Phung v. Case

IN THE COURT OF APPEALS OF TENNESSEE
FILED
AT KNOXVILLE July 28, 1999

Cecil Crowson, Jr.
Appellate Court
Clerk

HOA DAO PHUNG, ) C/A NO.03A01-9811-CV-00388
)
Plaintiff-Appellant, )
)
)
)
v. ) APPEAL AS OF RIGHT FROM THE
) ANDERSON COUNTY CIRCUIT COURT
)
)
)
)
RANDALL CASE, )
) HONORABLE JAMES B. SCOTT, JR.,
Defendant-Appellee. ) JUDGE

For Appellant For Appellee

BILLY P. SAMS DAVID L. FLITCROFT
Oak Ridge, Tennessee Oak Ridge, Tennessee

O P I N IO N

1
AFFIRMED AND REMANDED Susano, J.
Hoa Dao Phung filed this action seeking to recover

damages for breach of warranty and for violations of the

Tennessee Consumer Protection Act1, arising out of her purchase

of a residence from the defendant, Randall Case. The trial court

initially granted the defendant’s motion for summary judgment as

to certain issues; it subsequently granted his motion for summary

judgment as to all remaining issues raised by the pleadings. The

plaintiff appeals, contending that the trial court’s grant of

partial and then full summary judgment was inappropriate. We

affirm.

I

The procedural history of this case is somewhat

convoluted. The case itself traces its “roots” to when the

plaintiff began experiencing various problems with the house that

she had purchased from the defendant. The plaintiff brought an

action against Case, a builder, for breach of express warranty2

in the Anderson County Trial Justice Court. That action resulted

in a judgment for the plaintiff for $250, plus costs. No appeal

was taken from that judgment and it was subsequently paid.3

1
T.C.A. § 47-18-101, et seq.
2
The warranty contained in the parties’ sales agreement provides as
follows: “Applicable for a period of 12 months from closing or possession,
whichever is earlier, Builder will warrant (the dwelling) against structural
defects, defects in the plumbing and electrical systems or malfunction of the
heating and cooling systems. Entire property which includes the Driveway,
Landscaping etc.”
3
The pleadings and judgment from the original litigation in the Trial
Justice Court are not a part of the record on this appeal.

2
 Shortly thereafter, and prior to the expiration of the

12-month warranty, the plaintiff filed a second suit against the

defendant in the Trial Justice Court. This action was dismissed

by that tribunal on the basis of res judicata.4 The plaintiff

appealed that decision to Circuit Court but subsequently took a

nonsuit. She later filed the instant action in Circuit Court,

and, after obtaining counsel, substituted an amended complaint

alleging breach of warranty and violations of the Tennessee

Consumer Protection Act.

The defendant moved for summary judgment on the basis

of res judicata. The defendant’s motion indicates that it was

served on the plaintiff by mail on December 4, 1996. On January

9, 1997, the Circuit Court entered an order granting partial

summary judgment in favor of the defendant. The order provides

in pertinent part as follows:

It appears to the Court that Ms. Phung in her
Discovery Deposition admitted and the proof
shows that a separate action was
maintained... in which a lawsuit was brought
by Ms. Phung against Randall Case... for cost
of works to complete, correcting landscaping,
driveway, and water absorbency in the
basement of said premises which is the nexus
of the current lawsuit. A judgment was
obtained in that cause and was paid in full.
An appeal was never taken from that action.
No opposing affidavits were presented. That
action constitutes res judicata as to the
matters in this case having previously been
litigated and satisfied. Accordingly, so
much of the complaint that relates to those
matters is dismissed....

4
Again, the pleadings and judgment from this second action in the Trial
Justice Court are not included in the record before us.

3
The Circuit Court further ordered that the case would continue on

the remaining issues. The Court’s order does not state the date

on which the motion was argued.

Some four and a half months after entry of the order

granting partial summary judgment, the plaintiff filed a response

to the defendant’s motion. The response asked that it be

considered by the Circuit Court in the event the court granted a

“Motion to Set-Aside or Reconsider and/or to Clarify Order

Granting Motion for Partial Summary Judgement [sic]” that was

apparently filed by the plaintiff5 after entry of the Circuit

Court’s January 9, 1997, order.

On January 15, 1998, the defendant filed another motion

for summary judgment, asserting that the only issues remaining

pertained to alleged problems with the ground default plugs,

movement of the kitchen floor, problems with the garage door

opener, and damage to the driveway concrete. Seeking to negate

the plaintiff’s claim with respect to each of the remaining

issues, the defendant submitted his affidavit, as well as the

affidavits of eight others who had inspected the subject

property. Each of the affidavits states that the alleged problem

either does not exist or was caused solely by the plaintiff’s own

actions. The record does not reflect that the plaintiff filed

any response to the defendant’s motion or submitted any

affidavits or other material.

5
This motion is not a part of the record on appeal. It presumably was
denied by the Circuit Court.

4
 Following a hearing on the motion, the Circuit Court

entered an order on May 22, 1998, granting summary judgment in

favor of the defendant on the issues of the garage door opener

and the ground default plugs. The Court noted that the parties

were attempting to resolve the issue concerning the kitchen

floor, and stated that if the plaintiff was not satisfied with

the subsequent repair work, “it would be incumbent upon her to

file an opposing Affidavit and the Court would then dispose of

the matter on Summary Judgment.”

On June 1, 1998, the Circuit Court entered an order in

which it found that the plaintiff’s attorney had “indicated that

no agreement had been reached concerning the floor tiles and that

[the attorney] was unable to provide any counter affidavits”

regarding the remaining issues. Accordingly, the Court granted

full summary judgment in favor of the defendant and dismissed the

action. After her motion for relief under Rules 59 and 60,

Tenn.R.Civ.P., was denied, the plaintiff appealed.

II

We review the Circuit Court’s grant of summary judgment

against the standard of Rule 56, Tenn.R.Civ.P. That Rule

provides, in pertinent part, as follows:

...[the] judgment sought shall be rendered
forthwith if the pleadings, depositions,
answers to interrogatories, and admissions 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 a judgment as a matter of law....

5
Rule 56.04, Tenn.R.Civ.P.

When reviewing a grant of summary judgment, an

appellate court must decide anew if judgment in summary fashion

is appropriate. Cowden v. Sovran Bank/Central South, 816 S.W.2d

741, 744 (Tenn. 1991); Gonzalez v. Alman Constr. Co., 857 S.W.2d

42, 44-45 (Tenn.App. 1993). Since this determination involves a

question of law, there is no presumption of correctness as to the

trial court’s judgment. Robinson v. Omer, 952 S.W.2d 423, 426

(Tenn. 1997); Hembree v. State, 925 S.W.2d 513, 515 (Tenn. 1996).

In making our determination, we must view the evidence in the

light most favorable to the nonmoving party, and we must draw all

reasonable inferences in favor of that party. Byrd v. Hall, 847

S.W.2d 208, 210-11 (Tenn. 1993). Summary judgment is appropriate

only if there are no genuine issues of material fact and then

only if the undisputed material facts entitle the moving party to

a judgment as a matter of law. Rule 56.04, Tenn.R.Civ.P.; Byrd,

847 S.W.2d at 211.

As the Supreme Court has stated, “a motion for summary

judgment goes directly to the merits of the litigation, and a

party faced with such a motion may neither ignore it nor treat it

lightly.” Byrd, 847 S.W.2d at 210; see also Fowler v. Happy

Goodman Family, 575 S.W.2d 496, 498 (Tenn. 1978). Where the

material relied upon by the moving party demonstrates undisputed

material facts supporting a judgment for that party, the

nonmoving party must, in order to defeat summary judgment,

respond by setting forth admissible facts before the trial court

6
that show a dispute as to those facts. Byrd, 847 S.W.2d at 215.

The nonmovant cannot in that instance simply rely upon the

allegations of his or her pleadings. See Rule 56.06,

Tenn.R.Civ.P.

III

We first turn to the plaintiff’s arguments regarding

the propriety of the lower court’s grant of partial summary

judgment in its order of January 9, 1997. In this connection,

the plaintiff contends that she was deprived of the 30-day notice

required by Rule 56.04, Tenn.R.Civ.P.6 She maintains that the

hearing on the defendant’s December 5, 1996, motion “apparently”

took place on December 16, 1996. As indicated earlier, the order

granting partial summary judgment on this motion was not entered

until January 9, 1997. There is no mention in that order, or any

direct evidence in the record, of the date of the hearing.

Nevertheless, we note that the January 9, 1997, order is stamped

“RECEIVED” by the trial court clerk on December 27, 1996; in view

of this fact, it is reasonable to infer that the hearing must

have taken place at some point before or on December 27, 1996,

and thus prior to the expiration of the 30-day period required by

Rule 56.04, Tenn.R.Civ.P.7

6
That Rule provides, in pertinent part, that “[t]he motion [for summary
judgment] shall be served at least thirty (30) days before the time fixed for
the hearing.”
7
As indicated earlier, the defendant’s motion for summary judgment
recites that it was served on the plaintiff by mail on December 4, 1996;
pursuant to Rules 56.04 and 6.05, Tenn.R.Civ.P., the motion was not ripe for
disposition prior to January 7, 1997.

7
 With regard to the 30-day period, the Supreme Court has

held as follows:

The purpose of the rule is to allow the
opposing party time to file discovery
depositions, affidavits, etc., as well as to
provide full opportunity to amend. In
prescribing the thirty (30) day period the
rule uses the word “shall” and we hold that
it is mandatory and not discretionary....

...where there is the slightest possibility
that the party opposing the motion for
summary judgment has been denied the
opportunity to file affidavits, take
discovery depositions or amend, by the
disposition of a motion for summary judgment
without a thirty (30) day interval following
the filing of the motion, it will be
necessary to remand the case to cure such
error.

Craven v. Lawson, 534 S.W.2d 653, 655 (Tenn. 1976). We have held

that a failure to comply with the rule does not require that a

grant of summary judgment be set aside where the record does not

contain any indication that the nonmoving party opposed the

hearing of the motion within the 30-day period, requested a

continuance, or was prejudiced by the premature hearing. See

Teachers Ins. & Annuity Ass’n v. Harris, 709 S.W.2d 592, 595

(Tenn.App. 1985). In so holding, we noted that Rule 36(a),

T.R.A.P., does not require that relief “be granted to a party...

who failed to take whatever action was reasonably available to

prevent or nullify the harmful effect of an error,” Id.; we also

pointed out that, pursuant to Rule 36(b), T.R.A.P., a judgment

will not be set aside for harmless error -- for example, where

the record contains no showing of prejudice to the nonmovant.

Id.

8
 In the instant case, the record contains no indication

that the plaintiff objected in any way to the hearing being held

within 30 days of service of the motion upon her. As was the

case in Harris, it appears that the plaintiff did not oppose the

hearing or request a continuance. It is likewise clear that the

plaintiff submitted no affidavits in opposition to the

defendant’s motion; nor did she file any response to the motion

until several months after it had been granted. In short, the

plaintiff has failed to point to anything in the record to

indicate that the hearing was held over her objection; nor does

she take the position in her brief that such was the case.

Furthermore, she has failed to demonstrate how she has suffered

any prejudice from this alleged error. On the contrary, the

plaintiff’s argument on this point is essentially limited to her

assertion that she was deprived of 30 days’ notice and that such

failure mandates reversal, under the above-quoted language from

Craven.

Under these circumstances, we are of the opinion that

the failure to observe the 30-day period set forth in Rule 56.04,

Tenn.R.Civ.P., does not constitute sufficient grounds to disturb

the judgment in this case. See Harris, 709 S.W.2d at 595; see

also Donnelly v. Walter, 959 S.W.2d 166, 168 (Tenn.App.

1997)(“There was absolutely no reason to set aside the summary

judgments in the absence of some indication that the plaintiff

had a response to the defendants’ properly supported motions.”)

By the same token, there is simply nothing in the

record to indicate that the issues disposed of by the grant of

9
partial summary judgment, i.e., problems with the landscaping,

driveway, and water in the basement, had not been conclusively

determined by the prior adjudication in the Trial Justice Court.

Again, we must point out that the record does not contain a copy

of either of the judgments of the Trial Justice Court, or a

transcript of the evidence from the original case in that court.

What we do have before us is the Circuit Court’s order granting

partial summary judgment, in which the Court found that the

plaintiff’s cause of action as to those issues had been

previously litigated and satisfied. In short, the Circuit Court

found that these issues had been fully litigated in the earlier

suit, and there is nothing in the record to suggest otherwise.

It was the appellant’s responsibility to furnish the Court of

Appeals with a record reflecting the alleged error. She failed

to do so. In the absence of a record reflecting error, we must

assume that the trial court acted properly. Lyon v. Lyon, 765

S.W.2d 759, 763 (Tenn.App. 1988).

With regard to the Circuit Court’s grant of both

partial and then full summary judgment, the plaintiff argues that

her “pleading was attested as true by her own oath, and that many

of the allegations were of her own knowledge.” She argues that

because her amended complaint was in the form of a verified

complaint, it served as “the functional equivalent of an

affidavit, and should have been considered” on the question of

summary judgment. The plaintiff acknowledges that she submitted

no countervailing expert testimony regarding the issues that

survived the partial summary judgment; however, she insists that

10
her “sworn complaint stood in opposition” to the defendant’s

motion for summary judgment and accompanying affidavits.

Rule 56.06, Tenn.R.Civ.P., sets forth the requisite

form for affidavits:

Supporting and opposing affidavits shall be
made on personal knowledge, shall set forth
such facts as would be admissible in
evidence, and shall show affirmatively that
the affiant is competent to testify to the
matters stated therein....

The Supreme Court has held that statements based upon an

affiant’s belief do not constitute “such facts as would be

admissible in evidence,” within the meaning of Rule 56.06.

Fowler v. Happy Goodman Family, 575 S.W.2d 496, 498 (Tenn.1978).8

Similarly, in Keystone Ins. Co. v. Griffith, 659 S.W.2d 364

(Tenn.App. 1983), this court held that statements in an affidavit

made on “information and belief” do not comply with Rule 56.05

(now 56.06) and cannot be considered as evidence. Id. at 366.9

We explained that “[b]elief, no matter how sincere, is not

equivalent to knowledge.” Id. (quoting Jameson v. Jameson, 176

F.2d 58 (D.C. Cir. 1949)).

8
The affidavit at issue in Fowler concluded with the following
statement: “Upon the information I have, I believe that all of the
aforementioned representations of the plaintiffs were made by them knowing
that they were false and they were intended to mislead me.” Fowler, 575
S.W.2d at 498 (emphasis in Fowler opinion). The Court noted that the
affidavit did not divulge the sources of the “information” upon which the
affiant based his “belief,” nor did it demonstrate that the affiant was
“competent to testify to the matters stated therein.” Id. (quoting Rule
56.06, Tenn.R.Civ.P.).
9
The affiant in Keystone stated that he had personal knowledge of all
facts set forth in his affidavit “except as to matters indicated to be on
information and belief, and those matters I verily believe to be true.” Id.
at 365.

11
 In the instant case, the oath attached to the

plaintiff’s amended complaint recites as follows:

HOA DAO PHUNG, having been duly sworn
according to law, makes oath that she has
read the foregoing Amended Complaint and that
the statements set forth therein are true to
the best of her knowledge, information and
belief.

Thus, it is clear that the allegations in the plaintiff’s amended

complaint were not based exclusively upon her personal knowledge.

In light of her oath, it is impossible to determine which

allegations were founded upon personal knowledge, and which were

merely statements based upon what she “believed” to be true.

This being the case, we cannot say that the verified complaint

meets the standards required of affidavits by Rule 56.06,

Tenn.R.Civ.P. We therefore do not agree with the plaintiff that

the amended complaint is the “functional equivalent of an

affidavit.”

The defendant presented the court with several

affidavits demonstrating that there were no disputed material

facts creating a genuine issue for trial. Byrd, 847 S.W.2d at

215. The burden then shifted to the plaintiff “to set forth

specific facts, not legal conclusions, by using affidavits or the

discovery materials listed in Rule [56.04],” establishing that

there indeed existed genuine issues of material fact. Byrd, 847

S.W.2d at 215. The plaintiff was not entitled to simply rely

upon the allegations of her pleadings. Rule 56.06,

Tenn.R.Civ.P.; Byrd, 847 S.W.2d at 215. The record indicates,

12
however, that approximately four months passed between the filing

of the defendant’s second motion for summary judgment and the

entry of the Circuit Court’s two orders granting summary

judgment. During this time, the plaintiff did not file a

response to the defendant’s motion, did not submit any opposing

affidavits, and did not file a motion for a continuance in order

to obtain affidavits or pursue discovery.

In light of the foregoing, we hold that the trial court

was correct in granting the defendant’s motions for summary

judgment, both initially as to those matters which had been

adjudicated in the original action, and subsequently as to the

remaining issues in the case. The plaintiff’s arguments to the

contrary are found to be without merit.

IV

The decision of the trial court is affirmed. Costs on

appeal are taxed to the appellant. This case is remanded to the

trial court for the collection of costs assessed there, pursuant

to applicable law.

__________________________
Charles D. Susano, Jr., J.

CONCUR:

________________________
Houston M. Goddard, P.J.

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________________________
Herschel P. Franks, J.

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