                     IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                                           August 27, 2001 Session

      PHILIP OWENS, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY
             SITUATED v. BRISTOL MOTOR SPEEDWAY, INC.

                           Appeal from the Circuit Court for Sullivan County
                              No. C10815(L)     Richard E. Ladd, Judge

                                         FILED DECEMBER 19, 2001

                                        No. E2000-02667-COA-R3-CV


In this putative class action suit, the plaintiff, Philip Owens, alleges that the defendant, Bristol Motor
Speedway, Inc. (“Bristol Speedway”), engaged in a conspiracy to fix the prices of souvenirs sold at
its racetrack. The trial court denied certification of the alleged class and granted Bristol Speedway’s
motion for summary judgment as to the plaintiff’s individual claims. We affirm.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which HOUSTON M. GODDARD ,
P.J., and D. MICHAEL SWINEY, J., joined.

Gordon Ball, Knoxville, Tennessee, for the appellant, Philip Owens, on behalf of himself and all
others similarly situated.

Kurt J. Pomrenke and Timothy W. Hudson, Bristol, Virginia, and Fred T. Lowrence and Michael
G. Adams, Charlotte, North Carolina, for the appellee, Bristol Speedway, Inc.

                                                      OPINION

                                                            I.

      On February 19, 1999, the plaintiff filed this action alleging that the defendant, Bristol
Speedway, engaged in a price-fixing conspiracy with vendors1 who sold souvenirs at the defendant’s




         1
           W hile some, but apparently no t all, of these vendors are mentioned in the comp laint, they are not pa rties to
this action.
racetrack in violation of the so-called Trade Practices Act, T.C.A. § 47-25-101, et seq.; the
Tennessee Consumer Protection Act, T.C.A. § 47-18-101, et seq.; and the common law.2

        The plaintiff sought class action certification. The proposed class was defined as “[a]ll repeat
ticket holders of NASCAR-sanctioned Winston Cup and/or Busch Races held at [Bristol Speedway]
between the time January 1, 1991 and January 1, 1997 and who purchased merchandise or souvenirs
from vendors at [the defendant’s racetrack] that were subjected to minimum price-fixing by the
Defendant.” The trial court denied the plaintiff’s motion to certify the proposed class. The action
then proceeded, but only as to the plaintiff’s individual claims.

         On July 28, 2000, Bristol Speedway filed a motion for summary judgment, arguing, inter
alia, that there was no evidence it engaged in a price-fixing conspiracy or that the plaintiff purchased
souvenirs from a vendor participating in the alleged conspiracy. It further asserted that the plaintiff’s
claims were barred by the applicable statutes of limitations. In support of its motion, the defendant
filed a statement of “undisputed” material facts pursuant to Tenn. R. Civ. P. 56.03, along with the
affidavits and depositions cited in the statement. The motion was set for argument on August 31,
2000.

        On August 29, 2000, two days before the summary judgment hearing, the plaintiff filed the
affidavits of two vendors, Rocky Wagner and Steven R. Crutchfield. It was not until August 30,
2000, that the plaintiff filed a response to the statement of material facts submitted by Bristol
Speedway. The plaintiff’s response contains some citations to the previously-filed affidavits, as well
as to depositions that accompanied the plaintiff’s response. The plaintiff also filed a memorandum
of law, which contains a statement of all of the facts alleged by the plaintiff to be in dispute,
including some facts that are in the record but are not referred to in the plaintiff’s response to the
defendant’s Rule 56.03 statement.

        At the hearing below, the trial court declared that it would not consider any facts relied upon
by the plaintiff that were not cited in the plaintiff’s response to the defendant’s statement of material
facts. Based upon the Rule 56.03 statements filed by the parties and the portions of the record cited
therein, the trial court found that there was a genuine issue of material fact as to whether Bristol
Speedway engaged in a price-fixing conspiracy; nevertheless, it granted the defendant’s summary
judgment motion, finding that there was no evidence that the plaintiff purchased a souvenir at a
“fixed” price from an alleged member of the conspiracy. Moreover, the trial court found that the
plaintiff’s claims were barred by the applicable statutes of limitations.

         The plaintiff appeals, raising three issues:




        2
         The plaintiff asserts various common law claims, including civil conspiracy, unjust enrichment/restitution,
mon ey had and received, and voluntary payment/mistake of fact.

                                                        -2-
               1. Did the trial court err by applying Tenn. R. Civ. P. 56.03 in an
               “unjustifiably mechanistic fashion,” thereby excluding evidence
               properly submitted by the plaintiff?

               2. Did the trial court err in holding that the plaintiff’s claims are
               barred by the applicable statutes of limitations?

               3. Did the trial court err in refusing to certify the requested class in
               this case?

                                                 II.

        Our standard of review of a grant of summary judgment is well-settled. Our inquiry involves
only a question of law, with no presumption of correctness as to the trial court’s decision. Robinson
v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997); Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993). The
moving party has the initial burden of producing competent, material evidence reflecting that there
are no genuine issues of material fact and that it is entitled to summary judgment as a matter of law.
See Byrd, 847 S.W.2d at 211. In evaluating the evidence in the summary judgment context, we must
view the evidence in the light most favorable to the nonmoving party, and we must draw all
reasonable inferences in favor of that party. Id. at 210. Summary judgment is appropriate only when
there are no genuine issues of material fact and when the undisputed material facts entitle the moving
party to a judgment as a matter of law. Tenn. R. Civ. P. 56.04; Byrd, 847 S.W.2d at 211.

                                                 III.

        The plaintiff argues that the trial court erred in applying Tenn. R. Civ. P. 56.03 in an
“unjustifiably mechanistic fashion” when it refused to consider evidence contained in the discovery
materials filed by the plaintiff but not referred to in his Rule 56.03 response to the defendant’s
statement of material facts. The plaintiff insists that “he could have created a genuine question of
material fact...had the Trial Judge not excluded large portions of his evidence.” The plaintiff
contends that the trial court’s action was especially unwarranted in light of the fact that the
memorandum of law filed along with his response contains a concise statement of all of the facts
relied upon by the plaintiff, along with appropriate citations to the record. At the very least, the
plaintiff contends, he should have been granted a continuance to allow him time “to configure his
documents into the Court’s preferred format.”

        Rule 56.03 requires the party seeking summary judgment to provide “a separate concise
statement of the material facts as to which the moving party contends there is no genuine issue for
trial.” Tenn. R. Civ. P. 56.03. Each fact must be set forth in a separate, numbered paragraph along
with a specific citation to the record. Id. The nonmoving party must file a response to each fact set
forth by the moving party and either (1) agree that the fact is undisputed; (2) agree that the fact is
undisputed for the purposes of the motion; or (3) demonstrate with a specific citation to the record
that the fact is disputed. Id. Rule 56.03 further provides


                                                 -3-
               the non-movant’s response may contain a concise statement of any
               additional facts that the non-movant contends are material and as to
               which the non-movant contends there exists a genuine issue to be
               tried. Each such disputed fact shall be set forth in a separate,
               numbered paragraph with specific citations to the record supporting
               the contention that such fact is in dispute.

Id. The purpose of these requirements is to “assist the Court in focusing on the crucial portions of
the record” in determining whether there is a genuine issue requiring a trial on the merits. See
Advisory Committee Comment to Tenn. R. Civ. P. 56.03.

        This Court has recognized that a nonmoving party’s failure to comply with Rule 56.03 may
result in the trial court’s refusal to consider the factual contentions of the nonmoving party even
though those facts could be ascertained from the record. See Simmons v. Harris, C/A No. M2000-
00227-COA-R3-CV, 2000 WL 1586451, at *3 (Tenn. Ct. App. W.S., filed October 25, 2000), perm.
app. denied April 16, 2001. As the United States Court of Appeals for the Seventh Circuit has noted,
the statements of material facts filed by the parties on a motion for summary judgment

               are not merely superfluous abstracts of the evidence. Rather, they are
               intended to alert the court to precisely what factual questions are in
               dispute and point the court to the specific evidence in the record that
               supports a party’s position on each of these questions. They are, in
               short, roadmaps, and without them the court should not have to
               proceed further, regardless of how readily it might be able to distill
               the relevant information from the record on its own.

Waldridge v. American Hoechst Corp., 24 F.3d 918, 923 (7th Cir. 1994). Of course, a trial court,
acting within its discretion, may waive the requirements of the rule in an appropriate situation, see
Butler v. Diversified Energy, Inc., C/A No. 03A01-9804-CV-00146, 1999 WL 76102, at *3 (Tenn.
Ct. App. E.S., filed January 28, 1999); however, considering the discretionary nature of the decision
before us, we cannot say that the trial court in the instant case erred when it refused to waive the
strict requirements of the rule, especially in light of the fact that the plaintiff’s response to the
defendant’s statement of material facts and the memorandum of law in support thereof were not filed
until the day before the hearing and could have been disregarded on that basis alone. See Tenn. R.
Civ. P. 56.03 (requiring nonmoving party to file response no later than five days before the summary
judgment hearing).

        Furthermore, we cannot say that the trial court erred in denying the plaintiff’s motion for a
continuance. “An appellate court cannot interfere with the trial court’s decision unless such decision
constitutes an abuse of discretion and causes prejudice to the party seeking the stay or continuance.”
Sanjines v. Ortwein and Assocs., P.C., 984 S.W.2d 907, 909 (Tenn. 1998). The instant case is not
merely a question of materials not being presented in the trial court’s “preferred format,” as
suggested by the plaintiff. It is Rule 56.03 that sets forth the required format. The plaintiff failed


                                                 -4-
to comply with that rule when he did not set forth in his response all of the facts that he contends are
in dispute.3 The trial court acted within its discretion in choosing to strictly enforce those
requirements. We cannot say that the trial court abused its discretion in denying the plaintiff a
continuance to bring his filings in compliance with Rule 56.03.

        Upon reviewing the statements of material facts submitted by the parties, and the portions
of the record cited therein, we agree with the trial court that there is no evidence that the plaintiff
purchased any souvenirs at a “fixed” price from a member of the alleged price-fixing conspiracy.
The undisputed facts demonstrate that the plaintiff cannot identify any of the vendors from whom
he purchased souvenirs. Furthermore, the plaintiff admitted that he does not know whether he
bought any souvenirs from any vendors that participated in the alleged price-fixing conspiracy.
Because the plaintiff’s own testimony conclusively demonstrates that he cannot prove he was a
victim of the alleged conspiracy, we affirm the trial court’s grant of summary judgment as to his
individual claims.

         Because we have determined that there is no evidence that the plaintiff purchased souvenirs
at a “fixed” price from a member of the alleged price-fixing conspiracy, we do not find it necessary
to address whether the plaintiff’s claims are barred by the applicable statutes of limitations.
Moreover, because the plaintiff cannot make out his individual claims, the issue of whether he is
otherwise an appropriate class representative is a moot question. He cannot represent a class of
which he is not a member. See, e.g., First Am. Nat’l Bank v. Hunter, 581 S.W.2d 655, 657 (Tenn.
Ct. App. 1978) (finding that party could not represent a class based upon the defense of usury
because his usury claim had been disallowed); see also Tenn. R. Civ. P. 23.01 (requiring class
representative to have “claims or defenses...typical of the claims or defenses of the class”).

                                                            IV.

       The judgment of the trial court is affirmed. This case is remanded for collection of costs
assessed below, pursuant to applicable law. Costs on appeal are taxed to the appellant, Philip
Owens.


                                                                  _______________________________
                                                                  CHARLES D. SUSANO, JR., JUDGE




         3
           The plaintiff argues that Rule 56.03 does not manda te that additional facts be set forth in his response because
the Rule provides that “the non-movant’s response may contain a concise statement of any additional facts that the non-
movant contends are material.” (Emphasis added). We disagree with the plaintiff’s interpretation that the inclusion of
any additional material facts relied upon by the plaintiff is optional. We read Rule 56.03 as acknowledging that the
nonm ovant’s defensive posture may be by way of demonstrating that the movant’s facts are not undisputed or that there
are “ad ditiona l” facts that re flect a gen uine issue of material fact.

                                                            -5-
