                IN THE COURT OF APPEALS OF TENNESSEE
                             AT MEMPHIS
                                  April 18, 2012 Session

  SANDRA BELLANTI and ALBERT BELLANTI v. CITY OF MEMPHIS

               Direct Appeal from the Circuit Court for Shelby County
               No. CT-004250-08 Div. IX     Robert L. Childers, Judge


                  No. W2011-01917-COA-R3-CV - Filed June 4, 2012


Plaintiff was severely injured when a padlock, which was allegedly thrown from a City of
Memphis mower, broke through her vehicle window. Plaintiff and her husband successfully
sued the City. On appeal, the City argues, among other things, that the trial court erred in
denying its motion to amend its answer to assert the affirmative defense of the Public Duty
Doctrine. Because the trial court’s order denying the City’s motion to amend fails to explain
the basis for its denial, we are constrained to remand the case to the trial court for entry of
a reasoned explanation of its actions regarding the City’s motion to amend its answer.


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

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which H OLLY M. K IRBY,
J., and J. S TEVEN S TAFFORD, J., joined.

J. Michael Fletcher, Memphis, Tennessee, for the appellant, City of Memphis

Thomas E. Hansom, Leigh H. Thomas, Memphis, Tennessee, for the appellees, Sandra
Bellanti and Albert Bellanti
                                           OPINION

                            I.   F ACTS & P ROCEDURAL H ISTORY

        On September 5, 2007, Sandra Bellanti stopped her Cadillac Escalade SUV at the
intersection of Dexter Lane and Dexter Road in Memphis, Tennessee, intending to turn left
onto Dexter Road. Meanwhile, the City of Memphis, through its Division of Park Services,
mowed a nearby median. As Mrs. Bellanti turned onto Dexter Road, a padlock broke
through her drivers’ side window, striking her eye. The impact exploded Mrs. Bellanti’s
eyeball, fractured her skull, and broke her nose in three places. Mrs. Bellanti endured three
surgeries, ultimately resulting in the loss of her left eye and its replacement with a prosthetic.

        On August 29, 2008, Mrs. Bellanti, along with her husband Albert Bellanti, filed suit
against the City of Memphis (“the City”), mower operator Devin D. Douglas in his capacity
as a City employee, and mower manufacturer Metalcraft of Mayville, Inc. d/b/a SCAG Power
Equipment Division (“Metalcraft”). In their complaint, the Bellantis contended, among other
things, that the City had failed to adequately inspect the area to be mowed and that it was
negligent in its acquisition, maintenance, and modification of the mower. As a result, the
Bellantis maintained, City employee Mr. Douglas caused the padlock to be thrown from the
cutting deck of his mower, striking Mrs. Bellanti. Mrs. Bellanti sought $2,000,000.00 in
compensatory damages and $500,000.00 in punitive damages and Mr. Bellanti sought
$50,000.00 for emotional distress and suffering and for lost services, companionship,
consortium and society.

        The City filed its answer on October 15, 2008, asserting the following defenses:
failure to state a claim upon which relief can be granted, comparative fault, and the
Governmental Tort Liability Act. The City’s answer further stated that “[t]he City hereby
gives notice that it intends to rely upon such other affirmative defenses and/or claims that
may become available as the case develops and reserves the right to amend its Answer to
assert such defenses and/or claims.”

        On April 22, 2009, the parties consented to the entry of orders dismissing Mr. Douglas
as a party and striking the excessive ad damnum. Consequently, the ad damnum was reduced
to $300,000 for personal injuries and $100,000 for property damages.

       Metalcraft filed a motion for summary judgment on June 1, 2009, which the trial court
denied on September 21, 2009. Trial was set for May 17, 2010, but on March 9, 2010, the
Bellantis moved for a continuance. Without objection, the case was continued to November
15, 2010. On March 29, 2010, a consent scheduling order was entered establishing deadlines
for the disclosure of expert witnesses to be called at trial, for the completion of expert

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depositions, and for participation in mediation no later than August 27, 2010.

        On October 1, 2010, the City filed a motion to amend its answer to assert the
additional affirmative defense of the Public Duty Doctrine, which the trial court denied. The
trial court likewise denied the City’s motion to seek interlocutory review. The City then
applied to this Court for extraordinary appeal, which we denied. However, we noted that the
amendment issue could be reasserted on appeal following a trial in the cause. On January
11, 2011, Metalcraft was voluntarily dismissed without prejudice.

      Following a trial on August 23-24, 2011, the trial court entered an Order of Judgment
on August 29, 2011, which included the following relevant findings:1

        That the City of Memphis had a duty to the Plaintiffs, that the City breached
        that duty and that the Plaintiffs have suffered damages legally caused by the
        City’s negligence through the negligence of the City’s employees.

        That, because it is virtually impossible for one person to [] do a sufficient
        inspection of a median the size of the median at issue, the City breached its
        duty by assigning a single crew person to inspect the area before mowing
        began.

        ....

        That the City knew or should have known that incidents of the type at issue
        were possible and that such knowledge satisfies the foreseeability requirement.

The trial court entered an Order of Judgment in favor of the Bellantis. It found that Mrs.
Bellanti had suffered damages totaling $1,980,000.00, but based upon the damage limitations
set forth in the GTLA, it reduced Mrs. Bellanti’s damage award to $300,000.00. The trial
court also awarded Mr. Bellanti $50,000.00 for emotional distress and suffering; loss of
services, consortium, and companionship; and property damage. The City timely appealed.




        1
          The Order of Judgment specifically incorporated the attached oral findings and conclusions of the
trial court.

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                                  II.    I SSUES P RESENTED

       The City of Memphis presents the following issues for review:

1.     Whether the trial court erred in denying the City of Memphis’ motion to amend its
       Answer to affirmatively plead the Public Duty Doctrine;

2.     Whether the trial court erred when it failed to find that the claim of the Plaintiffs is
       barred by the application of the Public Duty Doctrine to the facts presented at trial;

3.     Whether the trial court erred in establishing and imposing a standard of care upon the
       City in its operation of picking up trash and debris prior to mowing medians;

4.     Whether the evidence supports a finding that the object was present when the area
       was picked up or would have been found but for the negligence of the employees of
       the City;

5.     Whether the alleged failure of the employees of the City of Memphis was the legal
       cause of the accident and resulting injuries to the Plaintiffs; and

6.     Whether the City retains immunity under Tenn. Code Ann. § 29-20-205(4) for failure
       to inspect or negligent inspection.

For the following reasons, we remand the case to the trial court for entry of a reasoned
explanation of its actions regarding the City’s motion to amend its answer.


                                III.    S TANDARD OF R EVIEW

       On appeal, a trial court’s factual findings are presumed to be correct, and we will not
overturn those factual findings unless the evidence preponderates against them. Tenn. R.
App. P. 13(d) (2012); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). For the evidence
to preponderate against a trial court’s finding of fact, it must support another finding of fact
with greater convincing effect. Watson v. Watson, 196 S.W.3d 695, 701 (Tenn. Ct. App.
2005) (citing Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000);
The Realty Shop, Inc. v. RR Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App.
1999)). When the trial court makes no specific findings of fact, we review the record to
determine where the preponderance of the evidence lies. Ganzevoort v. Russell, 949 S.W.2d
293, 296 (Tenn. 1997) (citing Kemp v. Thurmond, 521 S.W.2d 806, 808 (Tenn. 1975)). We
review a trial court’s conclusions of law under a de novo standard upon the record with no

                                              -4-
presumption of correctness. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.
1993) (citing Estate of Adkins v. White Consol. Indus., Inc., 788 S.W.2d 815, 817 (Tenn. Ct.
App. 1989)).

                                       IV. D ISCUSSION

                                      A. Leave to Amend

          On appeal, the City first argues that the trial court erred in denying its motion to
amend its answer to assert the affirmative defense of the Public Duty Doctrine. “The grant
or denial of a motion to amend is within the sound discretion of the trial court, and the
court’s action will be reversed only for an abuse of discretion.” Sallee v. Barrett, 171
S.W.3d 822, 825-26 (Tenn. 2005) (citing Doyle v. Frost, 49 S.W.3d 853, 856 (Tenn. 2001);
Henderson v. Bush Bros. & Co., 868 S.W.2d 236, 237-38 (Tenn. 1993)). “The abuse of
discretion standard does not allow the appellate court to substitute its judgment for that of
the trial court, and we will find an abuse of discretion only if the court applied incorrect legal
standards, reached an illogical conclusion, based its decision on a clearly erroneous
assessment of the evidence, or employed reasoning that causes an injustice to the
complaining party.” Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176 (Tenn. 2011)
(citations and quotation omitted).

       Tennessee Rule of Civil Procedure 15 governs the amendment of pleadings. Sallee,
171 S.W.3d at 830. The Rule states that after a responsive pleading is served, a party’s
pleadings may be amended “only by written consent of the adverse party or by leave of
court[.]” Tenn. R. Civ. P. 15.01. However, “leave shall be freely given when justice so
requires.” Tenn. R. Civ. P. 15.01. “When examining a Tenn. R. Civ. P. 15 Motion to
Amend a pleading, the trial court may consider inter alia the following factors: lack of
notice, bad faith by the moving party, repeated failure to cure deficiencies by previous
amendments, undue delay in the filing of the motion, undue prejudice to the opposing party,
and futility of the proposed amendment.” Conley v. Life Care Ctrs. of America, Inc., 236
S.W.3d 713, 723-24 (Tenn. Ct. App. 2007) (citing Hall v. Shelby County Ret. Bd., 922
S.W.2d 543, 546 (Tenn. Ct. App. 1995)).


        On appeal, the City argues that none of the above-cited factors supports the trial
court’s denial of its motion to amend. The City maintains that its original answer gave the
Bellantis notice of its intention to rely upon affirmative defenses and to seek leave to amend,
as it stated that “[t]he City hereby gives notice that it intends to rely upon such other
affirmative defenses and/or claims that may become available as the case develops and
reserves the right to amend its Answer to assert such defenses and/or claims.” The City


                                               -5-
points out that it filed only a single motion to amend, and it claims that no suggestion has
been made that its motion to amend was made in bad faith. Finally, while the City
acknowledges that its motion to amend was filed more than two years after it filed its answer,
the City asserts that its delay does not provide grounds for the trial court’s denial of its
motion to amend. Specifically, the City maintains that the Bellantis would not have been
prejudiced by the amendment as they would have “had five months to develop proof to
support or defend against the Public Duty Doctrine” and the City claims, without further
explanation, that “a review of the record clearly indicates that the City was not dilatory in its
defense.”


      In support of its motion to amend in the trial court, the City submitted both a
memorandum and a copy of the case of Karnes v. Madison County, W2009-02476-COA-R3-
CV, 2010 WL 3716458, at *4 (Tenn. Ct. App. Sept. 23, 2010). It appears that the City
attempted to cite Karnes as a recent change in the law, characterizing the Public Duty
Doctrine as an affirmative defense.2 The memorandum states:


        Because it directly controverts an essential element of the negligence claim,
        it is the City’s position that the [Public Duty] doctrine is not properly
        considered an “affirmative” defense. Nonetheless, courts have, upon occasion,
        referred to the Public Duty doctrine as “affirmative” in nature. Most recently,
        the [Tennessee]3 Court of Appeals stated that “[t]he doctrine of public duty is
        a common law affirmative defense that precludes liability for the actions of
        governmental employees in applicable situations.”




        2
         In Karnes, this Court stated that “[t]he doctrine of public duty is a common law affirmative defense
that precludes liability for the actions of governmental employees in applicable situations.” Karnes, 2010
WL 3716458, at *2. However, in Wells v. Hamblen County, No. E2004-01968-COA-R3-CV, 2005 WL
2007197, at *3 (Tenn. Ct. App. Aug. 22, 2005), upon which the Karnes decision relied, the Eastern Section
of this Court also expressly characterized the Public Duty Doctrine as an affirmative defense. Moreover,
Wells further cited to a 1998 Tennessee Supreme Court decision, Chase v. City of Memphis, 971 S.W.2d 380,
385 (Tenn. 1998), and a 2003 Tennessee Court of Appeals decision, Brown v. Hamilton County, 126 S.W.3d
43, 48 (Tenn. Ct. App. Aug. 19, 2003), both of which characterized the Public Duty Doctrine as an
affirmative defense.
        3
         The City repeatedly erroneously refers to the Karnes decision as having been rendered by the Sixth
Circuit Court of Appeals.

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The City then explained that the Karnes decision had “sparked an internal review in the
Memphis City Attorney’s office of all open cases to determine whether there were answers
in which this defense should have been pled.”


      Importantly, the trial court’s order does not state the basis for its denial of the City’s
motion to amend its answer. Instead, it simply provides:


                This cause came to be heard on December 3, 2010 upon written motion
        of the Defendant City of Memphis to amend its Answer; following oral
        arguments of counsel for the Defendant City and counsel for the Plaintiffs,4
        from the entire record in this matter, and for good cause shown this Court finds
        that the motion should be denied.


        IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the
        Defendant City’s Motion to Amend Answer is denied.


The Bellantis, however, insist that the trial court found undue delay in the City’s motion.


        In Henderson v. Bush Bros. Co., 868 S.W.2d 236 (Tenn. 1993),5 our Supreme Court’s
Special Workers’ Compensation Appeal Panel considered the effect of a trial court’s failure
to explain its basis for denying a motion to amend. In Henderson, the trial court granted the
employer’s motion for summary judgment without first considering the plaintiff’s previously-
filed motion to amend his complaint. Id. at 237. In its order granting summary judgment,
the trial court simply stated that the plaintiff’s motion to amend “c[a]me[] to[o] late[.]” Id.

      Recognizing that Federal Rule of Civil Procedure 15(a) is “essentially the same” as
Tennessee Rule of Civil Procedure 15.01, the Henderson Court looked to cases applying the
Federal Rule. Id.
        Rule 15(a) of the Federal Rules of Civil Procedure provides that a party
        desiring to amend his pleading after a responsive pleading has been served
        may do so “only by leave of court . . . and leave shall be freely given when


        4
            A transcript of these arguments is not included in the record before us.
        5
         Henderson is designated as a memorandum opinion, but it is published in the official reporter and
therefore may be relied upon by this Court. See Tenn. Sup. Ct. R. 4.

                                                       -7-
       justice so requires.” The Rules put forth a liberal policy of permitting
       amendments in order to ensure determination of claims on their merits. Tefft
       v. Seward, 689 F.2d 637, 639 (6th Cir. 1982). A court’s refusal to grant leave
       to amend is reviewable under the “abuse of discretion” standard. Zenith Radio
       Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-32, 91 S.Ct. 795, 802-03,
       28 L.Ed.2d 77 (1971); Tefft, 689 F.2d at 637-38. An abuse of discretion
       occurs when a district court fails to state the basis for its denial of a motion or
       fails to consider the competing interests of the parties and likelihood of
       prejudice to the opponent. Moore v. City of Paducah, 790 F.2d 557, 559 (6 th
       Cir. 1986).
Id. (quoting Ellison v. Ford Motor Company, 847 F.2d 297 (6 th Cir. 1988)) (emphasis added).


        Finding “[t]he above reasoning [] persuasive,” the Henderson Court found that “the
trial court must given the proponent of a motion to amend a full chance to be heard on the
motion, must consider the motion in light of the amendment policy embodied in T.R.C.P.
15.01, that amendments must be freely allowed; and in the event the motion to amend is
denied, the trial court must give a reasoned explanation for his action.” Id. at 238; see also
Waters v. Coker, No. M2007-01867-COA-RM-CV, 2008 WL 4072104, at *6 n.3 (Tenn. Ct.
App. Aug. 28, 2008) (emphasis added) (citing Morse v. McWhorter, 290 F.3d 795, 799-800
(6th Cir. 2002)) (“In denying leave to amend, abuse of discretion may occur when the court
does not state the basis for its denial.”). The Court noted that the trial court’s order stated
that “‘the motion to amend comes too late,’” but the Court did “not consider that as being
a consideration of the motion or a reasoned explanation for his action[,]” as “[t]here is no
time limit that would apply to the motion to amend[.]” Id. Accordingly, the Court vacated
the grant of summary judgment, and remanded to allow consideration of the plaintiff’s
motion to amend. Id.


        In the instant case, the City does not contend that its motion to amend its answer was
not fully-considered by the trial court. Moreover, although the City points out that the trial
court failed to explain the basis of its denial, the City does not suggest that such failure,
alone, constituted an abuse of discretion. However, without any explanation as to why it
denied the City’s motion to amend its answer, we are unable to properly employ an abuse of
discretion review. That is, we cannot determine whether the trial court “applied incorrect
legal standards, reached an illogical conclusion, based its decision on a clearly erroneous
assessment of the evidence, or employed reasoning that causes an injustice to the
complaining party.” Wright, 337 S.W.3d at 176 (citations and quotation omitted).
Accordingly, we are constrained to remand the case to the trial court for entry of a reasoned
explanation of its actions regarding the City’s motion to amend its answer.


                                               -8-
       We are mindful of the Bellantis’ argument that the Public Duty Doctrine may not be
applicable to the facts of this case, and therefore, that an amended answer may be futile.
However, futility of amendment is a factor the trial court should consider when ruling on a
motion to amend, Conley, 236 S.W.3d at 724, and thus, a ground that should be expressly
enumerated if relied upon. Therefore, we find it inappropriate to consider the applicability
of the Public Duty Doctrine at this juncture. Moreover, because the amendment issue may
be outcome determinative, we decline to now consider other issues raised by the city: namely,
the applicability of the GTLA to the Bellantis’ claims and whether the Bellantis demonstrated
negligence by the City.


                                    V.   C ONCLUSION


        For the aforementioned reasons, we remand the case to the trial court for entry of a
reasoned explanation of its actions regarding the City’s motion to amend its answer. Costs
of this appeal are taxed equally to Appellant, the City of Memphis, and its surety, and to
Appellees, Sandra Bellanti and Albert Bellanti.


                                                   _________________________________
                                                   ALAN E. HIGHERS, P.J., W.S.




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