                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                      July 7, 2000 Session

               SUSAN R. GODFREY, ET AL. v. JESUS RUIZ, ET AL.

                     Appeal from the Circuit Court for Davidson County
                         No. 97C-503    Barbara N. Haynes, Judge



                    No. M2000-00101-COA-R3-CV - Filed October 4, 2001


This case arises from an automobile accident resulting in personal injuries to plaintiffs. The
defendants, Mr. & Mrs. Ruiz, filed a motion for summary judgment on the grounds that their cousin,
Mr. Corpus, was driving their vehicle without their permission or knowledge at the time of the
accident. The trial court granted the motion and plaintiffs appeal. Plaintiffs assert that under Tenn.
Code Ann. § 55-10-311, defendants are not entitled to summary judgment based solely on their own
self-serving affidavits and depositions. We affirm the summary judgment.

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

PATRICIA J. COTTRELL , J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S.,
joined. WILLIAM B. CAIN , J., filed a dissenting opinion.

Joseph M. Dalton, Jr., Catherine S. Hughes, Nashville, Tennessee, for the appellants, Susan R.
Godfrey and Rickey E. Godfrey.

Clifton B. Sobel, Jr., Nashville, Tennessee, for the appellees, Jesus Ruiz and wife, Shawanda Ruiz.

                                             OPINION

         This case arises from an automobile accident which occurred on August 4, 1996. Ricardo
Corpus was operating a 1984 Chevrolet van owned by Jesus Ruiz and his wife Shawanda Ruiz when
it collided with the vehicle in which Rickey Godfrey and his wife Susan Godfrey were riding. Mr.
Corpus is the cousin of Mr. Ruiz and had been living with Mr. and Mrs. Ruiz for approximately a
month and a half prior to this accident. Both Mr. and Mrs. Ruiz testified that they have not seen Mr.
Corpus since the accident.

       Mr. and Mrs. Ruiz both testified that they were away from home attending to personal family
business at the time of the accident and had no knowledge that Mr. Corpus was driving their van.
They testified that the keys to the van were kept in a drawer in their bedroom and that Mr. Corpus
did not have their permission to drive the vehicle. The Ruizes testified that Mr. Corpus had never
been given permission to drive the vehicle. In fact, they asserted, they learned that Mr. Corpus was
driving the vehicle for the first time after the accident that afternoon.

         Mr. Ruiz is an independent contractor who hangs drywall for a living. Mr. and Mrs. Ruiz
testified that the van Mr. Corpus was driving was maintained for Mr. Ruiz’s work in the construction
business. Mr. Ruiz did not maintain his own business, but instead was employed by Quality Drywall
in Dickson, Tennessee at the time of the accident. Mr. Ruiz testified that Mr. Corpus was not
employed by Mr. Ruiz. However, Mr. Ruiz had helped Mr. Corpus obtain employment in the
construction business, and Mr. Corpus was working with him in the days before the accident. Mr.
Ruiz admits that he paid Mr. Corpus for the work he did on the job. However, Mr. Ruiz testified that
they were both employed by and answered to the same boss, Don Cards, of Quality Drywall.

        The Godfreys sued the driver of the van, Mr. Corpus, and the owners, Mr. and Mrs. Ruiz, for
the injuries they sustained as a result of the accident. The record in this case consists of the
pleadings, the Godfreys’ depositions under oath, the Ruizes’ depositions under oath, and their
affidavits in support of their motion for summary judgment. The trial court granted summary
judgment to defendants, Mr. and Mrs. Ruiz, finding there was no material fact in controversy and
that Mr. and Mrs. Ruiz were entitled to judgment as a matter of law.1

                                                      I.

          A trial court’s grant of a motion for summary judgment presents a question of law that we
review de novo without a presumption of correctness. Goodloe v. State, 36 S.W.3d 62, 65 (Tenn.
2001); Mooney v. Sneed, 30 S.W.3d 304, 306 (Tenn. 2000); Finister v. Humbolt Gen. Hosp., Inc.,
970 S.W.2d 435, 437 (Tenn. 1998). Accordingly, the appellate court must make a fresh
determination concerning whether the movant has met the requirements of Tenn. R. Civ. P. 56.
Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997); Mason v. Seaton, 942 S.W.2d 470, 472
(Tenn. 1997). When faced with a motion for summary judgment, “parties may neither ignore it nor
treat it lightly.” Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993).

       Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories
and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any
material facts and the moving party is entitled to a judgment as a matter of law. Tenn. R. Civ. P.
56.04; Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997); Carvell v. Bottoms, 900 S.W.2d 23, 26
(Tenn. 1995); Byrd v. Hall, 847 S.W.2d at 214. A disputed fact is material for summary judgment
purposes if it must be decided in order to resolve a substantive claim or defense underlying the
summary judgment motion. Id.




        1
          After summary judgment was granted and permission to appeal denied by th e trial court, the G odfreys
voluntarily dismissed the cause of action aga inst Mr. Corpus.

                                                     -2-
       In reviewing a grant of summary judgment, we must view the evidence in the light most
favorable to the Godfreys and must also draw all reasonable inferences in their favor. Robinson v.
Omer, 952 S.W.2d 423, 426 (Tenn. 1997); Mike v. Po Group, Inc., 937 S.W.2d 790, 792 (Tenn.
1996). Thus, summary judgment should be granted only when the undisputed facts reasonably
support one conclusion, namely, that Mr. and Mrs. Ruiz are entitled to a judgment as a matter of law.
McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995); Carvell v. Bottoms, 900 S.W.2d at 26.

                                                              II.

         In their complaint, the Godfreys alleged that Mr. Corpus was operating the van owned by Mr.
and Mrs. Ruiz with their permission and, consequently, his negligence was imputed to them. Mr.
and Mrs. Ruiz moved for summary judgment on the basis that Mr. Corpus was driving their vehicle
at the time of the accident without their permission or knowledge. They argued that in the face of
their testimony that they never gave Mr. Corpus permission to drive their van, no evidence existed
to establish a basis for their liability under any theory of imputed liability. 2

         As to the issue relevant in this appeal, Mr. and Mrs. Ruiz argued that their undisputed
testimony established that there was no agency relationship between them and Mr. Corpus, thereby
overcoming the presumption, or prima facie evidence, of an agency relationship created by the
statute relied upon by the Godfreys, Tenn. Code Ann. § 55-10-311. The Godfreys used that statute
to establish proof that the van was being operated with the knowledge and consent of Mr. and Mrs.
Ruiz and by their agent. That statute provides, in pertinent part:

         In all actions for injury to persons and/or to property caused by the negligent
         operation or use of any automobile, auto truck, motorcycle, or other motor propelled
         vehicle within this state, proof of ownership of such vehicle shall be prima facie
         evidence that the vehicle at the time of the cause of action sued on was being
         operated and used with authority, consent and knowledge of the owner in the very
         transaction out of which the injury or cause of action arose, and such proof of


         2
           The complaint did not allege any specific theory of liability but merely asserted liability against Mr. and M rs.
Ruiz on the basis that the vehicle was owned by them and being operated with their perm ission. Mr. and M rs. Ruiz first
asserted that permissive use alone doe s not establish a basis for imposition of liability upon the owner of the vehicle for
the actions of the user, citing Hamrick v. Spring City Motor Co., 708 S.W .2d 383 , 385 (T enn. 198 6). In any eve nt, a
cause of action based on permissive use requires a showing of use by permission, and they asserted there was no evidence
they ever gave Mr. Corpus permission to drive the van for any purpose. Second, they argued that a cause of action based
on negligent entrustment requires that defendants entrusted the vehicle to the driver with knowledge the driver was
incompetent to use it. Nichols v. A tnip, 844 S.W.2d 655, 659 (Tenn. Ct. App. 1992). Again, Mr. and Mrs. Ruiz testified
they did not give Mr. Co rpus perm ission to use the v an. Similarly, the fam ily purpose d octrine, in order for liab ility to
attach to the owner, requires that the head of the household maintain the vehicle for the purpose of providing pleasure
or comfort to his or her family and that the driver must have been using the vehicle at the time of the injury in furtherance
of that purpose with the express or implied pe rmission of the owner. Camper v. Minor, 915 S.W.2d 437 , 447 (Tenn.
1996). Mr. and Mrs. Ruiz asse rted that the van was maintained for bu siness purposes, not for family use, and there was
no proof which could be produced that Mr. Corpus was using the van in furtherance of any family purpose. Again, they
relied on their testimony that they had never given Mr. Corpus permission to use the van for any purpose.

                                                             -3-
       ownership likewise shall be prima facie evidence that the vehicle was then and there
       being operated by the owner, or by the owner’s servant, for the owner’s use and
       benefit and within the course and scope of the servant’s employment.

Tenn. Code Ann. § 55-10-311(a) (1998 & Supp. 2000).

        The Godfreys assert that the statute meets their burden of proof and that summary judgment
for defendants was improper. The prima facie case of agency created by the statute can be rebutted
by “credible proof that the driver was in fact operating a vehicle without authority of the owner.”
Hunter v. Burke, 958 S.W.2d 751, 755 (Tenn. Ct. App. 1997) (quoting Ferguson v. Tomerlin, 656
S.W.2d 378, 381-82 (Tenn. Ct. App. 1983)). The burden of overcoming the statutory prima facie
case rests upon the owner, once proof of ownership is established. Id. That burden can be met by
presenting credible evidence that the driver took the car without the owner’s knowledge or consent.
Id. Consequently, “[i]f it can be said as a matter of law that there was no agency, a motion for
summary judgment on that issue should be sustained.” Yearby v. Shannon, No. 03A01-9509-CV-
00345, 1996 WL 87446, at *5 (Tenn. Ct. App. Feb. 29, 1996) (no Tenn. R. App. P. 11 application
filed) (citing Haggard v. Jim Clayton Motors, Inc., 393 S.W.2d 292 (Tenn. 1965)(“before a trial
judge may take the question from the jury, the evidence must be such that it can be said, as a matter
of law, that there was no agency”)). Uncontradicted evidence that there was no agency displaces the
statutorily created prima facie case of such agency “where such evidence is uncontradicted and
comes from witnesses whose credibility is not in issue.” Id. (citing McConnell v. Jones, 33 Tenn.
App. 14, 228 S.W.2d 117 (1949); McParland v. Pruitt, 39 Tenn. App. 399, 284 S.W.2d 299 (1955);
Sadler v. Draper, 46 Tenn. App. 1, 326 S.W.2d 148 (1959)).

        The question of whether the statute’s prima facie case of agency precludes summary
judgment was answered by this court in Ferguson v. Tomerlin, 656 S.W.2d 378, 381 (Tenn. Ct. App.
1983), wherein this court set aside a jury verdict against the owner of a car on the basis that the trial
court should have granted summary judgment to the owner prior to trial. At the time of the
defendant owner’s motion for summary judgment, the record consisted of the pleadings and
interrogatories with the owner’s answers thereto. The owner answered he had furnished the car to
his daughter for her use only and with specific instructions not to allow anyone else to drive it. Id.
at 380. The daughter had loaned the car to a friend, contrary to her father’s instructions, and the
friend was driving when the accident occurred. In analyzing the situation at the time the motion was
made, this court stated:

        More specifically, Mr. Tomerlin contends that at the summary judgment stage
        plaintiff was relying solely on the statutory presumption of agency; that the record
        then contained undisputed, uncontradicted and unimpeached evidence that no agency
        relationship existed between Mr. Tomerlin and Mr. Luna; that therefore the statutory
        presumption of agency disappeared; that plaintiff was then obligated but failed to
        offer independent proof of agency; and that, consequently, defendant was entitled to
        judgment as a matter of law. We agree.



                                                  -4-
Id. at 381.

      This court relied on well-settled authority that uncontradicted and unimpeached evidence
showing a lack of agency causes the statutory presumption, or prima facie case, to disappear. Id. at
381. Such evidence, to justify removing the question from the jury, must be uncontradicted and
unimpeached.

         As the Godfreys point out, after Ferguson v. Tomerlin, the Supreme Court of Tennessee
questioned whether summary judgment is appropriate in cases involving the statutorily-created
prima facie evidence of agency in Hamrick v. Spring City Motor Co., 708 S.W.2d 383 (Tenn. 1986).
In that opinion, the Supreme Court specifically stated, “Because the statute itself creates initially a
sufficient case of master-servant status upon proof of ownership, a serious question is presented as
to whether or not this prima facie case can be overcome pre-trial by motion for summary judgment.”
Id. at 387. The Hamrick court stated that ordinarily the prima facie evidence established by proof
of ownership is sufficient to overcome a motion for directed verdict as well as a motion for summary
judgment. Id. at 388. However, the Court also stated, “We do not find it necessary expressly to
overrule Ferguson v. Tomerlin, 656 S.W.2d 378 (Tenn. App. 1983), because there are so many types
of cases that arise under the statute involved here. There may be some instances where summary
disposition could be warranted.” Id. at 389.

        The factual dispute in Hamrick involved that portion of the statute relating to test drives by
prospective purchasers,3 a distinction from Ferguson recognized by the Supreme Court. Id. at 388.
In Hamrick, the driver’s lengthy deposition left it possible to draw different conclusions as to
“whether Mr. Champion was still ‘test-driving’ the automobile . . . or whether he had so far finalized
the purchase that he should be deemed the owner and no longer within the purview of the statute.”
Id. at 388. There were also inconsistences in testimony regarding aspects of the transaction. The
court held that, at the point of considering summary judgment, the plaintiffs were entitled to the most
favorable view of the evidence as well as reliance on the statute for establishment of the master-
servant relationship. Id. at 389. Based upon the record at that time, the court found that it was
“premature” for the trial court to grant summary judgment.

        Later, in Warren v. Estate of Kirk, 954 S.W.2d 722, 724 (Tenn. 1997), our Supreme Court
acknowledged that the Hamrick decision stopped short of holding that proof of ownership will defeat
a summary judgment motion and recognized that there are some instances when it would be
appropriate. In Warren, the Court found that summary judgment was not appropriate in that case,
however, not because summary judgment was never appropriate, but because there was a genuine
issue of fact because the record




          3
            Tenn. Code Ann. § 55-10-311 also applies “in cases of the negligent operation of a vehicle being test-driven
by a prospective purchaser with the knowledge and consent of the seller or his agent whether or not the seller or his agent
is present in the v ehicle at the time of the alleged negligent op eration.”

                                                           -5-
        does not show the purpose of the trip on which the owner’s employee was driving the
        owner’s vehicle. Kirk had Duncan’s express permission to operate the vehicle during
        work, traveling to and from work, and transporting other employees to and from
        work. The prohibitions on the use of the vehicle stated by Duncan in his deposition
        and affidavit do not necessarily proscribe Kirk’s operation of the truck at the time of
        the accident in the course and scope of his employment. . . . In summary, he [Kirk]
        was responsible for all the duties incident to his job as foreman for an absentee
        owner. As to those duties, Kirk had at least implicit permission to use the pickup
        truck. . . . The evidence presented on the motion for summary judgment is not
        conclusive proof that Kirk was not acting within the course and scope of his
        employment at the time of the accident.

Id. at 725.

        The Godfreys rely on Hamick and Estate of Kirk for the proposition that summary judgment
is not appropriate for defendant owners in the face of Tenn. Code Ann. § 55-10-311. We think that
reliance is misplaced. As those cases make clear, summary judgment may be warranted in some
situations. In those two cases, the facts were in dispute or insufficient to constitute uncontradicted
evidence that no permission and no agency existed. Thus, we conclude that a motion for summary
judgment in a case involving liability imputed to an owner of a vehicle driven by another on the basis
of permissive use through a master-servant or agency relationship is to be analyzed just as such a
motion in any other case. Where a plaintiff meets her initial burden of establishing such a
relationship by reliance on Tenn. Code Ann. § 55-10-311, the question becomes whether the
defendant presents credible evidence which, if uncontradicted, is sufficient to rebut the prima facie
case established by the statute. One way to do that is to present proof that the driver was operating
the vehicle without the knowledge or permission of the owner. Hunter v. Burke, 958 S.W.2d at 755.

        Once the Ruizes provided testimony that Mr. Corpus did not have permission from them to
ever drive their van and that he did so without their knowledge, the burden shifted to the Godfreys
“to produce evidence which would establish a genuine factual dispute.” Brown v. J. C. Penney Life
Ins. Co., 861 S.W.2d 834, 837 (Tenn. Ct. App. 1992).

        When the party seeking summary judgment makes a properly supported motion, the
        burden then shifts to the nonmoving party to set forth specific facts, not legal
        conclusions, by using affidavits or the discovery materials listed in Rule 56.03,
        establishing that there are indeed disputed, material facts creating a genuine issue that
        needs to be resolved by the trier of fact and that a trial is therefore necessary. The
        nonmoving party may not rely upon the allegations or denials of his pleadings in
        carrying out this burden as mandated by Rule 56.05.

Byrd v. Hall, 847 S.W.2d at 215. The Godfreys came forward with no such facts. They continued
to rely only on the evidence of agency presumed from ownership by virtue of the statute. We are
aware of the significance of the legislative action changing “presumption” to “prima facie case,” as


                                                  -6-
explained in Hamrick, but we do not believe that change allows the plaintiffs to rest only on the
statute in opposition to a motion for summary judgment with supporting evidence disproving an
agency or master-servant relationship. In the case before us, the Godfreys did not attend or take part
in the depositions of Mr. and Mrs. Ruiz. Thus, they did not ask them any questions designed to lead
to other proof relevant to the issues of permission, employment, or scope of employment. The record
does not include any other discovery efforts on the part of the Godfreys, and they do not assert that
they made any. Their position is that they could rely on the statute regardless of any evidence
presented by defendants in support of their motion for summary judgment. We do not agree that the
summary judgment procedure is ineffective in this situation to require plaintiffs to come forward
with evidence contradicting that supplied by defendants or risk a judgment of dismissal.

       Thus, contrary to the arguments presented by the Godfreys, we conclude that summary
judgment is available to an owner who presents uncontradicted evidence disproving agency or
permission. To hold otherwise is to suggest that proof of ownership is always sufficient to overcome
summary judgment, regardless of the facts presented by the defendant owners.4 We simply do not
believe that every case where a plaintiff can show ownership is required to proceed to trial.

        In fact, summary judgment has been granted where evidence disproving agency was provided
by the owner and remained uncontradicted by plaintiffs. Yearby v. Shannon, 1996 WL 87446, at *4-
6; Dillard v. Rubin, No. 01A01-9102-CV-00052, 1991 WL 119059, at *2 (Tenn. Ct. App. Jul. 5,
1991) (no Tenn. R. App. P. 11 application filed); Vise v. Swift, no docket no., 1989 WL 89752, at
*2-3 (Tenn. Ct. App. Aug. 8, 1989) (no Tenn. R. App. P. 11 application filed); Monroe v. Craddock,
No. 88-102-II, 1988 WL 74618, at *1-2 (Tenn. Ct. App. Jul. 20, 1988) (no Tenn. R. App. P. 11
application filed); Redd v. Air-Conditioning Serv., Inc., No. 88-149-II, 1988 WL 97227, at *3 (Tenn.
Ct. App. Sept. 23, 1988) (no Tenn. R. App. P. 11 application filed).

        In Vise v. Swift, the defendant owners of the vehicle involved in the accident, Ricky and
Rhonda Ford, submitted affidavits establishing that neither the driver nor their friend who had
borrowed the car “was on their business or acting on their behalf at the time of the accident.” 1989
WL 89752, at *2. Their affidavits were supported by the depositions of the driver and the friend to
the effect that the driver did not have the owners’ permission to drive their car and that neither of
them had used the car in performing any business or service for the owners. Summary judgment was
sustained because the plaintiffs failed to produce any proof on the issue of agency and the affidavits
and depositions established that there was no agency upon which to impose liability. Id. at *2-3.
This court found that the evidence submitted by the defendants stood unimpeached and
uncontradicted, effectively rebutting the prima facie evidence created by statute and relied upon
exclusively by plaintiffs.


         4
           For example, if a defendant presented evidence demonstrating that her car had been stolen, through her own
affidavit and evidence from other, disinterested sources, the absolute position taken by the Godfreys would preclude
summary judgment. In addition, ownership of a vehic le alone does not create liability for negligent acts of another
operating the vehic le. In fact, permissive use alone do es not create such liability. As the S upreme C ourt stated in
Hamrick: “Permissive use, standing alone, establishes only a bailment. In and of itself it is not a basis for the imposition
of personal liability upon the owner of a vehicle.” 708 S.W.2d at 385.

                                                            -7-
        Similarly, in Redd v. Air-Conditioning Serv., Inc. the defendant driver of the vehicle was an
employee of the defendant owner. 1988 WL 97227, at *1. The testimony supporting the summary
judgment motion stated that the driver was assigned the truck to perform his duties during working
hours. On the day of the accident, the driver learned that his personal car was missing and went to
look for it in the company vehicle. He drank five beers while looking for his car. There was a
written policy that the vehicles were not to be used for personal use, including taking them home,
although, supervisors did not seem to object when employees did take the vehicles home. After a
long analysis of cases on point, summary judgment was sustained because

       this case presents an instance where summary judgment is the proper procedure. No
       question of credibility of witnesses is involved. The evidence here is clear and
       unrebutted that Brian Allen Smith was not in the business of his employer. He was
       not “in the course and scope of employment at the time of the accident.”

Id. at *2-3. We further stated, “If the plaintiffs had other evidence, they were bound to come forward
with it or face having the motion for summary judgment sustained.” Id. at *3.

        Thus, summary judgment is not precluded in favor of a defendant owner of a vehicle when
plaintiff relies on Tenn. Code Ann. § 55-10-311(a) to establish an agency or master-servant
relationship in order to impute a driver’s negligence to the owner. Summary judgment is appropriate
when the owner presents uncontradicted, unimpeached evidence that the driver was operating the
vehicle without the permission, knowledge, or authority of the owner.

        We turn now to the question of whether the evidence presented by Mr. and Mrs. Ruiz was
sufficient to support the grant of summary judgment.

                                                 III.

     In this case, Mr. and Mrs. Ruiz submitted similar affidavits in support of their motion for
summary judgment stating the following:

       1. Ricardo Corpus is not and has never been my [husband’s] employee.
       2. The automobile which is the subject of this cause of action was purchased by me
       [my husband] for the purposes of conducting my [his] business as a drywall hanger.
       3. The keys to the 1984 Chevrolet van were kept in my bedroom and they were not
       available for anyone to use but me [my husband].
       4. At no time while Mr. Corpus was visiting in my home did he have permission to
       use or otherwise operate the van involved in the accident which is the subject of this
       action.
       5. On the date of this accident, my wife, Shawanda Ruiz, [my husband, Jesus Ruiz]
       and I had been out of the home conducting personal business, and the last time I saw
       the van in question, it was parked in my driveway.



                                                 -8-
        After the affidavits were signed and submitted in support of the motion for summary
judgment, Mr. and Mrs. Ruiz were deposed under oath. The attorney for the Godfreys was not
present at the depositions and did not cross examine Mr. or Mrs. Ruiz as to any statements contained
in the affidavits despite knowledge of the pending motion for summary judgment.5 The deposition
testimony of both Mr. and Mrs. Ruiz was consistent with their affidavits. Essentially, they
reaffirmed that they had never given Mr. Corpus permission to drive the van and that he was doing
so on the day of the accident without their knowledge or permission.

         However, at his deposition, Mr. Ruiz testified as follows:

         Q: Can you read English?
         A: No.
         Q: Okay. All right. I have an affidavit here from you. Is that your signature?
         A: Yes.
         Q: Did somebody read the affidavit to you?
         A: No.
         Q: Okay. All right. How did you get the information? How do you know what it
         says then?
         A: I just signed it.

        The Godfreys argue that the affidavits submitted by Mr. and Mrs. Ruiz are self-serving and
that their credibility was impeached during the deposition of Mr. Ruiz when he admitted to having
not read the affidavit before signing it. They assert that “simply denying that Corpus had permission
to use the subject vehicle, while admitting to signing an affidavit and having no idea of its contents
leaves open questions involving credibility and bias. . . . In sum, the subject vehicle is registered to
both Mr. and Mrs. Ruiz and their self-serving, unread affidavits, should be insufficient proof to
overcome the prima facie case established by Tenn. Code Ann. §§ 55-10-311 and 55-10-312.”6 In
other words, the Godfreys assert that the testimony submitted by Mr. and Mrs. Ruiz cannot overcome
the statutory evidence of agency because the testimony is self-serving and the credibility of the
defendants has been impeached.

                                                             IV.


         5
          The depositions were conducted by the attorney for the Godfreys’ uninsured motorist carrier.

         6
          W e note, however, that the plaintiffs do not argue or rely on Tenn. Code Ann. § 55 -10-312 anywhere in the ir
brief other than this one conclusory sentenc e. Consequently, we will only address the issues arising under § 55-10-311.
In any event, T enn. Cod e Ann. § 5 5-10-31 2 states that pro of of registration of a motor-propelled vehicle is prim a facie
evidence of ownersh ip of the vehicle and is also prima facie evidence that the vehicle was being operated by the owner
or by the owner’s serv ant in the cours e and sco pe of the serv ant’s emplo yment. Thu s, we do no t interpret this statute as
adding a different or additiona l basis for liability. Fergus on v. Tom lin, 656 S.W .2d at 379 n.3 (“for purp oses of this
appeal we need o nly consider T .C.A. § 55 -10-311 since the pres umption ra ised by both statutes is identical.”)
Additiona lly, the Godfreys do not argue in their brief the applicability of the theories of per missive use, negligent
entrustment or family purpose doctrine, and instead focus solely on imputed negligence arising through agency
established in Tenn. C ode Ann . § 55-10 -311.

                                                             -9-
       We first note that the summary judgment was not based solely on the affidavit testimony;
deposition testimony was submitted. The Godfreys offered no testimony to contradict the
defendants’ sworn statements that Mr. Corpus was operating their vehicle without their knowledge
or permission. Their uncontradicted evidence that there was no agency is a sufficient basis for
summary judgment in their favor “where such evidence is uncontradicted and comes from witnesses
whose credibility is not in issue.” Yearby v. Shannon, 1996 WL 87446, at *5 (citing McConnell v.
Jones, 33 Tenn. App. 14, 228 S.W.2d 117 (1949); McParland v. Pruitt, 39 Tenn. App. 399, 284
S.W.2d 299 (1955); Sadler v. Draper, 46 Tenn. App. 1, 326 S.W.2d 148 (1959)).

       Testimony may not be disregarded arbitrarily or capriciously; and the testimony of
       a witness who is not discredited in any of the modes recognized by law, must be
       accepted as true.

Ferguson v. Tomerlin, 656 S.W.2d at 382 (quoting Haggard v. Jim Clayton Motors, Inc., 216 Tenn.
at 631, 393 S.W.2d at 295) (quoting Phillips-Buttorff Mfg. Co. v. McAlexander, 15 Tenn. App. 618,
627 (1932)). Conversely,

       [o]rdinarily the testimony of a witness who is not contradicted, impeached, or
       discredited must be accepted as true, but that if the witness relied upon to establish
       a given fact be impeached (by evidence directed against his general character for
       veracity) or discredited in any of the modes recognized by law, that fact may not be
       treated as established as a matter of law or for purposes of a motion for peremptory
       instructions.

Ford v. Reeder Chevrolet Co., 663 S.W.2d 803, 804 (Tenn. Ct. App. 1983) (quoting Welch v. Young,
11 Tenn. App. 431, 439 (1930)).

        The issue of whether “self-serving” testimony, or testimony of an interested party, can
support a motion for summary judgment where the only contradictory evidence is that presented by
the statute has been settled adversely to the Godfreys’ position in that summary judgment has
routinely been granted based upon the self-serving affidavits and deposition testimony of the
defendant owner. For example, in Ferguson v. Tomerlin, summary judgment was determined to be
appropriate on the basis of the defendant owner’s testimony that he had let his daughter use the
vehicle with specific instructions not to let anyone else drive it. In Monroe v. Craddock, the only
evidence of ownership of the vehicle was the title stating that Clyde Craddock owned the vehicle
involved in the accident. 1988 WL 74618, at *2. However, in the only deposition in the record,
Clyde Craddock testified, without contradiction, that he had given the vehicle to his son several
months prior. The plaintiff asserted that this contradiction or question of ownership should preclude
summary judgment. The court disagreed, holding:

       even if Clyde Craddock were the owner of the van, the motion for summary
       judgment under this theory [Tenn. Code Ann. § 55-10-311] must be sustained. Clyde
       Craddock testified unequivocally that Phillip Craddock was using the van for his


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       (Phillip’s) benefit. He was not the agent of, or on the business of, Clyde Craddock.
       Plaintiff offered no proof to support her claim that Phillip Craddock was acting on
       any business or purpose for Clyde Craddock.

Id.

        Also in Yearby v. Shannon, summary judgment was affirmed based on the self serving
affidavits of the defendant owners, obviously interested parties. 1996 WL 87446, at *4. In Yearby,
the defendant owner submitted an affidavit stating that the defendant driver was not his employee
and was not on any business of his at the time of the accident. Id. This court held that the owner
was not impeached, nor his credibility attacked, in any mode recognized by law and that there was
no evidence to contradict the statements made by the owner. Therefore, there was no genuine issue
of material fact on the issue of agency and reasonable minds could not differ in concluding that there
was no agency relationship. Id. at *5.

        We note that in other contexts self-serving testimony, or testimony from a party interested
in the outcome of the case, has been found sufficient to support a motion for summary judgment
when it remains uncontradicted. See, e.g., Gonzales v. Alman Construction Co., 857 S.W.2d 42, 48-
49 (Tenn. Ct. App. 1993); Armes v. Hulett, 843 S.W.2d 427, 431-32 (Tenn. Ct. App. 1992). See also
Dillard v. Rubin, No. 01-A01-9102-CV-00052, 1991 WL 119059, at *2 (Tenn. Ct. App. July 5,
1991) (no Tenn. R. App. P. 11 application filed) (citing Smith v. Graves, 672 S.W.2d 787 (Tenn. Ct.
App. 1984)).

        The fact that the Mr. and Mrs. Ruiz did not read their affidavits prior to signing may leave
open to question whether the affidavits are valid or in compliance with the rules of civil procedure.
We do not condone the execution or filing of an affidavit which has not been read by the affiant. Mr.
Ruiz’s statement that he had not read the affidavit before signing it might serve to make it
inadmissible for purposes of summary judgment. See Tenn. R. Civ. P. 56.06. However, both Mr.
and Mrs. Ruiz confirmed the facts contained in the affidavit at their deposition under oath, and
absolutely no contradiction of the information contained therein was brought out at the deposition
or otherwise. Thus, in view of the circumstances of this situation, including Mr. Ruiz’s testimony
that he cannot read English and the total consistency between the affidavit and his later testimony,
we cannot conclude that the credibility of Mr. Ruiz’s deposition testimony has been raised
sufficiently to preclude summary judgment based thereon.

        Summary judgment should not be undermined by credibility concerns “unless they rise to a
level higher than the normal credibility questions that arise whenever a witness takes the stand.”
Jennings v. Case, 10 S.W.3d 625, 638 (Tenn. Ct. App. 1999) (dissent) (citing Hepp v. Joe B’s, Inc.,
No. 01A01-9604-CV-00183, 1997 WL 266839, at *2 (Tenn. Ct. App. May 21, 1997) (no Tenn. R.
App. P. 11 application filed)). Moreover, we find that the credibility of Mr. and Mrs. Ruiz has not
been impeached “by any of the modes recognized by law.” See Yearby v. Shannon, 1996 WL
87446, at *5 (citing Haggard v. Jim Clayton Motors, Inc., 216 Tenn. 625, 393 S.W.2d 292; Buck v.
West, 434 S.W.2d at 616; Ford v. Reeder Chevrolet, 663 S.W.2d at 804 (quoting Yellow Cab, Inc.


                                                -11-
of Morristown v. York, 58 Tenn. App. 177, 427 S.W.2d 854 (1967)); Welch v. Young, 11 Tenn. App.
at 440.

                                                  V.

        Parties are not to take summary judgment lightly, Byrd, 847 S.W.2d at 210, and when Mr.
and Mrs. Ruiz rebutted the prima facie evidence, the burden then shifted back to the Godfreys to
present evidence to impeach, contradict, or otherwise establish a genuine issue of fact material to the
elements of agency. “If the plaintiffs had other evidence, they were bound to come forward with it
or face having the motion for summary judgment sustained.” Redd v. Air-Conditioning Serv., Inc.,
1988 WL 97227, at *3 (citing Moman v. Walden, 719 S.W.2d 531, 533 (Tenn. Ct. App. 1986)). As
this court stated in Ferguson v. Tomerlin:

       Plaintiff stood on the presumption only to have it be effectively rebutted by the
       uncontradicted, unimpeached and unrefuted proof of lack of agency contained in the
       interrogatory answers of Mr. Tomerlin, a witness whose credibility was not put in
       issue by the plaintiff at the summary judgment stage. Under these circumstances we
       think it clear that the presumption was displaced and, agency not being otherwise
       shown, defendant was entitled to judgment as a matter of law.

656 S.W.2d at 382.

        The situation before us is the same. There is absolutely no evidence in the record to refute
the assertions made by Mr. and Mrs. Ruiz that Mr. Corpus was not an employee of Mr. Ruiz, was
not on any business of Mr. or Mrs. Ruiz at the time of the accident, and was driving the vehicle
without their permission. Therefore, we must affirm the summary judgment.

       This cause is remanded to the trial court for further action not inconsistent with this opinion.
The costs of this appeal are taxed to the appellants, Susan R. Godfrey and Rickey E. Godfrey, for
which execution may issue, if necessary.



                                                        _______________________________
                                                        PATRICIA J. COTTRELL, JUDGE




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