                                                                                          08/31/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                                 June 21, 2018 Session

   RICHARD E. MACK ET AL. v. COMCAST CORPORATION ET AL.

                  Appeal from the Circuit Court for Shelby County
                  No. CT-004954-14 Felicia Corbin Johnson, Judge
                      ___________________________________

                           No. W2017-02326-COA-R3-CV
                       ___________________________________

An altercation between the residents of a home and alleged Comcast employees occurred
when the alleged employees attempted to recover an unreturned modem from the
residents after their service had been cancelled. The residents brought suit alleging
several claims against multiple Comcast entities. Several of the entities were previously
dismissed from the case. The trial court granted summary judgment to the remaining
Comcast entity-defendants, having concluded that they had established that the alleged
tortfeasors were independent contractors of a separate third party entity, and, as a result,
the Comcast entities could not be liable. For the reasons discussed below, we affirm the
judgment of the trial court and remand this case for such further proceedings as may be
necessary and are consistent with this Opinion.

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

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which BRANDON O.
GIBSON and KENNY ARMSTRONG, JJ., joined.

Larry E. Parrish, Memphis, Tennessee, for the appellant, Richard E. Mack and Carol T.
Mack.

Jeffrey E. Nicoson and Tracy A. Overstreet, Memphis, Tennessee, for the appellees,
Comcast Corporation and Comcast of Arkansa/Florida/Louisiana/Minnesota/Tennessee,
Inc.
                                              OPINION

                           BACKGROUND AND PROCEDURAL HISTORY

      Richard Mack and Carol T. Mack (together, “Appellants”) initiated this litigation
on November 24, 2014, against Comcast Corporation (“Comcast Corp.”), Comcast of
Arkansas/Florida/Louisiana/Minnesota/Mississippi/Tennessee,     Inc.       (“Comcast
AFLMMT, Inc.”), Comcast of Kentucky/Tennessee/Virginia, LLC (“Comcast KTV,
LLC”), Comcast of Michigan/Mississippi/Tennessee (“Comcast MMT”), Comcast of
Tennessee, LP (“Comcast Tennessee”),1 Anthony Pinedo, John Doe Agent Supervisor,2
Jane Doe Agent’s Employee, and “DOES 1-10 consisting of entity-persons by and
through which Comcast does business involving acts/omissions.”

        According to the initial complaint, the events giving rise to Appellants’ claims
occurred on August 29, 2010, at Appellants’ residence. It is undisputed that on August
29, 2010, Mr. Pinedo went to Appellants’ residence in an attempt to retrieve a modem
allegedly owned by a Comcast entity that Appellants had allegedly failed to return after
their service had been cancelled for nonpayment. Appellants averred that Mr. Mack
“instructed Comcast Corp. and/or one or more of the Comcast Entity-Persons, by and
through Agent Pinedo, to remain off [Appellants’ property].” Appellants’ complaint
states that Mr. Pinedo entered the residence despite Mr. Mack’s warnings. According to
Appellants, a physical confrontation then ensued inside the residence. Next, Appellants
averred that Mr. Mack grabbed a shovel to compel Mr. Pinedo to leave the residence, but,
according to Appellants, Mr. Pinedo was never actually struck by the shovel. However,
while backing out of the house, Mr. Pinedo allegedly fell off the front porch of the
residence. Mr. Mack then allegedly ordered a neighbor to “call 9-1-1 because the ‘cable
man’ had broken into the Residence and assaulted Mr. Mack and Mrs. Mack.”

       The police arrived, and Mr. Mack was eventually arrested because Mr. Pinedo
allegedly told the police officers that Mr. Mack had struck him with the shovel.
Meanwhile, the complaint alleges that Richard Bradley,3 Mr. Pinedo’s alleged supervisor,
arrived and began “yelling, banging [on the Macks’ door], and demanding” that he be
allowed in to retrieve the modem allegedly owned by an unspecified Comcast entity. The
complaint avers that Ms. Mack responded through the locked front door that she did “not
know where the internet box was.” This confrontation allegedly caused Ms. Mack
extreme emotional distress. Mr. Mack alleges that his mugshot was published, and

       1
        On August 23, 2017, by voluntary nonsuit, Defendants Comcast MMT, Comcast Tennessee, and
Comcast KTV, LLC, were dismissed.
       2
         The person identified as a “supervisor” in the original complaint was later determined to be
Richard Bradley.
       3
           Mr. Bradley was named in the initial complaint as “John Doe.”
                                                  -2-
consequentially, he was terminated from his employment. The charges against Mr. Mack
were ultimately dismissed. Appellants sought damages and asserted claims for criminal
trespass, assault, battery, false arrest, malicious prosecution, intentional infliction of
emotional distress, and civil conspiracy.

      On January 9, 2015, Comcast Corp., Comcast AFLMMT, Inc., Comcast KTV,
LLC, Comcast MMT, and Comcast Tennessee answered, denying all liability. On April
27, 2017, Appellants filed a motion to amend their complaint with a proposed amended
complaint attached.

        On May 30, 2017, Comcast Corp., Comcast AFLMMT, Inc., Comcast KTV, LLC,
Comcast MMT, and Comcast Tennessee filed a motion for summary judgment. The
movants averred that “Comcast utilizes outside vendors to attempt recovery when
delinquent customers” do not return cable equipment. Specifically, the movants averred
that the persons alleged to be Comcast employees by the Appellants were actually
“independent contractors for a separate entity that was an independent contractor for
Comcast.” Therefore, according to Comcast Corp., Comcast AFLMMT, Inc., Comcast
KTV, LLC, Comcast MMT, and Comcast Tennessee, the entities could not be held liable
for the actions of the alleged tortfeasors. In support of the motion, Comcast Corp.,
Comcast AFLMMT, Inc., Comcast KTV, LLC, Comcast MMT, and Comcast Tennessee
filed a memorandum of law, a statement of undisputed material facts, the declaration of
Darren Rish, and the affidavit of Marilyn Appeldoorn.

        In her affidavit, Ms. Appeldoorn averred that she was the business manager of
Cable Equipment Services, Inc. (“CES”) at all times relevant to this appeal. She testified
that CES handled equipment retrieval for Comcast Cable Communications, LLC. Ms.
Appeldoorn stated that at the time of the incident at Appellants’ residence, CES and
Comcast Cable Communications, LLC had an active “Equipment Recovery Services
Agreement,” a copy of which was attached as “Exhibit A” to her affidavit. Ms.
Appeldoorn averred that CES was an independent contractor for Comcast Cable
Communications, LLC, and CES “had full discretion in how it went about conducting
equipment retrieval efforts” for Comcast Cable Communications, LLC. Ms. Appeldoorn
also testified that CES used independent contractors as retrieval contractors to retrieve or
attempt to retrieve equipment of Comcast Cable Communications, LLC. Mr. Pinedo and
Mr. Bradley, the alleged tortfeasors, were allegedly independent contractors of CES, and
their “independent contractor” agreements were attached to Ms. Appeldoorn’s affidavit
as “Exhibit B” and “Exhibit C.” Although Appellants filed “responses” to the motion for
summary judgment the day before the scheduled summary judgment hearing, they did not
file a response to the statement of undisputed material facts submitted by the Comcast
entities.

      On August 4, 2017, after a hearing, the trial court entered an order granting
Appellants’ motion to file a first amended complaint. The same day, Appellants filed
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their “First Amended Complaint for Civil Conspiracy Including Torts and for Punitive
Damages.” The first amended complaint named the following defendants: Comcast
Corp., Comcast AFLMMT, Inc., Terry Kennedy d/b/a Comcast Cable Memphis, Trevor
Yant d/b/a Comcast AFLMMT, Inc., Anthony Pinedo d/b/a Comcast Cable Memphis,
Richard C. Bradley d/b/a Comcast Cable Memphis, Chuck Appeldoorn d/b/a CES,
Marilyn Appeldoorn d/b/a CES, CES, Comcast Cable Communications, LLC, Comcast
Cable Communication Management, LLC, Female Doe, and Does 1-10.

       On August 10, 2017, Comcast Corp., Comcast AFLMMT, Inc., Comcast KTV,
LLC, Comcast MMT, and Comcast Tennessee filed a motion to strike the first amended
complaint. The aforementioned Defendants averred that opposing counsel had not filed
the proposed amended complaint that had been approved by the trial court, but, instead,
Appellants had filed a completely new complaint with an additional twenty pages of
allegations and eight new defendants.4

      On August 12, 2017, Appellants filed “Plaintiffs’ Second Motion to Amend
Complaint and Memorandum in Support.” On August 23, 2017, the trial court granted
the motion to strike the first amended complaint. On August 23, 2017, Defendants
Comcast MMT, Comcast Tennessee, and Comcast KTV, LLC, were voluntarily
dismissed.

        On September 5, 2017, Comcast Corp. and Comcast AFLMMT, Inc. filed a
response in opposition to Appellants’ second motion to amend their complaint. However,
the trial court granted Appellants’ second motion to amend the complaint on September
28, 2017.5

       After a hearing, on October 31, 2017, the trial court entered an order granting
Comcast Corp. and Comcast AFLMMT, Inc.’s motion for summary judgment. The trial
court’s order was certified as final pursuant to Rule 54.02 of the Tennessee Rules of Civil
Procedure, and this timely appeal followed.



       4
           Specifically, the Defendant entities averred:

       Words do not do justice to describe the differences between what was proposed to be
       filed and what was filed. The filed First Amended Complaint adds eight new defendants,
       over twenty pages of new allegations, a new negligence cause of action, and a new
       theory of the case that Comcast engaged in an elaborate, illegal subterfuge through
       contracts with its independent contractors regarding recovery of Comcast equipment that
       customers, Plaintiffs included, refused to return. (emphasis in original).
       5
         The motion to amend was denied in certain respects, however, as “[Appellants’] counsel orally
modified and excluded [certain] Defendants from the motion.”

                                                     -4-
                                    ISSUES PRESENTED

       As we perceive it, there is one dispositive issue on appeal:

     Whether the trial court erred in granting summary judgment to Comcast Corp.
      and Comcast AFLMMT, Inc. (together, “Appellees”).

                                  STANDARD OF REVIEW

       A trial court’s decision to grant or deny a motion for summary judgment presents a
question of law. Kirk v. Kirk, 447 S.W.3d 861, 874 (Tenn. Ct. App. 2013). Therefore,
our review is de novo, and the trial court’s decision is afforded no presumption of
correctness. Id. (citation omitted). Accordingly, we must make a fresh determination of
whether the requirements for summary judgment have been satisfied. Id. (citation
omitted).

        Summary judgment is appropriate only where the “pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits . . . 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.” Id. (quoting Tenn. R. Civ. P. 56.04). “The moving party
bears the burden of establishing that no genuine issues of material fact are in dispute and
that summary judgment is appropriate as a matter of law.” Perkins v. Metro. Gov’t of
Nashville, 380 S.W.3d 73, 80 (Tenn. 2012) (citing Byrd v. Hall, 847 S.W.2d 208, 215
(Tenn. 1993)). “When the party moving for summary judgment will not have the burden
of proof at trial, it 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.” Rogers v. Hadju, No. W2016-00850-
COA-R3-CV, 2017 WL 1077059, at *3 (Tenn. Ct. App. Mar. 22, 2017) (citation
omitted). “If the moving party fails to meet its initial burden of production, then the
nonmoving party’s burden is not triggered, and the court should dismiss the motion for
summary judgment.” Id. (citation omitted).

       “Tennessee Rule 56 clearly states that when a summary judgment motion is
‘supported as provided in [Tennessee Rule 56],’ the nonmoving party ‘may not rest upon
the mere allegations or denials of the [nonmoving] party’s pleading,’ but in response, ‘by
affidavits or as otherwise provided in [Tennessee Rule 56], must set forth specific facts
showing that there is a genuine issue for trial. If the adverse party does not so respond,
summary judgment, if appropriate, shall be entered against the adverse party.’” See Rye
v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 262 (Tenn. 2015) (quoting
Tenn. R. Civ. P. 56.06). However, when “the evidentiary matter in support of the motion
does not establish the absence of a genuine issue, summary judgment must be denied

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even if no opposing evidentiary matter is presented.” Kirk, 447 S.W.3d at 874 (citation
omitted).

                                      DISCUSSION

        “[T]he doctrine of respondeat superior permits the master/principal to be held
liable for the negligent actions of his servant/agent.” Johnson v. LeBonheur Children’s
Med. Ctr., 74 S.W.3d 338, 343 (Tenn. 2002) (citation omitted). In Tucker v. Sierra
Builders, we discussed respondeat superior, explaining as follows:

      To hold a principal liable for the acts of another, a plaintiff must prove (1)
      that the person causing the injury was the principal’s agent and (2) that the
      person causing the injury was acting on the principal’s business and acting
      within the scope of his or her employment when the injury occurred.
      Determining whether a principal-agent relationship exists requires a careful
      analysis of the facts. The Tennessee Supreme Court has held that the
      following factors should be considered when determining whether a person
      is an agent or an independent contractor: (1) the right to control the conduct
      of the work, (2) the right of termination, (3) the method of payment, (4) the
      freedom to select and hire helpers, (5) the furnishing of tools and
      equipment, (6) the self-scheduling of work hours, and (7) the freedom to
      render services to other entities. The most indicative factor is the right to
      control the conduct of the work. Control is a key element in the creation of
      a principal-agent relationship.

Tucker v. Sierra Builders, 180 S.W.3d 109, 120 (Tenn. Ct. App. 2005) (internal citations
omitted).

        In this case, the trial court was tasked with determining whether to grant summary
judgment based upon Appellees’ motion for summary judgment, memorandum in support
of the motion for summary judgment, statement of undisputed material facts, the
declaration of Mr. Rish, the affidavit of Ms. Appeldoorn, and the exhibits attached to the
declaration and affidavit. The trial court concluded that Appellees had established that
Mr. Pinedo and Mr. Bradley were independent contractors of CES, and CES was an
independent contractor of “Comcast.” Based on these determinations, the trial court
concluded that Comcast Corp. and Comcast AFLMMT, Inc. had established they were
entitled to judgment as a matter of law.

       For the following reasons, we agree that Comcast Corp. and Comcast AFLMMT,
Inc. were entitled to relief. Through their summary judgment filings, Appellees
established that the named tortfeasors alleged to have acted on their behalf, Mr. Pinedo
and Mr. Bradley, were acting as independent contractors for another entity at the time


                                          -6-
relevant to Appellants’ claims. In support of this position, Appellees relied in part on the
affidavit of Ms. Appeldoorn, which states in relevant portion as follows:

       2. I was the Business Manager for Cable Equipment Services, Inc. (“CES”).
       CES, which closed and ceased operating in November 2015, used to handle
       equipment retrieval for cable service providers in various markets. CES
       handled equipment retrieval for Comcast Cable Communications, LLC . . .
       in certain markets, including Memphis, Tennessee.

       3. CES and Comcast entered into an Equipment Recovery Services
       Agreement (the “Comcast Agreement”) on August 25, 2005. This contract
       automatically renewed on a yearly basis. The Comcast Agreement was in
       full force and effect on August 29, 2010. A true, correct, and accurate copy
       of the Comcast Agreement is attached and incorporated herein as Exhibit
       A.

       4. CES was an independent contractor for Comcast and had full discretion
       in how it went about conducting equipment retrieval efforts.

       5. Comcast required that each contractor used by CES had to pass a
       background check and a drug screen. The retrieval contractor had to wear a
       badge identifying himself or herself as a “contractor” for Comcast, and the
       retrieval person had to place magnetic signs on vehicles that identified the
       person as a contractor for Comcast.

       6. Comcast issued the badges yearly, which had to be returned to Comcast
       once the badges had expired or if the person was done working with CES.
       Each CES retrieval contractor had to pay Comcast for the badge if the
       badge was not returned. For the magnetic signs, CES bought the signs
       from Comcast and then sold those signs to the retrieval contractors for the
       same amount.

       7. Background checks were performed by an outside business entity and
       the cost of each check varied based on each individual contractor’s
       circumstances. CES initially paid the background check entity and then
       collected that amount from the contractors. Comcast did not conduct the
       background checks.

       8. CES received a weekly report from Comcast of Comcast customers who
       had a “full tap” disconnect of services and had not returned equipment.
       This report covered all markets where CES provided equipment retrieval
       services for Comcast. CES broke the list down by market and sent a
       market-specific listing to that specific market for further processing. For
                                           -7-
Memphis, that list was sent to Richard Bradley (“Bradley”). Bradley, who
served as a market contractor, then further divided up the Memphis listings
by ZIP code.

9. CES used independent contractors as retrieval contractors to retrieve or
attempt retrieval of Comcast equipment at the addresses provided. Each
contractor worked in various ZIP codes. Retrieval contractors had
discretion in how they went about attempting retrieval. The limitations
were he or she could not violate the law and could not contact someone
before 8:00 AM or after 9:00 PM.

10. Retrieval contractors were allowed to organize and operate their
retrieval attempts as they saw fit. CES did not set the routes retrieval
contractors took on collection attempts. The contractors controlled their
own routes. Retrieval contractors were paid for each piece of equipment
retrieved. They received a specific amount based on the type of equipment
that had been retrieved.

11. There was no set timeframe for retrieval efforts. Retrieval contractors
had discretion on the number of attempts to be made. If a retrieval
contractor felt the equipment could not be retrieved at a certain location, he
or she could turn in the receipt to CES. CES then combined those receipts
together and returned those to Comcast. For unretrieved items, Comcast
would then bill the accounts of those former customers for the value of the
equipment and send those accounts to a collection agency.

12. Anthony Pinedo (“Pinedo”) worked in various ZIP codes, including the
38115 ZIP code in Memphis, Tennessee, on August 29, 2010. Pinedo was
an independent contractor for CES. He and CES entered into an
Agreement for Services from Independent Contractor (the “Pinedo
Agreement”) on or about February 17, 2010. The Pinedo Agreement was
in full force and effect on August 29, 2010. A true, correct, and accurate
copy of the Pinedo Agreement is attached and incorporated herein as
Exhibit B.

13. Richard Bradley was also an independent contractor for CES. He and
CES entered into an Agreement for Services from Independent Contractor
(the “Bradley Agreement”) on or about January 30, 2008. A true, correct,
and accurate copy of the second page of the Bradley Agreement is attached
and incorporated herein as Exhibit C.

14. CES has not been able to locate a complete copy of the Bradley
Agreement. The same agreement form was used for both Bradley and
                              -8-
       Pinedo. The first page of the Bradley Agreement matched, word-for-word,
       the first page of the Pinedo Agreement with the only difference being
       Richard Bradley’s name being included instead of Anthony Pinedo’s.

       15. On August 29, 2010, Pinedo went to the residence of Richard Mack . . .
       to retrieve a EMTA modem (the “modem”). Richard Mack had not
       returned the modem after his Comcast services had been disconnected.

       16. On August 29, 2010, Pinedo contacted Bradley and advised that
       Richard Mack had assaulted him outside the Mack residence with a shovel
       while Pinedo was attempting to retrieve the modem. Bradley went to the
       Mack residence to check on Pinedo and reported to CES on what he
       learned.

       17. No Comcast employees or personnel were involved in or present for the
       altercation at the Mack residence on August 29, 2010.

        Although Appellees submitted evidence establishing that Mr. Pinedo and Mr.
Bradley were working as independent contractors for CES with respect to the events in
question, Appellants never responded to Appellees’ statement of undisputed material
facts regarding this or offered countervailing evidence to defend against the motion for
summary judgment. This was fatal, because in our view, Appellees’ summary judgment
filings triggered Appellants’ burden to respond. As we have already noted, if a motion
for summary judgment is properly supported under Rule 56 of the Tennessee Rules of
Civil Procedure, “the nonmoving party ‘may not rest upon the mere allegations or denials
of the [nonmoving] party’s pleading,’ but in response, ‘by affidavits or as otherwise
provided in [Tennessee Rule 56], must set forth specific facts showing that there is a
genuine issue for trial.’” See Rye, 477 S.W.3d at 262 (quoting Tenn. R. Civ. P. 56.06).

        In this case, the link to Appellees’ liability is dependent on the actions of the
alleged individual tortfeasors. Indeed, Appellees’ liability in the original complaint is
contingent on supposed agency relationships and the actions taken by these agents.
Absent the existence of agency relationships in the context of the events at issue,
however, the basis for Appellees’ liability is nonexistent. The law is clear that in order to
hold a principal liable for the acts of another, a plaintiff must prove that the person
causing the injury was the principal’s agent. Tucker, 180 S.W.3d at 120 (citations
omitted). Accordingly, in order to recover against Appellees for the actions of Mr.
Pinedo and Mr. Bradley, Appellants would have the burden of proof at trial to show that
these individuals were employees or agents of the Appellees at the time of the altercation
in this case. Conversely, if it is determined that Appellees negated this element in their
motion for summary judgment, Appellants’ claims vis-à-vis Appellees fail given their
failure to offer any countervailing evidence.

                                            -9-
        Here, upon careful review of the record, it is clear that Appellees’ summary
judgment filings negated the basis for liability relied upon by Appellants. Appellees
established that Mr. Pinedo and Mr. Bradley were working as independent contractors for
CES at the time of the events in question, and the reasonable conclusion from this
established fact is that they were not working as agents or employees of Appellees at the
time. In order words, by establishing that the alleged tortfeasors were working for CES
as independent contractors with respect to the events at issue, Appellees negated the
proposition that the alleged tortfeasors were working on their behalf. If Appellants
disputed this, it was incumbent on them to submit evidence showing that the fact was of
genuine dispute. Our Supreme Court’s direction in Rye is clear that, when a properly
supported motion for summary judgment is made, 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.” Rye, 477 S.W.3d at 265. “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 . . . at a future
trial.” Id. Here, Appellants did not respond to Appellees’ statement of undisputed
material facts, and they did not marshal any evidence controverting the established fact
that the individual tortfeasors were working as independent contractors for CES at the
time of the events in question. Because Appellants did not demonstrate the existence of
specific facts in the record which could lead a rational trier of fact to find in their favor,
summary judgment was properly entered on behalf of Appellees. See id. (noting that
“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”).

                                       CONCLUSION

       For the aforementioned reasons, the judgment of the trial court granting summary
judgment to Appellees Comcast Corp. and Comcast AFLMMT, Inc. is affirmed, and this
case is remanded to the trial court for such further proceedings as may be necessary and
are consistent with this Opinion.



                                                     _________________________________
                                                     ARNOLD B. GOLDIN, JUDGE




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