                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                             Assigned on Briefs April 1, 2003

               FRANKLIN IRON & METAL RECYCLING, INC. v.
                   WORLEY ENTERPRISES, INC., ET AL.

                   Appeal from the Chancery Court for Williamson County
                        No. I-25915   R.E. Lee Davies, Chancellor



                     No. M2002-02361-COA-R3-CV - Filed June 4, 2003


Defendants appeal the action of the trial court denying a Tennessee Rule of Civil Procedure 59.04
motion seeking to set aside a previous grant of summary judgment. We have determined that the
trial court did not abuse its discretion in denying the motion and therefore affirm the judgment.

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

WILLIAM B. CAIN , J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S., and
PATRICIA J. COTTRELL, J., joined.

J. Britt Phillips, Franklin, Tennessee, for the appellants, Worley Enterprises, Inc. and Johnny
Worley.

J. Nick Shelton, Franklin, Tennessee, for the appellee, Franklin Iron & Metal Recycling, Inc.

                                            OPINION

        The only issue before the Court in this case is whether or not the trial court abused its
discretion in denying Defendants’ Rule 59 Motion to Set Aside an Order Granting Summary
Judgment to Plaintiff. Tenn. R. Civ. P. 59.04. To answer this question, we consider the following
chronology of events as disclosed by the record.

        Defendant Johnny Worley was President and Chief Executive Officer of Worley Enterprises,
Inc. Prior to November 8, 1995, Worley Enterprises, Inc. was owner of a scrap metal business with
equipment used in such business located at 242 Second Avenue North in Franklin, Tennessee. On
November 8, 1995, Franklin Iron & Metal Recycling, Inc. purchased the business from Worley
Enterprises, Inc. by an extensive asset purchase agreement for a consideration of $150,000.00.
        In the years immediately following the purchase, Franklin Iron & Metal Recycling, Inc.
became disenchanted with the business and, on December 22, 1998, filed suit in the Chancery Court
of Williamson County, Tennessee against Worley Enterprises, Inc. and Johnny Worley, individually.1
In this complaint, Defendants are charged with breach of contract, breach of warranty,
misrepresentation, fraud in the inducement to the contract and violation of the Tennessee Consumer
Protection Act.

       Eighteen months later on June 22, 2000, Defendants Worley Enterprises, Inc. and Johnny
Worley, individually, filed their answer to the complaint. On December 17, 2001, Plaintiff filed a
Motion for Summary Judgment pursuant to Rule 56, submitting therewith an extensive statement
of undisputed facts, together with an affidavit of Catherine Gividen, one of the owners of Franklin
Iron & Metal, Inc. No response was filed by the Defendants.

         On February 13, 2002, the trial court entered the following order:

                 On 11 February 2002, before the Honorable R.E. Lee Davies, III, Plaintiff’s
         Motion for Summary Judgment against Worley Enterprises, Inc., and Johnny Worley,
         Individually, was heard. Said Plaintiff/Movant complied with Tenn. R. Civ. P. 56.
         That said, the Respondents, Worley Enterprises, Inc., and Johnny Worley,
         individually, failed to file a response to movant’s Tenn. R. Civ. P. 56 Motion for
         Summary Judgment after two (2) settings.
                 IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the
         Plaintiff is granted a judgment against Johnny Worley, individually, and Worley
         Enterprises, Inc., for damages incurred totaling one hundred fifty thousand dollars
         ($150,000.00) plus Tennessee Statutory Interest from the Contract date of 28 October
         1995 for the claims of Fraudulent Representation, Gross Negligence, violation of the
         Tennessee Consumer Protection Act, and Breach of Contract. No genuine issue of
         material facts exists regarding these four (4) claims and said defendants, Johnny
         Worley, individually, and Worley Enterprises, Inc., have failed to comply with the
         Rule 56 of the Tennessee Rules of Civil Procedure. [sic]

       After the entry of this order Honorable Jeffrey D. Germany, counsel for the Defendants, filed
a Motion to Withdraw. Then, on March 14, 2002, Mr. Germany filed on behalf of the Defendants
a “Motion to Reconsider Order Granting Plaintiff’s Motion for Summary Judgment.” Germany
made no response to the Plaintiff’s Motion for Summary Judgment but asserted that the notice of
hearing sent by Plaintiff disclosed inaccurate dates on which the hearing was to be held. This motion
concluded with the prayer: “Wherefore, premises considered, Defendant prays that an order be
entered granting Defendant’s Motion to Set Aside Order Granting Plaintiff’s Motion for Summary
Judgment only until such time as Defendants’ counsel can withdraw.” As an exhibit to this motion,
Mr. Germany attached the following letter from counsel for Plaintiff dated March 6, 2002:


         1
             Also joined as a D efendant in the comp laint was P hillip M etals, Inc. an Ohio co rporation w hich sub sequently
filed for b ankruptcy and was dismissed as a defendant.

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       Dear Jeffrey:
               The original Summary Judgment Motion was set for 28 January 2002. I gave
       more than ample notice to you and your client regarding same. The Honorable Judge
       R.E. Lee Davies, III, was ready to grant that motion to me on said 28 January 2002
       date. However, I informed him that I wanted to give you one last chance to respon[d]
       so the matter was reset for 11 February 2002.
               The extension from 28 January 2002 was a mere courtesy by me in case there
       was some pressing matter keeping you from answering the motion. However, the
       only response I have heard since that date is your Motion to Withdraw of which I
       have no objection to. Therefore, I will not set aside the final Order as you had over
       fifty (50) days advance notice of same.
               Thank you for your time and attention to this matter. You may contact me
       directly if you have any questions.

        The motion of Defendant was further supported by the affidavit of Janet M. Love, legal
assistant to counsel for the Defendant, which dealt only with the hearing mix-up as to the date for
the Plaintiff’s motion. The motion to reconsider was heard on April 22 pursuant to Defendant’s
notice filed on March 21. After that hearing the trial court entered the following order:

               On April 22, 2002, before the Honorable R.E. Lee Davies, III, the Motion to
       Reconsider filed by Attorney Jeffrey D. Germany was granted. Plaintiff’s Order
       Granting Summary Judgment was therefore set aside and set for rehearing on June
       10, 2002. Further, said Attorney Germany was granted his Motion to Withdraw as
       counsel for Plaintiff as of April 22, 2002.
                      IT IS THEREFORE, ORDERED, ADJUDGED and DECREED all
       of the following, to wit:
       1)             That the Order of Summary Judgment signed by the
                      Honorable Judge R.E. Lee Davies, III, on February 13, 2002
                      is set aside;
       2)             That Jeffrey D. Germany is allowed to withdraw as counsel
                      for plaintiff in this matter effective April 22, 2002; and
       3)             That Plaintiff’s Motion for summary Judgment is reset to be
                      heard on the 10th day of June, 2002 with notice of same to be
                      given to Defendant, Johnny Worley at his last known address
                      of 2055 Highway 51 North, Nesbitt, MS 38651. Said notice
                      shall consist of first class mail of this order as well as
                      registered certified mail to said last known address.

       The record discloses no action at all between the order of May 2, 2002 and the hearing on
June 10, 2002, after which the trial court entered its order of June 28, 2002:

             On June 10, 2002, Plaintiff’s Tenn. R. Civ. Pro. 56 Motion for Summary
       Judgment was heard before the Honorable R.E. Lee Davies, III. No response was


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       filed by defendants as required by Rule 56 of the Tennessee Rules of Civil Procedure.
       Plaintiff’s Motion for Summary Judgment is, therefore, granted and an Order of
       Summary Judgment hereby entered.
               IT IS HEREBY, ORDERED, ADJUDGED and DECREED that a Judgment
       in the amount of $150,000.00 for breach of contract, plus interest at ten percent
       (10%) per annum from December 23, 1998, (date of suit filing) be awarded Franklin
       Iron & Metal Recycling, Inc., against defendants Worley Enterprises, Inc., and
       Johnny Worley, Individually.
               Costs of this matter shall be assessed to plaintiff.

       Thereafter, on July 22, 2002, Defendants filed their “Motion to Alter or Amend Summary
Judgment and Memorandum of Law.” This motion accompanied by Defendant’s own affidavit and
statement of undisputed facts represents Defendant’s first response to the merits of the Plaintiff’s
Motion for Summary Judgment filed on December 17, 2001. Mr. Germany’s affidavit asserted in
pertinent part:

               2.     I was the attorney of record for the Defendant, Worley Enterprises,
       Inc. and Johnny Worley, individually, in matter number I-25915 of the Chancery
       Court for Williamson County, Tennessee styled Franklin Iron & metal Recycling,
       Inc. v. Worley Enterprises, Inc. and Johnny Worley, Individually. By an Order
       entered on May 2, 2002, I withdrew as counsel of record for the defendants in this
       matter. Furthermore, this Order set aside the Order granting Plaintiff’s Motion for
       Summary Judgment and resetting Plaintiff’s Motion for June 10, 2002.
               3.     At the time of submission of the above-described Order, April 22,
       2002, Defendant was sent through first-class, U.S. mail a copy of the Order. I had
       no direct communication with Defendant concerning this matter other than the Order
       which was sent on April 22, 2002.
               4.      The week prior to June 10, 2002, but less than five (5) days prior to
       the hearing, Mr. Johnny Worley contacted me and stated he had been out of town and
       had just received and read the above-described Order. He stated to me that he did
       not realize there was a Motion for Summary Judgment set. He also asked me to
       reconsider withdrawing from the case, but I could not at the time undertake his matter
       and also felt he would be better served to hire another attorney. I advised him to
       immediately seek and retain another attorney due to the time constraints involved
       with the Plaintiff’s Motion.

       On August 15, 2002, the trial court overruled the motion. Defendants appealed.

                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 otherwise provided
       in this rule, must set forth specific facts showing that there is a genuine issue for trial.



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       If the adverse party does not so respond, summary judgment, if appropriate, shall be
       entered against the adverse party.

Tenn. R. Civ. P. 56.06.

        No response of any kind complying with Rule 56.06 was filed until after the court had heard
the Motion for Summary Judgment on June 10, 2002, and filed its order granting the summary
judgment on June 28, 2002. It was not until July 22, 2002, when Defendants filed their motion
pursuant to Rule 59.04 to alter or amend the June 28, 2002 order granting summary judgment, that
Defendants in any way responded to the merits of the summary judgment motion that had been filed
December 17, 2001. The supporting documentation to the July 22, 2002 motion provided no proof
in response to the merits of Plaintiff’s motion that was not well known to the Defendants at the time
the summary judgment motion itself was filed. Indeed, the trial court had already granted Plaintiff’s
Motion for Summary Judgment on February13, 2002, and thereafter, in response to the Defendants’
motion concerning the alleged mix-up as to the hearing date, had set aside the order and reset the
hearing on the motion. Nothing in the record establishes any reason why a Rule 56.06 response was
not filed by the Defendants between December 17, 2001 and May 28, 2002, when the trial court
specifically re-set the summary judgment motion for hearing on June 10, 2002. Because of the
failure of the Defendants to respond to the merits of the summary judgment motion prior to the
hearing on June 10, 2002, nothing was before the court except the pleadings and the documentation
supporting the motion. A Rule 59.04 motion cannot be used to un-ring this bell. Bradley v. McLeod,
984 S.W.2d 929 (Tenn. Ct. App. 1998). In its sound discretion, the trial court could have set aside
the summary judgment but, likewise in his sound discretion, he could refuse to do so.

       The following excerpt from Bradley exemplifies this discretion and describes the underlying
problems:

               Unfortunately not all lawyers heed Tenn. R. Civ. P. 56.06's clear warning.
       With increasing frequency, they do not take a motion for summary judgment
       seriously until after it has been granted. Then, relying on Schaefer v. Larsen, 688
       S.W.2d 430 (Tenn. Ct. App. 1984) and its progeny, they file a Tenn. R. Civ. P. 59.04
       motion seeking to set aside the summary judgment using evidentiary materials that
       should have been submitted to the trial court before the summary judgment was
       granted. In some instances, these lawyers have been successful in overturning a
       previously granted summary judgment, see Richland Country Club, Inc. v. CRC
       Equities, Inc., 832 S.W.2d 554, 557-58 (Tenn. Ct. App. 1991); Schaefer v. Larsen,
       688 S.W.2d at 433-34, but in other instances they have not. See Marr v. Montgomery
       Elevator Co., 922 S.W.2d 526, 528 (Tenn. Ct. App. 1995).
               Oftentimes, lawyers seeking to overturn a summary judgment after it has been
       granted overlook the fact that the trial courts may deny a Tenn. R. Civ. P. 59.04
       motion seeking to introduce new evidence if there is no particularized showing of
       due diligence or of the reasons why the new evidence could not have been discovered
       and presented prior to the initial consideration of the summary judgment motion. See


                                                -5-
       Marr v. Montgomery Elevator Co., 922 S.W.2d at 528. While the panel that decided
       Schaefer v. Larsen expressed some inclination to relax the strict requirements
       associated with motions for new trial based on newly discovered evidence, no court
       has held that the issues of diligence and availability cannot or should not be
       considered when a party seeks to alter or amend a summary judgment using new
       evidence.

              ....

                The McLeod’s Tenn. R. Civ. P. 59.04 motion contains two flaws. First, it
       seeks to introduce a new legal defense that was not presented to the trial court before
       it granted the summary judgment. Second, it seeks to present evidence not
       introduced prior to the original summary judgment hearing. Both Paul McCord and
       James McCord have been aware of this evidence since 1988, and thus the McLeods
       have not demonstrated even the minimal diligence needed in order to be entitled to
       relief from a summary judgment under Tenn. R. Civ. P. 59.04. Accordingly, the trial
       court did not abuse its discretion when it denied the McLeods’ Tenn. R. Civ. P. 59.04
       motion. As a consequence, we will review the propriety of the summary judgment
       without considering the affidavits submitted by Paul and James McCord.

Bradley v. McLeod, 984 S.W.2d 929, 932-33 (Tenn. Ct. App. 1998).

      The trial court did not abuse its discretion in overruling the Rule 59.04 motion of the
Defendants and the judgment of the trial court is affirmed.

       Costs of the cause are taxed to the Appellants.




                                                      ___________________________________
                                                      WILLIAM B. CAIN, JUDGE




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