                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                   July 12, 2011 Session

   KEVIN JUNKANS v. ALAMO RENTALS, INC. v. PAMELA JUNKANS

                Appeal from the Circuit Court for Montgomery County
                        No. 50500725     Ross H. Hicks, Judge


                No. M2010-02628-COA-R3-CV - Filed October 28, 2011


Plaintiff and third-party defendant appeal the circuit court’s denial of third-party defendant’s
motion to dismiss, grant of defendant/third-party plaintiff’s motion for sanctions against
third-party defendant, and dismissal of the plaintiff’s claims. Finding that defendant/third-
party plaintiff’s complaint makes out a claim for relief as a matter of law, we affirm the
circuit court’s denial of third-party defendant’s motion to dismiss. Finding that the circuit
court did not abuse its discretion, we affirm the grant of the motion for sanctions. Finding
that defendant negated an element of plaintiff’s claim, we affirm the circuit court’s dismissal
of the plaintiff’s case against the defendant.

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

A NDY D. B ENNETT, J., delivered the opinion of the Court, in which F RANK G. C LEMENT, J R.
and R ICHARD H. D INKINS, JJ., joined.

Lorraine Wade, Nashville, Tennessee, for the appellants, Kevin Junkans and Pamela Junkans.

Christopher J. Pittman and Gregory P. Patton, Clarksville, Tennessee, for the appellee,
Alamo Rentals, Inc.

                                          OPINION

                  FACTUAL AND PROCEDURAL BACKGROUND

     Kevin Junkans (“Mr. Junkans”) entered into a rental management agreement with
Alamo Rentals, Inc. (“Alamo”) in December 1999. At that time, Mr. Junkans’s mother,
Pamela Junkans (“Mrs. Junkans”), was his agent1 and had full authority to act on his behalf
regarding the Alamo rental management agreement.

        On September 2, 2005, Mr. Junkans filed suit alleging that Alamo mismanaged his
rental property. Mr. Junkans’s complaint included claims for breach of contract, breach of
the duty of good faith and fair dealing, waste, fraud and misrepresentation, violation of the
Tennessee Consumer Protection Act, and negligence. After having filed its original answer
on October 3, 2005, Alamo filed an amended answer and third-party complaint on June 27,
2006, naming Mrs. Junkans as a third-party defendant, pursuant to Tenn. R. Civ. P. 14.01.
Alamo’s third-party complaint averred that Alamo relied on Mrs. Junkans’s express and
apparent authority regarding the management of Mr. Junkans’s rental property, that Mrs.
Junkans’s negligent acts or omissions caused any damages Mr. Junkans sustained, and in the
alternative, that Mrs. Junkans’s acts or omissions in excess of her agency authority under the
power of attorney caused any damages Mr. Junkans sustained. Pursuant to Tenn. R. Civ. P.
12.02(6), Mrs. Junkans filed a motion to dismiss the third-party complaint on July 3, 2006.
On August 10, 2006, the circuit court denied Mrs. Junkans’s motion, finding that the third-
party complaint sufficiently set forth a cause of action against her.

        On October 20, 2006, Alamo sent written discovery to Mrs. Junkans. Mrs. Junkans
did not provide timely answers, so on January 8, 2007, Alamo filed a motion to compel
pursuant to Tenn. R. Civ. P. 37.01. On February 15, 2007, the circuit court entered an order
reflecting the parties’ agreement that Mrs. Junkans would have until March 1, 2007, to
respond to Alamo’s first set of interrogatories and request for production of documents. On
March 2, 2007, Alamo received Mrs. Junkans’s responses to discovery which included
several objections and made reference to Mr. Junkans’s responses. On April 20, 2007, Alamo
filed a motion to determine the sufficiency of those objections and responses to
interrogatories and a request for production of documents, pursuant to Tenn. R. Civ. P. 33.01,
34.02, and 37.01. The circuit court granted the motion on October 12, 2007, found that Mr.
Junkans and Mrs. Junkans failed to adequately respond to Alamo’s first set of interrogatories
and request for production of documents, overruled Mrs. Junkans’s objections, and ordered
Mrs. Junkans to fully respond to the discovery by October 31, 2007. The circuit court further
ordered that, pursuant to Tenn. R. Civ. P. 41.02, failure to comply would result in dismissal
of Mr. Junkans’s cause of action.

       Mrs. Junkans did not submit discovery responses by the October 31, 2007 deadline.
Pursuant to Tenn. R. Civ. P. 37.02 and 37.04, Alamo filed a motion for sanctions against
Mrs. Junkans on January 24, 2008, to which she responded on March 3, 2008. The court’s


       1
          In November 1999, Mr. Junkans executed a general power of attorney appointing Pamela Junkans
as his agent.

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order resetting the motion for sanctions2 warned that Mrs. Junkans’s failure to comply with
the October 12, 2007 order would result in the court’s granting Alamo’s motion for sanctions
pursuant to Tenn. R. Civ. P. 37.02(A), 37.02(B), and 37.04. During the May 23, 2008
motion hearing, the circuit court found that Mrs. Junkans failed to comply3 with the October
12, 2007 order to fully respond to Alamo’s discovery request and consequently granted
Alamo’s motion for sanctions. The sanctions included a $900.00 attorney’s fee award to
Alamo from Mrs. Junkans and an order prohibiting Mrs. Junkans from introducing evidence
responsive to Alamo’s interrogatories and requests for production of documents at trial.
Furthermore, pursuant to Tenn. R. Civ. P. 37.02(A), in its May 23, 2008 order, the circuit
court deemed established the following facts alleged in Alamo’s third-party complaint:

        A. That Mrs. Junkans acted as the agent of Mr. Junkans with full power and authority
        to do and perform each and every act and matter concerning his estate, property and
        affairs at all times material herein;

        B. That Mrs. Junkans represented herself to Alamo as the agent of Mr. Junkans with
        full and complete authority to act on behalf of Mr. Junkans regarding the subject
        rental management agreement;

        C. That during the course of the rental management agreement, Alamo managed the
        subject property pursuant to said agreement and the authorization, direction and
        control exerted by Mrs. Junkans, as agent for Mr. Junkans;

        D. That during the time of said rental management agreement, Alamo relied upon the
        express and apparent authority of Mrs. Junkans in the management of the subject
        property;

        E. That any loss or damages sustained by Mr. Junkans was caused by the negligent
        acts or omissions of Mrs. Junkans, as agent for Mr. Junkans; and,

        F. That any loss or damages sustained by Mr. Junkans was caused by the acts or
        omissions of Mrs. Junkans in excess of her agency authority under the power of
        attorney executed by Mr. Junkans.

        2
          The motion for sanctions had been reset a few times by this point, but on April 28, 2008, the court
granted Mrs. Junkans additional time to comply with the October 12, 2007 order. The court’s order
reflecting this holding was entered on May 23, 2008.
        3
         Mrs. Junkans asserts that on May 2, 2008, she submitted to Alamo a second set of discovery
responses in which she had supplemented and made changes to the first set of responses. These supplemental
responses were never made part of the record.

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       On September 17, 2010,4 Alamo filed a motion to dismiss Mr. Junkans’s cause of
action, pursuant to Tenn. R. Civ. P. 12. At the November 1, 2010 hearing, the circuit court
found that, based upon its determinations set forth in its May 23, 2008 order granting
Alamo’s motion for sanctions, there remained no issues regarding Alamo’s liability.
Therefore, the circuit court granted Alamo’s motion to dismiss. In addition, the circuit court
determined that any relief Mr. Junkans could obtain would be through a claim against Mrs.
Junkans and left the matter pending for any further claim that Mr. Junkans wished to pursue
against her.

     In this appeal, Mr. Junkans and Mrs. Junkans raise the following issues which we
summarize below:

        (1) Whether the circuit court erred when it denied Mrs. Junkans’s motion to dismiss
        the third-party complaint for failure to state a claim.

        (2) Whether the circuit court erred when it sanctioned Mrs. Junkans for not complying
        with the order to fully respond to discovery.

        (3) Whether the circuit court erred when it dismissed Mr. Junkans’s claims against
        Alamo.

                                              ANALYSIS

                                1. Alamo’s Third-party Complaint

        We are asked to examine whether the circuit court erred in denying Mrs. Junkans’s
motion to dismiss the third-party complaint. The purpose of a Rule 12.02(6) motion to
dismiss is to test the legal sufficiency of the complaint, not the strength of the complainant’s
proof. Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn.
2011); Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn. 1999). In reviewing the circuit court’s
ruling on a motion to dismiss based on Rule 12.02(6), we must liberally construe the
pleadings, presuming all factual allegations are true and drawing all reasonable inferences
in favor of the complainant. Webb, 346 S.W.3d at 426; Tigg v. Pirelli Tire Corp., 232 S.W.3d
28, 31 (Tenn. 2007); Kincaid v. SouthTrust Bank, 221 S.W.3d 32, 37 (Tenn. Ct. App. 2006).
The motion to dismiss should be denied unless it appears that the complainant can prove no
set of facts in support of its claim that would entitle it to relief. See Bell ex rel. Snyder v.
Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., 986 S.W.2d 550, 554 (Tenn. 1999).


        4
          In 2008, Mr. Junkans gave notice that he was deployed by the military, thus resulting in a period
of time in which no activity occurred in the case.

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Furthermore, the pleadings need not contain great specificity to survive a motion to dismiss;
it is enough that the complaint set forth “a short and plain statement of the claim showing that
the pleader is entitled to relief.” White v. Revco Disc. Drug Ctrs., Inc., 33 S.W.3d 713, 718
(Tenn. 2000) (citing Tenn. R. Civ. P. 8.01). We review questions of law de novo with no
presumption of correctness. Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn.
1999). This court must determine whether the facts set forth in Alamo’s third-party
complaint make out a claim for relief as a matter of law. See Rogers v. State Volunteer Mut.
Ins. Co., No. M2007-01599-COA-R3-CV, 2008 WL 1931531, at *2 (Tenn. Ct. App. May
2, 2008).

        The essence of Alamo’s third-party complaint is that Mr. Junkans’s agent, Mrs.
Junkans, not Alamo, is liable for any damages related to the management of Mr. Junkans’s
rental property because Alamo followed Mrs. Junkans’s instructions. Specifically, Alamo’s
amended answer and its third-party complaint (which adopts by reference the contents of its
amended answer) allege, among other things, that:

       a. Mrs. Junkans provided Alamo with a power of attorney for Mr. Junkans and
       represented herself to Alamo as Mr. Junkans’s agent regarding the rental management
       agreement and rental property.

       b. Alamo managed the rental property pursuant to the rental management agreement
       and in reliance upon Mrs. Junkans’s representations that she had authority to act as
       Mr. Junkans’s agent with regards to the rental management agreement and the rental
       property.

       c. Mrs. Junkans failed to inspect the rental property during the period of management
       and thus permitted the waste Mr. Junkans alleged in his complaint.

       d. Mrs. Junkans’s acts or omissions as agent for Mr. Junkans caused the alleged waste
       and/or damages to the rental property.

       e. Mrs. Junkans’s acts which exceeded the scope of her agency and breached the
       rental management agreement caused the alleged waste and/or damages to the rental
       property.

         For purposes of this appeal, we take as true the foregoing allegations of fact drawn
from Alamo’s third-party complaint and note that the parties do not dispute that a principal-
agent relationship existed between Mr. Junkans and Mrs. Junkans. In support of her motion
to dismiss the third-party complaint, Mrs. Junkans states that “by law [she] cannot be held
liable for any acts that she may have committed on behalf of Mr. Junkans.” On the contrary,

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“[a]gency status is not a shield against personal liability for one’s own acts.” Gross v.
McKenna, No. E2005-02488-COA-R3-CV, 2007 WL 3171155, at *4 (Tenn. Ct. App. Oct.
30, 2007). In addition, Alamo’s third-party complaint alleges that Alamo relied upon Mrs.
Junkans’s representations that she had the authority to approve all of Alamo’s actions
regarding the rental property. Mr. Junkans’s complaint alleges that Alamo’s actions were
unauthorized. Thus, Alamo’s position is that Mrs. Junkans’s assertions and actions amounted
to a misrepresentation. “[A]n agent cannot escape liability for tortious acts, including fraud
or misrepresentation, against third persons simply because the agent was acting within the
scope of the agency or at the direction of the employer.” Allied Sound, Inc. v. Neely, 909
S.W.2d 815, 821 (Tenn. Ct. App. 1995) (quoting Brungard v. Caprice Records, Inc., 608
S.W.2d 585, 590 (Tenn. Ct. App. 1980)).

        Having presumed that the factual allegations in Alamo’s third-party complaint are
true, we find that it presents viable claims against Mrs. Junkans. We therefore affirm the
circuit court’s denial of Mrs. Junkans’s motion to dismiss Alamo’s third-party complaint.

                       2. Discovery Sanctions Against Mrs. Junkans

         Tenn. R. Civ. P. 37.02 includes a broad but unexclusive list of sanctions available to
a trial court when a party fails to obey an order compelling discovery. Subsection (A) allows
the trial judge to enter “[a]n order that . . . any other designated facts shall be taken to be
established for the purposes of the action in accordance with the claim of the party obtaining
the order.” Subsection (B) allows the trial judge to prohibit the disobedient party “from
introducing designated matters in evidence.” The final paragraph states that, in place of or
in addition to other sanctions, “the court shall require the party failing to obey the order or
the attorney advising the party or both to pay the reasonable expenses, including attorney’s
fees, caused by the failure. . . .” (emphasis added). Discovery sanctions “serve a three-fold
purpose: (1) to secure a party’s compliance with the discovery rules, (2) to deter other
litigants from violating the discovery rules, and (3) to punish parties who violate discovery
rules.” Mansfield v. Mansfield, No. 01A019412CH0058, 1995 WL 643329, at *5 (Tenn. Ct.
App. Nov. 3, 1995). A trial court’s actions under Rule 37.02 are not to be disturbed absent
an abuse of discretion. Potts v. Mayforth, 59 S.W.3d 167, 171 (Tenn. Ct. App. 2001).

        Mrs. Junkans asserts that “there is no proof that [she] did not answer [Alamo’s]
discovery” and that “[t]o hold her accountable after making two attempts amounts to an
abuse of discretion by the trial court.” Because Mrs. Junkans did not make her supplemental
discovery responses part of the record, we cannot evaluate their adequacy. It was up to Mrs.
Junkans to place evidence in the record to support her position. The appellant must ensure
that the record conveys “a fair, accurate and complete account of what transpired with respect



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to those issues that are the basis of appeal.” Tenn. R. App. P. 24(a). Absent her supplemental
responses, we cannot evaluate her argument.
       We note that the circuit court issued sanctions seven months after Mrs. Junkans did
not comply with the order to fully respond to Alamo’s first set of interrogatories and request
for production of documents and nineteen months after Alamo first propounded discovery
to her. In addition, the circuit court specifically warned Mrs. Junkans that her continuous
violation of the October 12, 2007 order would result in the grant of Alamo’s motion for
sanctions.

        Though Mrs. Junkans does not dispute the amount of $900.00, she further argues that
“[t]he award of attorney fees was also erroneous because Alamo’s counsel failed to state
what he did to justify the award.” We disagree. The request for attorney’s fees was
accompanied by a sworn affidavit listing Alamo’s attorney’s time spent, work done, and
billable rate. As mentioned above, the last paragraph of Tenn. R. Civ. P. 37.02 specifically
requires a party who fails to obey discovery orders to pay the attorney’s fees “caused by the
failure, unless the court finds that the failure was substantially justified . . . .” The circuit
court did not so find.

        A trial court abuses its discretion only when it “applie[s] an incorrect legal standard,
or reache[s] a decision which is against logic or reasoning that cause[s] an injustice to the
party complaining.” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (quoting State v.
Shirley, 6 S.W.3d 243, 247 (Tenn. 1999)). Based on this record, we are of the opinion that
the circuit court acted within its discretion in sanctioning Mrs. Junkans for her repeated
failure to fully and timely respond to Alamo’s discovery requests. We therefore affirm the
grant of the motion for sanctions.

                                3. Alamo’s Motion to Dismiss

        Although Alamo filed a motion to dismiss, we find that the circuit court converted this
motion into a motion for summary judgment by considering matters outside the pleading,
namely the issues set forth in Alamo’s motion for sanctions and the court’s order imposing
discovery sanctions. See Tenn. R. Civ. P. 12.02. Summary judgment is appropriate when
there is no genuine issue of material fact and the moving party is entitled to a judgment as
a matter of law. Tenn. R. Civ. P. 56.04. Summary judgments do not enjoy a presumption of
correctness on appeal. BellSouth Adver. & Publ’g Co. v. Johnson, 100 S.W.3d 202, 205
(Tenn. 2003). We consider the evidence in the light most favorable to the non-moving party
and resolve all inferences in that party’s favor. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn.
2002). When reviewing the evidence, we must determine whether factual disputes exist.
Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn. 1993). If a factual dispute exists, we must
determine whether the fact is material to the claim or defense upon which the summary

                                               -7-
judgment is predicated and whether the disputed fact creates a genuine issue for trial. Id.;
Rutherford v. Polar Tank Trailer, Inc., 978 S.W.2d 102, 104 (Tenn. Ct. App. 1998). To shift
the burden of production to the nonmoving party who bears the burden of proof at trial, the
moving party must negate an element of the opposing party’s claim or “show that the
nonmoving party cannot prove an essential element of the claim at trial.” Hannan v. Alltel
Publ’g Co., 270 S.W.3d 1, 8–9 (Tenn. 2008).

        As stated above, in its order granting Alamo’s motion for sanctions against Mrs.
Junkans, the circuit court “deemed established for the purpose of [the] action” the following
issues identified in Alamo’s third-party complaint:

       A. That Mrs. Junkans acted as the agent of Mr. Junkans with full power and authority
       to do and perform each and every act and matter concerning his estate, property and
       affairs at all times material herein;

       B. That Mrs. Junkans represented herself to Alamo as the agent of Mr. Junkans with
       full and complete authority to act on behalf of Mr. Junkans regarding the subject
       rental management agreement;

       C. That during the course of the rental management agreement, Alamo managed the
       subject property pursuant to said agreement and the authorization, direction and
       control exerted by Mrs. Junkans, as agent for Mr. Junkans;

       D. That during the time of said rental management agreement, Alamo relied upon the
       express and apparent authority of Mrs. Junkans in the management of the subject
       property;

       E. That any loss or damages sustained by Mr. Junkans was caused by the negligent
       acts or omissions of Mrs. Junkans, as agent for Mr. Junkans; and,

       F. That any loss or damages sustained by Mr. Junkans was caused by the acts or
       omissions of Mrs. Junkans in excess of her agency authority under the power of
       attorney executed by Mr. Junkans.

        The circuit court’s imposition of sanctions had the effect of establishing that Mrs.
Junkans, not Alamo, was liable for any damages that Mr. Junkans suffered. The circuit court
determined “[t]hat there are no other issues regarding the liability of Alamo to be determined
in this matter . . . and that there is no just reason for delay in entering final judgment in favor
of Alamo.” This left no room for comparative fault to be assessed between Alamo and Mrs.
Junkans. The court properly dismissed Mr. Junkans’s claim against Alamo because of its

                                                -8-
determination, based on the sanctions previously imposed on Mrs. Junkans, that any damages
Mr. Junkans suffered were caused by Mrs. Junkans’s actions. Alamo had negated the
causation element of Mr. Junkans’s claim.

        Mr. Junkans argues that he “was not a [sic] subject to the [order granting Alamo’s
motion for sanctions] and hence his case should not be lost because of the sanctions against
his mother.” This argument is flawed. The circuit court’s order specifically states that Mr.
Junkans’s case “shall remain pending for any further action taken by Kevin Junkans
regarding his claim for damages against Pamela Junkans.” Mr. Junkans’s claims are still
viable, but he has simply chosen not to pursue them against his mother. We affirm the circuit
court’s grant of the motion to dismiss Mr. Junkans’s complaint against Alamo.

                                    4. Frivolous Appeal

       Alamo argues that Mrs. Junkans’s appeal is frivolous. Pursuant to Tenn. Code Ann.
§ 27-1-122, “[w]hen it appears to any reviewing court that the appeal from any court of
record was frivolous or taken solely for delay, the court may . . . award just damages against
the appellant, which may include but need not be limited to, costs, interest on the judgment,
and expenses incurred by the appellee as a result of the appeal.” An appeal is considered
frivolous when it has no reasonable chance of success and is so devoid of merit that imposing
a penalty is justified. Whalum v. Marshall, 224 S.W.3d 169, 181 (Tenn. Ct. App. 2006). Mrs.
Junkans presented a weak case on appeal, but we are not willing to label her appeal as
frivolous.

       Costs of appeal are assessed against Mr. Junkans and Mrs. Junkans, jointly and
severally, the appellants.


                                                       ______________________________
                                                            ANDY D. BENNETT, JUDGE




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