                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                         May 23, 2007 Session

 SMITH BROTHERS, INC. v. UNION CITY INSURANCE AGENCY, INC.,
                            ET AL.

                     Direct Appeal from the Circuit Court for Obion County
                     No. 5-326    Robert L. Childers, Judge by Designation



                       No. W2006-02097-COA-R3-CV - Filed June 21, 2007


The trial court awarded summary judgment in favor of Defendants in this negligence action. We
affirm.

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

DAVID R. FARMER , J., delivered the opinion of the court, in which ALAN E. HIGHERS, J., and HOLLY
M. KIRBY , J., joined.

Charles M. Agee, Jr., Dyersburg, Tennessee, for the appellant, Smith Brothers, Inc.

Lawrence W. White and Cliston V. Bodine, III, Memphis, Tennessee, for the appellee, Union City
Insurance Agency.

Robert O. Binkley, Jr. and James V. Thompson, Jackson, Tennessee, for the appellee, State Auto
Mutual Insurance Co.

                                      MEMORANDUM OPINION1

       This is a negligence action in which Plaintiff Smith Brothers, Inc., Ricky G. Smith, President
(Mr. Smith) alleges Smith Brothers lost a bid for the construction of walks, drives and curbs at the


       1
        RULE 10. M EM ORANDUM OPINION
                This Court, with the concurrence of all judges participating in the case, may affirm, reverse
       or modify the actions of the trial court by memorandum opinion when a formal opinion would have
       no precedential value. W hen a case is decided by memorandum opinion it shall be designated
       “MEMORANDUM O PINION”, shall not be published, and shall not be cited or relied on for any
       reason in any unrelated case.
Navy base in Millington due to the negligent failure of Union City Insurance Agency and State Auto
Mutual Insurance Company (collectively, Defendants) to sign his bid bond as surety. According to
Mr. Smith, the Navy solicitation for bids provided that the bid would be awarded to the lowest,
responsive, responsible bidder in accordance with Federal Acquisition Regulations. Mr. Smith
asserts he was the lowest, responsive, responsible bidder, but that he lost the bid due to Defendants’
failure to sign the otherwise completed bid bond as surety. He contends that he would have been
awarded the Navy bid but for Defendants’ negligence, and that the contract would have resulted in
a profit of $50,000 per year for three years had it been awarded to him.

        Mr. Smith filed his first complaint in this lawsuit on September 12, 2002. In February 2005,
Defendants moved for summary judgment, asserting Mr. Smith had failed to present any proof to
establish that his alleged damages were causally related to the alleged negligence of Defendants. At
the hearing of Defendants’ motion, Mr. Smith moved for a voluntary nonsuit, which the trial court
granted in June 2005. Mr. Smith refiled his action in October 2005, and Defendants again moved
for summary judgment in April 2006. In their motion, Defendants asserted Mr. Smith had

       not produced any evidence that he would have been awarded the job in question if
       the bid bond had been properly executed other than his personal belief that he would
       have been awarded the job despite the fact that he is not aware of the criteria used by
       the U.S. Navy in determining which contractor to award the bid to.

Defendants further asserted that, pursuant to the scheduling order of the trial court, all depositions
were to be completed by May 1, 2004, and that Mr. Smith had not provided any affirmative evidence
regarding causation. The trial court awarded summary judgment to Defendants on August 24, 2006,
and Mr. Smith filed a timely notice of appeal to this Court. We affirm.

                                          Issue Presented

        Mr. Smith has failed to include a Statement of the Issues in his brief to this Court. We may
consider an issue waived where it is argued in the brief but not designated as an issue. Childress v.
Union Realty Co., 97 S .W.3d 573, 578 (Tenn. Ct. App. 2002). However, because the issue is clearly
evident in the briefs filed by all parties and because it is necessarily a narrow one, we will exercise
our discretion and address it here. The issue raised by this appeal, as we perceive it, is whether the
trial court erred in awarding summary judgment to Defendants upon determining Mr. Smith failed
to present evidence that, but for Defendants’ negligence, he would have been awarded the Navy bid.

                                        Standard of Review

        Summary judgment is appropriate only when the moving party can demonstrate that there
are no disputed issues of material fact, and that it is entitled to judgment as a matter of law. Tenn.
R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993). The party moving for summary
judgment must affirmatively negate an essential element of the nonmoving party's claim, or



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conclusively establish an affirmative defense. McCarley v. West Quality Food Serv., 960 S.W.2d
585, 588 (Tenn.1 998).

        When a party makes a properly supported motion for summary judgment, the burden shifts
to the nonmoving party to establish the existence of disputed material facts. Id. A mere assertion
that the nonmoving party has no evidence does not suffice to entitle the moving party to summary
judgment. Id. In determining whether to award summary judgment, the trial court must view the
evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in
that party's favor. Staples v. CBL & Assocs., 15 S.W.3d 83, 89 (Tenn. 2000). The court should
award summary judgment only when a reasonable person could reach only one conclusion based on
the facts and the inferences drawn from those facts. Id. Summary judgment is not appropriate if
there is any doubt about whether a genuine issue of material fact exists. McCarley, 960 S.W.2d at
588. We review an award of summary judgment de novo, with no presumption of correctness
afforded to the trial court. Guy v. Mut. of Omaha Ins. Co., 79 S.W.3d 528, 534 (Tenn. 2002).

                                               Analysis

       Our analysis in this case is confined to whether a genuine issue of material fact exists which
would preclude an award of summary judgment regarding negligence in this matter. We hold that
summary judgment is appropriate in this matter where Mr. Smith has failed to come forward with
any evidence that, but for Defendants’ negligence, he would have been awarded the Navy bid.

        It is well-established that to establish negligence the plaintiff must prove: (1) a duty of care
owed by defendant to plaintiff; (2) conduct falling below the applicable standard of care that amounts
to a breach of that duty; (3) injury or loss; (4) cause in fact; and (5) proximate, or legal, cause.
McClung v. Delta Square Ltd., 937 S.W.2d 891, 894 (Tenn.1996). In this case, Mr. Smith asserts
the trial court awarded summary judgment to Defendants based solely on his deposition, which
Defendants assert fails to demonstrate a causal connection between Defendants’ negligence and Mr.
Smith’s loss. Mr. Smith submits the trial court erred in awarding summary judgment to Defendants
where his affidavit clearly sets forth a causal connection by alleging that the only reason his bid was
rejected was due to the negligence of Defendants in failing to sign the bid bond. Defendants, on the
other hand, argue that Mr. Smith has failed to come forward with any evidence, other than his own
assertion, that he would have been awarded the bid had the bid bond been properly executed. They
further assert that Mr. Smith was unaware of the criteria used by the Navy in awarding the contract
and could not state that price is the only factor utilized. Defendants also assert that there is no
evidence in the record to demonstrate the criteria used by the Navy in awarding the bid.
Additionally, Defendants argue that the trial court provided Mr. Smith with more than adequate time
to obtain testimony from Navy officials, and that Mr. Smith has failed to obtain such testimony or
to identify steps taken to do so.

       Upon review of the record, we agree with the trial court that Mr. Smith has failed to come
forward with any evidence to demonstrate causation in this case. The record contains two letters



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from the Navy to Mr. Smith pertaining to his bid for the Millington project. The first, dated
September 17, 2001, states:

       After review of your bid dated 23 August 2001 for the above subject solicitation, the
       government has found your bid to be non-responsive and therefore unable to be
       considered for award.

       Your bid was found non-responsive due to the bid bond that you submitted not being
       signed by the surety. Without the surety’s signature, the bond is not legal or binding.

The second letter, dated September 25, 2001, states:

       This is to inform you that the subject contract has been awarded to Precise Concrete
       Works . . . in the Not-To-Exceed amount of $480,050.00 for Bid Item 0001.

        We agree with Defendants that these letters do not establish that Mr. Smith would have been
awarded the contract had the bond been properly signed and the bid “responsive.” We also agree
that Mr. Smith’s affidavit, without more, is insufficient to demonstrate the Navy’s criteria in
awarding bids. In the four years following the filing of Mr. Smith’s complaint, during which the
trial court allowed Mr. Smith to nonsuit the matter despite the pendency of Defendants’ motion for
summary judgment and granted him an ample extension of time for discovery, Mr. Smith simply
failed to provide any evidence which would establish that he would have been awarded the Navy
contract had the bid bond been properly executed.

                                               Holding

       In light of the foregoing, the judgment of the trial court is affirmed. Costs of this appeal are
taxed to the Appellant, Smith Brothers, Inc., and its surety, for which execution may issue if
necessary.



                                                       ___________________________________
                                                       DAVID R. FARMER, JUDGE




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