                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                      August 22, 2013 Session

                  EDWARD RAGLAND, ET AL. v. ROY MORRISON

                     Appeal from the Circuit Court for Fayette County
                   No. 5328   William C. Cole, Chancellor by Interchange




            No. W2013-00540-COA-R3-CV - Filed September 10, 2013


        This appeal arises from the grant of summary judgment in favor of Appellee.
Appellants claimed that Appellee was liable for injuries caused by dogs that Appellee
allegedly owned and allowed to run loose in the Appellants’ neighborhood. The trial court’s
order fails to state the legal ground upon which the court granted the motion for summary
judgment. Further, there is no indication in the record of the trial court’s reason(s) for
granting the motion. Because Tennessee Rule of Civil Procedure 56.04 mandates inclusion
of the trial court’s legal ground in the order on the motion for summary judgment, we vacate
and remand.

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

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J.,
and H OLLY M. K IRBY, J., joined.

Lewis K. Garrison, Memphis, Tennessee, for the appellant, Edward Ragland.

Jeremy M. Thomas, Osceola, Arkansas, for the appellee, Roy Morrison.



                                  MEMORANDUM OPINION1

       1
           Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

       This Court, with the concurrence of all judges participating in the case, may affirm, reverse
                                                                                               (continued...)
       On September 15, 2008, Phylis Ragland and her husband, Appellant Edward Ragland,
lived on a street in rural North Fayette County, Tennessee. The Raglands owned a Rottweiler
dog, and Mrs. Ragland had walked the dog on a daily basis on the street in front of her home
for over four years. Appellee Roy Morrison lived on the same street as the Raglands. Mr.
Morrison owned several parcels of property that he rented to individuals in the vicinity of the
Raglands' home. One of these tenants (who is not named in the lawsuit) allegedly abandoned
two dogs. According to the complaint, Mr. Morrison permitted the two dogs to remain on
his property, where they were allowed to run unrestrained. Specifically, the complaint
alleges that Mr. Morrison fed the dogs and they ran behind his truck, and "hung around" Mr.
Morrison's house. The Raglands also claimed that, prior to the incident giving rise to this
lawsuit, Mrs. Ragland had spoken with Mr. Morrison, asking him to put the dogs behind a
fence or restrain them. He did neither.

       On September 15, 2008, Mrs. Ragland was walking her dog. When she passed Mr.
Morrison's property, the two dogs that had allegedly been abandoned came into the street
causing the Ragland's Rottweiler to jerk toward the loose dogs. This resulted in the leash
becoming entangled around Mrs. Ragland's hand. She suffered injury to her hand and
fingers, which injuries required surgery and allegedly resulted in permanent impairment to
her hand.

       On June 11, 2008, the Raglands filed their original complaint against Mr. Morrison,
alleging that Mr. Morrison was liable for Mrs. Ragland's injuries. As grounds for Mr.
Morrison’s liability, the Raglands complaint cites, inter alia, Tennessee Code Annotated
Section 44-8-408, which states, in pertinent part:

              (b) The owner of a dog commits an offense if that dog goes
              uncontrolled by the owner upon the premises of another without
              the consent of the owner of the premises or other person
              authorized to give consent, or goes uncontrolled by the owner
              upon a highway, public road, street or any other place open to
              the public generally.


       1
        (...continued)
       or modify the actions of the trial court by memorandum opinion when a formal opinion
       would have no precedential value. When a case is decided by memorandum opinion it shall
       be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited
       or relied on for any reason in any unrelated case.



                                                 -2-
In addition, Tennessee Code Annotated Section 44-8-413 provides, in relevant part:

              (a)(1) The owner of a dog has a duty to keep that dog under
              reasonable control at all times, and to keep that dog from
              running at large. A person who breaches that duty is subject to
              civil liability for any damages suffered by a person who is
              injured by the dog while in a public place or lawfully in or on
              the private property of another.

              *                                    *                          *

              (e)(2) "Running at large" means a dog goes uncontrolled by the
              dog's owner upon the premises of another without the consent
              of the owner of the premises, or other person authorized to give
              consent, or goes uncontrolled by the owner upon a highway,
              public road, street or any other place open to the public
              generally.

As used in both Section 44-8-408, and 44-8-413, “owner” is defined as:

              [U]nless the context otherwise requires:

              “Owner” means a person who, at the time of the damage caused
              to another, regularly harbors, keeps or exercises control over the
              dog, but does not include a person who, at the time of the
              damage, is temporarily harboring, keeping or exercising control
              over the dog.

However, Tennessee Code Annotated Section 44-8-406, which is also cited in the Raglands’
complaint, allows liability to lie against a non-owner if that person takes responsibility for
the dog in question: “If the owner is unknown, or resides out of the county, the same course
shall be pursued by the taker-up in regard to such animals as in the case of other estrays.”

        On November 10, 2010, Mr. Morrison filed a motion for summary judgment, claiming
that: (1) he owed no statutory duty to Appellants, as he was not the "owner" of the dogs in
question; (2) he owed no common-law duty to Appellants, as he was not the "owner" of the
dogs in question; (3) Appellant, Phylis Ragland, assumed the risk of injury; and, (4)
Appellant, Phylis Ragland, was injured by her own dog, rather than by the dogs in question.

       Subsequent to the filing of the motion for summary judgment, on September 5, 2011,

                                             -3-
Mrs. Ragland died. On November 18, 2011, Mr. Ragland moved the court for leave to
amend the Complaint to pursue the cause on his behalf and on behalf of his deceased wife.
The motion was granted by order of March 1, 2012; an amended complaint was filed on the
same day.

       Mr. Morrison’s motion for summary judgment was heard by the trial court on
November 8, 2012 and January 10, 2013. By order of January 28, 2013, the trial court
granted Mr. Morrison’s motion for summary judgment. Mr. Ragland appeals. The sole issue
for review is whether the trial court erred in granting Mr. Morrison’s motion for summary
judgment.

        A trial court’s decision on a motion for summary judgment presents a question of law.
Our review is, therefore, de novo with no presumption of correctness afforded to the trial
court's determination. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997). "This Court must
make a fresh determination that the requirements of Tennessee Rule of Civil Procedure 56
have been satisfied." Mathews Partners, L.L.C. v. Lemme, No. M2008-01036-COA-R3-CV,
2009 WL 3172134, at *3 (Tenn. Ct. App. Oct. 2, 2009) (citing Hunter v. Brown, 955 S.W.2d
49, 50–51 (Tenn. 1977)).

         When a motion for summary judgment is made, the moving party has the burden of
showing that "there is no genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law." Tenn. R. Civ. P. 56.04. The moving party may
accomplish this by either: (1) affirmatively negating an essential element of the non-moving
party's claim; or (2) showing that the non-moving party will not be able to prove an essential
element at trial. Hannan v. Alltel Publ'g Co., 270 S.W.3d 1, 8–9 (Tenn. 2008). However,
“[i]t is not enough for the moving party to challenge the nonmoving party to ‘put up or shut
up’ or even to cast doubt on a party's ability to prove an element at trial.” Id. at 8. If the
moving party's motion is properly supported, “[t]he burden of production then shifts to the
nonmoving party to show that a genuine issue of material fact exists.” Id. at 5 (citing Byrd
v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993)). The non-moving party may accomplish this by:
“(1) pointing to evidence establishing material factual disputes that were overlooked or
ignored by the moving party; (2) rehabilitating the evidence attacked by the moving party;
(3) producing additional evidence establishing the existence of a genuine issue for the trial;
or (4) submitting an affidavit explaining the necessity for further discovery pursuant to Tenn.
R. Civ. P. 56.06.” Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008) (citations
omitted).

       When reviewing the evidence, we must determine whether factual disputes exist. In
evaluating the trial court's decision, we review the evidence in the light most favorable to the
non-moving party and draw all reasonable inferences in the non-moving party’s favor.

                                              -4-
Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003). If we find a disputed fact, we must
“determine whether the fact is material to the claim or defense upon which summary
judgment is predicated and whether the disputed fact creates a genuine issue for trial.”
Mathews Partners, 2009 WL 3172134, at *3 (citing Byrd, 847 S.W.2d at 214). “A disputed
fact is material if it must be decided in order to resolve the substantive claim or defense at
which the motion is directed.” Byrd, 847 S.W.2d at 215. A genuine issue exists if “a
reasonable jury could legitimately resolve the fact in favor of one side or the other.” Id.
“Summary [j]udgment is only appropriate when the facts and the legal conclusions drawn
from the facts reasonably permit only one conclusion.” Landry v. South Cumberland
Amoco, et al., No. E2009-01354-COA-R3-CV, 2010 WL 845390, at *3 (Tenn. Ct. App.
March 10, 2010) (citing Carvell v. Bottoms, 900 S.W.2d 23 (Tenn. 1995)). However, if there
is any uncertainty concerning a material fact, then summary judgment is not the appropriate
disposition.2

       Because of a procedural lapse in the instant case, we do not reach the substantive
question of whether summary judgment was properly granted. It is well settled that a court
speaks through its orders. Palmer v. Palmer, 562 S.W.2d 833, 837 (Tenn. Ct. App.1977). In
Cunningham v. Cunningham, No. W2006-02685-COA-R3-CV, 2008 WL 2521425 (Tenn.
Ct. App. June 25, 2008), this Court explained:

                A judgment must be reduced to writing in order to be valid. It is
                inchoate, and has no force whatever, until it has been reduced to
                writing and entered on the minutes of the court, and is
                completely within the power of the judge or Chancellor. A judge
                may modify, reverse, or make any other change in his judgment
                that he may deem proper, until it is entered on the minutes, and
                he may then change, modify, vacate or amend it during that
                term, unless the term continues longer than thirty days after the
                entry of the judgment, and then until the end of the thirty days.

Cunningham, 2008 WL 2521425, at *5 (citing Broadway Motor Co ., Inc. v. Fire Ins. Co.,


        2
          Tennessee Code Annotated Section 20–16–101 was enacted to alter the summary-judgment
standard set forth in Hannan, which permitted a trial court to grant summary judgment based on the
framework described above. The statute is intended “to return the summary judgment burden-shifting
analytical framework to that which existed prior to Hannan, reinstating the ‘put up or shut up’ standard.”
Coleman v. S. Tenn. Oil Inc., No. M2011-01329-COA-R3-CV, 2012 WL 2628617, at *5 n.3 (Tenn. Ct. App.
July 5, 2012). However, Section 20-16-101 applies only to those cases that were filed on or after July 1,
2012. As discussed above, the instant lawsuit was filed on June 11, 2008; the motion for summary judgment
was filed on November 10, 2010. Accordingly, Tennessee Code Annotated Section 20-16-101 is not
applicable to this case.

                                                   -5-
12 Tenn. App. 278, 280 (1930)). Consequently, we usually “do not review the court's oral
statements, unless incorporated in a decree, but review the court's order and judgments for
that is how a court speaks.” Id. Moreover, Tennessee Rule of Civil Procedure 56.04 states,
in relevant part, that: “The trial court shall state the legal grounds upon which the court
denies or grants the motion [for summary judgment], which [grounds] shall be included in
the order reflecting the court’s ruling.” Tenn. R. Civ. P. 56.04 (emphases added).

     Here, the trial court’s January 24, 2013 order granting Mr. Morrison’s motion for
summary judgment states, in its entirety:

                      COMES for hearing the 8th day of November, 2012 and
              the 10th day of January, 2013 Defendant’s Motion for Summary
              Judgment. Plaintiffs appear herein by counsel, Mr. Lewis
              Garrison. Defendant appears herein by counsel, Mr. Jeremy
              Thomas. After being well and sufficiently advised upon the law
              and the facts, the Court hereby finds that the Defendant’s
              Motion for Summary Judgment should be granted.
                      WHEREFORE, Defendant’s Motion for Summary
              Judgment is hereby GRANTED and Plaintiffs’ Complaint is
              hereby DISMISSED WITH PREJUDICE.

       The requirements of Rule 56.04 were discussed in this Court's opinion in Winn v.
Welch Farm, L.L.C., No. M2009-01595-COA-R3-CV, 2010 WL 2265451 (Tenn. Ct. App.
June 4, 2010):

              In 2007, Tennessee Rule of Civil Procedure 56.04 was amended
              to require the trial court to “state the legal grounds upon which
              the court denies or grants the motion,” and to include such
              statement in the order reflecting the trial court's ruling. When the
              legal grounds for the trial court's decision are omitted, a
              reviewing court cannot analyze the decision's validity, and
              appellate review becomes unnecessarily speculative. “Without
              such a statement . . . a reviewing court is left to wonder on what
              grounds the trial court granted the motion for summary
              judgment.” Eluhu v. HCA Health Servs. of Tenn. Inc., No.
              M2008-01152-COA-R3-CV, 2009 WL 3460370, at *21 [(Tenn.
              Ct. App. Oct. 27, 2009)]. The 2007 amendment to Tenn. R. Civ.
              P. 56.04 was intended to cure this problem. The Rule's
              requirements are specific and without exception. Tenn. R. Civ.
              P. 56.04; see also Eluhu, 2009 WL 3460370, at *21 (vacating

                                              -6-
              the trial court's grant of summary judgment upon finding that the
              trial court did not state the legal grounds upon which the trial
              court granted the motion); Burse v. Hicks, No. W2007-02848-
              COA-R3-CV, 2008 WL 4414718, at *2 (Tenn. Ct. App. Sept.
              30, 2008) (finding noncompliance with Rule 56.04 where trial
              court's order merely provided “it is hereby ordered, adjudged
              and decreed that the Motion for Summary Judgment of [the
              defendant] is well taken and should be granted pursuant to law
              and there being no material disputed fact,” but proceeding with
              appellate review upon a finding that there was only a “clear
              legal issue”).

Winn, 2010 WL 2265451, at *5. The Court in Winn concluded that it was unable to consider
the merits of the appeal due to the trial court's failure to comply with Rule 56.04, when the
trial court's ruling merely stated that “the Court believes there are no genuine issues of
material fact and that the Respondents are entitled to judgment as a matter of law.” Id. at *6.
Because the Winn case did not present “a clear legal issue,” id. (citation omitted), we were
not able to “soldier on without guidance from the trial court.” Id. (citing Church v. Perales,
39 S.W.3d 149, 158 (Tenn. Ct. App. 2000)). Likewise, in the instant case, the trial court’s
order states only that it “finds that the Defendant’s Motion for Summary Judgment should
be granted.” Respectfully, the trial court failed to recite any evidence or argument that was
considered in its decision to grant summary judgment. This practice contravenes the specific
mandate of Rule 56.04. As previously discussed, Rule 56.04 requires that the trial court
“state the legal grounds upon which the court denies or grants the motion.” Tenn. R. Civ. P.
56.04. Rule 56.04's requirement is “specific and without exception.” Eluhu, 2009 WL
3460370, at *21. Consequently, the mandate contained in Rule 56.04 is not a suggestion; it
is a mandatory requirement for the trial court to follow, in the absence of which this Court
cannot make a meaningful appellate review. The treatise, Tennessee Civil Procedure,
describes the requirement that the court set forth its reasoning as “enabl[ing] appellate courts
to better review whether the trial court granting summary judgment has in fact weighed the
evidence and improperly granted the motion.” Banks & Entman, Tennessee Civil Procedure
§ 9–4(b) (2d ed. 2004). This duty is particularly important when the trial court grants a
motion for summary judgment. See Fed. R. Civ. P. 56 advisory committee note (2010); see
also Jones v. Professional Motorcycle Escort Service, L.L.C., 193 S.W.3d 564, 570 (Tenn.
2006) (citing Harris v. Chern, 33 S.W.3d 741, 745 n.2 (Tenn. 2000) (noting that federal law
on a rule similar to a Tennessee rule is persuasive authority). As noted by this Court in Winn,
without knowing the trial court's basis for granting the motion, “[a]t best we would be
speculating as to the reasoning behind the trial court's decision and the facts it considered.”
Winn, 2010 WL 2265451, at *6. That tenet is even more true in this case because there is
no transcript or Tennessee Rule of Appellate Procedure 24(c) Statement of the Evidence

                                              -7-
from the summary judgment hearing included in the record on appeal, which transcript or
Statement of the Evidence may have shown the trial court’s reason for granting summary
judgment. However, in the absence of an order complying with Rule 56.04 or a transcript
or Statement of the Evidence of the trial court’s oral ruling, if any, there is nothing from
which this Court can glean the trial court’s basis for the grant of summary judgment.
Accordingly, we are unable to conduct a meaningful review of the substantive issue. For that
reason, we vacate the grant of summary judgment.

       For the foregoing reasons, we vacate the order of the trial court. The case is remanded
for such further proceedings as may be necessary and are consistent with this Opinion. Costs
of the appeal are assessed against the Appellant, Edward Ragland. Because it appears that
Mr. Ragland is proceeding in forma pauperis in this appeal, execution may issue for costs
if necessary.




                                           _________________________________
                                           J. STEVEN STAFFORD, JUDGE




                                             -8-
