by MGR under this contract.

Plaintiff ‟ s supplemental statement of facts also claimed that AllStates loaded

MGR ‟ s truck s in a way that dictated the order of delivery. Further, according to Plaintiff, when dealing with MGR, “ AllStates would dictate the pickup location, the order of deliveries, the timeframe for the deliveries, and had the right and ability to control the

drivers and equipment, including sending specific instructions for deliveries in bills of lading or by facsimile to [MGR] an d selecting the equipment used. ”

AllStates filed a reply on July 6, 2015, arguing that Plaintiff had failed to identify

e vidence sufficient to establish an agency relationship or a joint venture . Additionally,

AllStates argued that Plaintiff should be barred from asserting liability under the theories of implied partnership, vicarious liability for an independent contractor, loaned servant, and negligent hiring because she failed to assert these theories in her complaint. AllStates also filed a response to Plaintiff ‟ s statement s of facts, in which it admitted that MGR had been cited for inadequate safety measures but denied that AllS tates exercised control over MGR ‟ s drivers or equipment and that an employment or joint venture relationship existed

between Mr. Benouttas and AllStates.

Plaintiff filed an objection to AllStates ‟ reply , claiming that the filing was untimely because it w as filed after the July 2, 2015 deadline; therefore, the c ourt should not consider it in ruling on the motion for summary judgment. Plaintiff additionally filed

a motion for summary judgment arguing that because AllStates failed to timely file its responsi ve papers, it failed to respond to the factual and legal assertions made in

Plaintiff ‟ s supplemental response , and thus

, the issue of AllStates ‟ vicarious liability wa s unopposed. 5

On July 7, 2015, the parties appeared before the court for a hearing on AllStates ‟ motion for summary judgment. That same day, Plaintiff filed a motion for leave to amend her complaint, seeking to specifically assert claims for implied partnership, loaned servant, vicarious liability for an independent contractor, and negligen t hiring. After the hearing, the trial court entered an order in which it stated:

5 Pla intiff titled this motion a “Rule 56 Motion for Judgment as a Matter of Law for the Non

Moving Party.” However, the trial court properly recognized that this motion was more accurately a motion for summary judgment. See Tenn. R. Civ. P. 56.01 (“A party see king to recover upon a claim . . . may, at any time after . . . service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party‟s favor upon all or any part thereof.”).- 6

-

The Court will allow the amendment for implied partnership because it is really a species of joint venture. The Court has addressed this theory in its

decision on the summar y judgment motion.

The motion [to amend] is denied as to the remaining theories and/or causes of action. This motion comes after the discovery deadline, after other parties have settled and/or been dismissed, and twenty

- five (25) months

after the case was filed. The Court finds the expansion of this lawsuit to add these dubious issues to come too late. It appears to the Court that plaintiff ‟ s counsel, perhaps having some doubts about agency and/or joint venture, has

now at the last minute decided to throw in every possible theory he could think up with the hope that one might stick. He filed his motion on the very morning of the argument on the summary judgment motion. To allow this amendment would necessitate reopening discovery and would be prejudicial to the defendants and to the orderly and expedient system of justice.

Additionally, t he court denied Plaintiff ‟ s motion for summary judgment and

declined to strike AllStates ‟ reply as untimely; however, because of the technical violation of the scheduling order, the trial court ordered AllStates to pay Plaintiff ‟ s attorney ‟ s fees in the amount of $100.00 as a sanction.

Further , the trial court granted AllStates ‟ motion for summary judgment. T he court

reasoned that whether one is an agent or an independen t contractor depends upon who has the right to control the methods and manner in which the work is done. It also observed that a joint venture in Tennessee law requires proof of a common purpose, some agreement between the two entities, and the equal right on the part of each to control the venture as a whole and any relevant instrumentality. The trial court found that the element of control necessary to support a finding of an agency relationship between

AllStates and Mr. Benouttas was not present in this case. Further, the court reasoned that this lack of control also meant that the assertion of joint venture and implied partnership

was without basis. The court also noted that Plaintiff ‟ s statement of facts acknowledged

the status of AllStates as a broker in the transaction, and the principles of joint venture and implied partnership are incompatible with the generally accepted definition of “broker.” Accordingly, the court determined that AllStates ‟ motion for summary judgment should be granted.

Thereaft er, Plaintiff filed a motion under Tenn. R. Civ. P. 54.02 to have the trial

court ‟ s order be entered as a final judgment, which was granted by the trial court. Additionally, AllStates filed a motion for discretionary costs, in which it requested $1,621.37 for court reporter fees, deposition fees, and other expenses incurred in litigation. The court granted this motion and awarded costs in the amount of $1,500.00.- 7

-

Plaintiff initiated this appeal and raises several issue s. Generally stated, Plaintiff

argues that the trial court erred in granting AllStates ‟ motion for summary judgment because material questions of fact exist regarding the issues of agency, joint venture, and implied partnership

. Additionally, Plaintiff argues that the trial court erred by par tially denying her motion to amend and by considering only the legal theories explicitly stated

in Plaintiff ‟ s original complaint, as well as implied partnership, in ruling on AllStates ‟ motion for summary judgment

. Further, Plaintiff contends that the trial court erred by permitting AllStates to rely on its untimely reply filings and by declining to grant

Plaintiff ‟ s motion for summary judgment.

AllStates raises one issue on appeal: whether the trial court abused its discretion in

f ailing to award the entirety of the discretionary costs set forth in its motion for discretionary costs.

S TANDARD OF R EVIEW

We review a trial court ‟ s summary judgment ruling de novo without a presumption of correctness. Rye v. Women ’ s Care Ctr. of Memphis

, MPLLC , 477 S.W.3d 235, 250 (Tenn. 2015). In doing so, we make a fresh determination of whether the requirements of Tenn. R. Civ. P. 56 have been satisfied. Id . (citing Estate of Brown , 402 S.W.3d 193, 198 (Tenn. 2013)).

Summary ju dgment is appropriate when the “pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment a s a matter of law.” Tenn. R. Civ. P. 56.04; see also Martin v. Norfolk S. Ry.

Co ., 271 S.W.3d 76, 83 (Tenn. 2008). The party moving for summary judgment bears the burden of demonstrating both that no genuine dispute of material fact exists and that it is

e ntitled to a judgment as a matter of law. Martin , 271 S.W.3d at 83. When the moving party does not bear the burden of proof at trial, the moving party may satisfy its burden of production either: (1) by affirmatively negating an essential element of the no nmoving

party ‟ s claim; or (2) by demonstrating that the nonmoving party ‟ s evidence at the summary judgment stage is insufficient to establish the nonmoving party ‟ s claim or

defense. Rye , 477 S.W.3d at 264.

With respect to the trial court ‟ s decision s regarding Plaintiff ‟ s motion to amend

, whether to consider AllStates ‟ reply filing, and AllStates ‟ motion for discretionary costs,

we review the trial court ‟ s decision s under an abuse of discretion standard. See Kincaid v.

SouthTrust Bank , 221 S.W.3d 32

, 42 (Tenn. Ct. App. 2006); Owens v. Owens , 241 S.W.3d 478, 497 (Tenn. Ct. App. 2007) . In order to ascertain whether a trial court ‟ s decision constitutes an abuse of discretion, we review the decision to determine whether the factual basis is properly suppor ted by the evidence in the record, whether the trial court properly identified and applied the most appropriate legal principles applicable to- 8

-

the decision, and whether the court ‟ s decision was within the range of acceptable alternate dispositions. Gooding v. Gooding , 477 S.W.3d 774, 781 (Tenn. Ct. App. 2015) (citing Lee Med., Inc. v. Beecher , 312 S.W.3d 515, 524

- 25 (Tenn. 2010) )

.

A NALYSIS

I. A LL S TATES ‟ M OTION FOR S UMMARY J UDGMENT

Individuals are ordinarily liable only for their own conduct ; h owever u nder certain circumstances, a person may be held vicariously liable for the tortious acts of other persons, notwithstanding his freedom from individual fault. See Lawrence A. Pivnick,

1 Tenn. Cir. Ct. Prac. § 5:16 (2016)

. In ruling on AllStates ‟ motion for summary judgment, the trial court considered the application of vicarious liability under three

theories

—

respondeat superior , joint venture, and implied partnership

— and ultimately granted summary judgment in favor of AllStates on these issues

. On appeal, Plaintiff argues that the trial court erroneously granted summary judgment because there is a genuine question of material fact as to whether AllStates can be held vicariously liable

under these theories.

A. The D octrine of R espondeat S uperior

Under the doctrine of respondeat superior, a principal can be held vicariously

liable for the tortious conduct of its agent if the agent was acting on the principal ‟ s business and within the scope of his or her employment when the injury occurred. Tucker

v . Sierra Builders, 180 S.W.3d 109, 120 (Tenn. Ct. App. 2005) (citing Johnson v.

LeBonheur Children ’ s Med. Ctr

. , 74 S.W.3d 338, 346 (Tenn. 2002) ). However

, a principal is generally not liable for the actions of its independent contractors. S ee Fed.

Ins. Co. v. Winters , 3 54 S.W.3d 287, 295 (Tenn. 2011). Thus , the first question to consider in assessing Allstates ‟ liability is whether a n agency relationship existed

between the parties in this case

. See Tucker , 180 S.W.3d at 120.

The creation of a principal

- agent relationship does not require an expl icit

agreement, contract, or understanding between the parties. Johnson , 74 S.W.3d at 343. Instead, determining whether such a relationship exists requires a careful analysis of the facts in a give n case. Tucker , 180 S.W.3d at 120. The following factors should be considered when determining whether a person is an agent or an independent contractor:

(1) the right to control the conduct of the work, (2) the right of termination, (3) the method of payment, (4) the freedom to select and hire helpers, (5) the furnishing of tools and equipment, (6) the self

- scheduling of work hours, and (7) the freedom to render services to other entities.- 9

-

Id. (citing Beare Co. v. State , 814 S.W.2d 715, 718 (Tenn. 1991)); see also McInturff v.

Battle Ground Acad. of Franklin

, No. M2009

- 00504

- COA

- R3

- CV, 2009 WL 4878614, at *2 (Tenn. Ct. App. Dec. 16, 2009)

.

The most indicative factor in determining whether a principal

- agent relationshi p exists is the right of the principal to control the conduct of the work of the agent. Tucker

, 180 S.W.3d at 120

. The extent of control over the manner in which work is performed is one of the most significant differences between an agent and an independe nt contractor. McInturff , 2009 WL 4878614, at *3; see also Powell v. Va. Constr. Co. , 13 S.W. 691, 692 (Tenn. 1890) (“[a]n independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods, and without being subject to control of his employer, except as to th e result of h is work.”(emphasis added))

.

“A lthough the principal ‟ s right to control the actions of the agent is an important factor in finding the existence of an agency relationship

. . . the right of control is not necessarily as important as the principal ‟ s exerci se of actual control over the agent[.]”

White v. Revco Disc. Drug Cntrs. Inc ., 33 S.W.3d 713, 723 (Tenn. 2000) (internal citations omitted); see also Sodexho Mgmt. , Inc. v. Johnson , 174 S.W.3d 174, 181 (Tenn. Ct. App. 2004) (“[T]he mere existence of the ri ght to control certain aspects of another ‟ s operations is not determinative of the agency issue. . . . [O]ur determination should be based on the extent of control exercised over the agent/contractor, including whether the principal retained and exercised control over the means of accomplishing the result as distinguished from controlling the result but not the means.”).

Plaintiff contends that AllStates maintained control over Mr. Benouttas and MGR by reserving the right to provide MGR ‟ s drivers with spe cific instructions via bills of lading or facsimile, select the equipment to be used in the delivery, monitor the progress of deliveries, and contact MGR ‟ s drivers directly via cellphone. Additionally, Plaintiff argues that AllStates exercised control by a ssembling shipments at its facility and loading delivery trucks in a manner that determined the order of delivery

.

In this case, although AllStates reserved the right to communicate with MGR ‟ s drivers

, there is no evidence that AllStates ever c ommunicated with Mr. Benouttas . To the contrary, it is undisputed that Mr. Benouttas had never heard of AllStates prior to the accident in question. Additionally , although Mr. Benouttas received the bill of lading from AllStates, this document simply liste d when and where t he shipment was to be

delivered and did not contain any specific instructions for Mr. Benouttas regarding the shipment

. Moreover , it is undisputed that AllStates did not provide any equipment to Mr.

Benouttas . I nstead, Mr. Benouttas owned the truck that was involved in the accident

. T he undisputed facts also establish that AllStates did not actively monitor the progress of Mr.

Benouttas ‟ shipment and was unaware of the accident in question until much later.- 10

-

Further, although AllStates assembled the commodities at its facility and load ed

Mr. Benouttas ‟ truck, this fact does not negate the remaining undisputed facts

, which

show that Mr. Benouttas and MGR operated independently of AllStates

. Specifically, it is undisputed that AllStates di d not select the time of pick

- up or the route to be taken. Additionally , All States did not provide Mr. Benouttas or any MGR ‟ s drivers with funds

to cover their expenses

. Moreover, Mr. Benouttas received payment from MGR, not

AllStates , and there is no evid ence that AllStates had the right to terminate Mr. Benouttas or any of MGR ‟ s drivers

, schedule their work hours , or prevent them from rendering

services to other entities

.

Additionally, the brokerage contract between AllStates and MGR undercuts

Plaintiff ‟ s argument that an agency relationship existed. As mentioned above, this

contract granted MGR the authority to employ all persons necessary to perform its contractual obligations

. Pursuant to this contract

, MGR agreed to “accept the

re sponsibili ty of an independent contractor, ” and it specified that “nothing herein shall be construed as an employer

- employee relationshi p between [MGR] and [AllStates]. ” Further, the contract stated that “the relationship of [MGR] to [AllStates] shall, at all times, be that of an independent contractor.”

Based on these facts, it is clear that although AllStates maintained some degree of control over the result and objective of the parties ‟ relationship

— i.e., delivering shipments to a particular location at a particular time

— AllStates did not control the means and manner by which Mr. Benouttas and MGR accomplished this objective. Such an arrangement is not indicative of an agency relationshi p between the parties . T o the contrary, it shows that Mr. Benouttas and MGR were independent contractor s of

AllStates

. See Sodexho Mgmt. Inc. , 174 S.W.3d at 181 (“Where [an entity ] represents the will of the principal as to the result of the work but not as to the means or manner of accomplishing the work, it is an independent contractor.”). Further, as described above,

additional factors

— such as MGR ‟ s right to select the delivery drivers, the fact that Mr.

Benouttas supplied the necessary equipment and sc heduled his own work hours, and the

fact that AllStates did not have the right to terminat e MGR ‟ s drivers or prevent them from working for other entities

— also support the conclusion that Mr. Benouttas and

MGR were independent contractor s

. See Tucker , 180 S.W.3d at 120 (listing the factors for considering whether an agency relationship exists )

. Accordingly , we affirm the trial

court ‟ s determination that AllStates cannot be held vicariously liable under the respondeat superior doctrine

.

B . Joint Venture

Additionally, the trial court co ncluded that AllStates could not be held vicariously liable under a joint venture theory based on the facts of this case

. Plaintiff contends this

was error.- 11

-

The Tennessee Supreme Court has described a joint venture as follo ws:

A joint venture is an association of persons with intent, by way of contract, express or implied, to engage in and carry out a single business adventure for joint profit, for which purpose they combine their efforts, property, money, skill, and knowle dge, but without creating a partnership in the legal or technical sense of the term, or a corporation, and they agree that there shall be a community of interest among them as to the purpose of the undertaking, and that each coadventurer shall stand in the relation of principal, as well as agent, as to each of the other coadventurers, with an equal right of control of the means employed to carry out the common purpose of the adventure.

Fain v. O ’ Connell , 909 S.W.2d 790, 793 (Tenn. 1995) ( quoting 30 Am.Jur., p. 939).

Thus , the elements necessary to establish a joint venture are : (1) a common purpose; (2) some manner of agreement among the parties; and (3) an equal right on the part of each party to control both the venture as a whole an d any relevant instrumentality. Id. (citing

Cecil v. Hardin , 575 S.W.2d 268, 271

- 72 (Tenn. 1978)).

Because each member of a joint venture is consider ed the agent of the others , the negligence of one member can be imputed to the rest

. See Fain , 909 S.W.2d at 792 (quoti ng W. Page Keeton, et al., Prosser and Keeton on the Law of Torts , § 72, at p. 516

- 17 (5 th ed. 1984)) (“The law then considers that each [coadventurer] is the agent or servant of the others, and that the act of any one within the scope of the enterprise is to be charged vicariously against the rest.”).

I t is undisputed that Mr. Benouttas had never entered a n agreement or contract
with AllStates . I n fact, Mr. Benouttas had never heard of AllStates prior to the accident. Thus, Plaintiff failed to establish a joint venture between Mr. Benouttas and AllStates

. However, Plaintiff contends there was a joint venture between AllStates and MGR

because the y en tered a perpetual brokerage contract for the shipment of goods.

As discussed above, in order to establish a joint venture, both parties must have an equal right to control the venture and any relevant instrumentalities. Here, a lthough AllStates assembled the loads at its facility and retained the contractual right to “inspect all equipment used” and “reject any such equipment that it deem[ed] inadequate,” MGR

and its drivers controlled the ir operations. Specifically, MGR was responsible for hiring

the drivers needed to complete the deliveries and was required to maintain liability

insurance for the cargo. Additionally, MGR or its drivers supplied the trucks and equipment to be used in the shipment and were responsible for selecting the route and

manner of delivery. Therefore, the requirement of “equal control” is not present.- 12

-

Accordingly

, the trial court correctly determined that AllStates cannot be held vicariously liable under a joint venture theory.

C. Implied Partnership

The trial court concluded that AllStates did not have an implied partnership with

MGR or Mr. Benouttas. Plaintiff contends this was error.

In Tennessee, a partnership is the association of two or more persons to carry on as

co

- owners of a business for profit. Tenn. Code Ann. § 61

- 1

- 202(a). In order to form a partnership, the intent of the parties need not be expressed orally or in writing. Bass v.
Bass, 81 4 S.W.2d 38, 41 (Tenn. 1991). Instead, “[t] he existence of a partnership can be implied from the circumstances where it appears that the individuals involved have

entered in to a business relationship for profit, combining their property, labor, skill, experience, or money

. ” Id. Further, any entity that receives a share of the profits of a business is presumed to be a partner of the business, unless the profits were received a s payment for, inter alia , “services as an independent contractor or of wages or other compensation to an employee.” Tenn. Code Ann. § 61

- 1

- 202(c)(3). However, “[w]hen a partnership agreement is not written, the proponent of the partnership must prove the existence of the partnership by clear and convincing evidence.” Kuderewski v. Estate of

Hobbs , No. E2000

- 02515

- COA

- R3

- CV, 2001 WL 862618, at *3 (Tenn. Ct. App. July 30, 2011); see also Tanner v. Whiteco, L.P. , 337 S.W.3d 792, 798 (Tenn. Ct. App. 2010) (“[C]lear and convincing evidence is required to establish an implied partnership.”).

In this case, the trial court concluded that the undisputed facts did not s how the existence of an implied partnership between the parties. Specifically, the court concluded that “[t]here is no combination of property, labor, skill and money all of which is necessary to find the [existence of a] partnership.” After reviewing the record, we agree

with this conclusion. As discussed above, the labor, skill, and equipment needed to fulfill the brokerage contracts were controlled by MGR and its drivers, not by AllStates. Additionally, although AllStates and MGR have a long

- term contrac tual relationship, MGR is only one of several companies that AllStates contacts to broker shipments. Further, there is no evidence in this case that the parties shared business profits or combined money . Instead, the only funds exchanged between AllStates and MGR were the pre

- negotiated payment MGR received for its delivery services. Moreover, it was MGR that paid Mr. Benouttas, not AllStates.

Therefore, the trial court correctly determined that AllStates cannot be held vicariously liable under an implied partnership theory.- 13

- I I

. P LAINTIFF ‟ S A DDITIONAL I SSUES

Plaintiff contends the trial court erred by refusing to consider the legal theories of

loaned servant

, vicarious liability for an independent contractor, and negligent hiring

. Plaintiff also argues that the trial court erred by den ying her motion to amend the complaint with respect to these additional theories. 6 Further, Plaintiff contends that the trial court erred by declining to strike AllStates ‟ untimely filings and by denying

Plaintiff ‟ s motion for summary judgment.

A. Tennessee Rule of Civil Procedure 8.01

Rule 8.01 of the Tennessee Rules of Civil Procedure requires that pleadings contain, inter alia , “a short and plain statement of the claim showing that the pleader is

entitled to relief .” Tenn. R. Civ. P. 8.01. Although a complaint, “need not contain detailed allegations of all the facts giving rise to the claim,” it “must contain sufficient factual allegations to articulate a claim for relief.” Webb v. Nashville Area Habitat for Humanit y, Inc. , 346 S.W.3d 422, 427 (Tenn. 2011).

In this case, the complaint alleges that AllStates should be held vicariously liable

u nder the theories of agency or joint venture. Specifically, the complaint states:

11. [A]t all times relative to the Compla int herein, Defendant Mr.

Benouttas was performing his duties as an agent of Defendant AllStates and was acting within the scope and course of his agency with Defendant

AllStates

.

12. Alternatively, Plaintiff alleges that Defendant Mr. Benouttas was

opera ting his vehicle with a joint purpose and/or joint venture with

Defendant AllStates

.

. . . .

38. At all times relative to the Complaint herein, one of, some combination of, or all of Defendants . . . [MGR] and AllStates were the employers of Defendant Mr. Benouttas and he was within the scope and course of his employment at the time of the collision that is subject of this

lawsuit.

6 As note d above, the trial court granted Plaintiff‟s motion to amend the complaint with respect to the implied partnership theory and considered such theory in ruling on the motion for summary judgment.- 14

-

39. Alternatively, Defendant Mr. Benouttas was acting as an agent and/or as part of a joint venture with one of, some comb ination of, or all of the Defendants . . . [MGR] and AllStates

.

40. Accordingly, Defendants . . . [MGR] and/or AllStates are liable for

the acts and omissions of Defendant Mr. Benouttas under the theories of vicarious liability, respondeat superior , agenc y principles, and/or joint venture principles.

Notably, the complaint fails to mention the legal theories of loaned servant, vicarious liability of an independent contractor , or negligent hiring

. D espite the liberal pleading standard set forth in Tenn. R . Civ. P. 8.01, “[t]here is no duty on the part of the court to create a claim that the pleader does not spell out in his complaint.” Moses v. Dirghangi , 430 S.W.3d 371, 376 (Tenn. Ct. App. 2013) (quoting Trau

- Med of Am., Inc.

v. Allstate Ins. Co. , 71 S.W. 3d 691, 704 (Tenn. 2002)). In fact, “[w] hen the Court is dealing simply with allegations of pleadings, . . . the Court is not free to construct additional facts or allegations.” Chism v. Mid

- South Milling Co., Inc. , 762 S.W.2d 552

, 555 (Tenn. 1998)

, supers eded by statute on other grounds. Accordingly , because Plaintiff failed to include allegations of loaned servant, negligent hiring, and vicarious liability of an independent contractor in her complaint, we conclude tha t the trial court did not err by

decli ning to consider these additional legal theories. See Vise v. Swift

, No.1, 1989 WL 89752, at *3 (Tenn. Ct. App. Aug. 8, 1989) (concluding that when respondeat superior was the sole theory of liability alleged in the complaint, Plaintiff could not thereafter rely on a theory of negligent entrustment).

For the foregoing reasons, we find no error with the trial court ‟ s determination that the complaint did not assert claims based on the legal theories of loaned servant, vicarious liability of an independent contractor, or negligent hiring.

B. Tennessee Rule of Civil Procedure 15.01

Alternatively , Plaintiff contends the trial court erred by denying her Rule 15.01 motion to amend the complaint to include the se additional theories.

A fter a responsive pleading has been served, “a party may amend the party ‟ s pleadings only by written c onsent of the adverse party or by leave of the court[.]” Tenn. R. Civ. P. 15.01. Although leave to amend “shall be freely given when justice so requires,” see id. , the decision of whether to grant a motion to amend is within the trial

court ‟ s discretion

, a nd this court will reverse the trial court ‟ s decision only for an abuse

of discretion. Kincaid , 221 S.W.3d at 42 . As mentioned above, in order to ascertain whether the trial court has abused its discretion, we review the court ‟ s decision to

determine wheth er the factual basis for the decision is properly supported by the evidence in the record, whether the trial court properly identified and applied the most appropriate- 15

-

legal principles applicable to the decision, and whether the court ‟ s decision was within the range of acceptable alternate dispositions. Gooding , 477 S.W.3d at 781

.

“There are several considerations a trial court should evaluate when determining whether to grant or deny a motion to amend a complaint.” Kincaid , 221 S.W.3d at 42.

The s e facto rs include: (1) undue delay in filing; (2) lack of notice to the opposing party; (3) bad faith by the moving party; (4) repeated failure to cure deficiencies by previous amendments; (5) undue prejudice to the opposing party; and (6) futility of amendment.

Id. “When a motion to amend is denied, the trial court should „ give a reasoned explanation for its action. ‟ ” Id. (quoting Henderson v. Bush Bros. & Co. , 868 S.W.2d 236, 238 (Tenn. 1993)).

In this case, the trial court addressed Plaintiff ‟ s motion to amend in its order, stating:

The Court will allow the amendment for implied partnership because it is really a species of joint venture. The Court has addressed this theory in its decision on the summary judgment motion.

The motion [to amend] is denied as to the remaining theories and/or causes of action. This motion comes after the discovery deadline, after other parties have settled and/or been dismissed, and twenty

- five (25) months after the case was filed. The Court finds the expansion of this lawsui t to add these dubious issues to come too late. It appears to the Court that plaintiff ‟ s counsel, perhaps having some doubts about agency and/or joint venture, has now at the last minute decided to throw in every possible theory he could think up with the hope that one might stick. He filed his motion on the very morning of the argument on the summary judgment motion. To allow this amendment would necessitate reopening discovery and would be prejudicial to the defendants and to the orderly and expedient sys tem of justice.

I t is evident that the trial court considered the applicable legal principles and facts when considering Plaintiff ‟ s motion to amend and that it was particularly persuaded by

Plaintiff ‟ s delay in filing its motion to amend and the prejudi ce to AllStates and the other

defendants. The record also reveals that the trial court ‟ s decision was properly supported by the evidence in the record and that its decision to deny the motion was within the range of acceptable alternate dispositions. See G ooding , 477 S.W.3d at 781. Therefore,

we affirm the trial court ‟ s discretion ary decision to deny Plaintiff ‟ s motion to amend her complaint.- 16

- C . Plaintiff ‟ s Rule 56 Motion and AllStates ‟ Untimely Reply

As discussed above, after AllState s filed its motio n for summary judgment, the

trial court continued the hearing on the motion to grant Plaintiff a dditional time to conduct further discovery. The order that followed required the parties to complete discovery by June 10, 2015 . Additionally, Plaintiff was ordered to file its response to

AllStates ‟ motion for summary judgment by June 26, 2015 , and AllStates was ordered to
file its reply to Plaintiff ‟ s response no later than July 2, 2015.

Plaintiff filed her response to AllState ‟ s motion for summary ju dgment, including

a statement of facts, on June 26, 2015. AllStates filed its reply; however, th e reply was

not filed with the clerk until July 6, 2015 , which was one day after the deadline

. 7

Plaintiff objected to th e late

- filed reply, arguing that it sh ould be stricken as untimely. Plaintiff also filed her own motion for summary judgment, arguing that because AllStates failed to timely reply to her additional response and statement of facts, her allegations , which were undisputed

, show ed that she was ent itled to judgment as a matter

of law.

T he trial court declined to strike AllStates ‟ untimely re ply , granted AllStates ‟ motion for summary judgment , and denied Plaintiff ‟ s motion for summary judgment

. Plaintiff contends each of these rulings was error

. We respectfully disagree.

A trial court has the discretion to enter a scheduling order that, inter alia , limits the time to complete and respond to discovery. See Waters v. Coker

, No. M2007

- 01867

- COA

- RM

- CV, 2008 WL 4072104, at *7 (Tenn. Ct. App. Aug. 28 , 2008) ; Tenn. R. Civ.

P. 16.01

. In situations where a party fails to comply with a trial court ‟ s scheduling order,

Tenn. R. Civ. P. 16.06 provides:

If a party or party ‟ s attorney fails to obey a scheduling or pretrial order . . . the judge, upon motion o r the judge ‟ s own initiative, may make such orders with regard thereto as are just . . . . In lieu of or in addition to any other sanction, the judge shall require the party or the attorney representing the party or both to pay the reasonable expenses incu rred because of any noncompliance with this rule, including attorney ‟ s fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust.

7 As mentioned previously, the reply was due Thursday, July 2 , 2015, and was filed Monday, July 6, 2015 (the next business day given that July 3, 2015

— the Friday before Independence Day

— was a state holiday).- 17

-

Te nn. R. Civ. P. 16.06. However, “[i]t is within the trial judge ‟ s discretion to decide what orders, if any, to issue as a consequence of a party ‟ s failure to obey a scheduling order

. ”

Waters , 2008 WL 4072104, at *7. We review the trial court ‟ s decision under an abuse of

discretion standard. Id.

At the summary judgment hearing, the trial court discussed AllStates ‟ late filing

and noted that, although the reply was not filed with the clerk until July 6, the judge

received AllStates ‟ reply via email on July 2, and the reply was sent via fax to Plai ntiff ‟ s counsel on the same day. Based upon these facts, the court refused to strike AllStates ‟ reply but determined that some sanction should be impo sed for the late filing . Thus, the

court ordered AllStates to pay Plaintiff ‟ s attorney ‟ s fees in the amoun t of $100.00 as a

sanction.

We believe that the trial court ‟ s decision was within its discretion. A lthough

AllStates ‟ reply was n ot “ filed ” until July 6, all parties had a copy of AllStates ‟ reply within the time period contemplated by the trial court ‟ s scheduling order and had notice of the reply ‟ s contents. Thus, AllStates ‟ untimely reply did not operate to prejudice the parties. Accordingly, although the trial court could have issued a harsher sanction for this technical violation, we believe that its decision to permit AllStates ‟ late reply and issue a monetary sanction was entirely reasonable

.

Further, the trial court did not err by denying Plaintiff ‟ s motion for summary judgment because, as we explained earlier, Plaintiff cannot establish the exist ence of an agency relationship, joint venture, or implied partnership. Accordingly, we affirm the

denial of Plaintiff ‟ s motion for summary judgment.

III

. D ISCRETIONARY C OSTS

On appeal AllStates argues that the trial court abused its discretion by faili ng to
award the full amount of discretionary costs it requested.

Rule 54.04 of the Tennessee Rules of Civil Procedure “empowers the trial courts to award the prevailing pa rty certain litigation expenses. ” Owens , 241 S.W.3d at 496 ; Tenn. R. Civ. P. 54.04(2). Courts generally award discretionary costs if they are reasonable and if the party requesting them filed a timely, properly supported motion satisfying the requirements of the Rules of Civil Procedure. Owens , 241 S.W.3d at 497.

H owever, a party is not automatically entitled to an award of discretionary costs. Id

. “Awards of discretionary costs are, naturally, within the sound discretion of the trial court, and such awards are reviewed for an abuse of that discretion.” Estate of El rod v. Petty

, No. M2015

- 00568

- COA

- R3

- CV, 2016 WL 3574963, at *7 (Tenn. Ct. App. June 23, 2016) (citing Owens , 241 S.W.3d at 497).- 18

-

In this case, AllStates requested $1,621.37 in discretionary costs for court reporter fees, deposition fees, and other expen ses incurred in the course of litigation. After considering this request, the trial court determined that AllStates was entitled to an award of $1,500.00 in discretionary costs. Upon review, we believe that the trial court was

within its discretion in reac hing this conclusion. Therefore, we affirm the trial court ‟ s award of discretionary costs.

I N C ONCLUSION

The j udgment of the trial court is affirmed , and this matter is remanded with cost s of appeal assessed against Christy Gail Bowman

.

_____________ _________________ FRANK G. CLEMENT, JR., JUDGE