                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                    August 28, 2014 Session

        JIMMY W. BILBO, ET AL. v. OCOEE PLACE CONDOMINIUM
                HOMEOWNERS ASSOCIATION, ET AL.

                   Appeal from the Circuit Court for Bradley County
                  No. V-12-726    Jon Kerry Blackwood, Senior Judge


             No. E2013-02532-COA-R3-CV-FILED-DECEMBER 12, 2014


Jimmy W. Bilbo and Mildred D. Bilbo (“Plaintiffs”) sued Ocoee Place Condominium
Homeowners Association1 (“Defendant”) for, among other things, negligent construction
which allegedly caused flooding that damaged Plaintiffs’ property. Defendant filed a motion
for summary judgment alleging, in part, that Defendant did not own the relevant real
property, that Defendant exercised no input or control over the construction, and that
Plaintiffs’ action was barred by the statute of limitations and the statute of repose. The
Circuit Court for Bradley County (“the Trial Court”) granted Defendant’s motion for
summary judgment. Plaintiffs filed a motion to alter or amend, which the Trial Court denied.
Plaintiffs appeal to this Court raising issues regarding whether the Trial Court erred in
refusing to alter or amend the grant of summary judgment pursuant to Tenn. R. Civ. P. 54.02
or Tenn. R. Civ. P. 60.02. We find no abuse of discretion in the Trial Court’s denial of
Plaintiffs’ Tenn. R. Civ. P. 54.02 or 60.02 motion, and we affirm.

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

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., C.J., and T HOMAS R. F RIERSON, II, J., joined.

Brent McIntosh, Cleveland, Tennessee, for the appellants, Jimmy W. Bilbo and Mildred D.
Bilbo.


       1
         Plaintiffs also sued Ronnie Ball; Linda Ball; R.L. Ball Construction; Ocoee Place Condominium,
LLC; City of Cleveland, Tennessee; The Travelers Insurance Company; Travelers Indemnity Company;
Travelers Casualty and Surety Company; Travelers Casualty Insurance of America; and The Standard Fire
Insurance Company. None of these defendants are involved in this appeal, and we confine our discussion
in this Opinion to the issues involving Defendant.
Jeffrey R. Thompson, Knoxville, Tennessee, for the appellee, Ocoee Place Condominium
Homeowners Association.




                                          OPINION

                                         Background

                Plaintiffs own real property located in Bradley County, Tennessee. Ocoee
Place Condominiums (“the Condos”) were constructed on real property that adjoins
Plaintiffs’ property. Plaintiffs allege that the construction of the Condos did not comply with
a two hundred foot setback required by the City of Cleveland. Additionally, during
construction of the Condos, a creek, which previously had carried surface water away from
Plaintiffs’ property, was filled. Plaintiffs allege that on September 22, 2011 “after a rainfall
and due to the diversion of the natural flow of the surface runoff, running water flowed under
the [Plaintiffs’] residence and caused extensive damage to the dwelling, equipment and other
property . . . .” Plaintiffs filed this suit against Defendant on September 21, 2012.

               Defendant filed a motion for summary judgment alleging, in pertinent part, that
Defendant did not own the real property upon which the Condos were constructed and that
Defendant exercised no input or control over the construction of the Condos. In support of
its motion for summary judgment, Defendant filed the “Declaration of Mary Roberts” rather
than an affidavit, as permitted by Tenn. R. Civ. P. 72. Plaintiffs responded to Defendant’s
motion for summary judgment and agreed for the purpose of ruling on the motion for
summary judgment that Defendant:

       did not have any role whatsoever in the construction or design of the
       condominiums.

                                             ***

       had no decision-making authority and did not attempt to exert any influence
       in the construction of the condominiums.

                                             ***

       was not involved in the securing of permits or any decisions whatsoever
       relating to excavating, grading, building, or establishing setback lines.



                                              -2-
                                            ***

       did not have any involvement whatsoever in any decision with respect to the
       filling in of a natural drainage creek.

                                            ***

       did not have any involvement whatsoever in any decision that altered the
       natural drainage or surface runoff.

                                            ***

       did not own the land which was allegedly altered or upon which the
       condominiums were constructed.

             After a hearing, the Trial Court entered its Order of Partial Summary Judgment
on June 7, 2013 granting Defendant summary judgment after finding and holding:

               The plaintiffs allege that they suffered damage to their property
       occurring on September 22, 2011, as a result of the diversion of the natural
       flow of water by the above named defendants as well as other named
       defendants. Specifically, the complaint alleges that the defendant did not
       follow public and private zoning ordinances, [sic] and restrictions in the
       construction of condominiums adjacent to plaintiffs’ property. The complaint
       alleges the defendants failed to adhere to the required set backs in construction
       [sic] property adjacent to the plaintiff’s [sic]. Also the complaint alleges that
       defendants negligently filled in a natural drainage ditch that caused surface
       runoff onto plaintiffs’ residence and wrongfully interfered with the natural
       drainage.

              The defendants filed the Declaration of May Brown [sic] in support of
       their Motion for Summary Judgment. In said declaration, Mary Brown [sic]
       as President of the defendant Homeowner Association states that the
       Homeowner Association does not own the property that was filled in which
       purportedly caused the drainage overflow; that the condominium complex had
       been substantially completed when the defendant association was formed; that
       defendant had no decision making authority as to the construction of the
       condominiums or securing permits, setback lines, and filling in the natural
       drainage ditch. Consequently, the Court finds that the defendants have
       presented proof that negates essential elements of plaintiffs’ claim.

                                              -3-
              Plaintiffs filed a motion to alter or amend the grant of summary judgment
claiming newly discovered evidence. The Trial Court denied Plaintiffs’ motion by order
entered September 16, 2013. Defendant then filed a motion for entry of a final judgment
pursuant to Tenn. R. Civ. P. 54.02. On October 17, 2012, the Trial Court made the judgment
granting Defendant summary judgment and dismissing Plaintiffs’ claims against Defendant
a final judgment pursuant to Tenn. R. Civ. P. 54.02. Plaintiffs appeal to this Court.


                                         Discussion

                Although not stated exactly as such, Plaintiffs raise two issues on appeal: 1)
whether the Trial Court erred in failing to alter or amend the grant of summary judgment
pursuant to Tenn. R. Civ. P. 54.02; and, 2) whether the Trial Court erred in failing to alter
or amend the grant of summary judgment pursuant to Tenn. R. Civ. P. 60.02. Defendant
raises the additional issue of whether the grant of summary judgment to it is appropriate even
if Plaintiffs’ newly discovered evidence is considered.

               We first consider whether the Trial Court erred in failing to alter or amend the
grant of summary judgment pursuant to Tenn. R. Civ. P. 54.02. “A trial court’s ruling on a
motion to revise pursuant to Rule 54.02 will be overturned only when the trial court has
abused its discretion.” Harris v. Chern, 33 S.W.3d 741, 746 (Tenn. 2000). In Lee Medical,
Inc. v. Beecher, our 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).




                                              -4-
              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. 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.

Lee Medical, Inc. v. Beecher, 312 S.W.3d 515, 524-25 (Tenn. 2010).

              With regard to motions pursuant to Tenn. R. Civ. P. 54.02, our Supreme Court
has instructed:

            When additional evidence is submitted in support of a Rule 54.02
      motion to revise a grant of summary judgment, a trial court should consider,
      when applicable: 1) the movant’s efforts to obtain evidence to respond to the
      motion for summary judgment; 2) the importance of the newly submitted

                                            -5-
       evidence to the movant’s case; 3) the explanation offered by the movant for its
       failure to offer the newly submitted evidence in its initial response to the
       motion for summary judgment; 4) the likelihood that the nonmoving party will
       suffer unfair prejudice; and 5) any other relevant factor.

Harris, 33 S.W.3d at 745.

               Plaintiffs’ motion to alter or amend alleged that “[w]hether intentional, through
inadvertence or lack of knowledge, the statement made by Mary Roberts that the defendant
Ocoee Place Homeowners Association does not own the land which was altered and upon
which the condominiums were constructed is not supported by the facts.” Plaintiffs support
this allegation with, among other things, copies of certain deeds recorded in the Bradley
County Register’s Office in 2001, 2002, 2003, 2004, and 2007.

               Plaintiffs asserted in their motion to alter or amend that “[t]he ownership of the
property in question is extremely important to the determination of liability in this case.”
Plaintiffs, however, provided no explanation whatsoever to the Trial Court as to why they
could not have obtained copies of the relevant deeds, which were public record, prior to the
Trial Court’s ruling on the motion for summary judgment. Plaintiffs also failed to provide
the Trial Court any information whatsoever as to their attempts to obtain evidence in order
to respond to Defendant’s motion for summary judgment. Given all this, we find no abuse
of discretion in the Trial Court’s denial of Plaintiffs’ motion to alter or amend pursuant to
Tenn. R. Civ. P. 54.02.

             Next, we consider whether the Trial Court erred in failing to alter or amend the
grant of summary judgment pursuant to Tenn. R. Civ. P. 60.02. We review a trial court’s
ruling on a motion for relief pursuant to Tenn. R. Civ. P. 60.02 for abuse of discretion as
well. Discover Bank v. Morgan, 363 S.W.3d 479, 487 (Tenn. 2012).

               In pertinent part, Tenn. R. Civ. P. 60.02 provides that “the court may relieve
a party or the party’s legal representative from a final judgment, order or proceeding . . . ”
for specifically enumerated reasons. Our Supreme Court has “emphasized that Rule 60.02
only applies to final judgments.” Furlough v. Spherion Atlantic Workforce, LLC, 397
S.W.3d 114, 127 (Tenn. 2013) (citing Discover Bank v. Morgan, 363 S.W.3d 479, 489
(Tenn. 2012)).

              When Plaintiffs filed their motion to alter or amend, the order granting
summary judgment to Defendant was not a final order. The Trial Court ruled upon Plaintiffs’
motion to alter or amend prior to certifying its order granting summary judgment as final
pursuant to Tenn. R. Civ. P. 54.02. As the Trial Court’s order granting summary judgment

                                               -6-
was not a final judgment when Plaintiffs filed their motion to alter or amend, we find no
abuse of discretion in the Trial Court’s refusal to grant Plaintiffs relief pursuant to Tenn. R.
Civ. P. 60.02.

              Furthermore, we note that even if Tenn. R. Civ. P. 60.02 applied, Plaintiffs
argument in their brief on appeal in support of this issue states that Plaintiffs seek relief due
to “a mistake by their counsel.” Plaintiffs further state:

        Counsel for [Plaintiffs] was unaware that the Declaration of Mary Roberts
        would be sufficient for purposes of Rule 56. As such, counsel for [Plaintiffs]
        did not procure their own affidavit or declaration in their Response to
        [Defendant’s] Motion for Summary Judgment. Consequently, in ruling on the
        motion for summary judgment, the trial court could only rely on [Defendant’s]
        statement of the facts which fail to fully disclose all the relevant facts.

Plaintiffs are correct in the assertion that the Trial Court when ruling upon the motion for
summary judgment could rely only upon what the parties had presented to the Trial Court.
As this Court has stated, however, “[c]ounsel’s ignorance of law or Rules does not justify
Rule 60 relief.” Bivins v. Hosp. Corp. of America, 910 S.W.2d 441, 448 (Tenn. Ct. App.
1995). All this being so, we find no abuse of discretion by the Trial Court even if Tenn. R.
Civ. P. 60.02 applied.

                                               Conclusion

              The judgment of the Trial Court is affirmed 2 , and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
appellants, Jimmy W. Bilbo and Mildred D. Bilbo, and their surety.




                                                          _________________________________
                                                          D. MICHAEL SWINEY, JUDGE




        2
         Our resolution of Plaintiffs’ two issues makes it unnecessary for us to address the additional issue
raised by Defendant.

                                                    -7-
