                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                 August 18, 2015 Session


       RICHARD GARNER v. COFFEE COUNTY BANK, ET AL.

                   Appeal from the Circuit Court for Coffee County
                        No. 39584 Vanessa Jackson, Judge

                          ________________________________

     No. M2014-01956-COA-R3-CV – Filed October 23, 2015
                    _________________________________

Plaintiff and his former wife purchased a house together in 2002. The former wife moved
out of the house with all of her belongings in 2009, and the house suffered damage from a
fire in 2010. The former wife was a named insured on the house, and each of the insurance
checks issued to cover property loss and living expenses was made payable to both Plaintiff
and his former wife. The president of the bank that held a mortgage on the house had a
separate business relationship with the former wife. According to Plaintiff, the bank
president informed him that he could not have any of the insurance proceeds unless one-half
was given to the former wife, which proceeds were used to pay down the former wife‟s
separate and unrelated loan. The bank ultimately foreclosed on the house because the loan
became delinquent. Plaintiff filed a complaint against the bank and president asserting
conversion, wrongful foreclosure, and other related causes of action. The bank and the
president filed a motion for summary judgment. Plaintiff did not file his opposition within
the time prescribed by the procedural rules, and the trial court granted the bank and the
president‟s motion for summary judgment. On appeal, we affirm the trial court‟s judgment in
some respects and reverse the judgment in other respects. Plaintiff‟s deposition transcript that
the trial court considered in ruling on the motion for summary judgment raised genuine issues
of material fact that precluded summary judgment on several of the causes of action alleged.

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

ANDY D. BENNETT, J., delivered the opinion of the court, in which FRANK G. CLEMENT, JR.,
P.J., M.S., and RICHARD H. DINKINS, J., joined.

Russell L. Leonard, Winchester, Tennessee, for the appellant, Richard Garner.
Shawn C. Trail and C. Brent Keeton, Manchester, Tennessee, for the appellees, Coffee
County Bank and Ken Kirby.


                                       OPINION

                      I. FACTUAL AND PROCEDURAL BACKGROUND

        Richard Garner and Krista Garner purchased a house together in 2002 that was located
in Hillsboro, Tennessee. They obtained a mortgage from Coffee County Bank (the “Bank”).
Ken Kirby is the President of the Bank and assisted them in obtaining their mortgage. Ms.
Garner moved out in March 2009, and Mr. Garner continued living in the house until it was
destroyed by a fire in March 2010. According to Mr. Garner, Ms. Garner removed all of her
personal property from the house when she moved out in 2009, with the result that all of the
furniture and personal belongings that were in the house at the time of the fire belonged to
him.

       Both Mr. Garner and Ms. Garner were named insureds on the insurance policy that
covered the house. Starting on or about March 8, 2010, the insurance company that wrote the
policy began issuing checks, made payable to both Mr. Garner and Ms. Garner, to cover
personal property losses, living expenses, and landscaping expenses. Mr. Garner did not
believe Ms. Garner should receive any of the insurance proceeds paid out for personal
property losses or living expenses because she was not living in the house at the time of the
fire and did not lose any personal property as a result of the fire. However, Mr. Garner
alleges that he was unable to cash the insurance checks without Ms. Garner‟s signature.

        Mr. Garner asserts he was not in direct communication with Ms. Garner following the
fire, but that Mr. Kirby held himself out as her representative. Mr. Garner contacted Mr.
Kirby in an effort to communicate with Ms. Garner and to request that she sign the checks
from the insurance company. According to Mr. Garner, Mr. Kirby told him that Ms. Garner
would not sign any of the checks unless Mr. Garner gave her one-half of the checks‟
proceeds. Mr. Garner did not believe Ms. Garner was entitled to any money from the
insurance company, but he needed the money, so he turned over one-half of each check to
Ms. Garner.

        Mr. Garner and Ms. Garner fell behind on their mortgage payments to the Bank. Mr.
Garner asserts that when the payments were about ten months in arrears, Mr. Kirby agreed to
allow Mr. Garner and Ms. Garner each to make five payments toward the arrearage in an
effort to catch up on what they owed and get their payments back on track. When he

                                             2
attempted to make these five payments at the Bank, however, Mr. Garner asserts that Mr.
Kirby refused to accept his money. Instead, Mr. Garner alleges that Mr. Kirby, together with
Ms. Garner, coerced Mr. Garner to sign a contract to sell the house for $90,000 less than it
was worth. Mr. Garner asserts that the house was appraised for $305,000, but that the Bank
ultimately foreclosed upon it, over his objection, and sold it for just $1 above the amount that
was due on the mortgage, which was $199,000.

       Mr. Garner initially filed a complaint on May 21, 2012, against the Bank, Mr. Kirby,
and Ms. Garner. Mr. Garner filed an amended complaint on May 29, 2012. He asserted the
following causes of action: civil conspiracy, wrongful foreclosure, wrongful conversion,
trespass to chattel, violation of Tenn. Code Ann. § 47-18-104, breach of fiduciary duty,
unjust enrichment, and intentional and negligent infliction of emotional distress. Mr. Garner
sought compensatory damages in the amount of $91,547.11 and punitive damages in the
amount of $250,000. The defendants filed a motion to dismiss Mr. Garner‟s claim for
intentional and negligent infliction of emotional distress, which the trial court granted on
September 17, 2012. Mr. Garner then voluntarily dismissed Ms. Garner from the lawsuit and
proceeded against the Bank and Mr. Kirby.

       On August 5, 2013, the Bank and Mr. Kirby (together, the “Defendants”) filed a
motion for summary judgment together with a statement of undisputed facts and supporting
memorandum. Attached to the Defendants‟ motion was a Notice of Hearing indicating that
the motion would be heard on Monday, October 14, 2013. Pursuant to Tennessee Rules of
Civil Procedure 56.03 and 56.04, Mr. Garner was required to file his opposition to the
Defendants‟ motion no later than five days before the hearing, which would have been by the
close of business on October 7, 2013. See Tenn. R. Civ. P. 6.01 (when computing time that
is fewer than eleven days, intervening weekend days are not included). However, Mr. Garner
did not file any opposition papers or affidavits until October 8, 2013; the documents he filed
were not signed, and the affidavits were neither notarized nor signed. Mr. Garner did not file
properly signed and notarized documents until October 9, 2013, just 3 days before the
hearing. As part of his opposition to the Defendants‟ motion for summary judgment, Mr.
Garner moved to strike the Defendants‟ motion on the basis that their memorandum relied on
“incompetent and hearsay testimony and facts which were not included in their Statement of
Undisputed Facts.” On October 11, 2013, the Defendants moved to strike Mr. Garner‟s
response to their motion for summary judgment as well as the supporting affidavits because
they were not timely filed.

                                II. TRIAL COURT‟S DECISION

      The trial court held a hearing on the Defendants‟ motion for summary judgment on
October 14, 2013, as scheduled. In an order entered on April 10, 2014, the court granted the
                                             3
Defendants‟ motion. The court first addressed the Defendants‟ motion to strike Mr. Garner‟s
opposition and supporting affidavits. Evidence was presented that Mr. Garner had suffered
health problems, which the court acknowledged could explain the difficulty in filing Mr.
Garner‟s affidavit on time. However, the court pointed out that Mr. Garner‟s attorney had
more than two months to obtain an affidavit from Mr. Garner. If this were not feasible, the
court explained, his attorney could have filed a motion seeking additional time to obtain and
file Mr. Garner‟s affidavit. In any event, the court found that Mr. Garner‟s illness did not
excuse the late filing of the opposition and other supporting documents. Thus, the trial court
granted the Defendants‟ motion to strike and did not consider Mr. Garner‟s response to the
Defendants‟ statement of undisputed material facts or the affidavits offered in support of his
opposition.

         In ruling on the Defendants‟ motion for summary judgment, the trial court explained
that it relied not only on the Defendants‟ statement of undisputed material facts, but also on
the depositions of Mr. Kirby and Mr. Garner that the Defendants filed in support of their
motion. The court addressed each of Mr. Garner‟s causes of action individually and
explained its rationale for concluding that the Defendants‟ statement of undisputed material
facts and the depositions failed to support any of Mr. Garner‟s claims. In addition, the court
found that Mr. Garner‟s claim for violation of the Tennessee Consumer Protection Act was
barred by the one-year statute of limitation governing that claim.

        Mr. Garner filed a motion to alter or amend the trial court‟s judgment. In addition to
taking the position that the trial court erred in striking his late-filed documents in opposition
to the Defendants‟ motion for summary judgment, Mr. Garner argued that the trial court erred
by failing to rule on his motion to strike the Defendants‟ motion for summary judgment,
which, if granted, would have obviated his need to respond to the Defendants‟ motion
altogether. The trial court denied Mr. Garner‟s motion to alter or amend, explaining that Mr.
Garner‟s motion to strike did not relieve him of the obligation to file a timely response to the
Defendants‟ motion for summary judgment.

       Mr. Garner timely filed a notice of appeal. On appeal, Mr. Garner contends the trial
court erred in granting the Defendants‟ motion for summary judgment. He contends the
court erred by (1) failing to treat his verified complaint as an affidavit in opposition to the
Defendants‟ motion for summary judgment; (2) striking his late-filed opposition to the
Defendants‟ motion for summary judgment because the Defendants were not unduly
prejudiced by the late filing; and (3) failing to rule on his motion to strike.




                                               4
                                       III. ANALYSIS

       A. Complaint as Affidavit

        The first issue we will address is Mr. Garner‟s argument that the trial court erred by
failing to consider his amended complaint as an affidavit in opposition to the Defendants‟
motion for summary judgment. Tennessee Rule of Civil Procedure 56.06 states, in pertinent
part:

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

Based on this rule, Mr. Garner asserts that the trial court should have treated his amended
complaint, which he asserts was verified, as an affidavit for the purpose of opposing the
Defendants‟ motion for summary judgment and showing that there are genuine issues of
material fact.

       Mr. Garner did in fact sign an oath on the final page of his amended complaint, and he
had his signature notarized. The oath he signed was as follows:

               RICHARD GARNER makes oath that he has read the foregoing
       Amended Complaint and that the statements made therein are true and correct
       to the best of his knowledge, information, and belief and that this Amended
       Complaint is not brought out of levity nor by collusion with the defendant but
       in truth and sincerity for the causes mentioned therein.

Mr. Garner is correct that, as a rule, a verified complaint “has the force and effect of an
affidavit” when considered in opposition to a motion for summary judgment. Muse v. First
People’s Bank of Tenn., No. E2005-02869-COA-R3-CV, 2007 WL 845893, at *7 (Tenn. Ct.
App. Mar. 21, 2007); accord Bright v. Gue, No. E2007-00127-COA-R3-CV, 2008 WL
440457, at *9 (Tenn. Ct. App. Feb. 19, 2008). Thus, verified facts that are favorable to an
opponent of a motion for summary judgment are to be treated as true when a court
determines whether the movant is entitled to summary judgment. Hart v. Joseph Decosimo
                                              5
and Co., LLP, 145 S.W.3d 67, 76 (Tenn. Ct. App. 2004).

       In this case, however, Mr. Garner did not verify that the facts contained in his
amended complaint were true; rather, he made an oath that the statements were “true and
correct to the best of his knowledge, information, and belief.” The Court of Appeals has
ruled that when this language is used in an oath attached to a complaint, the complaint does
not meet the standards for affidavits that are required by Rule 56.06, and, therefore, cannot
be treated as an affidavit for purposes of opposing a motion for summary judgment. Phung
v. Case, No. 03A01-9811-CV-00388, 1999 WL 544650, at *5 (Tenn. Ct. App. July 28,
1999). The Phung court wrote:

        [I]t is clear that the allegations in the plaintiff‟s amended complaint were not
        based exclusively upon her personal knowledge. In light of her oath, it is
        impossible to determine which allegations were founded upon personal
        knowledge, and which were merely statements based upon what she
        “believed” to be true. This being the case, we cannot say that the verified
        complaint meets the standards required of affidavits by Rule 56.06, Tenn. R.
        Civ. P. We therefore do not agree with the plaintiff that the amended
        complaint is the “functional equivalent of an affidavit.”

Id.

        The Tennessee Supreme Court has explained that “[a] Petitioner‟s own belief does not
constitute „such facts as would be admissible in evidence‟ as required by Rule 56.0[6]” and
cannot be considered as evidence. Fowler v. Happy Goodman Family, 575 S.W.2d 496, 498
(Tenn. 1978) (quoting what is now TENN. R. CIV. P. 56.06); see Yater v. Wachovia Bank of
Ga., N.A., 861 S.W.2d 369, 373 (Tenn. Ct. App. 1993) (holding plaintiff‟s “presumption,” as
set forth in affidavit, insufficient to satisfy Rule 56.06 requirement that statements be based
on matters personally known to affiant). The reason for this rule that „“[b]elief, no matter
how sincere, is not equivalent to knowledge.”‟ Keystone Ins. Co. v. Griffith, 669 S.W.2d
364, 366 (Tenn. Ct. App. 1983) (quoting Jameson v. Jameson, 176 F.2d 58, 60 (D.C. Cir.
1949)).

       The oath attached to the verified complaint in Phung v. Case contained the same
“knowledge, information, and belief” language that Mr. Garner used in his oath. Phung,
1999 WL 544650, at *5. As a result, Mr. Garner‟s amended complaint does not qualify as an
affidavit for purposes of opposing the Defendants‟ motion for summary judgment.1

        1
        Interestingly, the trial court stated at the hearing on August 11, 2014, that it did, in fact, consider Mr.
Garner‟s amended complaint as an affidavit in ruling on the Defendants‟ motion for summary judgment:
                                                        6
        B. Genuine Issues of Material Fact

        When a defendant moves for summary judgment, the moving party must show that the
plaintiff‟s case presents no genuine issue of material fact and that the moving party is entitled
to judgment as a matter of law. TENN. R. CIV. P. 56.04. The moving party can satisfy its
burden by either submitting “affirmative evidence that negates an essential element of the
nonmoving party‟s claim” or demonstrating 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. When ruling on a motion for summary judgment, trial courts “must view
the evidence in the light most favorable to the nonmoving party and must also draw all
reasonable inferences in the nonmoving party‟s favor.” Staples v. CBL Assoc., Inc., 15
S.W.3d 83, 89 (Tenn. 2000); accord Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997).
Summary judgment is not appropriate unless both the facts and inferences therefrom “permit
a reasonable person to reach only one conclusion.” Staples, 15 S.W.3d at 89. As the
Supreme Court explained in Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993), “[I]f there is a
dispute as to any material fact or any doubt as to the conclusions to be drawn from that fact,
the motion must be denied.” Byrd, 847 S.W.2d at 211. A trial court‟s decision to grant or
deny a motion for summary judgment is a matter of law which we review de novo, without
any presumption of correctness. Kinsler v. Berkline, LLC, 320 S.W.3d 796, 799 (Tenn. 2010)
(citing Blair v. W. Town Mall, 130 S.W.3d 761, 763 (Tenn. 2004)); Walker v. Bradley Cnty.
Gov’t, 447 S.W.3d 877, 879 (Tenn. Ct. App. 2014).

       Rule 56.03 requires the moving party to file a “concise statement of the material facts
as to which the moving party contends there is no genuine issue for trial.” Then,

        Subject to the moving party‟s compliance with Rule 56.03, the judgment
        sought shall be rendered forthwith if the pleadings, depositions, answers to
        interrogatories, and admissions on file, together with the affidavits, if any,
        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.

TENN. R. CIV. P. 56.04.

      Mr. Garner asserted eight different causes of action against the Defendants, one of
which was dismissed before the motion for summary judgment was filed. We will review the


“With regard to the consideration of the complaint as an affidavit, the court considered it as an affidavit.”
Despite this, however, the trial court concluded: “[C]onsidering . . . all of the information that was filed, not
only the statements of the undisputed material facts but also the depositions that were filed in support of the
motion, the court found that the motion for summary judgment was well taken and should be granted.”
                                                       7
Defendants‟ statement of undisputed material facts and then consider each of Mr. Garner‟s
remaining causes of action to determine whether the trial court erred in granting summary
judgment on each count. The Defendants submitted the deposition transcripts of Mr. Garner
and Mr. Kirby in support of their motion. As explained above, Mr. Garner‟s amended
complaint is not entitled to be considered as an affidavit in opposition to the Defendants‟
motion. However, if Mr. Garner‟s deposition testimony raises a genuine issue of material
fact with regard to any of the Defendants‟ statements of undisputed material facts, the trial
court‟s judgment will not be able to stand with regard to the particular cause of action at
issue.

       The Defendants‟ statement of undisputed material facts was limited to the following:

       1.     The involvement of the parties with the subject insurance checks would
       have been prior to May 21, 2011, as the last time that there was any
       discussions between Krista Garner, Richard Garner, and Ken Kirby was on
       March 25, 2011.

       2.    Ken Kirby was the only person at Coffee County Bank that Richard
       Garner discussed the insurance checks with.

       3.     There would have only been one check at issue, which was for
       $44,831.43, that Richard Garner would have ever discussed with Kenneth
       Kirby.

       4.    Richard Garner does not know what went on in the separate rooms
       between Krista Garner and Ken Kirby.

       5.     Richard Garner cannot sufficiently identify who allegedly did what
       actions to make this a “wrongful foreclosure.”

       6.     There was no “shocking inadequate price,” as the subject property sold
       for enough to pay off his loan, and there was no deficiency judgment.

       7.      Coffee County Bank foreclosed on the subject property when payments
       were not made, and if a loan through a bank is secured by collateral and the
       note is not paid, then the bank will repossess the collateral.

       8.     No one at Coffee County Bank told Richard Garner not to go through
       with the subject purchase/sale agreement.

                                             8
       9.    The checks were all divided 50/50 between Richard Garner and Krista
       Garner.

       10.   If Ken Kirby had not assisted Richard Garner and Krista Garner,
       Richard Garner probably would not have been able to have negotiated the
       checks and in turn, would not have received any monies from the checks.

       11.     The only way that Richard Garner knew Ken Kirby was in a
       professional business relationship, i.e., it was only as a banker and not as a
       friend.

       12.    There was insurance on the subject house and contents wherein Richard
       Garner and then wife and now ex-wife Krista Garner were the
       beneficiaries/named insured under that insurance policy. They both were
       insured on the property and contents because they each owned a one-half
       interest in the house and [were] insured through Cotton States Insurance.

       13.    The buyer of the property attempted to get an extension on the subject
       contract because he had his loan approved through First Vision and that
       Richard Garner refused to extend the contract.

       14.    The property was in a foreclosure status when Richard Garner refused
       to extend the contract.

       15.   The foreclosure was postponed because of the contract for sale but
       when the contract was not extended by Richard Garner, Coffee County Bank
       proceeded forward with the foreclosure.

              1. Conversion and Trespass to Chattels

       The first causes of action we address are Mr. Garner‟s claims for conversion and
trespass to chattels. The tort of conversion is „“the appropriation of [property] to the party‟s
own use and benefit, by the exercise of dominion over it, in defiance of plaintiff‟s right.”‟
Hanna v. Sheflin, 275 S.W.3d 423, 427 (Tenn. Ct. App. 2008) (quoting Barger v. Webb, 391
S.W.2d 664, 665 (1965)). “A trespass to chattels occurs when one party intentionally uses or
intermeddles with personal property in rightful possession of another without authorization.”
 Am. Online, Inc. v. IMS, 24 F. Supp. 2d 548, 550 (E.D. Va. 1998) (citing RESTATEMENT
(SECOND) OF TORTS § 217(b)). Mr. Garner asserted in his amended complaint that Ms.
Garner was not entitled to any of the insurance proceeds that were issued to cover living
expenses and personal losses suffered as a result of the fire because Ms. Garner was not
                                               9
living in the house when the fire occurred, and she did not have any personal items in the
house that were damaged by the fire. Mr. Garner further alleged that the Defendants
“exercised dominion and control over Plaintiff‟s insurance proceeds when Kirby strong
armed Plaintiff into signing over half of the insurance proceeds to Krista so that she could
use the money to pay the mortgage on her son‟s home, which was her residence.”

       Mr. Garner does not dispute the Defendants‟ statements numbered 9, 10, and 12,
which all relate to the insurance checks at issue. The truth of these statements, however,
does not support the Defendants‟ position that they are entitled to summary judgment with
respect to Mr. Garner‟s claims for conversion and trespass to chattels. Mr. Garner testified at
his deposition that Mr. Kirby was actively involved in making sure Ms. Garner received one-
half of each check from the insurance company that was issued to cover property loss and
living expenses following the fire. Thus, Mr. Garner disputes the Defendants‟ statement
numbered 3. Mr. Garner testified as follows when he was questioned by the Defendants‟
attorney:

       Q:     What is briefly the substance of the testimony you intend to call Ken
       Kirby in regard to?

       A:     Well he was a party to helping her with the checks.

       ....

       Q:     You said that, yes, you did ask Ken Kirby to help you get Krista to sign
       the checks. Did he help you?

       A:      No, he really didn‟t. Well he did help me get the checks signed, but he
       didn‟t get them signed like I wanted them signed because I wanted all of the
       money which I was entitled to. . . . I had to give her half of the check for her
       to sign it. And even when you look over here on living expenses, I had to give
       her half of that.

       Q:     Okay.

       A:     And she was living somewhere else.

       ....

       Mr. Garner testified as follows in response to questions by his attorney:

                                              10
      Q:    Did Mr. Kirby tell you that if you didn‟t sign those checks and agree to
      give Krista half that you‟d get nothing?

      A:     That‟s what he said most of the time.

      Q:     Did Mr. Kirby tell you that you had to agree to give Krista half –

      A:     Right.

      Q:     - - of each of those checks?

      A:     Yes.

      ....

      Q:     Did you feel that Mr. Kirby was telling you what you had to do?

      A:    He was kind of forcing me into what I had to do or I wasn‟t going to get
      no check cashed.

      ....

      Q:    Did Mr. Kirby ever tell Krista what to do with the checks in your
      presence?

      A:    He did a lot of times. He told her that, you know, he would do, you
      know, take money out for her loan. I‟ve heard him tell her that.

      ....

      A:   On March 25th Mr. Kirby went and cashed the checks and brought
      money back and he made the statement to Krista, I have took your house
      payments out of your part.

       In granting the Defendants‟ motion for summary judgment with respect to these two
counts, the trial court wrote:

             Plaintiff asserts that Defendants wrongfully converted insurance
      proceeds that belonged to Plaintiff and the Defendants committed the tort of
      trespass to chattels. To maintain his claim for conversion, the Plaintiff must be
                                             11
      able to prove that (1) the Defendants appropriated Plaintiff‟s insurance
      proceeds for their use and benefit; (2) Defendants intentionally exercised
      dominion over the Plaintiff‟s insurance proceeds; and (3) Defendants acted in
      defiance of Plaintiff‟s rights to the insurance proceeds. To maintain his claim
      for trespass to chattels, the Plaintiff must be able to prove that Defendants
      wrongfully interfered with or injured Plaintiff‟s property (i.e. the insurance
      proceeds) causing actual damage to the property or depriving the Plaintiff of
      its use for a substantial period.

              The undisputed facts establish that (1) Cotton States Insurance
      Company issued several checks jointly payable to Richard Garner and Krista
      Garner for losses related to a fire and a break-in at the property located at 5539
      Prairie Road, Hillsboro, Tennessee; (2) both Richard Garner and Krista Garner
      endorsed the checks in question; (3) Richard Garner received one-half of the
      proceeds from each check, and Krista Garner received one-half of the proceeds
      from each check. The undisputed facts do not support the Plaintiff‟s
      contentions that (1) he was entitled to all of the proceeds from the checks in
      question which were issued by Cotton States Insurance Company; (2) he was
      coerced or pressured by Ken Kirby to equally divide the insurance proceeds
      with Krista Garner; or (3) Ken Kirby and Krista Garner conspired to interfere
      with or deprive the Plaintiff of his alleged right to all of the insurance
      proceeds. As a matter of law, the undisputed facts and depositions do not
      support the Plaintiff‟s allegation that Defendants appropriated any insurance
      proceeds that belonged to him, that Defendants acted in defiance of Plaintiff‟s
      rights to the insurance proceeds, that the Defendants wrongfully interfered
      with the Plaintiff‟s alleged right to the insurance proceeds or that Defendants
      deprived the Plaintiff of the use of said insurance proceeds. Thus, the
      Defendants‟ Motion for Summary Judgment on the Plaintiff‟s claims based on
      conversion and trespass to chattels should be granted.

(Emphasis in original.)

       We disagree with the trial court‟s analysis. When ruling on a motion for summary
judgment, the court must decide whether the undisputed facts show that the parties moving
for summary judgment, the Defendants herein, are entitled to judgment as a matter of law,
not whether the undisputed facts support the plaintiff‟s contentions. As the Supreme Court
explained in Byrd v. Hall:

      The court is not to “weigh” the evidence when evaluating a motion for
      summary judgment. The court is simply to overrule the motion where a
                                        12
       genuine dispute exists as to any material fact. The phrase “genuine issue”
       contained in Rule 56.03 refers to genuine factual issues and does not include
       issues involving legal conclusions to be drawn from the facts.

Byrd v. Hall, 847 S.W.2d at 211 (citations omitted).

       Mr. Garner‟s deposition testimony shows that material facts are at issue concerning
(1) the ownership of the personal property that was damaged in the fire; (2) whether Mr.
Garner and Ms. Garner both suffered living expense losses as a result of the fire; and (3) the
extent of Mr. Kirby‟s involvement in the negotiation and disbursement of the insurance
proceeds. “[S]ummary judgment should not be granted when the material facts are disputed,
or when more than one conclusion or inference can reasonably be drawn from the facts.”
CAO Holdings, Inc. v. Trost, 333 S.W.3d 73, 82 (Tenn. 2010) (citing Green v. Green, 293
S.W.3d 493, 513-14 (Tenn. 2009) (further citation omitted)). As the Trost Court explained,
“A summary judgment motion should be denied if there is any reasonable doubt regarding
whether a genuine issue of material fact exists.” Id. (citing Green, 293 S.W.3d at 514).

       Because we conclude that Mr. Garner‟s deposition testimony raises genuine issues of
material facts insofar as Mr. Garner‟s claims for conversion and trespass to chattels are
concerned, the Defendants have failed to show they are entitled to judgment on those issues
as a matter of law. Accordingly, we reverse the trial court‟s grant of summary judgment to
the Defendants on these two issues.

              2. Unjust Enrichment

       In his claim for unjust enrichment, Mr. Garner asserted that the Defendants were
unjustly enriched at his expense “by their wrongful acts of depriving Plaintiff of half of his
insurance proceeds and . . . using them for their own benefit as in the case of Krista and
applying them to a loan which is held by the Bank.” To succeed on his unjust enrichment
claim, Mr. Garner must show “1) „[a] benefit conferred upon the defendant by the plaintiff‟;
2) „appreciation by the defendant of such benefit‟; and 3) „acceptance of such benefit under
such circumstances that it would be inequitable for him to retain the benefit without payment
of the value thereof.‟” Freeman Indus., LLC v. Eastman Chem. Co., 172 S.W.3d 512, 525
(Tenn. 2005) (quoting Paschall’s, Inc. v. Dozier, 407 S.W.2d 150, 155 (Tenn. 1966)).

        During his deposition, Mr. Garner testified regarding his claim for unjust enrichment
as follows:

       Q:    In your complaint, you state that Ken Kirby and Coffee County Bank
       have been unjustly enriched. In your own words, please, explain to me how
                                           13
       you feel they have been unjustly enriched.

       ....

       A:     By Ken Kirby telling Krista what to do all the time.

       Q:     How did Ken Kirby benefit from all of that?

       A:     I don‟t know. I guess he was doing it to pay for Krista‟s other house
       that he gave her a loan on.

       Q:     How did Coffee County Bank benefit?

       A:     Well they were benefitting by getting their payments paid.

      The trial court granted the Defendants summary judgment on Mr. Garner‟s unjust
enrichment claim, writing:

              Plaintiff alleges in his Amended Complaint a claim of unjust
       enrichment related to the insurance proceeds. Plaintiff asserts that Coffee
       County Bank was unjustly enriched when Krista Garner applied the funds she
       received from checks issued by Cotton States Insurance Company to another
       loan owed by her to the Bank and secured by property owned by her son. In
       essence, the Plaintiff contends that Ken Kirby assisted Krista Garner in
       obtaining one-half of the insurance proceeds by coercing Richard Garner into
       endorsing these checks and giving Ms. Garner one-half of the proceeds so that
       she could apply the proceeds to her other loan owed to the Bank. The
       undisputed facts and depositions do not establish that Ken Kirby coerced or
       pressured the Plaintiff into dividing the insurance proceeds equally with Krista
       Garner for the purpose of applying Mr. Garner‟s one-half of the funds to
       another loan. The Plaintiff has provided no evidence that the Defendants
       received a benefit under circumstances that would make it inequitable to retain
       the benefit. Therefore, the Defendants‟ Motion for Summary Judgment on the
       Plaintiff‟s claim for unjust enrichment should be granted.

       As was the case when addressing the trial court‟s analysis with regard to Mr. Garner‟s
conversion and trespass to chattels claims, we disagree with the trial court‟s analysis of Mr.
Garner‟s unjust enrichment claim. Rather than determining whether the undisputed facts
showed that the Defendants were entitled to judgment as a matter of law on the issue of
unjust enrichment, the trial court erroneously considered whether the undisputed facts,
                                             14
considered along with Mr. Garner‟s deposition testimony, proved Mr. Garner‟s claim. Mr.
Garner testified during his deposition that the Bank and Mr. Kirby received a benefit they did
not deserve when one-half of the proceeds Mr. Garner testified belonged exclusively to him
was used to pay down a separate loan the Bank had made to Ms. Garner. Mr. Garner‟s
testimony raises a genuine issue of material fact with regard to Mr. Garner‟s unjust
enrichment claim. For this reason, we reverse the trial court‟s decision granting summary
judgment to the Defendants on this claim.

                3. Civil Conspiracy

       To prevail on his civil conspiracy claim, Mr. Garner was required to show “(1) a
common design between two or more persons, (2) to accomplish by concerted action an
unlawful purpose, or a lawful purpose by unlawful means, (3) an overt act in furtherance of
the conspiracy, and (4) resulting injury.” Kincaid v. SouthTrust Bank, 221 S.W.3d 32, 38
(Tenn. Ct. App. 2006) (citing Morgan v. Brush Wellman, Inc., 165 F.Supp.2d 704, 720 (E.D.
Tenn. 2001). In support of his civil conspiracy claim, Mr. Garner asserted that “the
Defendants agreed between and among themselves to engage in actions and a course of
conduct designed to further an illegal act or accomplish a legal act by unlawful means, and to
commit one or more overt acts in furtherance of the conspiracy to defraud the Plaintiff
whereby Kirby acted as Krista‟s representative . . . .” Mr. Garner then identified specific acts
in which Ms. Garner and Mr. Kirby engaged in furtherance of this claim.

         In granting the Defendants‟ summary judgment motion as to this claim, the trial court
wrote:

                In order to prevail on his claim for civil conspiracy, the Plaintiff must
         establish that the Defendants were part of a common plan or design to
         accomplish an unlawful purpose or to commit a tort which resulted in damage
         to the Plaintiff. The Court has ruled in favor of the Defendants on the
         Plaintiff‟s claims for unlawful foreclosure, conversion, trespass to chattels,
         breach of fiduciary duty, violation of the Tennessee Consumer Protection Act
         and unjust enrichment. As a result, there is no unlawful purpose or tort
         committed by the Defendants on which the Plaintiff‟s claim for civil
         conspiracy can be based. The Defendants‟ Motion for Summary Judgment on
         the Plaintiff‟s claim of civil conspiracy should be granted.

       Based on our reversal of the trial court‟s judgment with respect to Mr. Garner‟s claims
for conversion, trespass to chattels, and unjust enrichment, we conclude that the trial court
erred in granting the Defendants‟ motion with respect to Mr. Garner‟s claim for civil
conspiracy. The Defendants‟ statement of undisputed facts does not address the elements of
                                              15
this claim per se, and we find the trial court erred in determining that the Defendants have
shown there is no issue as to any material fact with respect to this claim or that they are
entitled to judgment as a matter of law.

              4. Unlawful Foreclosure

        Wrongful foreclosure can be asserted as an affirmative defense by a mortgagor in an
unlawful detainer action brought by a purchaser of property in foreclosure, Citimortgage, Inc.
v. Drake, 410 S.W.3d 797, 807-08 (Tenn. Ct. App. 2013), or as a primary cause of action
when a mortgagor asserts that a foreclosure action is improper under a deed of trust, Overholt
v. Merchants & Planters Bank, 637 S.W.2d 463, 463-67 (Tenn. Ct. App. 1982). In the case
at bar, Mr. Garner bases his wrongful foreclosure action on an agreement he claims Mr.
Kirby made with him and Ms. Garner. Mr. Garner stated in his complaint and testified
during his deposition that Mr. Kirby entered into a verbal agreement with him whereby the
Bank would not foreclose on the house if Mr. Garner and Ms. Garner each made five
payments on their mortgage, thereby bringing their loan current. However, when Mr. Garner
tendered his payments to the Bank, he asserts that Mr. Kirby refused to abide by their earlier
agreement and did not accept Mr. Garner‟s money. Mr. Garner alleges that the Defendants‟
refusal to accept his money resulted in erroneous fees and charges, causing Mr. Garner to fall
further behind in his payments, and ultimately led to the foreclosure of his and Ms. Garner‟s
house. Mr. Garner also asserts the Bank‟s legal counsel who was conducting the foreclosure
sale instructed the purchaser to bid only $1 over the Bank‟s bid, which tainted the entire
foreclosure process, rendering it void.

        In granting the Defendants‟ motion for summary judgment with respect to this claim,
the trial court wrote:

              The undisputed facts and depositions of Ken Kirby and Richard Garner
       establish that Richard Garner and Krista Garner were obligors on a loan
       payable to Coffee County Bank, secured by a Deed of Trust encumbering real
       property owned by the Garners located at 5539 Prairie Plains Road, Hillsboro,
       Tennessee. Richard Garner and Krista Garner failed to make timely loan
       payments to Coffee County Bank. The loan was in default, and foreclosure
       proceedings were instituted by the Bank to sell the property encumbered by the
       Deed of Trust. The Defendants postponed the foreclosure proceedings while
       the Garners attempted to sell the subject property. Richard Garner and Krista
       Garner could not agree on a sales price for the property after an extension of a
       sales contract was requested by the buyer. Richard Garner would not agree to
       extend the contract at a lower sales price. When the contract to sell the
       property to said buyer was not extended, the postponed foreclosure action was
                                             16
        reinstituted. The property sold for a sum greater than the amount owed to
        Coffee County Bank, and there was no deficiency owing by Richard Garner to
        Coffee County Bank. Mr. Garner consulted with a realtor in determining
        whether to extend the sales contract, and he was represented by an attorney
        throughout the foreclosure proceedings. He followed his attorney‟s advice in
        allowing the foreclosure sale to occur.

               At the foreclosure sale, a prospective purchaser was told his bid must be
        at a minimum more than one dollar over the Bank‟s opening bid amount, and
        the Bank reserved the right to make subsequent bids. This was an accurate
        statement in response to the prospective purchaser‟s question.

               The Court finds that the undisputed material facts and depositions do
        not support the Plaintiff‟s claim for unlawful foreclosure.

       Mr. Garner asserted in his amended complaint and in his deposition testimony that Mr.
Kirby agreed not to foreclose on the house if he could bring the loan current and that Mr.
Kirby and the Bank refused to accept his money when he attempted to pay down the note in
an effort to bring the loan current. The Defendants‟ statement of undisputed material facts
does not address this alleged agreement or the Bank‟s alleged refusal to accept Mr. Garner‟s
money prior to the foreclosure. We conclude, therefore, that there is a genuine material issue
regarding whether or not the foreclosure was wrongful. See Overholt, 637 S.W.2d at 466-67
(discussing different scenarios involving claims for wrongful foreclosure). As a result, we
reverse the trial court‟s decision to award the Defendants summary judgment on Mr. Garner‟s
wrongful foreclosure claim.2

                5.       Breach of Fiduciary Obligation

        In his amended complaint, Mr. Garner includes a claim for breach of fiduciary duty.
In support of this claim, Mr. Garner asserts that Mr. Kirby, “acting as an agent of the Bank
exercised dominion and control over Plaintiff when he insisted that Plaintiff pay Krista one
half of the insurance proceeds which were due only to Plaintiff.” Mr. Garner asserts that Mr.
Kirby and the Bank owed a fiduciary duty towards him and that he had no choice but to
follow Mr. Kirby‟s instructions to share the insurance money with Ms. Garner because he
badly needed the money at that time. He was doing whatever he could to prevent his

        2
          We do not address Mr. Garner‟s specific allegation that the Bank‟s instruction to the ultimate
purchaser regarding the amount to bid tainted the foreclosure proceeding overall because we reverse the trial
court‟s dismissal of Mr. Garner‟s unlawful foreclosure cause of action. Mr. Garner will have an opportunity to
present proof that the Bank tainted the foreclosure proceeding when the claim is tried.
                                                     17
property from being foreclosed upon, and this meant following Mr. Kirby‟s instructions with
regard to the insurance proceeds so that he had some money with which to pay his mortgage
obligations. Mr. Garner further asserts that Mr. Kirby owed him a fiduciary duty to accept the
money he tendered to the Bank to bring his mortgage current and avoid foreclosure
proceedings and that Mr. Kirby breached this duty when he refused to accept Mr. Garner‟s
payments. Finally, Mr. Garner asserts that the Bank breached its duty during the foreclosure
proceedings when it instructed the ultimate purchaser to bid just $1 over the Bank‟s bid
because the Bank was obligated “to make sure that the bidding was conducted in a proper
manner so as to bring the highest and best bid for cash.”

      The trial court awarded the Defendants summary judgment with respect to Mr.
Garner‟s breach of fiduciary obligation claim, writing:

               Tenn. Code Ann. § 45-1-127 clearly states that financial institutions and
       their officers and employees shall not be deemed or implied to be acting as
       fiduciary or to have a fiduciary obligation to the institutions‟ customers or
       other parties, other than shareholders, unless there is a written agreement
       between the parties under which the financial institution agrees to act as a
       fiduciary. The Complaint does not allege a written agreement under which
       Coffee County Bank or Ken Kirby undertook fiduciary obligations on behalf
       of the Plaintiff, nor do the depositions and undisputed material facts establish
       the existence of a written fiduciary agreement. Thus, the alleged action by
       Ken Kirby, while acting in his capacity as an employee of the Bank, does not
       give rise to a fiduciary relationship between the Defendants, Coffee County
       Bank and Ken Kirby, and the Plaintiff.

        Tennessee Code Annotated section 45-1-127 is clear, as the trial court wrote, that
without a written agency or trust agreement between Mr. Garner and the Bank or Mr. Kirby,
there is no fiduciary relationship between Mr. Kirby and Mr. Garner. Mr. Garner does not
allege the existence of any agreement or contract in which either the Bank or Mr. Kirby
agreed to act or perform in a fiduciary capacity on his behalf. In addition, nothing in Mr.
Garner‟s amended complaint suggests that Mr. Garner and Mr. Kirby shared any sort of
confidential relationship upon which a fiduciary relationship could be based. See Foster
Business Park, LLC v. Winfree, No. M2006-02340-COA-R3-CV, 2009 WL 113242, at *7-8
(Tenn. Ct. App. Jan. 15, 2009) (general discussion of fiduciary relationships). Accordingly,
we affirm the trial court‟s decision to award the Defendants summary judgment on this claim.

              6. Tennessee Consumer Protection Act Violation

       The trial court found that Mr. Garner‟s claim asserting a violation of the Tennessee
                                            18
Consumer Protection Act was barred by the applicable statute of limitation. In his amended
complaint, Mr. Garner asserted that Mr. Kirby engaged in unfair and deceptive business
practices, as defined by Tenn. Code Ann. § 47-18-104, and that he suffered damages as a
direct and proximate result thereof.

        An individual asserting a violation of the Tennessee Consumer Protection Act must
file his or her action within one year from the individual‟s discovery of the unlawful act or
practice. Tenn. Code Ann. § 47-18-110. Mr. Garner testified during his deposition that his
last conversation with anyone from the Bank was on March 25, 2011, and he stated that Mr.
Kirby was not present at the foreclosure proceeding. Thus, because Mr. Garner filed his
complaint more than one year following any allegedly unfair or deceptive business practices
by Mr. Kirby, we agree with the trial court‟s conclusion that Mr. Garner‟s claim for a
violation of the Tennessee Consumer Protection Act is barred by the statute of limitation and
affirm the trial court‟s determination that the Defendants are entitled to summary judgment
with respect to this claim.

       C. Mr. Garner‟s Motion to Strike the Defendants‟ Motion for Summary Judgment

       Mr. Garner next contends the trial court erred by ruling that its grant of the
Defendants‟ motion for summary judgment rendered his motion to strike moot. The trial
court did not explicitly rule on his motion to strike as Mr. Garner represents, but the court‟s
decision on the Defendants‟ motion for summary judgment effectively rejected Mr. Garner‟s
motion to strike.

       The trial court held a hearing on October 14, 2013, which the Defendants scheduled to
argue in support of their motion for summary judgment, and then held another hearing on
August 11, 2014, which Mr. Garner scheduled to argue in support of his motion to alter or
amend the trial court‟s order granting the Defendants‟ motion for summary judgment. At the
hearing in 2013, Mr. Garner argued both in support of his motion to strike as well as in
opposition to the Defendants‟ motion for summary judgment. At the hearing in 2014, Mr.
Garner revisited his motion to strike that the court had not ruled upon and argued that if the
court had granted his motion to strike, he would not have been required to file a response to
the Defendants‟ motion for summary judgment. At the latter hearing, the trial court told Mr.
Garner, “I think you could probably infer from the fact that I ruled on the motion for
summary judgment . . . that I was not going to grant the motion to strike . . . .” The court did
not issue a written order denying Mr. Garner‟s motion to strike.

      On appeal, Mr. Garner relies on Tenn. R. Civ. P. 12.06, entitled “Motion to Strike,” in
support of his position. That rule reads:

                                              19
        Upon motion made by a party before responding to a pleading or, if no
        responsive pleading is permitted by these rules, upon motion made by a party
        within 30 days after the service of the pleading upon the party or upon the
        court‟s own initiative at any time, the court may order stricken from any
        pleading any insufficient defense or any redundant, immaterial, impertinent or
        scandalous matter.

Mr. Garner did not mention Rule 12.06 in his motion to strike, and we find this rule does not
apply to Mr. Garner‟s motion to strike because (1) the motion was not filed in response to a
pleading3, and (2) the motion was not based on an “insufficient defense or any redundant,
immaterial, impertinent or scandalous matter.” See Curve Elementary Sch. Parent &
Teachers’ Org. v. Lauderdale Cnty. Sch. Bd., 608 S.W.2d 855, 857 (Tenn. Ct. App. 1980)
(motion to strike filed pursuant to Rule 12.06 must allege a pleading contains an insufficient
defense or redundant, immaterial, impertinent, or scandalous matter). Instead, Mr. Garner
based his motion to strike on the argument that the Defendants‟ supporting memorandum was
“littered with fatal evidentiary deficiencies, including but not limited to, incompetent hearsay
testimony and facts which were not included in their Statement of Undisputed Facts.”

        Moreover, as a practical matter, Mr. Garner did not move to strike the Defendants‟
motion for summary judgment in a timely manner. The Defendants filed their motion for
summary judgment on August 5, 2013. The notice of hearing attached to their motion
indicated that the motion would be heard on October 14, 2013, over two months later. Mr.
Garner did not file his motion to strike until October 9, 2013, and he did not attach a notice to
his motion indicating when his motion was scheduled to be heard. He would not have been
able to schedule it before October 14, however, because the Rules of Civil Procedure require
motions and notices thereof to be served “not later than five (5) days before the time
specified for the hearing.” TENN. R. CIV. P. 6.04.4 In addition, the local rules for Coffee
County Circuit Court require that hearings must be scheduled more than five days after a
motion is filed. TENN. 14TH J. DIST. CIR. CT. R. II. Thus, by the time Mr. Garner would have
been able to schedule a hearing on his motion to strike, the trial court would have already
heard arguments on the Defendants‟ motion for summary judgment.5 Mr. Garner was served

        3
            “Pleadings” are limited to complaints and answers and do not include motions. TENN. R. CIV. P.
7.01.
        4
           In computing a period of time less than eleven days, as here, “intermediate Saturdays, Sundays and
legal holidays shall be excluded in the computation.” TENN. R. CIV. P. 6.01. Thus, Mr. Garner would have
had to file his motion to strike and notice of hearing before Monday, October 7, 2013, if he wanted to schedule
a hearing before Monday, October 14, 2013.
         5
           In any event, the trial court entertained argument on Mr. Garner‟s motion to strike during its hearing
on the Defendants‟ motion for summary judgment. The trial court implicitly denied Mr. Garner‟s motion to
strike when the court granted the Defendants‟ motion for summary judgment. The trial court did not, as Mr.
                                                      20
with the Defendants‟ motion for summary judgment more than two months before the
hearing was scheduled; he had plenty of time in which to file a motion to strike and to
schedule it to be heard in advance of the hearing on the Defendants‟ motion for summary
judgment. The trial court is not to be blamed for Mr. Garner‟s tardiness and failure to
comply with the scheduling rules.

        D. Plaintiff‟s Late-Filed Opposition Papers

        Mr. Garner‟s final argument is that his late-filed papers in opposition to the
Defendants‟ motion would not have caused any undue prejudice to the Defendants and that,
therefore, the trial court erred in refusing to consider them in ruling on the Defendants‟
motion. Whether or not the Defendants would suffer under prejudice, however, is not the
issue. Rule 56.03 of the Tennessee Rules of Civil Procedure clearly states that a “party
opposing [a] motion for summary judgment must, not later than five days before the hearing,
serve and file a response to each fact set forth . . . .” (Emphasis added.) As this Court
explained in Williams v. Watson, No. E2005-02403-COA-R3-CV, 2007 WL 187925 (Tenn.
Ct. App. Jan. 25, 2007), “the requirements of Tennessee Rules of Civil Procedure 56.03 are
mandatory . . . .” Id. at *9. A trial court may exercise its discretion to waive the rule‟s
requirements in an appropriate situation. Cox v. Tenn. Farmers Mut. Ins. Co., 297 S.W.3d
237, 244 (Tenn. Ct. App. 2009); Owens v. Bristol Motor Speedway, Inc., 77 S.W.3d 771,
774-75 (Tenn. Ct. App. 2001). However, an appellate court is not permitted to interfere with
the trial court‟s discretionary decision absent a showing that the trial court abused its
discretion. Williams, 2007 WL 187925, at *11.

       Mr. Garner‟s attorney contends he filed Mr. Garner‟s opposition papers late as a result
of excusable neglect, but he does not explain how his neglect was excusable. Mr. Garner,
apparently, had health issues that prevented him from reviewing and signing his affidavit in
the ten days before it was due to be filed. However, that does not explain why his attorney
did not file a motion seeking additional time to file Mr. Garner‟s affidavit or why his attorney
was not able to file the other opposition papers in a timely fashion. Based on the facts of this
case, Mr. Garner has failed to show that the trial court‟s refusal to consider his late-filed
opposition papers constituted an abuse of its discretion.

                                             CONCLUSION

       The trial court‟s judgment is affirmed in part, reversed in part, and remanded. We
affirm the trial court‟s decision granting the Defendants‟ motion for summary judgment with
regard to the following causes of action: violation of Tenn. Code Ann. § 47-18-104 and

Garner contends, declare that his motion to strike was “moot.”
                                                   21
breach of fiduciary duty. We reverse the trial court‟s decision granting the Defendants‟
motion for summary judgment with regard to the following causes of action: conversion,
trespass to chattels, unjust enrichment, civil conspiracy, and wrongful foreclosure. We
affirm the trial court‟s decision not to consider Mr. Garner‟s late-filed response in opposition
to the Defendants‟ motion for summary judgment. This case is remanded to the trial court
for further proceedings consistent with this opinion. Costs of the appeal shall be assessed in
equal parts against the parties, so that Richard Garner shall pay half of the costs and Coffee
County Bank and Ken Kirby shall pay half of the costs.



                                                              _________________________
                                                              ANDY D. BENNETT, JUDGE




                                              22
