09/28/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
August 17, 2021 Session
F & M BANK v GEORGE RAYMOND FLEMING, JR.
Appeal from the Circuit Court for Montgomery County
No. 2017-CV-1980 Ross H. Hicks, Judge
___________________________________
No. M2020-01086-COA-R3-CV
___________________________________
Appellant debtor appeals the trial court’s decision to find certain affirmative defenses
waived, to deny his motion to continue the summary judgment hearing in order to conduct
discovery, and to grant summary judgment to the defendant bank. Discerning no reversible
error, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which KENNY
ARMSTRONG and CARMA DENNIS MCGEE, JJ., joined.
Thomas F. Bloom, Nashville, Tennessee, for the appellant, George Raymond Fleming, Jr.
John R. Cheadle, Jr. and Mary Barnard Cheadle, Nashville, Tennessee, for the appellee,
F&M Bank.
OPINION
I. FACTUAL AND PROCEDURAL HISTORY
On September 18, 2017, Plaintiff/Appellee F&M Bank (“the Bank”) filed a
complaint in the Montgomery County Circuit Court against Defendant/Appellant George
Raymond Fleming, Jr. (“Appellant”), relating to an indebtedness secured by a
Multipurpose Note and Security Agreement (“the Note”). According to the complaint,
Appellant’s indebtedness under the Note was $212,857.61, including principal and interest.
The Bank further alleged that the loan was past due and payable, that demands for payments
had been made and refused, and that there were not “set-offs or counter-claims.” The Bank
therefore sought a judgment of $212,857.61, plus ongoing interest and attorney’s fees. A
copy of the Note attached to the complaint reflected that the loan occurred on December
30, 2011, with an original loan amount of $1,587,936.34 and a maturity date of March 29,
2012. The Note further provided that Appellant agreed to grant the Bank a security interest
in a number of parcels of real property described in an exhibit to the Note.
On November 22, 2017, counsel for Appellant filed a notice of appearance; therein,
he noted that he reserved the right to file a responsive pleading raising affirmative defenses.
On November 30, 2017, the Bank filed a motion for default judgment, seeking entry of
judgment in the amount set forth in the complaint and attorney’s fees. On December 12,
2017, Appellant filed a motion for additional time to file a responsive pleading. The Bank
thereafter gave notice that its motion for default judgment would be heard on January 11,
2018. The notice of hearing also stated that the parties had agreed that Appellant had until
January 10, 2018 “to file an answer.”
Appellant did not file an answer as expected. Instead, on January 9, 2018, Appellant
filed a motion for a more definite statement, seeking additional information about what
properties were sold to satisfy a portion of the $1,587,936.34 debt, how the properties were
sold, and how the proceeds were applied. Appellant also sought information about the
demands for payment that were made by the Bank. This information was necessary,
Appellant claimed, in order “to determine what affirmative defenses may be available to
[Appellant].”
The motion for default judgment was heard on January 11, 2018. During the
hearing, counsel for Appellant stated that he would strike his motion for a more definite
statement. As a result, the trial court orally ruled that the motion for default judgment would
be denied, Appellant’s motion for a more definite statement would be stricken, and
Appellant would file an answer within ten days of the date of the hearing. The trial court
also provided some direction as to Appellant’s affirmative defenses:
You take whatever position is [Appellant’s] position with regard to that but
then include, subject to raising affirmative defenses, that may become a --
and you can mention the ones that you — you’ve -- all those you think might
have any applicability . . . should those become applicable as discovery
proceeds, something to that nature. And then that -- that gets us past the
pleading stage and into the discovery stage where this information can be
explored.
No written order was entered as to the motion for default judgment or the motion
for a more definite statement until years later, when the omission became apparent. As a
result, on July 10, 2020, Appellant filed a motion for the trial court to enter an order on
those motions nunc pro tunc. The parties thereafter disagreed as to the trial court’s ruling
with regard to Appellant’s affirmative defenses. The Bank asserted that Appellant was
ordered to promptly file an answer raising all possible affirmative defenses that may
become applicable as discovery proceeds; Appellant asserted that he was permitted to file
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available affirmative defenses following a period of discovery. Eventually, the trial court
entered an order nunc pro tunc to January 11, 2018, denying the motion for default
judgment, striking Appellant’s motion for a more definite statement, and ordering
Appellant to file an answer. The order entered by the trial court did not specifically mention
affirmative defenses.
Eleven days following the hearing, on January 22, 2018, Appellant filed an answer
in which he admitted the existence of the Note, denied the other allegations, and reserved
all affirmative defenses that might become available based upon discovery or other
investigation. The case then became dormant, with no further filings and no discovery
occurring.
On January 24, 2020, the trial court issued an order to show cause why the case
should not be dismissed for lack of prosecution. In response, on February 12, 2020,
Appellee filed a motion for summary judgment. In its attached statement of undisputed
material facts, the Bank asserted that Appellant entered into a loan with the Bank, that he
failed to pay as promised, that the Note matured on March 29, 2012, and that the amount
still due on Appellant’s loan was $87,857.61 as of December 27, 2016. The Bank further
asserted that the loan documents provide for the continuing accrual of interest and
attorney’s fees. The statement of undisputed material facts cited the Note, an affidavit of
the Bank’s attorney as to fees, and an affidavit of the Bank’s Vice President Collections
Manager.
On April 30, 2020, Appellant filed a motion requesting a postponement of the
hearing on the motion for summary judgment so that discovery could proceed under Rule
56.07 of the Tennessee Rules of Civil Procedure, discussed in detail, infra. Therein,
Appellant asserted that neither party had “begun any discovery” and indicated that such
discovery was necessary to determine, inter alia, how the Bank had come to the $87,857.61
figure, when the complaint originally sought $212,857.61. Appellant accompanied his
motion with affidavit from himself detailing his own investigation into a foreclosure sale
of fourteen separate parcels of Appellant’s property on October 21, 2016; documents
relating to the foreclosure sale were attached to Appellant’s affidavit. Appellant’s attorney
also filed an affidavit detailing what discovery was necessary to respond to the motion for
summary judgment; the information Appellant’s counsel claimed was necessary also
concerned the foreclosure sale.
On May 1, 2020, Appellant also filed a response in opposition to Appellant’s motion
for summary judgment, raising procedural arguments against the Bank’s motion and again
asserting that a continuance should be granted under Rule 56.07. In his response, Appellant
set forth his own statement of facts, asserting that this was not a straightforward collection
case, but a case to collect a deficiency judgment following a foreclosure, which Appellant
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argued implicated Tennessee Code Annotated section 35-5-118.1 Appellant’s statement of
facts concerns the procedural history of the case, including the lack of discovery that had
occurred, and the foreclosure of certain property under the security agreement.
Specifically, Appellant asserted that thirteen of Appellant’s properties had been sold at a
foreclosure sale, with ten properties being purchased by the Bank and three other properties
purchased by another individual. Appellant further asserted that the total consideration paid
for the properties sold was $1,273,480.00, while the 2016 fair market value for ad volorem
taxes as established by the assessor of Property for Montgomery County for these
properties totaled $1,699,600.00. Appellant did not, however, file any response to the
Bank’s statement of undisputed material facts. The Bank filed a response to Appellant’s
facts, generally admitting for purposes of summary judgment that Appellant’s facts
concerning the foreclosures of the properties were correct.
On June 8, 2020, the trial court entered a memorandum opinion denying Appellant’s
motion to continue and granting the Bank’s motion for summary judgment. First, the trial
court ruled that Appellant’s procedural arguments concerning the Bank’s motion for
summary judgment were without merit. Second, the trial court found that the motion to
continue would be denied because Appellant engaged in no discovery in the two years
following the filing of the complaint and waived the affirmative defense of inadequacy of
the foreclosure sales price by not raising it in his answer or any subsequent pleadings before
the Bank filed its motion for summary judgment. Thus, the trial court ruled that “[a]t this
late stage of the proceedings, seeking discovery to explore the possibility that such a
defense might exist is simply inadequate to overcome [Appellant’s] waiver of this defense
and/or the merits of [the Bank’s] Motion for Summary Judgment.” The trial court further
ruled that Appellant’s effort to reference the Tax Assessor’s valuations of the property was
1
Tennessee Code Annotated section 35-5-118 provides as follows:
(a) In an action brought by a creditor to recover a balance still owing on an indebtedness
after a trustee's or foreclosure sale of real property secured by a deed of trust or mortgage,
the creditor shall be entitled to a deficiency judgment in an amount sufficient to satisfy
fully the indebtedness.
(b) In all such actions, absent a showing of fraud, collusion, misconduct, or irregularity in
the sale process, the deficiency judgment shall be for the total amount of indebtedness prior
to the sale plus the costs of the foreclosure and sale, less the fair market value of the
property at the time of the sale. The creditor shall be entitled to a rebuttable prima facie
presumption that the sale price of the property is equal to the fair market value of the
property at the time of the sale.
(c) To overcome the presumption set forth in subsection (b), the debtor must prove by a
preponderance of the evidence that the property sold for an amount materially less than the
fair market value of property at the time of the foreclosure sale. If the debtor overcomes
the presumption, the deficiency shall be the total amount of the indebtedness prior to the
sale plus the costs of the foreclosure and sale, less the fair market value of the property at
the time of the sale as determined by the court.
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not sufficient to overcome the presumption that the sales price was fair under Tennessee
Code Annotated section 35-5-118(b). Finally, the trial court found that there were no
genuine disputes of material fact and that the Bank’s motion for summary judgment should
be granted. The trial court directed the Bank to prepare an order granting the Bank summary
judgment and awarding it attorney’s fees.
The trial court’s order of summary judgment was entered on July 19, 2020. Therein,
the trial court ruled that Appellant was indebted to the Bank in the amount of $87,857.61,
plus pre-judgment interest, attorney’s fees, and court costs. The trial court entered
judgment against Appellant in the amount of $136,513.58, reflecting the loan balance of
$87,857.61, prejudgment interest of $26,691.57, and attorney’s fees of $21,964.40, which
would accrue post-judgment interest at the rate of 6.5 percent per annum. Appellant
thereafter appealed to this Court.
II. ISSUES PRESENTED
Appellant raises the following issues, which are taken from his appellate brief:2
1. Whether the trial court abused its discretion in finding that Appellant waived the
affirmative defense of inadequacy of foreclosure sales price and irregularities in the
foreclosure sale of collateral.
2. If so, whether the trial court abused its discretion in denying the request for a
continuance in order to conduct discovery in the absence of a showing of prejudice
by the moving party.
3. Whether the trial court erred in granting the motion for summary judgment.
III. ANALYSIS
A.
The first question raised by Appellant is whether the trial court erred by ruling that
Appellant waived any defenses related to adequacy of the foreclosure sale price and
irregularities in the foreclosure. In support, Appellant goes into a detailed re-telling of the
procedural history of this case, but admits that “[a]s a general rule, a party waives an
affirmative defense if it does not include the defense in an answer or responsive pleading.”
Pratcher v. Methodist Healthcare Memphis Hosps., 407 S.W.3d 727, 735 (Tenn. 2013).
But Appellant argues, this rule must give way “because trial judges have wide latitude to
allow a defendant to amend its answer before trial [.]” Id. Appellant thereafter cites various
cases concerning the liberality of amendments allowed under Tennessee law.
There is one important problem with Appellant’s argument on appeal: Appellant
2
Appellant is represented by different counsel in this appeal than represented him in the trial court.
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never asked to amend its answer to plead any defense related to inadequacy of the
foreclosure price or irregularities in the foreclosure sale. Certainly, Appellant does not
appear to dispute that these defenses constitute affirmative defenses under Rule 8.03 of the
Tennessee Rules of Civil Procedure. See generally Branch Banking & Tr. Co. v. Hill, 582
S.W.3d 221, 233–34 (Tenn. Ct. App.), perm. app. denied (June 19, 2019), cert. denied sub
nom. Rainbow Ridge Resort, LLC v. Branch Banking & Tr. Co., 140 S. Ct. 455, 205 L.
Ed. 2d 272 (2019) (quoting Tenn. R. Civ. P. 8.03) (holding that ‘inadequacy of the
foreclosure sales price’ under Tennessee Code Annotated section 35-5-118 is a ‘matter
constituting an affirmative defense,’ that is waived where it is not raised in an answer, pre-
answer motion, or tried by implied consent). As a result, Appellant was required under
Rule 8.03 to “set forth affirmatively facts in short and plain terms relied upon to constitute”
these affirmative defenses. “Rule 8.03 clearly contains a ‘specificity requirement.’”
Pratcher, 407 S.W.3d at 736 (quoting Allgood v. Gateway Health Sys., 309 S.W.3d 918,
925 (Tenn. Ct. App. 2009)). “‘Conclusory allegations’ do not satisfy the specificity
requirements of Rule 8.03.” Id. (quoting ACG, Inc. v. Se. Elevator, Inc., 912 S.W.2d 163,
170 (Tenn. Ct. App. 1995)).
Appellant’s answer does less than make conclusory allegations concerning this
defense—it makes no allegation of any affirmative defense of any kind. After admitting or
denying the allegations of the complaint in a conclusory fashion, Appellant states only the
following as to his affirmative defenses: “[Appellant] reserves all affirmative defenses
under Tennessee Rules of Civil Procedure 8.03 and any other defenses, at law or equity
that may be available now or may become available in the future based on discovery or
any other factual investigation in this case.” Clearly, this raises no affirmative defense, in
either a proper or a conclusory fashion.
Appellant argues that he gave notice of his intended defenses in his motion for a
more definite statement, which was filed prior to the filing of his answer. Even assuming,
arguendo, that this was a proper method of raising an affirmative defense and that
Appellant’s own decision to strike this filing does not prevent reliance thereupon, we
conclude that Appellant’s motion for a more definite statement still did not meet the
requirements of Rule 8.03. The only mention of the foreclosure sale in Appellant’s motion
is the following: “If said properties were sold this Defendant is entitled to all information
concerning said sale, how proceeds were applied and an accounting of same.” Appellant
also states that the Bank “has failed to state what demands for payment, how said payments
were communicated, notice of said demands and application of any proceeds from sale of
the secured property.” Finally, the motion states that due to the allegations in the complaint,
Appellant “is unable to determine what affirmative defenses may be available to
[Appellant].” Thus, this motion does not contain any specific allegations that could be
fairly read to allege that the foreclosure sale price was inadequate or that the foreclosure
sale was irregular.3 Based on the foregoing, we cannot conclude that the trial court erred in
3
Likewise, Appellant’s counsel made no specific allegation at the hearing on the motion for default
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concluding that Appellant waived his affirmative defenses related to the foreclosure and
foreclosure price.
Moreover, we cannot conclude that the trial court abused its discretion in failing to
allow an amendment to raise these affirmative defenses. Under Rule 15.01, a defendant
who attempts to amend his or her answer more than fifteen days following its filing must
do so “only by written consent of the adverse party or by leave of court[.]” Tenn. R. Civ.
P. 15.01 (“A party may amend the party’s pleadings once as a matter of course at any time
before a responsive pleading is served or, if the pleading is one to which no responsive
pleading is permitted and the action has not been set for trial, the party may so amend it at
any time within 15 days after it is served.”); see also Gardiner v. Word, 731 S.W.2d 889,
891 (Tenn. 1987) (holding that the rule requiring consent or leave of court applied to a
defendant’s attempt to amend its answer). But Rule 15.01 further provides that “leave shall
be freely given when justice so requires.”
“Trial courts have broad authority to decide motions to amend pleadings and will
not be reversed absent an abuse of discretion. Under the abuse of discretion standard, an
appellate court cannot substitute its judgment for that of the trial court.” Pratcher, 407
S.W.3d at 741 (internal citations omitted). The trial court’s decision, however, should be
guided by several factors, including, but not limited to, “undue delay, bad faith by the
moving party, repeated failure to cure deficiencies by previous amendments and futility of
the amendments.” Id. Appellant contends that he should be allowed to raise his affirmative
defenses “at this juncture” because there is no prejudice to the Bank and the Bank allowed
the case to lie dormant for several years, leading Appellant to believe it may have been
abandoned. Moreover, Appellant asserts that the trial court actually consented to this
procedure when it denied the Bank’s motion for default judgment and directed Appellant
to file an answer to the complaint. In particular, Appellant points to the trial court’s oral
ruling that Appellant was to file an answer, mentioning affirmative defenses that “should
become applicable as discovery proceeds[.]”4
While these factors may indeed support a request to amend an answer, they are
judgment that raised alleged irregularities in the foreclosure price or inadequate price with the specificity
required by Rule 8.03. See Pratcher, 407 S.W.3d at 736. In fact, the trial court asked counsel what
affirmative defenses he was contemplating, and counsel replied only that there could be issues of offset or
estoppel. Moreover, Appellant’s counsel conceded that “the affirmative defenses have to be raised at our
responsive pleading,” but indicated that he wanted to engage in discovery to investigate potential issues.
4
The Bank, of course, disputes Appellant’s characterization of the trial court’s oral ruling.
According to the Bank’s interpretation, the trial court ordered Appellant “to plead all affirmative defenses
that [Appellant] might have that are applicable or may become applicable.” Although not dispositive here
due to Appellant’s failure to request amendment of his answer, as discussed infra, we note that we generally
consider only the trial court’s written rulings, not the court’s oral pronouncements. See Williams v. City of
Burns, 465 S.W.3d 96, 119 (Tenn. 2015) (citation, quotation marks, and footnote omitted) (“It is well-
settled that a trial court speaks through its written orders—not through oral statements contained in the
transcripts—and that the appellate court reviews the trial court’s written orders.”).
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simply irrelevant here, where Appellant filed no motion to amend his answer to raise the
affirmative defense he now relies upon in this appeal. Thus, even if Appellant is correct
that the trial court in some way suggested that Appellant could raise additional affirmative
defenses based upon what was revealed in the discovery process, Appellant chose not to
engage in any discovery following the trial court’s oral pronouncement and never filed any
motion to amend his complaint as required by Rule 15.01. Simply put, we cannot discern
how a trial court abuses its discretion in failing to grant relief that is not requested of it.
The trial court’s decision to waive Appellant’s defenses related to the alleged irregularities
of the foreclosure sale and the allegedly resulting inadequate foreclosure price is therefore
affirmed.
B.
To the extent that Appellant also challenges the trial court’s refusal to stay the
Bank’s motion for summary judgment pending further discovery,5 we must also affirm.
Under Rule 56.07 of the Tennessee Rules of Civil Procedure,
Should it appear from the affidavits of a party opposing the motion that such
party cannot for reasons stated present by affidavit facts essential to justify
the opposition, the court may refuse the application for judgment or may
order a continuance to permit affidavits to be obtained or depositions to be
taken or discovery to be had or may make such other order as is just.
“The purpose of Rule 56.07 is to allow all parties a ‘reasonable opportunity’ to proffer
evidence in support of or opposition to a motion for summary judgment.” Denton v. Taylor,
No. E2015-01726-COA-R3-CV, 2016 WL 4042051, at *6 (Tenn. Ct. App. July 25,
2016) (citing Int’l Merch. Servs., Inc. v. ATM Central, LLC, No. W2003-00849-COA-
R3-CV, 2004 WL 170392, at *4–5 (Tenn. Ct. App., Jan. 27, 2004); In re Conservatorship
of Starnes, No. W2013-02614-COA-R3-CV, 2014 WL 6977831, at *8 (Tenn. Ct. App.,
Dec. 10, 2014)). As we have previously explained,
[Rule] 56.07 is intended to serve as an additional safeguard against an
improvident or premature grant of summary judgment. Brown v. Mississippi
Valley State Univ., 311 F.3d 328, 333 n. 5 (5th Cir. 2002); Price v. General
Motors Corp., 931 F.2d 162, 164 (1st Cir.1991). While it insures that a
diligent party is given a reasonable opportunity to prepare its case, it is not
invoked to aid parties who have been lazy or dilatory. 10B CHARLES A.
WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2741, at
412, 429–31 (3d ed. 1998) (“FEDERAL PRACTICE AND PROCEDURE”).
5
Appellant’s brief characterizes this issue as “if” he is correct as to his first issue. We have
determined that Appellant was not correct as to his first assignment of error. However, we will briefly
address this issue.
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Motions under Tenn. R. Civ. P. 56.07 must be accompanied by an affidavit
explaining why the non-moving party has not been able to obtain and present
the evidentiary material needed to oppose the summary judgment motion.
The affidavit need not contain evidentiary facts going to the substantive
merits of the case. FEDERAL PRACTICE AND PROCEDURE § 2740, at
397–98.
Kenyon v. Handal, 122 S.W.3d 743, 753 n.7 (Tenn. Ct. App. 2003).
We review the trial court’s decision to deny a motion for additional time for
discovery for an abuse of discretion. Koczera v. Steele, No. E2015-02508-COA-R3-CV,
2017 WL 1534962, at *6 (Tenn. Ct. App. Apr. 28, 2017); Fed. Nat’l Mortg. Assoc. v.
Daniels, No. W2015-00999-COA-R3-CV, 2015 WL 9304278, at *4 (Tenn. Ct. App., Dec.
21, 2015) (“If the nonmoving party seeks to continue a motion for summary judgment by
submitting an affidavit requesting additional time for discovery in compliance with
Tennessee Rule of Civil Procedure 56.07, we review the trial court’s decision to deny
additional time for discovery for an abuse of discretion.”). “An abuse of discretion occurs
when a trial court applies an incorrect legal standard, or reaches a decision which is
against logic or reasoning that causes an injustice to the party complaining.” Milan Supply
Chain Sols., Inc. v. Navistar, Inc., 627 S.W.3d 125, 142 (Tenn. 2021) (internal quotation
marks and citation omitted). “[W]hen reviewing a discretionary decision by the trial court,
. . . the appellate court should presume that the decision is correct and should review the
evidence in the light most favorable to the decision.” Gonsewski v. Gonsewski, 350 S.W.3d
99, 105–06 (Tenn. 2011).
Appellant contends that the trial court abused its discretion in failing to allow
additional discovery because it wrongly focused on Appellant’s lack of discovery efforts
prior to the motion for summary judgment, rather than his efforts following the filing of
the Bank’s motion. In support, Appellant cites Everett v. McCall, No. E2000-02012-COA-
R3-CV, 2001 WL 327918 (Tenn. Ct. App. Apr. 3, 2001). In Everett, the plaintiff filed a
complaint for medical malpractice in 1998, alleging that the defendant doctor was negligent
in failing to perform appropriate testing on the plaintiff’s decedent. Id. at *1. The defendant
answered the complaint, denying the allegations of negligence and alleging that other
doctors were responsible for the decedent’s injuries. The parties exchanged interrogatories,
but the case lay dormant until defendant filed a motion for summary judgment in February
2000. The defendant argued in his motion that he complied with the appropriate standard
of care. Id. at *2. The plaintiff responded with a Rule 56.07 motion and affidavit, asking
that discovery be conducted prior to the motion for summary judgment being heard. In
particular, the plaintiff asserted that he could not obtain an expert opinion until the
defendant’s deposition was completed. The motion for summary judgment was heard in
March 2000. The trial court granted the motion because the plaintiff filed no countervailing
affidavit. Id.
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The Court of Appeals reversed the decision of the trial court. First, the Court noted
that summary judgment is only appropriate when the non-moving party cannot show a
dispute of material fact “after a sufficient time for discovery has elapsed[.]” Id. (citing Byrd
v. Hall, 847 S.W.2d 208 (Tenn. 1993)). The Court concluded that the trial court’s focus on
the lack of discovery following the filing of the complaint was not appropriate:
The plaintiff is taken to task, not only by the defendant, but by the trial judge,
for his failure to discover the defendant during the two, perhaps three, years
of the pendency of the action. We reflect that the plaintiff was not required
to take any action other than normal trial preparation until the motion for
summary judgment was filed, when the requirement of Byrd, supra, that the
plaintiff must be given a sufficient time for discovery was triggered. It cannot
be seriously argued that in light of the fact that the motion for summary
judgment was filed February 8, 2000, and heard March 17, 2000, the plaintiff
was given a “sufficient time for discovery.”
Id. Thus, we held that the trial court abused its discretion in failing to allow the plaintiff
additional time to take discovery. This Court reached the same conclusion somewhat more
recently. See Grisham v. McLaughlin, No. M2004-01662-COA-R3-CV, 2006 WL
1627274, at *7 (Tenn. Ct. App. June 12, 2006) (“We find the trial court’s emphasis on the
discovery efforts immediately after the filing of the complaint was inconsistent with Tenn.
R. Civ. P. 56.07 and that the trial court should have focused its attention on the adequacy
of the efforts to obtain an opposing affidavit after the summary judgment motion was filed.
The undisputed facts regarding the events occurring after [the defendants] filed their
summary judgment motion provide ample basis for granting [the plaintiff] additional time
to obtain and submit an affidavit opposing the summary judgment motion.”).
Respectfully, the case-at-bar is distinguishable from Everett and similar cases. In
Everett, the defendant’s motion for summary judgment was based on the defendant’s
assertion that he did not violate the applicable standard of care. Everett, 2001 WL 327918,
at *2. The plaintiff responded that its own expert needed additional time to review the
deposition of the defendant before the plaintiff could file an affidavit rebutting the
defendant’s assertion regarding the standard of care. Id. Thus, the plaintiff in Everett met
his burden to show not only why he was not able to obtain the needed evidence prior to
responding to the motion for summary judgment, see Kenyon, 122 S.W.3d at 753 n.7, but
also that “‘the requested discovery would have assisted [the non-moving party] in
responding to [the moving party’s] motion for summary judgment.’” Cardiac Anesthesia
Servs., PLLC v. Jones, 385 S.W.3d 530, 538 (Tenn. Ct. App. 2012) (quoting Regions
Financial Corp. v. Marsh USA, Inc., 310 S.W.3d 382, 401 (Tenn. Ct. App. 2009)).
The same cannot be said in this case. Both Appellant’s and Appellant’s counsel’s
affidavits are totally silent as to why Appellant could not obtain the needed information in
time to respond to the motion for summary judgment. Certainly, the above cases suggest
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that the proper focus is most often on the non-moving party’s efforts following the filing
of the motion for summary judgment. See Grisham, 2006 WL 1627274, at *7; Everett,
2001 WL 327918, at *2. But other cases have also considered the non-moving party’s
diligence throughout the pendency of the action. For example, in Akers v. Heritage Med.
Assocs., P.C., No. M2017-02470-COA-R3-CV, 2019 WL 104130 (Tenn. Ct. App. Jan. 4,
2019), perm. app. denied (Tenn. May 16, 2019), we held that we were “not persuaded” by
the plaintiff’s argument that she could not have presented evidence that she had not yet
obtained in discovery because the plaintiff “had nearly three years to gather the evidence
necessary to prove her case[.]” Id. at *7; see also Gilchrist v. Aristorenas, No. W2007-
01919-COA-R3-CV, 2008 WL 4981103, at *6 (Tenn. Ct. App. Nov. 24, 2008) (holding
that the court must balance Rule 56.07’s protective purpose with the possibility that it may
be used “to aid parties who have been lazy or dilatory”; holding that the fact that seven
years had passed from the date of injury supported the trial court’s decision to deny the
plaintiff’s request for additional time to respond to discovery). Here, Appellant failed for
nearly two years to propound any discovery to the Bank,6 even after noting in both the
motion for more time to answer and the answer that he eventually filed that he was
reserving affirmative defenses following discovery. This lack of diligence in propounding
discovery during the entire pendency of the case therefore militates in favor of the trial
court’s discretionary decision to deny Appellant’s Rule 56.07 motion.
Even considering only the timeframe following the filing of the summary judgment
motion, however, we reach the same conclusion. Unlike Everett, in which the motion for
summary judgment was heard barely a month following its filing, see Everett, 2001 WL
327918, at *2, the motion for summary judgment in this case was not heard until nearly
three months later. Even Appellant’s Rule 56.07 motion was not filed until over two
months following the filing of the Bank’s motion. During that time, Appellant propounded
no discovery of any kind, despite there being no prohibition on doing so. Nothing in
Appellant’s motion indicates why at least some discovery could not be had during that time
frame. Thus, this case is simply not analogous to those cases in which the non-moving
party met its burden to show that it was not a lack of diligence that prevented it from
obtaining evidence with which to respond to a motion for summary judgment. See, e.g.,
Grisham, 2006 WL 1627274, at *7 (noting that the defendants’ motion practice gave the
6
In his brief, Appellant states that the Bank failed to cooperate in informal discovery at the
commencement of the case. This assertion is not supported by any citation to the record. As we have
repeatedly stated, “‘[j]udges are not like pigs, hunting for truffles’ that may be buried in the record, or, for
that matter, in the parties’ briefs on appeal.” Cartwright v. Jackson Cap. Partners, Ltd. P’ship, 478 S.W.3d
596, 616 (Tenn. Ct. App. 2015) (internal citation omitted) (citing Flowers v. Bd. of Professional
Responsibility, 314 S.W.3d 882, 899 n.35 (Tenn. 2010); Coleman v. Coleman, No. W2011-00585-COA-
R3-CV, 2015 WL 479830, at *9 (Tenn. Ct. App. Feb. 4, 2015)); see also Tenn. R. App. P. 27(a) (requiring
that factual assertions in parties’ briefs be supported by references to the record). Appellant’s counsel’s
affidavit includes no such assertion. Moreover, in Appellant’s response to the Bank’s motion for summary
judgment, he asserts that neither party had “begun any discovery.” As such, we will not consider this
unsupported assertion further.
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plaintiff only fifteen days to obtain a signed transcript from a deposition and obtain an
expert opinion and affidavit from her own expert to rebut the motion for summary
judgment).
Additionally, Appellant has also failed to establish how the requested discovery was
necessary to respond to the motion for summary judgment. See Cardiac Anesthesia, 385
S.W.3d at 538. Here, Appellant’s counsel’s affidavit in support of the Rule 56.07 motion
stated that discovery was “needed to ascertain facts which would enable [Appellant] to
respond to [the Bank’s] motion for summary judgment[.]” As to what facts specifically
needed to be discovered, Appellant offered the following: “whether or not there was
misconduct or an irregularity in the [Bank’s] foreclosure sale; and whether or not [the
Bank] sold [Appellant’s] properties for amounts materially less than the fair market value
of the properties.”7 Thus, Appellant asserts that discovery is needed to determine whether
there were irregularities in the foreclosure sale or if the price was inadequate.
But of course, as previously discussed, Appellant did not raise these admittedly
affirmative defenses in his answer, and they were waived as a result. And even if the
circumstances would have permitted an amendment to Appellant’s pleading to raise these
affirmative defenses, Appellant simply never requested that relief. Because Appellant had
waived consideration of any affirmative defenses based on inadequate price or
irregularities with the foreclosure sale, his lack of discovery on these issues has no bearing
on his ability to respond to the Bank’s motion for summary judgment. Cf. Elaster v.
Massey, No. E2017-00020-COA-R3-CV, 2018 WL 1040112, at *7 (Tenn. Ct. App. Feb.
22, 2018) (affirming the trial court’s denial of a Rule 56.07 motion because “from our
review of the contentions on this issue in [the plaintiff’s] appellate brief, we fail to discern
how [the plaintiff’s] inability to obtain details regarding certain allegedly privileged
documents had any effect on [the plaintiff’s] failure to provide expert proof in this
matter[,]” which was the basis for the trial court’s grant of summary judgment).
As the Tennessee Supreme Court has explained regarding the abuse of discretion
7
In his affidavit seeking additional time for discovery, Appellant’s counsel also stated that
discovery was needed to determine whether the Bank breached its duty of good faith and fair dealing.
Appellant has apparently abandoned that claim on appeal, as his brief does not mention it. This Court has
previously characterized a claim by a defendant that the plaintiff violated the duty of good faith and fair
dealing as an affirmative defense. Mobile Living, Inc. v. Tomlin, No. 01-A-01-9809-CH00466, 1999 WL
557606, at *5 (Tenn. Ct. App. Aug. 2, 1999) (“[T]he defendant is entitled to a jury trial on
his affirmative defenses of waiver, laches, estoppel, abandonment and breach of duty
of good faith and fair dealing.”); cf. Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 7 (Tenn. 2008), overruled
on other grounds by Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235 (Tenn. 2015)
(quoting Judy M. Cornett, The Legacy of Byrd v. Hall: Gossiping about Summary Judgment in
Tennessee, 69 Tenn. L Rev. 175, 189–90, 208 (2001)) (“[A]n affirmative defense is ‘a traditional way for
the defendant to defeat the plaintiff’s claim by carrying its own burden of proof.’”). As such, to the extent
that Appellant raised this defense, it suffers from the same infirmities as his other affirmative defenses
analyzed in this Opinion.
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standard:
The abuse of discretion standard recognizes that the trial court is in a better
position than the appellate court to make certain judgments. The abuse of
discretion standard does not require a trial court to render an ideal order . . .
to withstand reversal. Reversal should not result simply because the appellate
court found a “better” resolution.
Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001). Here, the trial court had valid reasons
for denying Appellant’s motion for a continuance to conduct discovery under Rule 56.07.
As a result, we cannot conclude that the trial court’s decision to deny Appellant’s motion
applied an incorrect standard or was against logic or reasoning. See Milan Supply Chain,
627 S.W.3d at 142. Appellant has therefore not met his burden to show that the trial court’s
decision was an abuse of discretion. The denial of Appellant’s Rule 56.07 motion is
therefore affirmed.
C.
Finally, Appellant argues that the trial court erred in granting the Bank’s motion for
summary judgment. Summary judgment is appropriate when there are no genuine disputes
of material fact and the moving party is entitled to judgment as a matter of law. Tenn. R.
Civ. P. 56.04. The trial court’s decision to grant or deny a motion for summary judgment is
reviewed de novo with no presumption of correctness. Bowers v. Estate of Mounger, 542
S.W.3d 470, 477 (Tenn. Ct. App. 2017).
In particular, Appellant argues that his affidavits and the documents attached thereto
were sufficient to create a dispute of material fact concerning the adequacy of the purchase
price of the property at the foreclosure sale, as the price realized at the foreclosure sale was
less than even the assessed values of the property. Thus, all of Appellant’s arguments
concerning the correctness of the trial court’s grant of summary judgment to the Bank relate
to his claim that there was “inadequate consideration.” Though certainly not dispositive,
these documents indeed could be relevant to the question of whether the foreclosure sales
price was inadequate under section 35-5-118(b). As we have explained ad nauseum,
however, Appellant waived any affirmative defense he may have had concerning the
adequacy of the price obtained at the foreclosure sale. Thus, these arguments do not
undermine the trial court’s conclusion that summary judgment to the Bank on its claim for
a judgment on the outstanding indebtedness was appropriate.
Appellant makes no further argument concerning the propriety of the grant of
summary judgment to the Bank. Our de novo review of the record indicates that the trial
court correctly granted summary judgment to the Bank. See Bowers v. Estate of Mounger,
542 S.W.3d 470, 477 (Tenn. Ct. App. 2017) (quoting Rye, 477 S.W.3d at 250) (holding
that when reviewing the trial court’s decision on summary judgment, we “must make a
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fresh determination of whether the requirements of Rule 56 of the Tennessee Rules of Civil
Procedure have been satisfied”). Here, the Bank’s statement of undisputed material facts
asserted that the Bank loaned Appellant money, that he failed to pay as promised, and that
the amount still due on the loan was $87,857.61, plus interest and attorney’s fees. Although
Appellant set forth his own set of facts in his response to the Bank’s motion and generally
questioned how the Bank had come to the $87,857.61 figure, he did not respond in any
manner to the Bank’s statement of undisputed material facts. As a result, the trial court
properly determined that these facts should be deemed admitted. See Holland v. City of
Memphis, 125 S.W.3d 425, 428 (Tenn. Ct. App. 2003) (citing Robert Banks, Jr. & June F.
Entman, Tennessee Civil Procedure § 9–4(I)(1999)) (“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 also Tenn. R. Civ. P. 56.03 (emphasis
added) (“Any party opposing the motion for summary judgment must, not later than five
days before the hearing, serve and file a response to each fact set forth by the movant either
(i) agreeing that the fact is undisputed, (ii) agreeing that the fact is undisputed for purposes
of ruling on the motion for summary judgment only, or (iii) demonstrating that the fact is
disputed.”). As a result, Appellant admitted that he owed an outstanding balance on a debt
to the Bank of $87,857.61, plus interest and attorney’s fees, and the trial court did not err
in granting summary judgment to the Bank for that amount. Appellant’s failure to respond
to the statement of undisputed material facts therefore unfortunately “prove[d] fatal in the
trial court and upon appeal.” Holland, 125 S.W.3d at 428–29 (citing Mark VII Transp.
Co. v. Belasco, No. W2002-00450-COA-R3-CV, 2002 WL 31895714, at * 4–5 (Tenn. Ct.
App. Dec. 30, 2002)). The trial court’s decision to grant summary judgment to the Bank is
therefore affirmed.8
IV. CONCLUSION
The judgment of the Montgomery County Circuit Court is affirmed, and this cause
is remanded for all further proceedings as are necessary and consistent with this Opinion.
Costs of this appeal are assessed to Appellant, George Raymond Fleming, Jr., for which
execution may issue if necessary.
S/ J. Steven Stafford
J. STEVEN STAFFORD, JUDGE
8
Nothing in Appellant’s brief challenges the trial court’s calculation of interest or attorney’s fees.
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