               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              February 25, 2015 Session

           MARTHA HUNGERFORD v. JANE BOEDEKER, ET AL.

                 Appeal from the Chancery Court for Hawkins County
            No. 2012CH89 Michael Falk, Judge Sitting by Interchange


                No. E2014-01381-COA-R3-CV-FILED-MAY 11, 2015



Martha Hungerford (“Plaintiff”) filed a petition seeking a declaration that Jimmy
Hungerford was a child and legal heir at law of Thomas Hungerford. Plaintiff filed a
motion for summary judgment. After a hearing the Chancery Court for Hawkins County
(“the Trial Court”) granted Plaintiff summary judgment. James E. Price (“Defendant”)
appeals the grant of summary judgment to Plaintiff. We find and hold that Plaintiff failed
to comply with Tenn. R. Civ. P. 56.04 and, therefore, summary judgment should not have
been granted. We vacate the grant of summary judgment and remand this case for further
proceedings.

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


D. MICHAEL SWINEY, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., C.J., and JOHN W. MCCLARTY, J., joined.

W. Keith Repass, Dandridge, Tennessee, for the appellant, James E. Price.

Christopher P. Capps, Morristown, Tennessee, for the appellee, Martha Hungerford.
                                       OPINION

                                      Background

              Plaintiff is the widow of Jimmy Hungerford who was born in Hawkins
County, Tennessee on October 29, 1934. Jimmy Hungerford died a resident of North
Carolina in November of 2007. Jimmy Hungerford’s birth certificate lists his father as
Thomas Hungerford and his mother by her maiden name of Louise Wilson. Thomas
Hungerford died a resident of the state of Texas possessing real property that produces oil
and gas royalties payable to his heirs.

              Plaintiff filed suit in April of 2012 seeking a declaration that Jimmy
Hungerford was a child and legal heir at law of Thomas Hungerford. Jane Boedeker,
Debbie Shelton, and Defendant answered Plaintiff’s petition admitting, among other
things, that Jane Boedeker “is a daughter of Tom Hungerford, although no one knows
Thomas Hungerford,” and denying that Jimmy Hungerford is an heir of Tom Hungerford.

               Plaintiff filed a motion for summary judgment supported by, among other
things, a statement of undisputed material facts and Jimmy Hungerford’s birth and death
certificates. After a hearing the Trial Court entered its order on June 17, 2014 granting
Plaintiff summary judgment after finding and holding, inter alia:

               This cause came on to be heard on the 7th day of May, 2014, before
       the Honorable Michael Falk, Circuit Court Judge for the Third Judicial
       District of Tennessee, upon the Motion for Summary Judgment filed by the
       Petitioner herein, the response of respondents Eddie Price et al, argument of
       counsel, and the record as a whole, which included a Tennessee birth
       certificate and death certificate of Jimmy Lynn Hungerford, which
       indicated that he was the son of Thomas M. Hungerford, and the marriage
       certificate of Thomas M. Hungerford to the mother of Jimmy Lynn
       Hungerford, M. Louise Hungerford, from all of which the Court finds that
       the Motion for Summary Judgment filed herein is well taken and that there
       being no genuine issue of material fact to be determined in this cause,
       judgment is granted to the Petitioner, Martha Hungerford as a matter of
       law, and said judgment is hereby ENTERED.

The record on appeal contains a copy of the marriage certificate referred to in the Trial
Court’s June 17, 2014 order that was filed on May 12, 2014, several days after the
hearing on the motion for summary judgment. Defendant appeals the grant of summary
judgment to this Court.

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                                        Discussion

              The dispositive issue in this case is whether the Trial Court erred in
granting Plaintiff summary judgment when Plaintiff failed to comply with Tenn. R. Civ.
P. 56.04. This issue raises a question of law, and we review a trial court’s conclusions of
law de novo with no presumption of correctness. S. Constructors, Inc. v. Loudon County
Bd. of Educ., 58 S.W.3d 706, 710 (Tenn. 2001).

              Pursuant to Tenn. R. Civ. P. 56.04 a motion for summary judgment “shall
be served at least thirty (30) days before the time fixed for the hearing.” Tenn. R. Civ. P.
56.04. Our Supreme Court has held:

              The purpose of the rule is to allow the opposing party time to file
       discovery depositions, affidavits, etc., as well as to provide full opportunity
       to amend. In prescribing the thirty (30) day period the rule uses the word
       “shall” and we hold that it is mandatory and not discretionary.

Craven v. Lawson, 534 S.W.2d 653, 655 (Tenn. 1976).

              In the case now before us, Plaintiff did not file the marriage certificate of
Thomas M. Hungerford to M. Louise Hungerford until several days after the hearing on
the motion for summary judgment, which in no way complies with the dictates of Tenn.
R. Civ. P. 56.04.

              In Millsaps v. Roe this Court noted that:

       [I]t has also been held that a failure to comply with Rule 56.04 does not
       require that a grant of summary judgment be set aside where the record
       does not contain any indication that the nonmoving party opposed the
       hearing of the motion within the 30-day period, requested a continuance, or
       was prejudiced by the premature hearing.

Millsaps v. Roe, No. E2003-02528-COA-R3-CV, 2004 WL 1698206, at *2 (Tenn. Ct.
App. July 29, 2004), no appl. perm. appeal filed.

              The facts in the case now before us are distinquishable from the facts in
Millsaps. In Millsaps, the hearing on the motion for summary judgment “was held one
day too soon.” Id. at *2. The Millsaps Court held that “[t]he lack of one more day to
prepare for a motion hearing can hardly be considered prejudicial under the facts of this
case.” Id. Thus, in Millsaps the nonmoving party had notice of the claim prior to the

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hearing and sufficient time in which to prepare a defense and file opposing documents if
they so chose.

              In the case now before us, the marriage certificate was not filed until after
the hearing on the motion for summary judgment and Defendant had no notice prior to
the hearing that Plaintiff was claiming that Thomas Hungerford was married to the
mother of Jimmy Hungerford. In her brief on appeal Plaintiff asserts that Defendant
“makes much of the late filed marriage certificate, a modern copy of which was presented
at the hearing, the actual copy of the original 1920 marriage certificate being filed five
days later without objection at the hearing or upon its filing.” Plaintiff has missed the
point.

               Plaintiff failed to plead the existence of the marriage of Thomas M.
Hungerford to the mother of Jimmy Lynn Hungerford, failed to argue in her motion for
summary judgment that said marriage existed, failed to include the fact of said marriage
in her statement of undisputed material facts, failed to produce a copy of the marriage
certificate until the day of the hearing on the motion for summary judgment, and failed to
file and serve a copy of the marriage certificate until after the hearing. In short, Plaintiff
gave no notice whatsoever to Defendant that she was claiming that Thomas Hungerford
was married to the mother of Jimmy Hungerford until the day of the hearing on the
motion for summary judgment.

              Our system of justice does not condone trial by ambush, and the facts
surrounding the production of the marriage certificate in this case constitute nothing short
of ambush. The Trial Court clearly relied heavily upon the marriage certificate when it
analyzed the case and granted Plaintiff summary judgment.1 We find and hold that
Defendant was prejudiced by Plaintiff’s failure to provide notice prior to the hearing on
the motion for summary judgment of her claim that Thomas Hungerford was married to
the mother of Jimmy Hungerford. Defendant was given no notice of this claim prior to
the hearing and, therefore, had no opportunity to prepare a defense. It may be that
Defendant will be unable to prepare a defense to the marriage claim, but he must be given
the time required by Tenn. R. Civ. P. 56.04 to attempt to do so.

             Given Plaintiff’s failure to comply with the dictates of Tenn. R. Civ. P.
56.04 and the fact that Defendant was prejudiced by said failure, we hold that summary


1
  It appears that the Trial Court was analyzing the case pursuant to Tenn. Code Ann. § 36-2-304, which
provides: “A man is rebuttably presumed to be the father of a child if: (1) The man and the child’s mother
are married or have been married to each other and the child is born during the marriage or within three
hundred (300) days after the marriage is terminated . . . .” Tenn. Code Ann. § 36-2-304 (2014).

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judgment was improperly granted. We vacate the grant of summary judgment and
remand this case to the Trial Court for further proceedings.

                                      Conclusion

              The judgment of the Trial Court granting summary judgment to Plaintiff is
vacated, and this cause is remanded to the Trial Court for further proceedings consistent
with this Opinion and for collection of the costs below. The costs on appeal are assessed
against the appellee, Martha Hungerford.




                                               _________________________________
                                               D. MICHAEL SWINEY, JUDGE




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