IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

July 12, 2016 Session

CHRISTY GAIL BOWMAN V. MOUNIR BENOUTTAS ET AL.

Appeal from the Circuit Court for Coffee County

No. 40417 Walter C. Kurtz, Judge

No. M2015-01723-COA-R3-CV – Filed September 9, 2016

At issue in this case is whether a defendant, which claims to be merely the broker of a

shipment that was being delivered, may be held vicariously liable for the negligence of 

the delivery driver. This action arises out of a motor vehicle accident involving a tractortrailer 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, Plaintiff sued 

AllStates Trucking, Inc., which had contracted with MGR to deliver the shipment to 

AllStates‟ customer. Plaintiff claimed AllStates was vicariously liable under the doctrines 

of respondeat superior and joint venture. Plaintiff later amended her complaint to include 

the additional theory of implied partnership. The trial court summarily dismissed all 

claims against AllStates because Plaintiff could not establish an agency relationship, joint 

venture, or implied partnership. Plaintiff appeals contending summary judgment was 

inappropriate because material facts 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 Plaintiff‟s motion to amend her complaint, denial of her motion 

for summary judgment, and its decision to allow AllStates 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 of the Circuit Court Affirmed

FRANK G. CLEMENT, JR., P.J., M.S., delivered the opinion of the Court, in which

RICHARD H. DINKINS and W. NEAL MCBRAYER, 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.
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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 

Systems, Inc. (“MGR”).1

The 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 when 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.2Plaintiff alleged that Mr. 

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

Plaintiff. Plaintiff also alleged 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 

under the principles of agency or joint venture.3

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

could not be held vicariously liable because there was not an agency relationship between 

AllStates and Mr. Benouttas or MGR, and the parties were not engaged in a joint 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 accept 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. Plaintiff 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 complaint that asserted the same general 

allegations and claims for relief.
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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 authorized 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 with Mr. Benouttas to transport the shipment in question. According to 

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

AllStates,” “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 instructions 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 under the legal theories of agency 

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

liable under the theories 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 

identified through additional discovery.” 

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

Plaintiff admitted that MGR was responsible for employing the persons necessary to 

satisfy its duties under the brokerage contract with 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 agent 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 AllStates 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.
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Plaintiff also submitted a statement of additional material facts that identified facts 

regarding AllStates‟ business practices. Specifically, 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 shipments to, which includes [MGR.]” When 

brokering shipments to third parties, AllStates frequently contacts multiple companies 

who could potentially deliver the brokered load. After inquiring about each company‟s 

availability, AllStates makes a determination as to who to select following a price 

negotiation. 

Plaintiff also identified facts to establish that once AllStates contracts with a client 

for a specific shipment, Allstates‟ local delivery driver picks up the freight from the 

customer and brings the freight to AllStates‟ facility, where 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 statement 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 route 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 

AllStates 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 motion for 

continuance asking for additional time for further discovery. The trial court granted

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

directed the parties to complete discovery by June 10, 2015, and instructed Plaintiff 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. 

Plaintiff argued that these theories of recovery 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 Plaintiff 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 
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that the records of these citations were available to the public at large, including brokers 

like Allstate, when making hiring decisions. Further, Plaintiff stated that “[MGR] and 

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

negotiated separately 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 trucks 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] and selecting the equipment used.”

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

evidence 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 statements of facts, in which it admitted that MGR had 

been cited for inadequate safety measures but denied that AllStates 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 was filed after the July 2, 2015 deadline; therefore, the court 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 

responsive 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 was 

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 negligent hiring. After the

hearing, the trial court entered an order in which it stated:

 

5

Plaintiff titled this motion a “Rule 56 Motion for Judgment as a Matter of Law for the NonMoving 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 seeking 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.”).
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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 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, the 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. The court 

reasoned that whether one is an agent or an independent 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.

Thereafter, 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.
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Plaintiff initiated this appeal and raises several issues. 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 partially 

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 

failing to award the entirety of the discretionary costs set forth in its motion for 

discretionary costs.

STANDARD OF REVIEW

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 judgment 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 as 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 

entitled 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 nonmoving 

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 decisions regarding Plaintiff‟s motion to amend, 

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

we review the trial court‟s decisions 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 supported by the evidence in the record, whether the trial 

court properly identified and applied the most appropriate legal principles applicable to 
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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)).

ANALYSIS

I. ALLSTATES‟ MOTION FOR SUMMARY JUDGMENT

Individuals are ordinarily liable only for their own conduct; however under 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 Doctrine of Respondeat Superior

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. See Fed. 

Ins. Co. v. Winters, 354 S.W.3d 287, 295 (Tenn. 2011). Thus, the first question to 

consider in assessing Allstates‟ liability is whether an 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 explicit 

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 given 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.
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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 relationship 

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 independent 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 the result of his work.”(emphasis 

added)). 

“Although 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 exercise 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 right 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 specific 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 assembling 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 communicated 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 listed when and where the 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. Instead, Mr. Benouttas owned the truck that was involved in the accident. The 

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.
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Further, although AllStates assembled the commodities at its facility and loaded 

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 did not select the time of pick-up or the route to be taken. 

Additionally, AllStates 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 evidence 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 

responsibility of an independent contractor,” and it specified that “nothing herein shall be 

construed as an employer-employee relationship 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 relationship between the parties. To the 

contrary, it shows that Mr. Benouttas and MGR were independent contractors 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 scheduled his own work hours, and the

fact that AllStates did not have the right to terminate MGR‟s drivers or prevent them

from working for other entities—also support the conclusion that Mr. Benouttas and 

MGR were independent contractors. 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 concluded 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.
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The Tennessee Supreme Court has described a joint venture as follows:

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 knowledge, 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 and 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 considered the agent of the others, the 

negligence of one member can be imputed to the rest. See Fain, 909 S.W.2d at 792

(quoting W. Page Keeton, et al., Prosser and Keeton on the Law of Torts, § 72, at p. 516-

17 (5th 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.”).

It is undisputed that Mr. Benouttas had never entered an agreement or contract 

with AllStates. In 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 they entered 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, although 

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 their 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. 
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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, 814 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 into 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 as 

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 show 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 contractual 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.
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II. PLAINTIFF‟S ADDITIONAL ISSUES

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 denying her motion to amend the 

complaint with respect to these additional theories.6Further, 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 Humanity, 

Inc., 346 S.W.3d 422, 427 (Tenn. 2011). 

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

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

11. [A]t all times relative to the Complaint 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 

operating 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 noted 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.
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39. Alternatively, Defendant Mr. Benouttas was acting as an agent 

and/or as part of a joint venture with one of, some combination 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, agency 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. Despite 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), superseded 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 that the trial court did not err by

declining 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 these additional theories.

After a responsive pleading has been served, “a party may amend the party‟s 

pleadings only by written consent 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, and 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 whether 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 
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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. 

These factors 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 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.

It 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 prejudice 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 Gooding, 477 S.W.3d at 781. Therefore,

we affirm the trial court‟s discretionary decision to deny Plaintiff‟s motion to amend her 

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

As discussed above, after AllStates filed its motion for summary judgment, the 

trial court continued the hearing on the motion to grant Plaintiff additional 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 judgment, including 

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

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

7

Plaintiff objected to the late-filed reply, arguing that it should 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, showed that she was entitled to judgment as a matter 

of law. 

The trial court declined to strike AllStates‟ untimely reply, 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 or 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 incurred 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 -

Tenn. 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 Plaintiff‟s 

counsel on the same day. Based upon these facts, the court refused to strike AllStates‟

reply but determined that some sanction should be imposed for the late filing. Thus, the 

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

sanction.

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

AllStates‟ reply was not “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 existence of an 

agency relationship, joint venture, or implied partnership. Accordingly, we affirm the 

denial of Plaintiff‟s motion for summary judgment.

III. DISCRETIONARY COSTS

On appeal AllStates argues that the trial court abused its discretion by failing 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 party 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.

However, 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 Elrod 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 expenses 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 reaching this conclusion. Therefore, we affirm the trial court‟s 

award of discretionary costs.

IN CONCLUSION

The judgment of the trial court is affirmed, and this matter is remanded with costs 

of appeal assessed against Christy Gail Bowman.

______________________________

FRANK G. CLEMENT, JR., JUDGE