IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
April 13, 2015 Session
MICHAEL PHILLIPS v. COVENANT HEALTH, ET AL.
Appeal from the Circuit Court for Anderson County
No. B4LA0014 Donald R. Elledge, Judge
No. E2014-01405-COA-R3-CV-FILED-JUNE 9, 2015
This appeal arises from a construction negligence case. Michael Phillips (“Plaintiff”),
sued Covenant Health, Rentenbach Engineering Company, and TEG Architects, LLC,
(“Defendants,” collectively) in the Circuit Court for Anderson County (“the Trial
Court”). Plaintiff alleged that the absence of shielding in a portion of the radiology
facilities in the new emergency department at Methodist Hospital caused Plaintiff to
suffer damages from excessive radiation exposure. Defendants filed motions for
summary judgment asserting the statute of repose, Tenn. Code Ann. § 28-3-202 (2000),
as a complete defense. The Trial Court granted Defendants‟ motions for summary
judgment. Plaintiff appeals to this Court arguing, in part, that the statute of repose did
not run because the absence of the required shielding in the radiology facilities meant the
project was not substantially completed on the date as found by the Trial Court. We hold,
inter alia, that the radiology facilities, while perhaps defective, were used for their
intended purpose and were substantially complete as found by the Trial Court. The
construction statute of repose expired and serves to defeat Plaintiff‟s claims. We affirm
the Trial Court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed;
Case Remanded
D. MICHAEL SWINEY, J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.
John D. Agee, Clinton, Tennessee, for the appellant, Michael Phillips.
F. Michael Fitzpatrick and Rachel Park Hurt, Knoxville, Tennessee, for the appellee,
Covenant Health.
Howard E. Jarvis, Dean T. Howell, and April A. Carr, Knoxville, Tennessee, for the
appellee, Rentenbach Engineering Company.
R. Loy Waldrop, Jr., W. Paul Whitt, and Janet S. Hayes, Knoxville, Tennessee, for the
appellee, TEG Architects, LLC.
OPINION
Background
The background facts of this case are relatively straightforward. Plaintiff,
along with several other similarly situated parties, filed a complaint in January 2014
against Defendants alleging that Plaintiff was exposed to excessive radiation from the
radiology facilities at Methodist Hospital. Defendants were involved with the
construction project at Methodist Hospital, including the radiology facilities, in some
capacity. Plaintiff alleged that portions of walls lacked the necessary lead shielding, and
that this defect led to Plaintiff‟s exposure to excessive radiation. Defendants filed
answers in opposition. Certain of Defendants raised comparative fault against Methodist
Medical Center of Oak Ridge (“MMC”), or, alternatively, that Covenant Health owned
the facilities. Defendants later filed motions for summary judgment in which they
asserted that the construction statute of repose was a complete defense. Plaintiff filed a
Motion for Leave to File Amended Complaint and Motion to Quash Notices of Hearing.
Plaintiff sought to add MMC as a Defendant to the complaint. The Trial Court granted
Plaintiff‟s Motion to Quash, allowing additional time to take discovery on the issues of
substantial completion and the statute of repose.
In June 2014, the Trial Court heard Defendants‟ motions for summary
judgment as well as Plaintiff‟s motion to add MMC as a party. The Trial Court granted
Defendants‟ motions for summary judgment and denied Plaintiff‟s Motion to Amend.
The Trial Court incorporated its oral ruling into its order, which we quote from:
We‟re here today on the case of Michael Phillips, Case No.
B4LA0014, Connie Raby, B4LA0015, Mary Ridenour, et al., B4LA0016,
Keith Gillis, B4LA0017, and Micah Lewellen, et al., B4LA0018, all versus
Covenant Health, Rentenbach Engineering, doing business as Rentenbach
Constructors, Inc., and TEG Architects, LLC.
We‟re here as a result of a motion for summary judgment being filed
under Rule 56 and, would advise counsel, under Rule TCA 20-16-101,
which basically reversed the finding in Hanna[n] vs. Alltel, where the
parties who do not bear the burden of proof, it reversed - - it went from
putting it on - - or reversing it to trial. And I was a part of that. Martin vs.
Southern Railroad and Hanna[n] vs. Alltel were both debated on the floor.
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But it takes us back to what it was before Hanna[n] vs. Alltel. It‟s back to
“put up or shut up.” That‟s the language that‟s used in the discussion.
It is uncontroverted that litigation in each of these cases was filed on
or about January 13, 2014, or thereafter. It is uncontroverted that in each of
these litigations, specifically in paragraph 9, that the emergency department
was substantially completed and opened in February of 2006.
I read the complaint again twice yesterday, and nowhere in the
complaint could I find any allegation of fraud or wrongful concealment. It
is undisputed that this is a construction lawsuit, and when you read the
allegations set out in the complaint, it‟s a construction lawsuit. It‟s an
errors and omissions lawsuit, where one panel of lead-lined Sheetrock was
left out of the x-ray room.
And it‟s uncontroverted and undisputed that the imaging center was
substantially complete to the point of making it available for its intended
use as an emergency room no later than March 23, 2006. That‟s the
affidavit of Anthony Pettitt that attached the Certificate of Compliance
under Exhibit A. It‟s undisputed that the code enforcement supervisor,
Danny Boss, for the City of Oak Ridge issued a use permit for the
emergency room on or about April 4, 2006. But, factually, the emergency
room was in fact being used at the end of March through December of
2013, at which time the lead-lined wall was then constructed. December
2013, they added lead shielding that was omitted. That‟s in the deposition
of David Newman, page 11, line 3 through 6, page 15, line 5 through 9.
I have read the report of Roy Osborne. I find that that report and
several of the items submitted by Plaintiff in response to the statement of
facts and their allegations of additional statements of facts do not comply
with Tennessee Rules of Civil Procedure 56.06. But even taking into
consideration Roy Osborne‟s report, it does not set out and does not
mention the absence of any lead-lined wall or knowledge - - and that‟s
important, knowledge - - that the lead-lined wall was not appropriately
built. To the contrary, it said it had adequate lead-lined shielding. So even
if I took it into consideration, it doesn‟t rise to the effect of fraud or
concealment, which hasn‟t been pled.
We‟re here on the statute of repose, and I‟ll remind counsel, and it
becomes a part of my ruling today, that under 28-3-201 under
“Definitions,” “Substantial completion means that degree of completion of
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a project, improvement, or a specified area or portion thereof (in
accordance with the contract documents, as modified by any change orders
agreed to by the parties) upon attainment of which the owner can use the
same for the purpose for which it was intended.” It also says, “The date of
substantial completion may be established by written agreement between
the contractor and owner.”
We had a notification, pursuant to the statute, that was filed and is
considered by the Court a notice of substantial completion on March 23,
2006, between the contractor and the owner. We had the fact that from
March of 2006 till December of 2013, it was used for the purpose for which
it was intended. It was an x-ray room, it was a CT room, and that‟s what it
was used for.
Then we look at “Limitation of Actions,” and this is where the
statute of repose comes in, TCA 28-3-202. “All actions to recover damages
for any deficiency in the design, planning, supervision, observation of
construction, or construction of an improvement to real property must be” -
- it goes on - - “must be brought against the person performing or
furnishing the design, planning, supervision, construction within four years
after substantial completion of such an improvement.”
TCA 28-3-203 says if you suffer the injury in the fourth year, then,
of course, it adds a year to it.
And then 28-3-205 specifically sets out “Limitation not defense for
party in possession, guilty of fraud, who conceals cause of action.” Under
subparagraph (b), “The limitation provided shall not be available as a
defense to any person who shall have been guilty of fraud in performing or
furnishing the design, planning, supervision, observation of construction,
construction of” - - and then it goes on about land - - “who shall wrongfully
conceal any such action.”
As mentioned before, that‟s not an issue before the Court, but even if
it were, there is nothing that this Court can find of any allegation of
wrongful concealment.
The Court finds that the case that most appropriately matches, to the
Court - - and I know intelligent minds differ frequently on what a case says,
but that‟s why we have courts of appeals, and this came out of the Court of
Appeals. Counts Company vs. Praters, Inc., 392 S.W.3d 80, goes through
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case after case that specifically addresses each of the issues that we have
here.
And let me first go over substantial completion, and it defines
substantial completion on page 84. It defines it under TCA 28-3-201, just
as I have. And in this case, it argued about the flooring was installed in
2006, and they resurfaced it in 2007. It talks about two different
incidences, just as we‟ve talked about here. But the Counts court recites
Watts v. Putnam County, where it says that TCA 28-3-202 “explained that
it was a statute that was designed to create an „outer limit‟” - - quotations,
their quotations, not mine - - “of liability to all potential actions based on
injury to the property, „without regard to the date of the discovery.‟ 28-3-
202 did not extend any statute of limitations, but rather was „superimposed‟
on existing statutes, and was unrelated to the accrual of any cause of action
since it expressly stated that it began to run on the date of substantial
completion rather than the date of injury or damage. The Court agreed with
the decision from the Federal Court for the Eastern District of Tennessee,
wherein it was held that the legislative intent in passing 28-3-202 was to
„insulate contractors, architects, engineers and the like from liability for
their defective construction or design of improvements to property where
either the occurrence giving rise to the cause of action or injury happens
more than four years after substantial completion of the improvement.‟”
So as it pertains to fraud and concealment, the plaintiff in this case, it
was argued that “defendant was guilty of fraudulent
concealment/concealment sufficient to toll TCA 28-3-202,” pursuant to, of
course, TCA 28-3-205, and it cites Cunha and Conley. “However, plaintiff
failed to properly plead this claim. Plaintiff did allege in its amended
complaint that they „led parties to believe that the repair work it performed
in 2007‟” - - that‟s where we go to the two different dates - - “ „had
resolved the problem. Praters knew or should have known that these
representations were false as the floor cupping did not correct itself after
moisture problems,‟” etcetera. It says, “In order to toll the statute, plaintiff
must allege „the cause of action was known to the defendant and
fraudulently concealed by him.‟”
I have nothing in the record, nothing, that says that, not in the
pleadings, not in the affidavits, not in the depositions that have been filed.
“Tennessee Rules of Civil Procedure 9.02 requires that „in pleadings
averring fraud, the circumstances constituting fraud „shall be stated with
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particularity‟.‟ Plaintiff failed to state circumstances constituting
fraudulent concealment with particularity, as the only circumstances alleged
by the plaintiff was the problem did not resolve as defendant said it would.”
Again, it goes on.
It‟s a good case. I researched it and couldn‟t find where it‟s been
modified as it pertains to the issues before the Court today. I think Counts
Company vs. Prater hits on all four corners on this case.
I think and I so find that as set out, I have nothing that contradicts
the date of completion, of substantial completion, as defined by statute and
case law being on or about March 23, 2006. I find nothing, nothing, in the
record that contradicts the fact that none of the defendants in this case knew
or attempted to fraudulently conceal any cause of injury that is allegedly
suffered by the plaintiffs in each of these five cases.
The ownership of the property is clear, but the fact is, Methodist
Medical Center is not a party to this litigation, and if they were, it would
apply to them also. The undisputed, verified, pursuant to Rule 56,
information before the Court for the Court to take into consideration is
Methodist Medical Center owned the property, Jan McNally, as president
of the corporation, signed the contract with the engineers and the
construction company. The deed to the property, as presented to the Court,
is owned by Methodist Medical Center. It‟s a separate corporate entity that
is not a party to this litigation, but, obviously, even if it were, the ruling of
the Court would apply to them also. We have pending a motion to join
Methodist Medical Center.
Even in the proposed amended complaint that‟s been filed in this
case, nowhere does it mention fraud or concealment that I can recall. And,
again, I read it all again yesterday. I read the complaints again yesterday to
ensure that the statutes and case law as I read them was consistent with the
proof that had been submitted to me under Rule 56.
For those reasons, I find that the motions for summary judgment
filed in each of the five cases by each of the defendants in this cause of
action are valid, and the Court would grant the same. I would tax the cost
to the plaintiffs.
Plaintiff appeals.
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Discussion
Although not stated exactly as such, Plaintiff raises the following issues on
appeal: 1) whether the Trial Court erred in granting summary judgment to Defendants
when, according to Plaintiff, issues of fact existed concerning the substantial completion
of the project at question and whether exceptions to the statute of repose applied; 2)
whether the Trial Court erred in denying Plaintiff‟s motion to amend to add MMC as a
party; and, 3) whether the Trial Court erred in limiting discovery to the date of substantial
completion when other relevant issues were before the Trial Court.
With regard to summary judgments, this Court explained in Estate of Boote
v. Roberts:
The trial court‟s resolution of a motion for summary judgment is a
conclusion of law, which we review de novo on appeal, according no
deference to the trial court‟s decision. Martin v. Norfolk S. Ry. Co., 271
S.W.3d 76, 84 (Tenn. 2008). 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. Tenn. R. Civ. P.
56.04; see Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 5 (Tenn. 2008);
Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993).
This action was filed [after July 1, 2011]. Therefore, the trial court
was required to apply the summary-judgment standard set forth in
Tennessee Code Annotated § 20-16-101. That 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:
(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 (Supp. 2012).
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Estate of Boote v. Roberts, No. M2012-00865-COA-R3-CV, 2013 WL 1304493, at **8-9
(Tenn. Ct. App. March 28, 2013), no appl. perm. appeal filed (footnotes omitted).
The construction statute of repose states as follows:
All actions to recover damages for any deficiency in the design, planning,
supervision, observation of construction, or construction of an improvement
to real property, for injury to property, real or personal, arising out of any
such deficiency, or for injury to the person or for wrongful death arising out
of any such deficiency, shall be brought against any person performing or
furnishing the design, planning, supervision, observation of construction,
construction of, or land surveying in connection with, such an improvement
within four (4) years after substantial completion of such an improvement.
Tenn. Code Ann. § 28-3-202 (2000) (emphasis added).
Substantial completion is defined as follows:
“Substantial completion” means that degree of completion of a project,
improvement, or a specified area or portion thereof (in accordance with the
contract documents, as modified by any change orders agreed to by the
parties) upon attainment of which the owner can use the same for the
purpose for which it was intended; the date of substantial completion may
be established by written agreement between the contractor and the owner.
Tenn. Code Ann. § 28-3-201(2) (2000).
We first address whether the Trial Court erred in granting summary
judgment to Defendants when, according to Plaintiff, issues of fact existed concerning the
date of the substantial completion of the project at question and whether exceptions to the
statute of repose applied. Plaintiff argues that the absence of the shielding in the wall
means that the construction project was not substantially completed until that defect was
corrected. Therefore, according to Plaintiff, the statute of repose did not expire because it
never started running until the defect was corrected.
To resolve this issue, we must consider the definition of substantial
completion. Substantial completion does not mean perfect completion according to the
exact specifications. Otherwise, the qualifying word “substantial” before “completion”
would have no meaning. Rather, as reflected in the statutory definition quoted above,
substantial completion means that the project or improvement can be used for its intended
purpose. The undisputed evidence in the record on appeal is that the emergency
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department, including the CT room at issue, was used from March 2006. The fact that
the improvement allegedly was defective does not prevent that improvement from being
substantially complete. This Court in addressing this issue has stated:
This Court again reiterated that in Meyer, the Court rejected the
argument that substantial completion cannot occur until all defects have
been repaired, and stated that a building is substantially complete when it
can be used for its intended purpose, even if it has some defects, and thus
subsequent repairs do not affect the date of substantial completion. Id.
In this case, plaintiff‟s allegation that the attempted repairs by
defendant would change the date of substantial completion is a conclusion,
not accepted by the courts. The above cases make clear that the date of
substantial completion is determined by the date upon which the
improvement can be used for that which it was intended, and there is no
dispute herein that these floors were completed, i.e. installed, by May 2006.
The fact that a repair was attempted by Praters one year later does not
change the date of substantial completion under case law. Plaintiff‟s
attempt to characterize the work done in 2007 as “additional work” rather
than a “repair” is misguided. There can be no serious argument that the
additional work done in 2007 was anything more than an attempt to repair a
floor that was unsatisfactory.
Counts Co. v. Praters, Inc., 392 S.W.3d 80, 86 (Tenn. Ct. App. 2012).
In our view, adopting Plaintiff‟s argument would vitiate the very purpose of
the construction statute of repose. Under Plaintiff‟s position, every defective
construction project would be considered not substantially complete for purposes of the
relevant statute of repose. This surely is not what our General Assembly intended.
Rather, it is clear that our General Assembly intended through the construction statute of
repose to set an outer limit to liability arising from defective work on improvements to
real property. The undisputed evidence is that the CT room was, in fact, used for its
intended purpose starting in 2006. The Trial Court did not err when it found there was no
genuine dispute that the date of substantial completion was “on or about March 23,
2006.”
Plaintiff argues further that exceptions to the statute of repose apply. The
exceptions are stated as follows:
(a) The limitation provided by this part shall not be asserted as a defense by
any person in actual possession or the control, as owner, tenant, or
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otherwise, of such an improvement at the time any deficiency in such an
improvement constitutes the proximate cause of the injury or death for
which it is proposed to bring an action.
(b) The limitation hereby provided shall not be available as a defense to any
person who shall have been guilty of fraud in performing or furnishing the
design, planning, supervision, observation of construction, construction of,
or land surveying, in connection with such an improvement, or to any
person who shall wrongfully conceal any such cause of action.
Tenn. Code Ann. § 28-3-205 (2000).
As found by the Trial Court, no exception applies. First, it is undisputed
from the record that Methodist Hospital was in ownership, possession, and control of the
CT room at all relevant times in this case. Regarding fraud or wrongful concealment, we
find, as did the Trial Court, that Plaintiff did not plead this with sufficient particularity.
Although Plaintiff alleged that Defendants falsely or deceptively omitted material facts
regarding the defect, Plaintiff does not specify how. The fact that a construction defect
exists and goes unnoticed does not in itself constitute fraud or wrongful concealment. To
hold otherwise would mean that most every construction defect could be considered a
species of fraud which would, once again, vitiate the intention and purpose of the
construction statute of repose. Plaintiff‟s argument ignores the underlying intention and
purpose of the statute of repose and the exceptions thereto. Our General Assembly made
a public policy decision when it enacted the improvement to real property statute of
repose, as is its responsibility.
The evidence in the record is undisputed, as found by the Trial Court, that
the relevant CT room project was substantially completed by March 2006. Plaintiff filed
the present lawsuit in January 2014. The four year statute of repose had long expired,
and this serves to defeat Plaintiff‟s claims. We hold, as did the Trial Court, that the
construction statute of repose applies to defeat Plaintiff‟s claims and that none of the
statutory exceptions apply.
We next address whether the Trial Court erred in denying Plaintiff‟s motion
to amend to add MMC as a party. The abuse of discretion standard applies. Our
Supreme Court has stated:
The grant or denial of a motion to amend a pleading is discretionary
with the trial court. Harris v. St. Mary’s Med. Ctr., Inc., 726 S.W.2d 902,
904 (Tenn. 1987). Generally, trial courts must give the proponent of a
motion to amend a full chance to be heard on the motion and must consider
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the motion in light of the amendment policy embodied in Rule 15.01 of the
Tennessee Rules of Civil Procedure that amendments must be freely
allowed; and, in the event the motion to amend is denied, the trial court
must give a reasoned explanation for its action. Henderson v. Bush Bros. &
Co., 868 S.W.2d 236, 238 (Tenn. Workers‟ Comp. Panel 1993). Although
permission to amend should be liberally granted, the decision “will not be
reversed unless abuse of discretion has been shown.” Welch v. Thuan, 882
S.W.2d 792, 793 (Tenn. Ct. App. 1994). Factors the trial court should
consider when deciding whether to allow amendments include “[u]ndue
delay in filing; lack of notice to the opposing party; bad faith by the moving
party, repeated failure to cure deficiencies by previous amendments, undue
prejudice to the opposing party, and futility of amendment.” Merriman v.
Smith, 599 S.W.2d 548, 559 (Tenn. Ct. App. 1979).
Cumulus Broadcasting, Inc., v. Shim, 226 S.W.3d 366, 374 (Tenn. 2007).
In Lee Medical, Inc. v. Beecher, 312 S.W.3d 515 (Tenn. 2010), the
Supreme Court discussed the abuse of discretion standard at length, stating:
The abuse of discretion standard of review envisions a less rigorous
review of the lower court‟s decision and a decreased likelihood that the
decision will be reversed on appeal. Beard v. Bd. of Prof’l Responsibility,
288 S.W.3d 838, 860 (Tenn. 2009); State ex rel. Jones v. Looper, 86
S.W.3d 189, 193 (Tenn. Ct. App. 2000). It reflects an awareness that the
decision being reviewed involved a choice among several acceptable
alternatives. Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 708 (Tenn. Ct.
App. 1999). Thus, it does not permit reviewing courts to second-guess the
court below, White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct.
App. 1999), or to substitute their discretion for the lower court‟s, Henry v.
Goins, 104 S.W.3d 475, 479 (Tenn. 2003); Myint v. Allstate Ins. Co., 970
S.W.2d 920, 927 (Tenn. 1998). The abuse of discretion standard of review
does not, however, immunize a lower court‟s decision from any meaningful
appellate scrutiny. Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 211
(Tenn. Ct. App. 2002).
Discretionary decisions must take the applicable law and the relevant
facts into account. Konvalinka v. Chattanooga-Hamilton County Hosp.
Auth., 249 S.W.3d 346, 358 (Tenn. 2008); Ballard v. Herzke, 924 S.W.2d
652, 661 (Tenn. 1996). An abuse of discretion occurs when a court strays
beyond the applicable legal standards or when it fails to properly consider
the factors customarily used to guide the particular discretionary decision.
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State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007). A court abuses its
discretion when it causes an injustice to the party challenging the decision
by (1) applying an incorrect legal standard, (2) reaching an illogical or
unreasonable decision, or (3) basing its decision on a clearly erroneous
assessment of the evidence. State v. Ostein, 293 S.W.3d 519, 526 (Tenn.
2009); Konvalinka v. Chattanooga-Hamilton County Hosp. Auth., 249
S.W.3d at 358; Doe 1 ex rel. Doe 1 v. Roman Catholic Diocese of
Nashville, 154 S.W.3d at 42.
To avoid result-oriented decisions or seemingly irreconcilable
precedents, reviewing courts should review a lower court‟s discretionary
decision to determine (1) whether the factual basis for the decision is
properly supported by evidence in the record, (2) whether the lower court
properly identified and applied the most appropriate legal principles
applicable to the decision, and (3) whether the lower court‟s decision was
within the range of acceptable alternative dispositions. Flautt & Mann v.
Council of Memphis, 285 S.W.3d 856, 872-73 (Tenn. Ct. App. 2008)
(quoting BIF, a Div. of Gen. Signal Controls, Inc. v. Service Constr. Co.,
No. 87-136-II, 1988 WL 72409, at *3 (Tenn. Ct. App. July 13, 1988) (No
Tenn. R. App. P. 11 application filed)). When called upon to review a
lower court‟s discretionary decision, the reviewing court should review the
underlying factual findings using the preponderance of the evidence
standard contained in Tenn. R. App. P. 13(d) and should review the lower
court‟s legal determinations de novo without any presumption of
correctness. Johnson v. Nissan N. Am., Inc., 146 S.W.3d 600, 604 (Tenn.
Ct. App. 2004); Boyd v. Comdata Network, Inc., 88 S.W.3d at 212.
Beecher, 312 S.W.3d at 524-25.
In its written order, the Trial Court stated that Plaintiff‟s motion was
“futile.” In addition, the Trial Court elaborated on its reasoning in its oral ruling as
quoted above. The Trial Court did not commit reversible error in declining to add MMC
as a party because to have granted the motion would not have altered the outcome of
Plaintiff‟s case against Defendants. The statute of repose still would have served to
defeat Plaintiff‟s claims against Defendants. We find no abuse of discretion by the Trial
Court on this issue.
The final issue we address is whether the Trial Court erred in limiting
discovery to the date of substantial completion when other relevant issues were before the
Trial Court. “Decisions concerning pretrial discovery are matters well within the
discretion of the trial court and thus are reviewed under an abuse of discretion standard.”
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Frye v. St. Thomas Health Servs., 227 S.W.3d 595, 600 (Tenn. Ct. App. 2007). Plaintiff
fails to adequately articulate what additional discovery Plaintiff believes was necessary
for the resolution of this case. We also note that it appears from the record that Plaintiff
was, in fact, given sufficient opportunity for discovery as to the dispositive issue before
the Trial Court, that of the date of substantial completion. We hold that the Trial Court
did not abuse its discretion in limiting discovery thusly.
Conclusion
The judgment of the Trial Court is affirmed, and this cause is remanded to
the Trial Court for collection of the costs below. The costs on appeal are assessed against
the Appellant, Michael Phillips, and his surety, if any.
_________________________________
D. MICHAEL SWINEY, JUDGE
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