James Edward Williams v. Brent R. Watson

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
August 15, 2006 Session

JAMES EDWARD WILLIAMS v. BRENT R. WATSON, ET AL.

Appeal from the Circuit Court for Knox County
No. 2-214-05 Harold Wimberly, Judge

No. E2005-02403-COA-R3-CV - FILED JANUARY 25, 2007

James Edward Williams and Gladys Pineda Williams were divorced on December 13, 2004,
following a very contentious proceeding in the Chancery Court of Knox County. Mr. Williams filed
the action at bar against his former attorneys and also against attorneys representing his former wife.
He alleges against these attorneys various acts of tortious activities, malpractice and violation of the
Tennessee Consumer Protection Act. The trial court dismissed all of his claims, and Mr. Williams
appeals. We affirm the action of the trial court.

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

WILLIAM B. CAIN , J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR., P.J., M.S.,
and PATRICIA J. COTTRELL, J., joined.

Mary Ann Reese and Thomas F. Bloom, Nashville, Tennessee, for the appellant, James Edward
Williams.

Darryl G. Lowe, Knoxville, Tennessee, for the appellees, John K. Harber, Robert E. Pryor, Sr.,
Timothy A. Priest, and the law firm of Pryor, Flynn, Priest & Harber.

Linda J. Hamilton Mowles, Knoxville, Tennessee, for the appellees, Brent R. Watson, Norman D.
McKellar, Suzanne Nicole Price,, Nick D. Bunstine, Louis Andrew McElroy, II, and the law firm
of Bunstine, Watson & McElroy.

OPINION

Mrs. Williams commenced a divorce action on December 3, 2003, represented by Norman
McKellar from the firm of Bunstine, Watson and McElroy. Mr. Williams employed his own
counsel, John Harber, of the firm of Pryor, Flynn, Priest and Harber. After very contentious
proceedings marked by much acrimony and legal maneuvering, a Final Decree of Divorce was
entered December 13, 2004, approving a property settlement and permanent parenting plan.
 Dissatisfied by the actions of all counsel in the divorce case, Mr. Williams filed the
Complaint at bar on April 14, 2005. Against his own former counsel, John Harber, and the firm of
Pryor, Flynn, Priest and Harber, he asserts first that Mr. Harber misrepresented to him the record title
to property located in Echo Valley. His assertion is that Mr. Harber advised him that the Echo
Valley property was titled in the joint names of husband and wife, when in fact Williams had
purchased the property in his name alone. Based upon this assertion, he claims that had he known
the true record title to the Echo Valley property, he could have gained a more favorable property
settlement.

Mr. Williams next asserts that after Mr. Harber had been discharged by him on August 18,
2004, he signed a consent order on October 15, 2004, which was entered “nunc prop tunc 7-9-04.”
Williams claims that this order obligated him to pay the “monthly mortgage payment on Mother’s
residence in the amount of . . . Eleven Hundred Eighty-five ($1,185); . . . child care expenses to La
Petite Academy of . . . $600; and Mother’s home maintenance and landscaping expenses which vary
in monthly amount.” Williams’ last claim against Harber is that he entered into a civil conspiracy
with Price and Watson who were representing Mrs. Williams at the time of the nunc pro tunc order
since Norman D. McKellar had previously withdrawn from Bunstein, Watson and McElroy.

On May 6, 2005, Harber filed a Motion to Dismiss pursuant to Tennessee Rule of Civil
Procedure 12.02(6) for failure to state a claim upon which relief may be granted. The Motion to
Dismiss asserted that the Complaint failed to allege any factual basis to support breach of a duty,
which was cause in fact or proximate cause of specific damages. As to the civil conspiracy
complaint, the Motion asserted a failure to allege a combination of two or more persons to
accomplish by concert an unlawful purpose or a purpose not itself unlawful, but accomplished by
unlawful means.

On September 16, 2005, the trial judge entered an order dismissing all claims against
Defendant Harber.

The standard of review on appeal from a trial court order granting a motion to dismiss under
Tennessee Rule of Civil Procedure 12.02(6) for failure to state a claim upon which relief may be
granted is undisputed.

A motion to dismiss for failure to state a claim upon which relief can be granted is
the equivalent of a demurrer under our former common law procedure. Cornpropst
v. Sloan, 528 S.W.2d 188, 190 (Tenn.1975). Such a motion admits the truth of all
relevant and material averments in the complaint but asserts that such facts cannot
constitute a cause of action. Id. In considering whether to dismiss a complaint for
failure to state a claim upon which relief can be granted, the court should construe
the complaint liberally in favor of the plaintiff taking all of the allegations of fact
therein as true. Humphries v. West End Terrace, Inc., 795 S.W.2d 128, 130
(Tenn.Ct.App.1990). A complaint should not be dismissed upon such a motion “
‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support

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 of [the] claim that would entitle [the plaintiff] to relief’ ”. Id. (quoting Fuerst v.
Methodist Hosp. South, 566 S.W.2d 847, 848 (Tenn.1978)).

McGee v. Best, 106 S.W.3d 48, 61-62 (Tenn.Ct.App.2002).

The assertion that Mr. Harber misrepresented to Mr. Williams the record title to the Echo
Valley property which he had purchased in his own name prior to marriage, even if such assertion
be true, states no cause of action. In a divorce case, classification of property does not depend on
the state of its record title. Jones v. Jones, 597 S.W.2d 886 (Tenn.1979); Mondelli v. Howard, 780
S.W.2d 769, 774 (Tenn.Ct.App.1989); Trimble v. Trimble, 458 S.W.2d 794 (Tenn.1970). The
assertion that the record title to property involved in a divorce proceeding is binding on the court in
a divorce proceeding has been refuted by this Court.

This argument overlooks the important principle that the classification of property
does not depend on the state of its record title but on the conduct of the parties.
Mondelli v. Howard, 780 S.W.2d 769, 774 (Tenn.Ct.App.1989). Thus, the courts
will consider all the parties’ legal and equitable interests in property when they are
called upon to divide the marital estate. Jones v. Jones, 597 S.W.2d 886
(Tenn.1979).

Altman v. Altman, 181 S.W.3d 676, 680-81 (Tenn.Ct.App.2005).

The Final Divorce Decree with the agreed settlement as to property rights was entered
December 13, 2004, almost four (4) months after Mr. Harber had been discharged by Mr. Williams,
and he was represented by counsel presumably aware that the record title to the Echo Valley Property
was not significant.

In determining the significance of the nunc pro tunc order of October 15, 2004, the
chronology of events is important. On April 7, 2004, Mrs. Williams filed her Motion for Pendente
Lite Support. No hearing on this Motion was held since Mr. Williams paid support for his wife and
son. On June 18, 2004, Mr. Williams swore in answer to an interrogatory:

As support to both the plaintiff (Mrs. Williams) and our son, I pay her
monthly mortgage payment in the amount of $1,185.00, monthly child care expenses
to La Petite Academy in the amount of $600.00, as well as plaintiff’s home
maintenance and landscaping expenses which vary in monthly amount.

He had previously sworn on May 21, 2004, in his Affidavit of Average Monthly Income and
Expenses, that he was paying his wife’s monthly mortgage in the amount of $1,185 and that he was
paying his son’s child care expenses in the amount of $559 per month.

While Mr. Harber was still representing Mr. Williams, a hearing was held on July 9, 2004
before the child support referee wherein an agreement was announced by all parties that the

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temporary child support obligation of Mr. Williams would be satisfied by paying the mother’s
monthly mortgage payment of $1,185, monthly child care expenses to La Petite Academy in the
amount of $600 and the mother’s home maintenance and landscaping expenses which varied in
amount. For some reason unexplained in the record, the order reflecting the July 9, 2004, agreement
was not timely entered, but it is noted that the agreement exactly conforms to the amounts that Mr.
Williams swore that he was paying as of May 21, 2004, and June 18, 2004.

Mr. Harber was discharged by Mr. Williams on August 18, 2004. Thereafter, when counsel
for Mrs. Williams became aware that the order reflecting the July 9, 2004, agreement had not been
entered, he contacted Mr. Harber who forwarded the order to the court, and the order was entered
on October 15, 2004, nunc pro tunc, as and for July 9, 2004. How this nunc pro tunc order reflecting
exactly what Mr. Williams had been previously paying as temporary support and child care expenses
adversely affects him is difficult to imagine. Any results emanating from the nunc pro tunc order
are exactly the same results as predated the nunc pro tunc order. No material variance exists
between the July 9, 2004 agreement and the October 14, 2004 order, and therefore no cause of action
is stated. Spalding v. Davis, 674 S.W.2d 710, 714-15 (Tenn.1984).

The allegations of civil conspiracy relating to Mr. Harber involve this same nunc pro tunc
order entered October 15, 2004, requiring Mr. Williams to pay what he was already obligated to pay.
The allegations of conspiracy are all but indecipherable and assert no concert of action between the
Defendant Harber and opposing counsel that was either unlawful or was accomplished by unlawful
means.

The action of the trial court in granting the Motion to Dismiss by Defendants John K. Harber,
Richard E. Pryor, Sr., Timothy A. Priest and the law firm of Pryor, Flynn, Priest and Harber is
affirmed.

The Complaint by Williams against Bunstine, Watson & McElroy asserts two primary
complaints. The first complaint concerns Norman D. McKellar at the time he was representing Mrs.
Williams in the divorce case. The second complaint concerns the alleged actions of Brent R. Watson
and Suzanne Nicole Price after McKerr’s departure from the firm.

The Complaint alleges:

12. On or about April 19, 2004, McKellar did intentionally, fraudulently,
willfully, negligently, recklessly, and/or with a conscious indifference and/or with
malice, unfairly and with deception did cause a letter and accompanying document
purporting to be a legal prohibition keeping Mr. Williams from picking up his three-
year old son from his daycare or from visiting with his little son without supervision,
to be faxed to the La Petite Academy where his small son was enrolled.

13. The Director of La Petite Academy (“Director”) thereupon called
McKellar to verify her belief that his correspondence and his accompanying

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 document was a restraining order prohibiting Mr. Williams from continuing with his
routine practice of removing his son from daycare for visitation. Despite the
Director’s protestations to McKellar that Mr. Williams was a good father who took
an interest in his son, McKellar confirmed that a restraining order had been issued
against Mr. Williams and was adamant that Mr. Williams could not remove the child
form daycare; and, if Mr. Williams visited with his child at daycare, he must be
supervised.

14. When Mr. Williams arrived later that day to take his son for visitation,
the Director apologetically advised that he could neither remove his son nor be alone
with him. Upon hearing this prohibition, Mr. Williams, a former heart-surgery
patient, believing he had been accused of some vile behavior against his small son
and only child and that he was being prohibited from visitation, immediately
experienced chest and back pain, shortness of breath, chill sensations, and heart
palpitations.

15. Mr. Williams then asked the Director if there was a court order or
injunction; and she advised him that there was; and upon Mr. Williams’ request she
furnished to him the faxed document from McKellar.

16. Upon examination, Mr. Williams perceived that the purported restraining
order was a proposed parenting plan; and although a notary acknowledgment
appeared thereon, there was no signature of any judge. Mr. Williams pointed this out
to the Director and asked for the immediate possession of his son.

17. Upon the Director’s request to again telephone McKellar, Mr. Williams
acquiesced. McKellar in the subsequent telephone conversation with the Director
continued to vigorously object to the removal of the child from La Petite, and further
advised that it was an order which would be effective within the week. The Director
(recognizing that she had been deceived) admonished McKeller and advised there
was no judge’s signature on the document he had faxed to her and that the child
would be released to Mr. Williams for visitation. In response McKeller demanded
specific details of Mr. Williams’ plans that day with his son. The Director responded
that it was none of his business, terminated the conversation with McKellar, and
apologized to Mr. Williams, who was then able to leave the premises with his son.

Various other conclusory allegations are made relative to Watson McKellar & Price asserting
various complaints about the manner in which these attorneys represented his former wife in the
divorce action.

The defendants from the firm of Bunstine, Watson & McElroy and Norman D. McKellar on
July 11, 2005 filed a Motion to Dismiss under Rule 12.02(6) of the Tennessee Rules of Civil

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Procedure or alternatively for summary judgment. On September 16, 2005, the trial court entered
an order Dismissing with Prejudice all claims against these defendants.

Because the Motion to Dismiss filed by these defendants contained extraneous material in
the form of an affidavit from Defendant McKellar and a Statement of Undisputed Facts, the Motion
is converted to a Motion for Summary Judgment.

If, on a motion asserting the defense numbered (6) to dismiss for failure to state a
claim upon which relief can be granted, matters outside the pleadings are presented
to and not excluded by the court, the Motion shall be treated as one for summary
judgment and disposed of as provided in Rule 56.”

Tenn.R.Civ.P. 12.02.

Mr. Williams countered with his own affidavit and the affidavit of Barbara Cochran, the
Director of La Petite Academy. When the Complaint in respect to La Petite Academy is considered
in the light of the affidavits of McKellar, Williams and Cochran, no cause of action is stated against
these defendants. The proof shows without question that April 7, 2004, McKellar called Cochran
at La Petite and then faxed to her a letter enclosing a proposed parenting plan and a proposed order
approving same. Mr. Williams departed for Florida while his son remained at La Petite Academy.
When he returned, and on April 19, 2004, sought to visit his son at the Academy, the events charged
in the Complaint occurred. First, Williams asserts that on April 19, 2004, McKellar “did cause a
letter and accompanying document purporting to be a legal prohibition keeping Mr. Williams from
picking up his three-year old son from his daycare. . . to be faxed to the La Petite Academy.” This
allegation does not conform to the affidavit of Barbara Cochran who says:

In 2004 I was the director of La Petite Academy, a daycare center in
Knoxville, Tennessee, where Gladys and Jim Williams had enrolled their son for
daycare. Approximately two weeks prior to April 19, 2004, I received a telephone
call from Norman McKellar, who represented himself as Gladys Williams’ attorney.
He stated that a restraining order was to issue against Mr. Williams, and I asked him
to fax me a copy of any restraining order. On the morning of April 19, 2004, I
learned that Mr. Williams was coming to daycare to take his son for visitation, either
by Mrs. Williams when she dropped their child off or by notification of Mr. Williams
as was customary. I then called Mr. McKellar to confirm that there was a restraining
Order against Mr. Williams. Mr. McKellar stated that there was and that Mr.
Williams was prohibited from taking his son from the daycare premises or from
visiting with him on premises without supervision. I was extremely upset that I
would have to relay Mr. McKellar’s message about the restraining order and indeed
worried about it until Mr. Williams got there that morning. Lee Stazzone and myself
were present when Mr. Williams arrived at the daycare.

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 When he asked for his son, I related to him what Mr. McKellar had told me
as set out above. Mr. Williams immediately began to exhibit visual signs of physical
distress, so much so that I thought he was having a heart attack. Mr. Williams asked
me if I had a copy of the order and I retrieved a document from the file and showed
it to Mr. Williams. He reviewed the document and pointed out to me that [it]
contained no judge’s signature and only contained words relating to a parenting plan.
When he insisted that he was taking his son for visitation, I asked him if Mr.
McKellar could be contacted first and Mr. Williams assented. During the telephone
conversation with Mr. McKellar, it was pointed out there was no judge’s signature
on the document and only indicated a parenting plan. Mr. McKellar advised that it
was not yet a restraining order. I chastised Mr. McKellar for misleading me and for
involving daycare. I further advised him that Mr. Williams was taking his son for
visitation, after which Mr. McKellar wanted to know Mr. William’s plans. I told him
it was none of his business and hung up the phone. I apologized to Mr. Williams and
he left the premises with his son.

It does appear from the affidavit of Ms. Cochran that no documents were sent to her on April
19, 2004, but in fact, the documents at issue are the proposed parenting plan and order forwarded
to her on April 7, 2004, by Mr. McKellar (or as per her affidavit, “approximately two weeks prior
to April 19, 2004").

On July 11, 2005, the Price, Bunstine, Watson and McElroy defendants filed a Statement of
Undisputed Material Facts pursuant to Tennessee Rules of Civil Procedure 56.03. This Statement
asserted:

1. In late fall 2003, James Edward Williams and his wife, Gladys
Williams, agreed to obtain a divorce. Complaint ¶11.
2. In December 2003, Norman McKellar filed a divorce complaint on
behalf of Gladys Williams. Complaint ¶11
3. The complaint alleged that, at the time it was filed, Mr. and Mrs.
Williams had joint custody of their child. Complaint, ¶11.
4. On April 7, 2004, Norman McKellar returned a telephone call to his
client, Gladys Williams. Norman McKellar Affidavit. ¶4.
5. Ms. Williams told Norman McKellar she had information that her
husband James Williams was going to pick up their two-year-old son from his
daycare, La Petite Academy, and take him to Florida for two weeks. Norman
McKellar Affidavit, ¶4.
6. As an advocate for his client, Gladys Williams, in the ongoing divorce
case, Norman McKellar called Barbara Cochran at La Petite Academy and informed
her that his client, Gladys Williams, did not want her husband to take the child from
the daycare center because he had indicated he planned to take the child to Florida
for two weeks. Ms. Cochran asked if there was a court order or parenting plan
prohibiting Mr. Williams from taking his son. Mr. McKellar told her that there was

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no such order or plan. He told her a proposed parenting plan had been submitted to
the court but had not been signed by the judge and was not in effect. Ms. Cochran
asked Mr. McKellar to fax the proposed parenting plan to her attention. Norman
McKellar Affidavit, ¶6.
7. On April 7, 2004, Mr. McKellar faxed the proposed parenting plan to
Ms. Cochran along with a letter. Norman McKellar Affidavit, ¶7. His fax machine
generated a fax document indicating the fax was received. Norman McKellar
Affidavit, ¶6. The letter dated April 7, 2004, said:

As I mentioned to you during our telephone conversation today, I
represent Gladys Williams in her pending divorce against Jim
Williams. I have attached a copy of our Proposed Temporary
Parenting Plan for your review.

My client does not consent to allowing her son, Tommy, to go to
Florida with Mr. Williams. We hope and expect that you will honor
my client’s wishes.

Should you have any questions or concerns regarding this matter,
please do not hesitate to contact me.

Norman McKellar Affidavit, ¶12, Exhibit 1.

The parenting plan enclosed in the letter was clearly titled, in bold fact type, “THE
PLAINTIFF’S PROPOSED TEMPORARY PARENTING PLAN.” It was
identified as a temporary plan in the text of the letter, and it was obviously not signed
by a judge. Norman McKellar Affidavit, ¶12, Exhibit 1.
8. The letter dated April 7, 2004, the proposed parenting plan enclosed
in the letter, the fax confirmation indicating delivery of the fax to La Petite, and the
fax cover sheet and fax transmittal confirmation indicating delivery of the fax to John
Harber, are attached to Mr. McKellar’s affidavit as collective Exhibit 1. Norman
McKellar Affidavit, ¶12.
9. At no time did Norman McKellar tell Ms. Cochran or anyone else at
La Petite that there was a restraining order prohibiting Mr. Williams from removing
his son from the daycare center. What he told Ms. Cochran was that Gladys
Williams had information that Mr. Williams intended to take the child to Florida for
a period of two weeks, that Gladys Williams did not want him to do so, and that they
wanted her cooperation in prohibiting the child from being taken from the daycare
by Mr. Williams. Norman McKellar Affidavit, ¶10.
10. Mr. McKellar did not conceal his communication with La Petite. He
called Mr. Williams’ attorney, John Harber, on April 7, 2004, to advise him of the
communication with La Petite, and he sent Mr. Harber a copy of the April 7, 2004
letter to La Petite by fax. Norman McKellar Affidavit, ¶11.

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 11. On the same day the letter was sent, Mr. Williams arrived at La Petite
to take his son. The director of La Petite told him apologetically that he could not
remove his son from the premises to be alone with him. Complaint, ¶14.
12. Mr. Williams alleges that he thought he was being accused of some
vile behavior against his son. He claims to have immediately experienced chest and
back pain, shortness of breath, chill sensations, and heart palpations. Complaint, ¶14.
13. Mr. Williams asked the La Petite director if there was a court order
or injunction. She told him there was and showed him the documents faxed by Mr.
McKellar. Complaint, ¶15.
14. Mr. Williams immediately recognized that what the director of La
Petite thought was a court order was a proposed parenting plan that had not been
signed by the judge. Complaint, ¶16.
15. The director of La Petite again called Mr. McKellar. Mr. McKellar
continued to vigorously object to the removal of the child from La Petite and said the
parenting plan would be effective within the week. The director then allowed Mr.
Williams to leave the La Petite premises with his son. Complaint, ¶17.
16. Mr. Williams alleges that he continued to suffer symptoms indicative
of a heart attack. He returned his son to La Petite after a short visit. The La Petite
personnel were concerned about Mr. Williams and called an ambulance to go to his
home. Complaint, ¶18.
17. Mr. Williams alleges that Mr. McKellar knew Mr. Williams had a
heart condition. Complaint, ¶20.
18. At the end of May 2004, Mr. McKellar left the office of Bunstine,
Watson & McElroy to open a new office, and thereafter Nicole Price and Brent
Watson of Bunstine, Watson & McElroy assumed handling of the file. Norman
McKellar Affidavit, ¶3.
19. Nicole Price and Brent Watson represented Gladys Pineda Williams
in the above mentioned divorce case, Gladys Pineda Williams v. James Edward
Williams, Knox County Chancery Court No. 159867-2, from around the end of May
2004, after Mrs. Williams’ original attorney, Norman McKellar, left Bunstine,
Watson & McElroy. James Edward Williams was initially represented by attorney
John Harber. Price Affidavit, ¶14.
20. Prior to a hearing scheduled before the Referee on July 9, 2004, on
Gladys Williams’ motion for child support pendente lite, Mr. Harber and Ms. Price
reached an agreement on behalf of both Mr. and Mrs. Williams, that being that James
Williams would continue paying the mortgage payment on the house where Mrs.
Williams and the parties’ minor son were living, maintenance expenses on the house
where Mrs. Williams was living, and daycare expenses for the parties’ minor child,
all in lieu of a formal payment of child support. Ms. Price and Mr. Harber contacted
the Referee’s office and informed her that an agreement had been reached regarding
child support, that an agreed order would be forthcoming, and that the hearing
scheduled for July 9, 2004, could be removed form the docket. Price Affidavit, ¶5.

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 21. Mr. Harber prepared and sent to Ms. Price for approval on July 6,
2004, a draft of the order memorializing the agreement regarding child support. By
oversight, the order was not submitted to the court for entry. Ms. Price did not
realize it had not been entered until around mid-October 2004, when she began
preparation of a petition for contempt due to Mr. Williams’ failure to make the
agreed payments. Price Affidavit, ¶6.
22. When Ms. Price realized in mid-October, 2004 that the order had not
been entered with the court, she contacted Mr. Harber, who submitted the signed
order to the court for entry nunc pro tunc. Price Affidavit, ¶7.
23. After the order was entered nunc pro tunc. as of July 9, 2004, Ms.
Price proceeded with the petition for contempt which was filed on October 20, 2004.
A copy of the July 9, 2004 order is attached as Exhibit 1. Price Affidavit, ¶8.
24. No hearing was held on the petition for contempt. The case was
settled, and a marital dissolution agreement was entered on December 13, 2004. A
permanent parenting plan was signed by the parties and approved by the court on the
same date. A final judgment of divorce was also entered on December 13, 2004,
granting a divorce on the grounds of irreconcilable differences. True and exact
copies of the marital dissolution agreement, permanent parenting plan and final
decree of divorce are attached as Exhibits 2, 3 and 4. Price Affidavit, ¶9.
25. Neither Nicole Price, nor any other attorney at Bunstine, Watson &
McElroy, had any plan or agreement with Mr. Harber, Norman McKellar, or any
other person to take any unlawful action against James Williams. Additionally, Ms.
Price and the other attorneys at Bunstine, Watson & McElroy did not have any plan
or agreement to take any lawful action against Mr. Williams to achieve an unlawful
result. All actions taken were lawful and done in the representation of their client,
Gladys Pineda Williams. Price Affidavit, ¶10.

Three days prior to the hearing on September 2, 2005, Plaintiff filed a purported response to
this Statement of Undisputed Facts, which evidences no material factual dispute but is simply a brief
reasserting the allegations of the Complaint and pointing out nothing in the record establishing
disputes of material fact. This August 29, 2005, Response to the defendant’s Statement of
Undisputed Facts states in part:

None of the defendants filed an answer to the complaint. Mr. Benner’s presentation
of “undisputed facts” are disputed by the plaintiff where not mirrored in the
complaint filed on Plaintiff’s behalf and/or substantiated or corrected by affidavits
filed in support of Mr. Williams’ contentions and in opposition to the motions of the
defendants. Further, in some instances, Mr. Benner merely states “allegations” rather
than relying on any admitted fact.

...

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 Facts of this case are further set out in the affidavits filed in support of Mr.
Williams’ opposition to motions to dismiss or summary judgment and are
incorporated herein by reference.

All that follows this recitation is simply a brief arguing the allegations of the Complaint.

The requirements of Tennessee Rule of Civil Procedure 56.03 are mandatory, and it is not
the duty of the court, trial or appellate, to search the record in order to find a material dispute of fact.
This Court has held:

The plaintiff argues that the trial court erred in applying Tenn. R. Civ. P.
56.03 in an “unjustifiably mechanistic fashion” when it refused to consider evidence
contained in the discovery materials filed by the plaintiff but not referred to in his
Rule 56.03 response to the defendant's statement of material facts. The plaintiff
insists that “he could have created a genuine question of material fact ··· had the Trial
Judge not excluded large portions of his evidence.” The plaintiff contends that the
trial court's action was especially unwarranted in light of the fact that the
memorandum of law filed along with his response contains a concise statement of all
of the facts relied upon by the plaintiff, along with appropriate citations to the record.
At the very least, the plaintiff contends, he should have been granted a continuance
to allow him time “to configure his documents into the Court's preferred format.”

Rule 56.03 requires the party seeking summary judgment to provide “a
separate concise statement of the material facts as to which the moving party
contends there is no genuine issue for trial.” Tenn. R. Civ. P. 56.03. Each fact must
be set forth in a separate, numbered paragraph along with a specific citation to the
record. Id. The nonmoving party must file a response to each fact set forth by the
moving party and either (1) agree that the fact is undisputed; (2) agree that the fact
is undisputed for the purposes of the motion; or (3) demonstrate with a specific
citation to the record that the fact is disputed. Id. Rule 56.03 further provides

the non-movant's response may contain a concise statement of any
additional facts that the non-movant contends are material and as to
which the non-movant contends there exists a genuine issue to be
tried. Each such disputed fact shall be set forth in a separate,
numbered paragraph with specific citations to the record supporting
the contention that such fact is in dispute.

Id. The purpose of these requirements is to “assist the Court in focusing on the
crucial portions of the record” in determining whether there is a genuine issue
requiring a trial on the merits. See Advisory Committee Comment to Tenn. R. Civ.
P. 56.03.

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 This Court has recognized that a nonmoving party's failure to comply with
Rule 56.03 may result in the trial court's refusal to consider the factual contentions
of the nonmoving party even though those facts could be ascertained from the record.
See Simmons v. Harris, C/A No. M2000-00227-COA-R3-CV, 2000 WL 1586451,
at *3 (Tenn. Ct.App. W.S., filed October 25, 2000), perm. app. denied April 16,
2001. As the United States Court of Appeals for the Seventh Circuit has noted, the
statements of material facts filed by the parties on a motion for summary judgment

are not merely superfluous abstracts of the evidence. Rather, they are
intended to alert the court to precisely what factual questions are in
dispute and point the court to the specific evidence in the record that
supports a party's position on each of these questions. They are, in
short, roadmaps, and without them the court should not have to
proceed further, regardless of how readily it might be able to distill
the relevant information from the record on its own.

Waldridge v. American Hoechst Corp., 24 F.3d 918, 923 (7th Cir.1994). Of course,
a trial court, acting within its discretion, may waive the requirements of the rule in
an appropriate situation, see *775 Butler v. Diversified Energy, Inc., C/A No. 03A01-
9804-CV-00146, 1999 WL 76102, at *3 (Tenn. Ct.App. E.S., filed January 28,
1999); however, considering the discretionary nature of the decision before us, we
cannot say that the trial court in the instant case erred when it refused to waive the
strict requirements of the rule, especially in light of the fact that the plaintiff's
response to the defendant's statement of material facts and the memorandum of law
in support thereof were not filed until the day before the hearing and could have been
disregarded on that basis alone. See Tenn. R. Civ. P. 56.03 (requiring nonmoving
party to file response no later than five days before the summary judgment hearing).

Furthermore, we cannot say that the trial court erred in denying the plaintiff's
motion for a continuance. “An appellate court cannot interfere with the trial court's
decision unless such decision constitutes an abuse of discretion and causes prejudice
to the party seeking the stay or continuance.” Sanjines v. Ortwein and Assocs., P.C.,
984 S.W.2d 907, 909 (Tenn.1998). The instant case is not merely a question of
materials not being presented in the trial court's “preferred format,” as suggested by
the plaintiff. It is Rule 56.03 that sets forth the required format. The plaintiff failed
to comply with that rule when he did not set forth in his response all of the facts that
he contends are in dispute. The trial court acted within its discretion in choosing to
strictly enforce those requirements.

Owens v. Bristol Motor Speedway, Inc., 77 S.W.3d 771, 774-75 (Tenn.Ct.App.2001).

In once again reiterating the mandatory nature of the duty placed upon the non- moving party
under Tennessee Rule of Civil Procedure 56.03, this Court held:

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 Although the trial court may, at its discretion, waive the requirements of the rule
where appropriate, the court may also refuse to consider the factual contentions of a
non-complying party even where such facts are ascertainable by the record. Id. Thus
the material facts set forth in the statement of the moving party may be deemed
admitted in the absence of a statement controverting them by the opposing party. See
Robert Banks, Jr. & June F. Entman, Tennessee Civil Procedure, § 9– 4(i)(1999)
(quoting Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1313 n. 1 (7th Cir.1995)).
Accordingly, failure to file a response in opposition to a motion for summary
judgment generally will prove fatal in the trial court and upon appeal. See Mark VII
Transp. Co. v. Belasco, No. W2002-00450-COA-R3-CV, 2002 WL 31895714,at *4-
5 (Tenn.Ct.App. Dec. 30, 2002) (no perm app. filed.).

Holland v. City of Memphis, 125 S.W.3d 425, 428-29 (Tenn.Ct.App.2003).

Looking to the undisputed material facts asserted by Defendants, the only written
communication from McKellar to Cochran occurred on April 7, 2004, and when he was presented
with these documents on April 19, 2004, Mr. Williams quickly recognized that they contained only
a proposed parenting plan and a proposed order and not an effective restraining order. Plaintiff fails
to present any factual basis upon which to predicate a duty owing from counsel for his former wife
to him or any factual basis upon which to predicate any breach of such unestablished duty.1

Even if one disregards the statute of limitations defense, there is simply no basis upon which
Plaintiff may assail the grant of summary judgment in this case.

The judgment of the trial court is in all respects affirmed, and costs of the cause are assessed
to Appellant. The case is remanded to the trial court for such further proceedings as may be
necessary.

___________________________________
WILLIAM B. CAIN, JUDGE

1
Mr. W illiams asserts that he assumed he had been accused of some “vile act” involving his son but the record
contains no proof of such an accusation.

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