                                                                                       01/22/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                               August 24, 2017 Session

         JOHN B. EVANS v. PIEDMONT NATURAL GAS CO., INC.

                  Appeal from the Circuit Court for Davidson County
                       No. 13C4240     Kelvin Jones, Judge


                           No. M2017-00123-COA-R3-CV


John B. Evans (“Plaintiff”) appeals the December 13, 2016 order of the Circuit Court for
Davidson County (“the Trial Court”) granting summary judgment to Piedmont Natural
Gas Co., Inc. (“Piedmont”) after finding and holding that there was no evidence that
Piedmont or its agent had committed any intentional, reckless, or malicious act which
caused the damages claimed by Plaintiff. Plaintiff additionally raises an issue regarding
the Trial Court’s grant of discretionary costs to Piedmont, which included costs taxed to
Piedmont by this Court in a previous appeal. We find and hold that Piedmont made a
properly supported motion for summary judgment and that Plaintiff failed to demonstrate
specific facts in the record showing that Piedmont or its agent had committed any
intentional, reckless, or malicious act. We, therefore, affirm the grant of summary
judgment. We further find and hold that costs taxed to Piedmont by this Court in the
previous appeal are not properly included in an award of discretionary costs pursuant to
Tenn. R. Civ. P. 54.04. We, therefore, modify the award of discretionary costs by
reducing the discretionary costs from $1,133.00 to $643.00.

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

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which RICHARD H.
DINKINS and THOMAS R. FRIERSON, II, JJ., joined.

Keith C. Dennen, Nashville, Tennessee, for the appellant, John B. Evans.

William B. Jakes, III, Nashville, Tennessee, for the appellee, Piedmont Natural Gas Co.,
Inc.
                                      OPINION

                                    Background

      This is the second time that this case has been before us on appeal. By way of
background, we quote from our Opinion in the first appeal, Evans v. Piedmont Natural
Gas Co., Inc. (“Evans I”), wherein we stated:

              In 1984, a contractor for Nashville Gas Company (“Nashville Gas”)
      installed a natural gas pipeline through the west side of property now
      owned by John Evans. At some point, which is not clear from the record, a
      sewer line was also installed on the west side of the property. Mr. Evans
      acquired the property in March 2012.

             In January 2013, sewage overflowed into the basement of the home
      located on Mr. Evans’s property. In response to the overflow, Mr. Evans
      called a plumber who excavated the sewer line. Mr. Evans claims the
      excavation revealed that the sewer line had been damaged with a backhoe
      or similar machine. According to Mr. Evans, no dig permits for his
      property had been issued except for the gas line installation by Nashville
      Gas in 1984. Therefore, he asserts that Nashville Gas must have damaged
      his sewer line during the installation of the gas line in 1984. He also
      alleges that the installer improperly used plastic joint tape to repair the
      damage and buried the line nearly three feet deep.

             On June 26, 2013, Mr. Evans sued Piedmont Natural Gas Company
      (“Piedmont”) in Davidson County General Sessions Court. In its entirety,
      his general sessions warrant stated that he sought:

            Damages due to the intentional destruction of property to wit;
            a sewer line, in connection with the installation of a gas
            pipeline by the Defendant and/or its agents, and the
            intentional concealment of said destruction, and damages
            accruing from the backup of waste into the home as a result
            of that destruction, together with the consequential and
            punitive damages, all in an amount under $25,000.00 dollars.

             On August 19, 2013, the general sessions court awarded Mr. Evans
      $4,179.40 in compensatory damages. Then, after a separate hearing
      conducted two months later, the court awarded Mr. Evans $10,000 in
      punitive damages.
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       On October 14, 2013, Piedmont appealed the general sessions
court’s decision to the circuit court. Piedmont moved for summary
judgment on March 18, 2014, on the following grounds: (1) Piedmont was
not liable for acts of its predecessor, Nashville Gas; (2) the statute of
repose, Tennessee Code Annotated § 28–3–202, barred Mr. Evans’s claim;
and (3) Mr. Evans failed to allege facts to support his request for punitive
damages. Both parties agree that the following relevant facts are
undisputed:

    [ ] In 1984, gas service was extended to Cash Lane which intersects
    with Due West Avenue at the location of the plaintiff’s property.....
    [sic]
    [ ] The gas line installation on Cash Lane in 1984 was performed by
    Holmes Construction Company, a contractor hired by Nashville Gas....
    [ ] Piedmont has not serviced or repaired the gas line on Cash Lane
    near, or in the vicinity of, plaintiff’s sewer line since 1984.
    [ ] Other than the permit issued for the installation of the natural gas
    pipeline by Piedmont, no other “dig permits” had been issued for the
    Evans Property between 1980 and 2013.

        After conducting a hearing, the court granted Piedmont’s motion for
summary judgment. As grounds for summary judgment, the court’s order
stated in relevant part:

             The court determined that there was no genuine issue
      as to any material fact which supported the plaintiff’s theories
      of recovery against Piedmont. There is no evidence in the
      record that Piedmont or its predecessor, the Nashville Gas
      Company, damaged the sewer line in question, repaired the
      sewer line in question or intentionally concealed any damage
      or repair to the sewer line in question. There is no proof in
      the record that the sewer line was damaged at the time of the
      gas installation in 1984. There is no proof in the record that
      either Piedmont or the predecessor, the Nashville Gas
      Company, was ever aware of any damage to the sewer line at
      any time before 2013 when the problem which is the subject
      of plaintiff’s claim began.

             The court was also of the opinion that the plaintiff’s
      claims were barred by the 4 year statute of repose, T.C.A. §
                                     3
             28–3–202. The gas line in question was installed in 1984 and
             the damages which are the basis of the plaintiff’s claim
             occurred in 2013.

             ....

                    The court was further of the opinion that there was no
             genuine issue as to any material fact on the plaintiff’s claims
             for punitive damages. The court determined that there was no
             factual or legal basis for punitive damages under the criteria
             of Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn. Ct.
             App. 1992).

Evans v. Piedmont Natural Gas Co., Inc., No. M2014-01099-COA-R3-CV, 2015 WL
9946268, at **1-2 (Tenn. Ct. App. Aug. 18, 2015), Rule 11 appl. perm. appeal denied
Jan. 20, 2016.

       In Evans I, this Court affirmed the grant of summary judgment on the issue of
punitive damages, but vacated the grant of summary judgment on the other grounds after
finding and holding that Piedmont as the surviving company by merger to Nashville Gas
Company was responsible for Nashville Gas Company’s liabilities and that the Trial
Court had improperly limited Plaintiff’s discovery. Id. at **7-8. We remanded the case
to allow Plaintiff to conduct further discovery and for further proceedings. Id.

       Upon remand, the Trial Court entered a Case Management Order memorializing
the parties’ agreement to dates for completion of written discovery, depositions, and
expert disclosures, among other things. After the time deadlines had passed for written
discovery, depositions, and expert disclosures, Piedmont filed a motion for summary
judgment alleging that Plaintiff could not prove any intentional conduct on the part of
Piedmont or its agents that caused the damages of which Plaintiff complained. In
response to the motion for summary judgment, Plaintiff filed, among other things, his
own affidavit, photographs he had taken showing the damaged sewer line, and copies of
records of Tennessee One Call with respect to Plaintiff’s property from 1984 through
2013 documenting over fifty calls by various utilities and others.

       After a hearing, the Trial Court entered its order on December 13, 2016 granting
summary judgment to Piedmont after finding and holding that “there is no evidence that
the defendant or any entity whose acts it may be responsible for was guilty of any
intentional, reckless or malicious act which caused the damages claimed by the plaintiff.”
On December 22, 2016, the Trial Court entered an order granting Piedmont’s motion for
discretionary costs. Plaintiff appeals to this Court.
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                                       Discussion

        Although not stated exactly as such, Plaintiff raises two issues on appeal: 1)
whether the Trial Court erred in granting summary judgment to Piedmont; and, 2)
whether the Trial Court erred in its award of discretionary costs to Piedmont. Piedmont
raises an additional issue regarding whether Plaintiff’s appeal is frivolous.

     We first consider whether the Trial Court erred in granting summary judgment to
Piedmont. As our Supreme Court has instructed:

             Summary judgment is appropriate when “the pleadings, depositions,
      answers to interrogatories, and admissions on file, together with the
      affidavits, if any, show that there is no genuine issue as to any material fact
      and that the moving party is entitled to a judgment as a matter of law.”
      Tenn. R. Civ. P. 56.04. We review a trial court’s ruling on a motion for
      summary judgment de novo, without a presumption of correctness. Bain v.
      Wells, 936 S.W.2d 618, 622 (Tenn. 1997); see also Abshure v. Methodist
      Healthcare–Memphis Hosp., 325 S.W.3d 98, 103 (Tenn. 2010). In doing
      so, we make a fresh determination of whether the requirements of Rule 56
      of the Tennessee Rules of Civil Procedure have been satisfied. Estate of
      Brown, 402 S.W.3d 193, 198 (Tenn. 2013) (citing Hughes v. New Life Dev.
      Corp., 387 S.W.3d 453, 471 (Tenn. 2012)).

                                          ***

      [I]n Tennessee, as in the federal system, when the moving party does not
      bear the burden of proof at trial, the moving party may satisfy its burden of
      production either (1) by affirmatively negating an essential element of the
      nonmoving party’s claim or (2) by demonstrating that the nonmoving
      party’s evidence at the summary judgment stage is insufficient to establish
      the nonmoving party’s claim or defense. We reiterate that a moving party
      seeking summary judgment by attacking the nonmoving party’s evidence
      must do more than make a conclusory assertion that summary judgment is
      appropriate on this basis. Rather, Tennessee Rule 56.03 requires the
      moving party to support its motion with “a separate concise statement of
      material facts as to which the moving party contends there is no genuine
      issue for trial.” Tenn. R. Civ. P. 56.03. “Each fact is to be set forth in a
      separate, numbered paragraph and supported by a specific citation to the
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       record.” Id. When such a motion is made, any party opposing summary
       judgment must file a response to each fact set forth by the movant in the
       manner provided in Tennessee Rule 56.03. “[W]hen a motion for summary
       judgment is made [and] . . . supported as provided in [Tennessee Rule 56],”
       to survive summary judgment, the nonmoving party “may not rest upon the
       mere allegations or denials of [its] pleading,” but must respond, and by
       affidavits or one of the other means provided in Tennessee Rule 56, “set
       forth specific facts” at the summary judgment stage “showing that there is a
       genuine issue for trial.” Tenn. R. Civ. P. 56.06. The nonmoving party
       “must do more than simply show that there is some metaphysical doubt as
       to the material facts.” Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.
       Ct. 1348. The nonmoving party must demonstrate the existence of specific
       facts in the record which could lead a rational trier of fact to find in favor of
       the nonmoving party. If a summary judgment motion is filed before
       adequate time for discovery has been provided, the nonmoving party may
       seek a continuance to engage in additional discovery as provided in
       Tennessee Rule 56.07. However, after adequate time for discovery has
       been provided, summary judgment should be granted if the nonmoving
       party’s evidence at the summary judgment stage is insufficient to establish
       the existence of a genuine issue of material fact for trial. Tenn. R. Civ. P.
       56.04, 56.06. The focus is on the evidence the nonmoving party comes
       forward with at the summary judgment stage, not on hypothetical evidence
       that theoretically could be adduced, despite the passage of discovery
       deadlines, at a future trial.

Rye v. Women’s Care Cntr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn.
2015).

       Piedmont made a properly supported motion for summary judgment alleging that
Plaintiff could not prove any intentional conduct on the part of Piedmont or its agents that
caused the damages of which Plaintiff complained. The burden then shifted to Plaintiff
to show genuine disputed issues of material fact showing an intentional act of Piedmont
or its agent which caused the damages of which Plaintiff complains. Importantly,
Plaintiff sued only for intentional destruction and intentional concealment of said
destruction. Plaintiff’s complaint did not allege any negligent conduct, or any conduct
other than intentional conduct.

       Plaintiff failed to produce any evidence showing any intentional conduct on the
part of Piedmont or its agent. In his brief on appeal, Plaintiff argues that “there is no
question that the person or entity that damaged, ‘repaired’ and then buried the sewer line
acted intentionally, recklessly and maliciously.” Plaintiff, however, failed to show that
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the person or entity who damaged, repaired, and buried the sewer line was Piedmont or
an entity for whose actions Piedmont would be liable. We note that despite Plaintiff’s
successful argument in Evans I that the Trial Court erred in granting summary judgment
before he had a chance to complete certain very specific discovery, Plaintiff undertook no
additional depositions or written discovery of any type after the remand to the Trial
Court.

        In his reply brief on appeal, Plaintiff asserts that the sewer line was installed in
1980, that in 1984 a natural gas line was installed, that the alleged damage occurred at the
intersection of the sewer line and the natural gas pipeline, and that between 1984 and
2013, “the Metropolitan Government of Nashville and Davidson County, Tennessee did
not issue any permits authorizing excavation on the Evans property.” Plaintiff argues that
the facts provide circumstantial evidence that shows that it is more likely than not that
Piedmont or its agent caused the damages of which Plaintiff complains. We respectfully
disagree with Plaintiff as the evidence presented to the Trial Court at this time can lead to
nothing but pure speculation as to who caused the damage to the sewer line. Was it done
in the initial installation? Was it done by someone digging without obtaining the required
permit? Was it done when the natural gas line was installed? The answers to those
questions are pure speculation.

       Plaintiff has failed to produce at the summary judgment stage any evidence
showing any intentional, malicious, or reckless act on the part of Piedmont, its agent, or
any entity. As Plaintiff’s suit was solely for intentional destruction and intentional
concealment of said destruction, and Plaintiff failed to produce any evidence of genuine
disputed issues of material fact showing any such intentional conduct by Piedmont or its
agent, we find no error in the Trial Court’s grant of summary judgment to Piedmont.

        Next, we consider whether the Trial Court erred in awarding discretionary costs to
Piedmont. Plaintiff raises two arguments with regard to this issue. First, Plaintiff argues
that the equities do not favor an award of discretionary costs. Second, Plaintiff argues
that the Trial Court improperly included costs taxed to Piedmont by this Court in Evans I.
We will discuss these arguments in turn.

       We review a Trial Court’s decision to award discretionary costs for abuse of
discretion. Quebecor Printing Corp. v. L & B Mfg. Co., 209 S.W.3d 565, 583 (Tenn. Ct.
App. 2006). As this Court has explained:

              Tenn. R. Civ. P. 54.04(2) permits prevailing parties in civil actions
       to recover “discretionary costs.” The purpose of this provision is not to
       punish the losing party but rather to help make the prevailing party whole.
       Owens v. Owens, 241 S.W.3d 478, 496–97 (Tenn. Ct. App. 2007); Scholz v.
                                             7
      S.B. Int’l, Inc., 40 S.W.3d 78, 85 (Tenn. Ct. App. 2000). The particular
      equities of the case may influence a trial court’s decision to award
      discretionary costs, Perdue v. Green Branch Mining Co., 837 S.W.2d 56,
      60 (Tenn. 1992), and, therefore, parties are not entitled to discretionary
      costs simply because they prevail. Scholz v. S.B. Int’l, Inc., 40 S.W.3d at
      85; Sanders v. Gray, 989 S.W.2d 343, 345 (Tenn. Ct. App. 1998).

              The party seeking discretionary costs has the burden of convincing
      the trial court that it is entitled to these costs. Carpenter v. Klepper, 205
      S.W.3d 474, 490 (Tenn. Ct. App. 2006); Stalsworth v. Grummons, 36
      S.W.3d 832, 835 (Tenn. Ct. App. 2000). As a general matter, a party
      seeking discretionary costs can carry its burden by filing a timely and
      properly supported motion demonstrating (1) that it is the prevailing party,
      (2) that the costs being sought are included in Tenn. R. Civ. P. 54.04(2), (3)
      that the costs are necessary and reasonable, and (4) that it has not engaged
      in conduct during the litigation that would justify depriving it of the costs it
      is requesting. Trundle v. Park, 210 S.W.3d 575, 582 (Tenn. Ct. App.
      2006); Waggoner Motors, Inc. v. Waverly Church of Christ, 159 S.W.3d
      42, 65–66 (Tenn. Ct. App. 2004); Mass. Mut. Life Ins. Co. v. Jefferson, 104
      S.W.3d 13, 35–36 (Tenn. Ct. App. 2002).

Duran v. Hyundai Motor America, Inc., 271 S.W.3d 178, 214–15 (Tenn. Ct. App. 2008).
In pertinent part, Tenn. R. Civ. P. 54.04, provides:

      Costs not included in the bill of costs prepared by the clerk are allowable
      only in the court’s discretion. Discretionary costs allowable are: reasonable
      and necessary court reporter expenses for depositions or trials, reasonable
      and necessary expert witness fees for depositions (or stipulated reports) and
      for trials, reasonable and necessary interpreter fees not paid pursuant to
      Tennessee Supreme Court Rule 42, and guardian ad litem fees; travel
      expenses are not allowable discretionary costs. . . .

Tenn. R. Civ. P. 54.04(2).

       Plaintiff argues that the equities do not favor an award of discretionary costs
because “Piedmont is a subsidiary of Duke Energy, one of the largest companies in the
United States . . . [and] Piedmont has a guaranteed return on equity of ten (10%)
percent.” Plaintiff also argues that Piedmont, not Plaintiff, appealed to the Trial Court
the decision from the General Sessions Court, where Plaintiff was the prevailing party.



                                             8
       A careful and thorough review of the record on appeal reveals that although this
Court remanded Evans I to allow Plaintiff to conduct further discovery, Plaintiff took no
steps upon remand to conduct any further discovery. Furthermore, as discussed above,
Plaintiff sued only for intentional conduct and produced no evidence whatsoever showing
any intentional conduct by Piedmont or its agent. We find no abuse of discretion in an
award of discretionary costs to Piedmont.

       We must, however, consider Plaintiff’s second argument with regard to the
amount of the award of discretionary costs. Plaintiff argues and Piedmont concedes that
the Trial Court included costs of $490.00 taxed to Piedmont by this Court in Evans I.
Costs taxed by this Court in a prior appeal are not included within the list of allowable
discretionary costs pursuant to Tenn. R. Civ. P. 54.04. The Trial Court had no authority
to tax costs already taxed by this Court. As such, it was error to include costs taxed
against Piedmont by this Court in Evans I in the award of discretionary costs. We,
therefore, modify the award of discretionary costs from the $1,133.00 awarded by the
Trial Court to $643.00.

        Finally, we consider Piedmont’s issue regarding frivolous appeal. As Plaintiff was
partially successful on one of his issues, and in the exercise of our discretion, we decline
to hold this appeal frivolous.

                                       Conclusion

       The judgment of the Trial Court is affirmed as to the grant of summary judgment
and modified as to the proper amount of the award of discretionary costs, and this cause
is remanded to the Trial Court for collection of the costs below. The costs on appeal are
assessed one-half against the appellant, John B. Evans, and his surety; and one-half
against the appellee, Piedmont Natural Gas Co., Inc.




                                          _________________________________
                                          D. MICHAEL SWINEY, CHIEF JUDGE




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