IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

April 14, 2015 Session

THE PEOPLES BANK v. CONRAD MARK TROUTMAN ET AL.

 Appeal from the Circuit Court for Campbell County

No. 15102 Don R. Ash, Senior Judge

No. E2014-01150-COA-R3-CV – Filed July 27, 2015

This action involves a commercial loan in the amount of $765,000.00. Prior to closing on 

the loan, the lender received a commitment for title insurance requiring that a prior lien 

on title to the real property as collateral be released or subordinated. The lender went 

forward with the closing after receiving assurance from the title insurance company‟s 

agent and attorney that the prior lien had been subordinated. Thereafter, the title 

insurance company issued a policy that excepted the prior lien from coverage. Following 

default by the borrowers, the prior lienholder foreclosed on the property, causing the 

lender to file the present action against the title insurance company and the attorney who 

prepared the commitment for title insurance, as well as the attorney‟s law firm. The title 

insurance company and the attorney, together with his law firm, filed separate motions 

for summary judgment. The trial court denied the motion filed by the attorney and his 

firm. The lender subsequently took a voluntary nonsuit of its claims against those parties. 

The trial court granted summary judgment in favor of the title insurance company. The 

attorney, his firm, and the lender have appealed. Discerning no reversible error, we 

affirm the trial court‟s grant of summary judgment to the title insurance company. We 

dismiss the joint appeal filed by the attorney and his law firm as not justiciable.

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

Affirmed; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL 

SWINEY and JOHN W. MCCLARTY, JJ., joined.

Gregory Brown and Lindsey E. Lyle, Knoxville, Tennessee, for the appellants, Conrad 

Mark Troutman and Troutman & Troutman, P.C.
2

Ronald C. Koksal and T. Michael Craig-Grubbs, Knoxville, Tennessee, for the appellee, 

The Peoples Bank.

Janet Strevel Hayes, Knoxville, Tennessee, and Mary Beth Haltom, Nashville, 

Tennessee, for the appellee, Old Republic National Title Insurance Company.

OPINION

I. Factual and Procedural Background1

The plaintiff, The Peoples Bank (“the Bank”), extended a loan in the amount of 

$765,000.00 to Norris Marina Group, LLC (“Norris”), in August 2008. Certain lots of 

real property owned by Norris or its principals were utilized as collateral to secure 

repayment of the loan. Prior to the closing of this loan, principals of Norris asked their 

attorney, Conrad Mark Troutman of Troutman & Troutman, P.C., as an agent of Old 

Republic National Title Insurance Company (“Old Republic”), to procure title insurance. 

Mr. Troutman was also contacted by Traci Todd, a Senior Vice President and Director of 

Lending for the Bank, and asked to prepare certain legal documents in connection with 

the loan‟s closing, including a “full title insurance policy,” a settlement statement, and a 

deed of trust. Via affidavit, Ms. Todd explained in part that a full title insurance policy 

was a condition of the loan to ensure that the bank maintained a valid first lien on the title 

to the collateral.

Mr. Troutman subsequently prepared a commitment for title insurance on behalf 

of Old Republic and provided it to Ms. Todd. The commitment for title insurance 

specifically identified the lien of a deed of trust existing in favor of Tennessee Investment 

Properties, LLC (“TIP”), which secured repayment of a promissory note in the amount of 

$4,500,000.00. The commitment document also provided that the TIP lien would have to 

be released or subordinated before the Bank‟s lien would hold a first lien position. Mr. 

Troutman asserts that he was never requested to prepare a release or subordination 

document with regard to the TIP lien. He instead expected that this task would be 

accomplished by someone else. According to Ms. Todd, she asked Mr. Troutman about 

the TIP lien before the closing and was told that a valid subordination agreement existed. 

Ms. Todd related that she relied upon Mr. Troutman‟s representation in electing to 

proceed with the loan closing. As the Bank points out, Mr. Troutman explained in his 

deposition that he merely assumed a subordination agreement existed because he was told 

 

1

This Court must view the facts in the record in the light most favorable to the Bank in order to sustain the grant of 

summary judgment to Old Republic. See Staples v. CBL & Assocs., Inc., 15 S.W.3d 83 (Tenn. 2000). We make the 

following recitation with that in mind.
3

by a principal of Norris prior to the loan closing that such a subordination agreement 

existed or was forthcoming. 

Following the closing, Ms. Todd requested from Mr. Troutman a final certificate 

of title, demonstrating the Bank‟s lien to be in first position. Mr. Troutman testified that 

he forwarded this request to a title abstractor in his office, who prepared the requested 

document for his signature. The final certificate of title signed by Mr. Troutman on 

February 9, 2009, states as follows:

This is to certify that we are of the opinion that the exceptions with 

reference to the title in the within report have been corrected sufficiently to 

make the title merchantable. I find that of Deed of Trust from NORRIS 

MARINA GROUP, LLC to RAYMOND E. LACY, Trustee, dated August 

21, 2008 to secure THE PEOPLES BANK in the amount of $765,000.00, is 

of recorded in Deed Book 1486, Page 1238 in the Register‟s Office of 

Anderson County, Tennessee, having been recorded on August 21, 2008, at 

8:30 a.m., and it is my opinion that this Deed of Trust constitutes a valid 

first lien upon the subject property.

In his deposition testimony, Mr. Troutman admitted that this final certificate of title was 

prepared without verification of the existence of a subordination agreement regarding the 

TIP lien. He also acknowledged that such lack of verification constituted a deviation 

from the standard of care by his office.

Three years after the loan closing, Norris defaulted in its payment of the loan. TIP 

subsequently foreclosed on its deed of trust. Upon discovering that it did not maintain a 

valid first lien on the title to the property, the Bank sued Mr. Troutman and his firm (“the 

Troutman Defendants”) for legal malpractice on November 30, 2011. The Bank later

filed a first amended complaint on February 14, 2012, and a second amended complaint 

on September 25, 2012. In the second amended complaint, the Bank named Old 

Republic as an additional defendant and for the first time asserted a breach of contract 

claim. 

The Troutman Defendants and Old Republic respectively filed motions for 

summary judgment with regard to the Bank‟s claims. The trial court denied the 

Troutman Defendants‟ motion for summary judgment by order entered May 5, 2014. 

On May 14, 2014, the Bank filed a Notice of Voluntary Dismissal as to the Troutman 

Defendants. The court thereafter granted Old Republic‟s motion for summary judgment

on May 19, 2014, concomitantly entering an order nonsuiting the Bank‟s claims against 

the Troutman Defendants. The Troutman Defendants filed a timely notice of appeal 

concerning the denial of their motion for summary judgment. The Bank also filed a 
4

timely notice of appeal regarding the grant of summary judgment in favor of Old 

Republic. 

II. Issues Presented

The Troutman Defendants present the following issues for our review, which we 

have restated slightly:

1. Whether entry of an order of voluntary dismissal constitutes a 

final judgment permitting the Troutman Defendants to seek 

an appeal as of right regarding the denial of their motion for 

summary judgment.

2. Whether the trial court erred in denying the Troutman 

Defendants‟ motion for summary judgment when the Bank 

failed to identify an expert witness to address the professional 

standard of care.

3. Whether the trial court erred in granting the Bank‟s motion to 

file its third amended complaint.

The Bank raises the following additional issues:

4. Whether the trial court erred in finding that there were no 

disputed issues of material fact and that Old Republic was 

entitled to a judgment as a matter of law.

5. Whether the trial court complied with Tennessee Rule of 

Civil Procedure 56.04 when granting summary judgment to 

Old Republic.

III. Standard of Review

For actions initiated on or after July 1, 2011, such as the one at bar, the standard of 

review for summary judgment delineated in Tennessee Code Annotated § 20-16-101 

(Supp. 2014) applies. See Sykes v. Chattanooga Hous. Auth., 343 S.W.3d 18, 25 n.2 

(Tenn. 2011). The statute provides:

In motions for summary judgment in any civil action in Tennessee, the 

moving party who does not bear the burden of proof at trial shall prevail on 

its motion for summary judgment if it:
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(1) Submits affirmative evidence that negates an essential element of the 

nonmoving party‟s claim; or

(2) Demonstrates to the court that the nonmoving party‟s evidence is 

insufficient to establish an essential element of the nonmoving party‟s 

claim.

Tenn. Code Ann. § 20-16-101.2 The grant or denial of a motion for summary judgment is 

a matter of law; therefore, our standard of review is de novo with no presumption of 

correctness. Dick Broad. Co., Inc. of Tenn. v. Oak Ridge FM, Inc., 395 S.W.3d 653, 671 

(Tenn. 2013) (citing Kinsler v. Berkline, LLC, 320 S.W.3d 796, 799 (Tenn. 2010)). “A 

summary judgment is appropriate only when the moving party can demonstrate that there 

is no genuine issue of material fact and that it is entitled to judgment as a matter of law.” 

Dick Broad. Co., 395 S.W.3d at 671 (citing Tenn. R. Civ. P. 56.04; Hannan v. Alltel 

Publ’g Co., 270 S.W.3d 1, 5 (Tenn. 2008)). Pursuant to Tennessee Rule of Civil 

Procedure 56.04, the trial court must “state the legal grounds upon which the court denies 

or grants the motion” for summary judgment, and our Supreme Court has recently 

instructed that the trial court must state these grounds “before it invites or requests the 

prevailing party to draft a proposed order.” Smith v. UHS of Lakeside, Inc., 439 S.W.3d 

303, 316 (Tenn. 2014). 

IV. Effect of Voluntary Nonsuit 

The Troutman Defendants assert that this Court should consider their appeal 

because the order granting a voluntary nonsuit of the Bank‟s claims against them 

constitutes a final judgment from which an appeal as of right would lie. Conversely, the 

Bank contends that precedent established by this Court prohibits an appeal from a 

 

2 As this Court has elucidated:

Section 20-16-101 was enacted to abrogate the summary-judgment standard set 

forth in Hannan [v. Alltel Publ’g Co., 270 S.W.3d 1, 5 (Tenn. 2008)], which 

permitted a trial court to grant summary judgment only if the moving party 

could either (1) affirmatively negate an essential element of the nonmoving 

party‟s claim or (2) show that the nonmoving party cannot prove an essential 

element of the claim at trial. Hannan, 270 S.W.3d at 5. The statute is intended 

“to return the summary judgment burden-shifting analytical framework to that 

which existed prior to Hannan, reinstating the „put up or shut up‟ standard.” 

Coleman v. S. Tenn. Oil Inc., No. M2011-01329-COA-R3-CV, 2012 WL 

2628617, at *5 n.3 (Tenn. Ct. App. July 5, 2012). 

Walker v. Bradley County Gov’t, No. E2013-01053-COA-R3-CV, 2014 WL 1493193 at *3 n.3 (Tenn. Ct. 

App. Apr. 15, 2014). See also Sykes, 343 S.W.3d at 25 n.2. 
6

voluntary nonsuit taken after the denial of a motion for summary judgment. We agree 

with the Bank on this issue.

In Martin v. Washmaster Auto Ctr., Inc., No. 01-A-01-9305-CV-00224, 1993 WL 

241315 at *2 (Tenn. Ct. App. July 2, 1993), this Court considered a factual situation

similar to the case at bar. The plaintiff therein had voluntarily nonsuited her claims 

against the defendant following the trial court‟s denial of the defendant‟s motion for 

summary judgment. Regarding the action‟s procedural posture, this Court stated, inter 

alia:

Defendants ordinarily cannot appeal from the denial of their motion 

for summary judgment. The denial of a summary judgment before trial is 

an interlocutory decision that does not satisfy Tenn. R. App. P. 3(a)‟s 

finality requirement. Williamson County Broadcasting Co. v. Williamson 

County Bd. Of Educ., 549 S.W.2d 371, 373 (Tenn. 1977); In re Estate of 

McCord, 661 S.W.2d 890, 891 (Tenn. Ct. App. 1983). Similarly, the denial 

of a summary judgment because of genuine factual disputes is not 

appealable after a trial on the merits. Hobson v. First State Bank, 777 

S.W.2d 24, 32 (Tenn. Ct. App. 1989); Tate v. County of Monroe, 578 

S.W.2d 642, 644 (Tenn. Ct. App. 1978).

Taking a voluntary nonsuit does not render the denial of a summary 

judgment any more suitable for appellate review. No present controversy 

exists after the plaintiff takes a nonsuit. The lawsuit is concluded and can 

only be resurrected if and when the plaintiff recommences the action. The 

plaintiff‟s refiling the suit is a contingent event that may not occur. Thus, 

determining whether the defendant is entitled to a summary judgment after 

the underlying suit has been dismissed without prejudice would be 

unnecessary and premature.

Martin, 1993 WL 241315 at *2. This Court has applied a similar analysis in factually

analogous cases as well. See, e.g., Oliver v. Hydro-Vac Servs. Inc., 873 S.W.2d 694, 696 

(Tenn. Ct. App. 1993); Payne v. Savell, No. 03A01-9708-CV-00352, 1998 WL 46454 at 

*1 (Tenn. Ct. App. Feb. 5, 1998). We therefore conclude that the Troutman Defendants 

cannot appeal the denial of their summary judgment motion following a voluntary 

nonsuit of the Bank‟s claims against them.

The Troutman Defendants contend that the present action should be controlled by 

Panzer v. King, 743 S.W.2d 612 (Tenn. 1988) (abrogated by Lacy v. Cox, 152 S.W.3d 

480 (Tenn. 2004)), wherein our Supreme Court ruled that a voluntary nonsuit could not 

be taken by the plaintiff if such action would deprive the defendant of a vested right of 
7

review. In Panzer, the plaintiff requested a nonsuit after the trial court granted the 

plaintiff‟s motion for new trial following a “low” jury verdict. Id. at 613. The Supreme 

Court concluded that the defendant had a vested right in appellate review of the trial 

court‟s action of granting a new trial. Id. at 613. Panzer did not involve the trial court‟s 

denial of a motion for summary judgment.

According to the Troutman Defendants, notwithstanding entry of the nonsuit, they

maintained a vested right to: (1) receive a grant of summary judgment due to the Bank‟s 

lack of expert testimony regarding the standard of care or (2) seek interlocutory or 

extraordinary appeal of the trial court‟s denial of their motion for summary judgment. 

We disagree. Regarding such a contention in a similar case, this Court rejected an 

argument regarding appellate review of the denial of summary judgment, elucidating: 

Declining to review the denial of the [defendant] car wash‟s motion for 

summary judgment at this time will not prevent the car wash from filing the 

same motion should the plaintiff recommence her lawsuit. Likewise, it will 

not prevent the car wash from seeking interlocutory appellate review of the 

trial court‟s decision should its motion be denied again. Thus, declining to 

review the denial of the motion for summary judgment at this juncture will 

not deprive the car wash of an eventual opportunity to seek appellate 

review of the denial of its motion.

Martin, 1993 WL 241315 at *2. This Court specifically explained: “The fact that the car 

wash will be able to seek appellate review should its summary judgment motion be 

denied again differentiates this case from Panzer v. King, 743 S.W.2d 612 (Tenn. 1988).” 

See id. at *2 n.3. Based on the above precedent, we conclude that the Troutman 

Defendants cannot in the instant appeal seek review regarding the denial of their

summary judgment motion in light of the Bank‟s nonsuit of its claims against them.

V. Third Amended Complaint

Following the filing of both motions for summary judgment, the Bank sought 

permission to file a third amended complaint. In the amended pleading, the Bank added 

an allegation that the Troutman Defendants were liable for negligent misrepresentation 

by a professional person. The trial court granted leave to file this amendment.

The Troutman Defendants assert that the trial court improperly granted permission 

for the Bank to file its third amended complaint. Based on the Bank‟s subsequent 

voluntary nonsuit of its claims against the Troutman Defendants, however, this issue is 

clearly not justiciable. As this Court has previously explained:
8

Justiciability is a judge-made doctrine developed to determine when 

courts should hear a case. It involves both the court‟s power to consider a 

dispute and the wisdom of their doing so. The central concepts of the 

doctrine have been separated into seven specific categories, including: 

advisory opinions, feigned or collusive cases, standing, ripeness, mootness, 

political questions, and administrative decisions. 

Ripeness is the category of justiciability that questions whether the 

dispute has matured to a point that warrants a judicial decision. The central 

concern is whether the case involves uncertain or contingent future events 

that may or may not occur as anticipated or, indeed, may not occur at all. 

Determining whether a controversy is ripe enough to be justiciable 

involves a two-part inquiry. The court must first determine whether the 

issues are of the type that would be appropriate for judicial determination. 

Then the court must consider the hardship that declining to consider the 

case will have on the parties. The courts will decline to act in cases where 

there is no need for the court to act or where the refusal to act will not 

prevent the parties from raising the issue at a more appropriate time.

Martin, 1993 WL 241315 at *1-2 (internal citations omitted).

Considering the procedural history in the action sub judice, there exists no need 

for this Court to determine whether filing of the Bank‟s third amended complaint was 

properly allowed by the trial court. The third amended complaint served only to add new 

claims against the Troutman Defendants. Because all of the Bank‟s claims against the 

Troutman Defendants were subsequently nonsuited, this issue is not justiciable. The 

appeal filed by the Troutman Defendants is hereby dismissed.

VI. Propriety of Grant of Summary Judgment to Old Republic

The Bank asserts that the trial court improperly granted summary judgment in 

favor of Old Republic. In its order, the trial court stated in pertinent part, “The Court 

concludes that there are no genuine issues of material fact in dispute as it relates to any 

theories of recovery alleged by plaintiff The Peoples [Bank] against Old Republic, and, 

thus, Old Republic is entitled to judgment as a matter of law.”

Old Republic asserts that the Bank failed to demonstrate that Old Republic had 

breached its contract of title insurance with the Bank. In support, Old Republic posits 

that the title insurance policy specifically and unambiguously exempted the TIP lien from 
9

coverage. The Bank argues, however, that the title insurance policy is ambiguous in this 

regard.

To specifically address this appeal, the court must consider relevant language of 

the policy. The title insurance policy contains an attached schedule of “exceptions from 

coverage,” Schedule B-I, which states:

Except as provided in Schedule B - Part II, this policy does not insure 

against loss or damage, and the Company will not pay costs, attorney‟s 

fees, or expenses that arise by reason of:

* * *

3. A Deed of Trust to secure an indebtedness of $4,500,000.00 and 

any other amounts payable under the terms thereof . . . for the 

benefit of Tennessee Investment Properties, LLC as Beneficiary, 

subordinated by Subordination Agreement.

Following this provision is Schedule B - II, which provides:

[T]he Title is subject to the following matters, and the Company insures 

against loss or damage sustained in the event that they are not subordinate 

to the lien of the Insured Mortgage:

None. 

As noted by the Bank, the listed exception states that the TIP lien was 

“subordinated by Subordination Agreement,” which statement was, in fact, erroneous. 

The Bank asserts that this exception rendered the policy language ambiguous and that 

such ambiguity should be construed against the drafter, Old Republic. Further, the Bank 

maintains that Old Republic should be held liable for the actions of its agent, Mr. 

Troutman. As the Bank explains, Ms. Todd communicated to Mr. Troutman prior to 

closing that the Bank required a “full” title insurance policy for this loan, meaning that 

the policy could contain no exceptions. Because Mr. Troutman informed Ms. Todd

immediately before the closing that the TIP lien had been subordinated, the Bank insists

that it expected and had always made clear that it required the title insurance policy to 

contain no exceptions. Because the title insurance policy that was delivered nearly two 

years following the closing included an exception, the Bank contends that Old Republic 

breached its contract to provide the proper insurance coverage. 

Regarding the appropriate construction of a title insurance policy, this Court has 
10

previously explained:

[T]itle insurance policies are interpreted under the same rules of 

construction applicable to other contracts. “The cardinal rule for 

interpretation of contracts is to ascertain the intention of the parties and to 

give effect to that intention, consistent with legal principles.” Bob Pearsall 

Motors, Inc. v. Regal Chrysler-Plymouth, Inc., 521 S.W.2d 578, 580 (Tenn.

1975). In the absence of fraud or mistake, a contract must be interpreted as 

written even though it contains terms that may be thought harsh and unjust. 

Absent any ambiguity, a court must apply to the words used their usual, 

natural and ordinary meaning. “The courts, of course, are precluded from 

creating a new contract for the parties.” Griffin v. Shelter Mutual Insurance 

Company, 18 S.W.3d 195, 200 (Tenn. 2000); United States Stove Corp. v. 

Aetna Life Ins. Co., 169 Tenn. 264, 84 S.W.2d 582, 583 (Tenn. 1935).

* * *

A policy of title insurance is a “contract of indemnity under which 

the insurer for a valuable consideration agrees to indemnify the insured in a 

specified amount against loss through defects of title to . . . realty in which 

the insured has an interest.” Sandler v. New Jersey Realty Title Ins. Co., 36 

N.J. 471, 478-79, 178 A.2d 1 (1962). “Like other policies of insurance, 

title policies are liberally construed against the insurer and in favor of the 

insured.” Walker Rogge, Inc. v. Chelsea Title & Guaranty Co., 116 N.J. 

517, 529, 562 A.2d 208 (1989). “Notwithstanding that principle of 

construction, courts should not write for the insured a better policy of 

insurance than the one purchased.” Id. (citing Last v. West Am. Ins. Co., 

139 N. J. Super. 456, 460, 354 A.2d 364 (App. Div. 1976)).

Wolf v. Clack, No. E2009-01126-COA-R3-CV, 2009 WL 5173715 at *4-5 (Tenn. Ct. 

App. Dec. 30, 2009) (other internal citations omitted).

In addition to the title insurance policy, the commitment for title insurance 

provided, inter alia, that Old Republic, “for valuable consideration, commits to issue its 

policy or policies of title insurance . . . upon payment of the premiums and charges and 

compliance with the Requirements . . . .” An attached schedule listed the following as a 

requirement for coverage:

Release of Deed of Trust in favor of Tennessee Investment Properties, 

LLC, securing a promissory note dated November 2, 2007, in the original 

principal amount of $4,500,000.00, recorded in Deed Book 1466, Page 
11

1584, or execution of a Subordination Agreement subordinating the lien of 

this Deed of Trust.

As Old Republic correctly indicates, the commitment for title insurance provided 

to the Bank before the loan closing specifically required that the TIP lien be subordinated 

or released. In addition, the title insurance policy issued after the closing expressly 

excepted the TIP lien from coverage. Both of these contracts unambiguously referenced 

the TIP lien and provided that there would be no coverage with regard to such lien. 

Although the listed exception states that the TIP lien was “subordinated by Subordination 

Agreement,” this does not alter the fact that the TIP lien was listed as an exception from 

coverage. 

Further, use of the inaccurate phrase, “subordinated by Subordination Agreement,” 

within this exception does not render the title insurance policy ambiguous. As this Court 

has elucidated: “A contract is not rendered ambiguous simply because the parties 

disagree as to the interpretation of one or more of its provisions. Rather, a contract is 

ambiguous only if its meaning is uncertain and is susceptible to more than one reasonable 

interpretation.” Int’l Flight Ctr. v. City of Murfreesboro, 45 S.W.3d 565, 570 n.5 (Tenn. 

Ct. App. 2000) (internal citations omitted). The argument that this phrase rendered the 

meaning of the insurance policy uncertain is unavailing. The title insurance policy 

specifically lists the TIP lien as an exception from coverage; the fact that the 

encumbrance is denoted as “subordinated” does not diminish the integrity of the express 

exclusion provision. Because the title insurance policy is not ambiguous, the parties 

cannot rely upon parol evidence to “alter, vary, or qualify the plain meaning of an 

unambiguous written contract.” See Dick Broad. Co., 395 S.W.3d at 672 (quoting 

Staubach Retail Servs.-Se., LLC v. H.G. Hill Realty Co., 160 S.W.3d 521, 525 (Tenn. 

2005)). As such, the communications between Ms. Todd and Mr. Troutman cannot be 

relied upon to vary the terms of this unambiguous written contract.

In order to prove a breach of contract, which was the claim asserted by the Bank 

against Old Republic, the Bank would have to prove (1) the existence of an enforceable 

contract, (2) nonperformance amounting to a breach of contract, and (3) damages caused 

by such breach. See ARC LifeMed, Inc. v. AMC-Tennessee, Inc., 183 S.W.3d 1, 26 

(Tenn. Ct. App. 2005). In the case at bar, there is a dearth of evidence that Old Republic 

breached its contractual obligations. The Bank has failed to prove a breach by Old 

Republic for failing to extend coverage for the TIP lien when both the commitment for 

title insurance and the title insurance policy expressly exclude coverage concerning this 

lien. We conclude that the trial court properly granted summary judgment to Old 

Republic.
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VII. Compliance with Tennessee Rule of Civil Procedure 56.04

Finally, the Bank asserts that the trial court‟s order granting summary judgment to 

Old Republic does not comply with the requirements of a summary judgment order as 

stated in Smith v. UHS of Lakeside, Inc., 439 S.W.3d 303 (Tenn. 2014). In Smith, our 

Supreme Court held in relevant portion:

we conclude that Tenn. R. Civ. P. 56.04 requires the trial court, upon 

granting or denying a motion for summary judgment, to state the grounds 

for its decision before it invites or requests the prevailing party to draft a 

proposed order. Not only will this requirement assure that the decision is 

the trial court‟s, it will also (1) assure the parties that the trial court 

independently considered their arguments, (2) enable the reviewing courts 

to ascertain the basis for the trial court‟s decision, and (3) promote 

independent, logical decision-making.

Id. at 316-17.

The Bank contends that the trial court‟s order fails to comply with the 

requirements of Smith because such order does not state the grounds upon which the 

grant of summary judgment was based. See Smith, 439 S.W.3d at 314. We note, 

however, that the Smith decision was not rendered until July 15, 2014, nearly two months 

after the trial court‟s order granting summary judgment in this case. Further, as our 

Supreme Court instructed therein:

We readily agree that judicial economy supports the Court of Appeals‟

approach to the enforcement of Tenn. R. Civ. P. 56.04 in proper 

circumstances when the absence of stated grounds in the trial court‟s order 

does not significantly hamper the review of the trial court‟s decision. 

However, in the future, the resolution of issues relating to a trial court‟s 

compliance or lack of compliance with Tenn. R. Civ. P. 56.04 should also 

take into consideration the fundamental importance of assuring that a trial 

court‟s decision either to grant or deny a summary judgment is adequately 

explained and is the product of the trial court‟s independent judgment.

Id. at 314 (emphasis added). We note that in the case at bar, a review of the hearing 

transcript clearly discloses that the order granting summary judgment was the product of 

the court‟s independent judgment. We also determine that the enforcement of this order 

is proper and the absence of specifically stated grounds does not hamper our review in 

this instance. We therefore conclude that this issue is without merit.
13

VIII. Conclusion

For the foregoing reasons, we affirm the trial court‟s grant of summary judgment 

to Old Republic. We dismiss the Troutman Defendants‟ appeal as nonjusticiable. Costs 

on appeal are assessed one-half to the appellants, Conrad Mark Troutman and Troutman 

& Troutman, P.C., and one-half to the appellee, The Peoples Bank. This case is 

remanded to the trial court, pursuant to applicable law, for collection of costs assessed 

below.

_________________________________ 

THOMAS R. FRIERSON, II, JUDGE