                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                               September 19, 2011 Session

      JOSHUA N. LEE, v. LYONS CONSTRUCTION COMPANY, INC.

                   Appeal from the Circuit Court for Sevier County
                   No. 2009-0263-11 Hon. Richard R. Vance, Judge


            No. E2010-02388-COA-R3-CV-FILED-DECEMBER 19, 2011




Plaintiff and others sustained injuries in a single car accident and sued defendant construction
company and the Tennessee Department of Transportation, alleging that defendant
construction company had recently completed work on that section of the highway where the
accident occurred, and that a low point in the pavement caused plaintiff to lose control of his
vehicle and wreck. Defendant answered, stating that they had completed the required
construction on that section of the highway, and the State had accepted its work pursuant to
Tenn. Code Ann. §12-4-501 et seq. which provides upon proper completion of the work the
contractor "is discharged from all liability to any party". Defendant filed a Motion for
Summary Judgment which the Trial Court granted and plaintiff appealed. We hold that
summary judgment for the defendant in this case was proper, and affirm the Judgment of the
Trial Court.


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


H ERSCHEL P ICKENS F RANKS, P.J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., J., and D. M ICHAEL S WINEY, J., joined.


Andrew E. Farmer, Sevierville, Tennessee, for the appellant, Joshua N. Lee.

Joshua A. Wolfe, and Adam F. Rust, Knoxville, Tennessee, for the appellee, Lyons
Construction Company, Inc.
                                         OPINION

                                        Background

       This is an appeal of the Trial Court’s granting summary judgment in a motor vehicle
accident case. Plaintiff/appellant Joshua Lee (Lee) brought this action on April 3, 2009
against Appellee/defendant Lyons Construction Company, Inc. (Lyons) and the Tennessee
Department of Transportation (TDOT). The complaint averred that Lee, a North Carolina
resident, was the driver of a motor vehicle that was involved in a one-car accident while
traveling south on U.S. Highway 411 heading in the direction of Sevierville, Tennessee on
April 6, 2008. The complaint states that the accident occurred when Lee struck a low point
in the roadway that caused the right side of the vehicle to lose contact with the roadway
which caused Lee to lose control of the vehicle. Defendant Lyons allegedly performed road
work on U. S. Highway 411 at or near the scene of the accident. The complaint alleges that
a “unsafe low point and abnormal dip in the road" caused plaintiff’s accident and bodily
harm. Other allegations were made against TDOT. Attached to the complaint as an exhibit
was a memorandum and graph prepared by Trooper Charles Massengill that states the graph
“shows the difference in elevation along U. S. 411 near the crash scene. The plan elevation
depicts how the roadway was projected to be. The as built graph depicts how the roadway
actually lays.”

        Lyons answered the complaint stating that it was not responsible for the accident, and
pled the defense that the suit failed to state a cause of action upon which relief could be
granted, and alleged comparative fault. Lyons further stated that because it had turned over
the subject roadway to the State of Tennessee and it was accepted by the State, it was entitled
to a dismissal pursuant to Tenn. Code Ann. § 12-4-503 and the rationale set forth in Wood
v. Foster & Creighton Co., 235 S.W. 2d 1, 3 (Tenn. 1950). TDOT filed a Motion to Dismiss
and plaintiff gave a voluntary nonsuit to TDOT, which was granted by the Trial Court.

        On April 30, 2010, Lyons filed a motion for summary judgment accompanied by a
statement of undisputed facts, the affidavit of William Krickbaum, the president of Lyons
and a memorandum in support of the motion. Lyons also propounded requests to admit by
plaintiff. Plaintiff filed a response to the motion for summary judgment but did not file a
statement of disputed material facts or respond to Lyons’ statement of undisputed material
facts. Plaintiff attached as exhibit A to his response the Massengill memorandum, but no
affidavit. Exhibit B to the response was plaintiff’s response to defendant’s requests to admit.
Lyons filed a reply to plaintiff’s response to motion for summary judgment that was
accompanied by an affidavit of Tracie Jenkins, the TDOT project supervisor for the road in
question.



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        The Trial Court granted summary judgment to Lyons.

        Plaintiff filed a Notice of Appeal, and his issue to this Court, is:

        Did the Trial Court err when it granted summary judgment to defendant?

       According to the affidavits of William Krickbaum, President of Lyons, and Tracie
Jenkins, a Project Supervisor with TDOT, Lyons had performed construction on the highway
where the accident occurred as part of a road project. The project was completed on or
before January 10, 2008 and all control over the area of the project was turned over to the
State of Tennessee and/or Sevier County on or before February 1, 2008. TDOT accepted the
project from Lyons on or before February 1, 2008, and more than two months after TDOT
accepted the completed work from Lyons, on April 6, 2009, plaintiff, Lee, was operating a
motor vehicle on U.S. Highway 411 when he was involved in a one car crash after losing
control of his vehicle.

       The granting or denying of a motion for summary judgment is a matter of law, and a
court of appeals standard of review is de novo with no presumption of correctness. Rules Civ.
Proc., Rule 56.04. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997); Sykes v. Chattanooga
Hous. Auth., 343 S.W.3d 18 (Tenn. 2011).

       The standard for granting or denying a motion for summary judgment at the time the
Trial Court entered its judgment was set forth recently by the Supreme Court in Shipley v.
Williams, M2007-01217-SC-R11CV, 2011 WL 3505281, ___ S.W.3d ___ (Tenn. Aug. 11,
2011). 1


        1
            Tennessee Code Annotated, Title 20 was amended to add Tenn. Code Ann. § 20-16-101 that
provides:

        In motions for summary judgment in any civil action in Tennessee, the moving party who does not
        bear the burden of proof at trial shall prevail on its motion for summary judgment if it:(1) Submits
        affirmative evidence that negates an essential element of the nonmoving party's claim; or(2)
        Demonstrates to the court that the nonmoving party's evidence is insufficient to establish an essential
        element of the nonmoving party's claim.

        Tenn. Code Ann. § 20-16-101 was effective July 1, 2011. Apparently, the intent of the legislature
was to overrule Hannan v. Alltel Publishing Co., 270 S.W. 3d 1 (Tenn. 2008), its progeny and the cases
relied on in Hannan. See 2011 Tenn. Laws Pub. Acts Ch. 498.

       The amendment to Title 20 apparently was an effort to alter Tenn. R. Civ. P. 56, despite the
Tennessee Supreme Court's statement in Corum v. Holston Health & Rehab. Ctr., 104 S.W.3d 451, 454
                                                                                      (continued...)

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Summary judgment is appropriate only when the moving party can demonstrate there is no
genuine issue of material fact and that it is entitled to judgment as a matter of law. Tenn. R.
Civ. P. 56.04; Hannan v. Alltel Publ'g Co., 270 S.W.3d 1, 5 (Tenn.2008); Byrd v. Hall, 847
S.W.2d 208, 214 (Tenn.1993). In Hannan, this Court reaffirmed the basic principles guiding
Tennessee courts in determining whether a motion for summary judgment should be granted,
stating:

        The moving party has the ultimate burden of persuading the court that “there are no
        disputed, material facts creating a genuine issue for trial ... and that he is entitled to
        judgment as a matter of law.” Byrd, 847 S.W.2d at 215. If the moving party makes a
        properly supported motion, the burden of production then shifts to the nonmoving
        party to show that a genuine issue of material fact exists. Id. [I]n Tennessee, a moving
        party who seeks to shift the burden of production to the nonmoving party who bears
        the burden of proof at trial must either: (1) affirmatively negate an essential element
        of the nonmoving party's claim; or (2) show that the nonmoving party cannot prove
        an essential element of the claim at trial.

        Hannan, 270 S.W.3d at 5, 8–9. It is insufficient for the moving party to “merely point
        to omissions in the nonmoving party's proof and allege that the nonmoving party
        cannot prove the element at trial.” Id. at 10. “Similarly, the presentation of evidence
        that raises doubts about the nonmoving party's ability to prove his or her claim is also
        insufficient.” Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn.2008). If the
        party moving for summary judgment fails to satisfy its initial burden of production,
        the burden does not shift to the nonmovant, and the court must dismiss the motion for
        summary judgment. Hannan, 270 S.W.3d at 5; Blanchard v. Kellum, 975 S.W.2d 522,
        525 (Tenn.1998).

        1
          (...continued)
(Tenn. 2003) that "it is well settled that the Tennessee Supreme Court has the inherent power to promulgate
rules governing the practice and procedure of the courts of this state." Corum at 454 (citing State v. Mallard,
40 S.W.3d 473, 480-81 (Tenn. 2001). The Court explained that "[t]his inherent power "exists by virtue of
the establishment of a Court and not by largess of the legislature." Corum at 454 (citing Mallard at 481).
Moreover, this power held by the Supreme Court "cannot be constitutionally exercised by any other branch
of government because the power to control the practice and procedure of the courts is inherent in the
judiciary and necessary to engage in the complete performance of the judicial function."Id. Thus the
legislative effort to dictate the practice and procedure to be followed by the courts under these circumstances
is inappropriate and unavailing due to the separation and independent powers of the three branches of
government.


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       The standard by which our courts must assess the evidence presented in support of,
       and in opposition to, a motion for summary judgment is also well established:

              Courts must view the evidence and all reasonable inferences therefrom in the
              light most favorable to the non-moving party. Robinson v. Omer, 952 S.W.2d
              423, 426 (Tenn.1997). A grant of summary judgment is appropriate only when
              the facts and the reasonable inferences from those facts would permit a
              reasonable person to reach only one conclusion. Staples v. CBL & Assocs.,
              Inc., 15 S.W.3d 83, 89 (Tenn.2000). In making that assessment, this Court
              must discard all countervailing evidence. Byrd, 847 S.W.2d at 210–11.

       Giggers v. Memphis Hous. Auth., 277 S.W.3d 359, 364 (Tenn.2009). This Court
       stated the applicable summary judgment standard in Martin as follows: “the
       nonmoving party's evidence must be accepted as true, and any doubts concerning the
       existence of a genuine issue of material fact shall be resolved in favor of the
       nonmoving party.” Martin, 271 S.W.3d at 84 (citing McCarley v. W. Quality Food
       Serv., 960 S.W.2d 585, 588 (Tenn.1998)) (emphasis added). “Because the resolution
       of a motion for summary judgment is a matter of law, we review the trial court's
       judgment de novo with no presumption of correctness.” Martin, 271 S.W.3d at 84.

Shipley at 2011 WL 3505281 at * 4.

        Lyons, in its Motion, made the argument that it was entitled to summary judgment as
a matter of law because it owed no duty to Mr. Lee. Plaintiff's claims against Lyons focused
on an alleged defect in the highway where Lyons had performed road work. Lyons claimed
that it had completed the road project for TDOT, relinquished control over the highway to
the State of Tennessee, and the State had accepted the work pursuant to Tenn. Code Ann.
§12-4-502 et seq. by February 1, 2008, more than two months prior to the accident. Tenn.
Code Ann. §12-4-503 provides:

       Upon acceptance by the state of a state contractor's work, provided that such state
       contractor's work is done in accordance with the plans and specifications, such state
       contractor is discharged from all liability to any party by reason of its lack of ordinary
       care in the performance of, or failure to perform, such work on such state construction
       project.

      "Acceptance" within the context of the State Construction Projects Liability Act of
1977 means "notification by an authorized officer or employee of the state that the work
completed has been in accordance with the terms and conditions of the state contract . . . ."


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Tenn. Code Ann. §12-4-502(1).

        Lyons supported its position that it owed no liability to Lee with the affidavits of
William Krickbaum, President of Lyons, and Tracie Jenkins, the TDOT Project Supervisor
on the Lyons' project. The affidavits state that Lyons had completed the project on or before
January 10, 2008 and that Lyons had turned all control of the highway over to the State of
Tennessee on or before January 10, 2008. The affidavits state that TDOT accepted the
project from Lyons Construction, Inc., on or before February 1, 2008. The affidavits further
provide that the statements therein were made with the personal knowledge of the affiant and
that the affiant was competent to testify to facts stated as required by Tenn. R. Civ. P. 56.06.

       Lyons, the moving party, made a properly supported motion showing that Lee could
not prove an essential element of his claim, that Lyons owed a duty to him. Upon such a
showing, the burden of production shifted to Lee, the nonmoving party, to show a genuine
issue of material fact exists. Lee attempted to create a genuine issue of material fact by
asserting that the construction performed by Lyons was not completed according to plan
specifications, and that Lyons should not have been discharged from liability under Tenn.
Code Ann. §12-4-503. To support his contention, Lee relied on an unauthenticated portion
of a memorandum opinion by Trooper Charles Massengill, who apparently was involved in
the investigation of the accident at issue. Attached to the memorandum was a graph that
ostensibly shows the differences in elevation of the highway near the accident site, and
"depicts how the roadway was projected to be" and "how the roadway actually lays." This
document was attached as an exhibit to the complaint as well as to plaintiff's opposition to
the motion. It was not, however, introduced through the affidavit or deposition testimony of
the trooper or anyone else, and it was not certified or sworn to as required by Tenn. R. Civ.
P. 56, which provides for the type of evidence that must be utilized to support or oppose a
motion for summary judgment.

       Rule 56.06 provides:

       Supporting and opposing affidavits shall be made on personal knowledge, shall set
       forth such facts as would be admissible in evidence, and shall show affirmatively
       that the affiant is competent to testify to the matters stated therein. Sworn or
       certified copies of all papers or parts thereof referred to in an affidavit shall be
       attached thereto or served therewith. The court may permit affidavits to be
       supplemented or opposed by depositions, answers to interrogatories, or further
       affidavits. When a motion for summary judgment is made and supported as provided
       in this rule, an adverse party may not rest upon the mere allegations or denials of the
       adverse party's pleading, but his or her response, by affidavits or as otherwise
       provided in this rule, must set forth specific facts showing that there is a genuine


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       issue for trial. If the adverse party does not so respond, summary judgment, if
       appropriate, shall be entered against the adverse party. Expert opinion affidavits shall
       be governed by Tennessee Rule of Evidence 703.

Tenn. R. Civ. P. 56.06 (emphasis added).

       The memorandum and graph relied upon by plaintiff to defeat Lyons' motion are
unauthenticated hearsay and not admissible in evidence as contemplated by Rule 56.06. See,
Cox v. Tennessee Farmers Mut. Ins. Co., S.W.3d 237, 246 (Tenn. Ct. App. 2009), appeal
denied (Aug. 31, 2009)(citing Dalton v. Dale, No. M2002-01205-COA-R3-CV, 2003 WL
726669 (Tenn. Ct. App. Mar 4, 2003); Price v. Becker, 812 S.W.2d 597, 598 (Tenn. Ct. App.
1991) (Plaintiffs' documents attached to their memorandum were inadmissible evidence as
the documents were not authenticated by affidavit as required by Rule 56.06).

      Lee did not raise genuine issues of material fact in his opposition to Lyons' motion for
summary judgment. Accordingly, the Trial Court properly granted summary judgment to
Lyons and dismissed plaintiff's complaint.

       We affirm the Judgment of the Trial Court and remand, with the cost of the cause
assessed to Joshua N. Lee.




                                                   _________________________________
                                                   HERSCHEL PICKENS FRANKS, P.J.




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