Liput v. Grinder

405 S.W.3d 664

Richard LIPUT

v.Bobby GRINDER.

No. W2012–01431–COA–R3–CV.

Court of Appeals of Tennessee, Western Section, at Jackson.

Jan. 23, 2013 Session.

Feb. 27, 2013.

Application for Permission to Appeal

Denied by Supreme Court

July 11, 2013.

Richard Liput, Savannah, Tennessee, Pro Se.

Colin M. McCaffrey, Goodlettsville, Tennessee, for the appellee, State Auto Mutual Insurance Company.

OPINION

J. STEVEN STAFFORD, J., delivered the opinion of the Court, in which DAVID R. FARMER, J., and HOLLY M. KIRBY, J., joined.

J. STEVEN STAFFORD, J.

Appellant appeals the trial court's grant of summary judgment to the Appellee uninsured motorist carrier for failure to properly and timely serve the alleged tortfeasor. After a careful review of the record, we affirm.

I. Background

On November 10, 2009, Plaintiff/Appellant Richard Liput was involved in an automobile accident with Defendant Bobby Grinder. According to Mr. Liput, Mr. Grinder struck Mr. Liput with his car while Mr. Liput was walking across a Wal–Mart parking lot. On July 14, 2010, Mr. Grinder died of causes unrelated to the accident. On August 2, 2010, Mr. Grinder's insurer, State Farm, settled with Mr. Liput for the policy limits of Mr. Grinder's insurance, $50,000.00.

Mr. Liput filed a complaint for damages against Mr. Grinder on November 5, 2010. On November 8, 2010, a summons was issued to Mr. Grinder at his last known address. On the same day, a summons was also issued to Mr. Liput's Uninsured Motorist carrier, Appellee State Auto Mutual Insurance Company (“Uninsured Motorist carrier”). Service was timely accomplished on the Uninsured Motorist carrier through the Secretary of State. The summons issued to Mr. Grinder, however, was not returned to the court. The record on appeal contains a copy of the summons issued to Mr. Grinder, subsequently obtained by the Uninsured Motorist carrier during the trial court proceedings; however, this copy of the summons does not include any notation that Mr. Grinder was “not to be found” or any other indication of attempted service. No further summons was issued to Mr. Grinder.

The Uninsured Motorist carrier filed an answer on January 6, 2011, denying Mr. Grinder's negligence, demanding strict proof of damages, and invoking its right to subrogation. On March 31, 2011, Mr. Liput filed a Suggestion of Death regarding Mr. Grinder, which included a motion to substitute the “executor ... of the estate.” The motion was never set for hearing. Moreover, nothing in the record suggests that an estate was in existence at the time the motion was filed or that Mr. Grinder's estate was ever opened.

On November 18, 2011, the Uninsured Motorist carrier filed a motion for summary judgment. The Uninsured Motorist carrier argued that, because neither Mr. Grinder nor his personal representative was properly served in the case, the Uninsured Motorist carrier could not be liable, citing Webb v. Werner, 163 S.W.3d 716, 718 (Tenn.Ct.App.2005). A hearing on the motion was held on April 20, 2012. At the hearing, the trial court ruled that the lawsuit was “never properly commenced against the correct named defendant pursuant to the mandates of the Tennessee Rules of Civil Procedure 3 & 4 and Tennessee Code Annotated Section 20–5–103. The statute of limitations against the correct named defendant has now expired.” The trial court entered an order granting summary judgment and dismissing the case on May 7, 2012. Mr. Liput appeals.

II. Issues Presented

On appeal, Mr. Liput raises a number of issues, which are taken from his brief: ¹

1. Whether the trial court erred in finding that the provisions of the Tennessee Savings Statute need not yield to those of the more specific Uninsured Motorist Provision?

2. Whether the trial court erred in finding that the application of Tennessee Code Annotated Section 56–7–1206(d) did not operate to preserve Mr. Liput's claim against the Uninsured Motorist carrier?

3. Whether the trial court erred in failing to find that the Webb v. Werner limitation on Tennessee Code Annotated Section 56–7–1206(d) is

4. Whether the trial court erred in failing to discern that Bryant v. Estate of Klein is not controlling?

5. Whether the trial court erred in allowing the Uninsured Motorist carrier to assert objections to capacity, when the Uninsured Motorist carrier waived its objections by failing to plead specific negative averments in its answer?

6. Whether the trial court erred in allowing the Uninsured Motorist carrier to assert insufficiency of service of process where the Uninsured Motorist carrier waived its objections by failure to recite any facts in support of the defense via responsive pleading, in violation of Tennessee Rule of Civil Procedure 8.03?

7. Whether the trial court erred in failing to find that equitable estoppel bars the Uninsured Motorist carrier's late assertion of statute of limitations and insufficiency of service of process defenses?

8. Whether the trial court erred in its application of the summary judgment standard, when multiple questions of fact existed?

9. Whether the trial court erred in allowing the Uninsured Motorist carrier's continued prosecution of its defense, since its Answer was filed late? ²

III. Standard of Review

Because this case was adjudicated by summary judgment, we first note that a trial court's decision on a motion for summary judgment presents a question of law. Our review is, therefore, de novo with no presumption of correctness afforded to the trial court's determination. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997). “This Court must make a fresh determination that the requirements of Tennessee Rule of Civil Procedure 56 have been satisfied.” Mathews Partners, L.L.C. v. Lemme, No. M2008–01036–COA–R3–CV, 2009 WL 3172134, at *3 (Tenn.Ct.App. Oct. 2, 2009) (citing Hunter v. Brown, 955 S.W.2d 49, 50–51 (Tenn.1997)).

When a motion for summary judgment is made, the moving party has the burden of showing that “there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Tenn. R. Civ. P. 56.04. The moving party may accomplish this by either: (1) affirmatively negating an essential element of the non-moving party's claim; or (2) showing that the non-moving party will not be able to prove an essential element at trial. Hannan v. Alltel Publ'g Co., 270 S.W.3d 1, 8–9 (Tenn.2008). However, “[i]t is not enough for the moving party to challenge the nonmoving party to ‘put up or shut up’ or even to cast doubt on a party's ability to prove an element at trial.” Id. at 8. If the moving party's motion is properly supported, “[t]he burden of production then shifts to the nonmoving party to show that a genuine issue of material fact exists.” Id. at 5 (citing Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn.1993)). The non-moving party may accomplish this by: “(1) pointing to evidence establishing material factual disputes that were overlooked or ignored by the moving party; (2) rehabilitating the evidence attacked by the moving party; (3) producing additional evidence establishing the existence of a genuine issue for the trial; or (4) submitting an affidavit explaining the necessity for further discovery pursuant to Tenn. R. Civ. P. 56.06.” Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn.2008) (citations omitted).

When reviewing the evidence, we must determine whether factual disputes exist. In evaluating the trial court's decision, we review the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in the non-moving party's favor. Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn.2003). If we find a disputed fact, we must “determine whether the fact is material to the claim or defense upon which summary judgment is predicated and whether the disputed fact creates a genuine issue for trial.” Mathews Partners, 2009 WL 3172134, at *3 (citing Byrd, 847 S.W.2d at 214). “A disputed fact is material if it must be decided in order to resolve the substantive claim or defense at which the motion is directed.” Byrd, 847 S.W.2d at 215. A genuine issue exists if “a reasonable jury could legitimately resolve the fact in favor of one side or the other.” Id. “Summary [j]udgment is only appropriate when the facts and the legal conclusions drawn from the facts reasonably permit only one conclusion.” Landry v. South Cumberland Amoco, et al., No. E2009–01354–COA–R3–CV, 2010 WL 845390, at *3 (Tenn.Ct.App. March 10, 2010) (citing Carvell v. Bottoms, 900 S.W.2d 23 (Tenn.1995)). However, if there is any uncertainty concerning a material fact, then summary judgment is not the appropriate disposition. As stated by our Supreme Court in EVCO Corp. v. Ross, 528 S.W.2d 20 (Tenn.1975):

The summary judgment procedure was designed to provide a quick, inexpensive means of concluding cases, in whole or in part, upon issues as to which there is no dispute regarding the material facts. Where there does exist a dispute as to facts which are deemed material by the trial court, however, or where there is uncertainty as to whether there may be such a dispute, the duty of the trial court is clear. He [or she] is to overrule any motion for summary judgment in such cases, because summary judgment proceedings are not in any sense to be viewed as a substitute for a trial of disputed factual issues.

Id. at 24–25.

IV. Analysis

A. Material Factual Disputes

Because summary judgment is predicated on there being no material factual disputes, we first consider Mr. Liput's contention that disputed material facts preclude summary judgment. We, note, however, that Mr. Liput never raised the issue of material factual disputes in the trial proceedings. Instead, he raises this issue for the first time on appeal. Generally, an issue that is not argued in the trial court is waived on appeal. See Powell v. Cmty. Health Sys., Inc., 312 S.W.3d 496, 511 (Tenn.2010). However, because this Court has a duty to “determine whether factual disputes exist,” we will...