IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE
FILED November 23, 1999
Cecil Crowson, Jr. Appellate Court Clerk
KENNETH DAVIS, T.Q. HEIDEL, JR. ) and GAIL F. WORTLEY, ) 03A01-9902-CH-00072 ) Plaintiffs/Appellants ) Appeal As Of Right From The ) MORGAN COUNTY v. ) CHANCERY COURT ) BOWATER, INC., ) HON. FRANK V. WILLIAMS, III ) Defendant/Appellee. )
For the Appellants: For the Appellee: Gail F. Wortley James Frank Wilson 3715 Powers Street P. O. Box 160 Knoxville, TN 37917 Wartburg, TN 37887
REVERSED AND REMANDED Swiney, J.
OPINION
In this dispute over Bowater, Inc.’s cutting of timber on a certain tract of land, Kenneth
Davis, T. Q. Heidel, Jr. and Gail F. Wortley (“Appellants”), appeal the Trial Court’s grant of summary
Page 1 judgment to Bowater (“Appellee”). Appellee’s T.R.C.P. Rule 56 motion for summary judgment and its
Rule 56.03 Statement of Material Facts Not in Dispute filed with the Trial Court in support of its Motion
For Summary Judgment assert that it is the owner of the legal title and in possession of the land which
Appellants claim to own, and that Appellants’ responses to discovery requests submitted to them asking
them to identify the source and extent of their title and boundaries are, as a matter of law, insufficient to
establish Appellants’ legal title to the land in question. Appellants did not file a Rule 56.03 response to
Appellee’s Rule 56.03 Statement of Material Facts Not in Dispute. The Trial Court granted Appellee’s
motion for summary judgment. The sole issue presented for review is whether the Trial Court erred in
granting Appellee summary judgment. We reverse the judgment of the Trial Court.
BACKGROUND
Appellants filed their Complaint in this case on April 3, 1998, alleging that they are the
owners of a 58 acre tract of land in Morgan County. They alleged that the land was acquired by their
grandfather, T. Weidemann, in 1950 and “is as described in the Deed record book Y-4, Page 511, in
the Morgan County Register of Deeds Office.” They further alleged that Appellee had invaded their
property and cut timber, for which they sought damages of $75,000 for the decrease in value of the
property. They attached to the complaint a copy of what appear to be pages 571 and 572 of Deed
Book Y-4, which appear to contain a Deed of June 23, 1950, quit claiming one-half interest in a 58 acre
parcel of land from Frederick Stone to T. Weidemann.
Appellee filed its Answer on May 22, 1998, denying generally the allegations in
Appellants’ Complaint, and also asserting affirmative defenses: (1) failure to state a claim upon which
relief can be granted, (2) equal or greater negligence by Appellants in failing to mark the bounds of the
land they claim, (3) Special Warranty Deed dated July 19, 1988 from Billy Williamson Lumber and Tie
Company, Inc. to Appellee, and marking of its property lines in accordance with this deed in 1990 and
1995, “including the bounds of its property it believes it timbered resulting in Plaintiff’s claim,” (4) laches,
(5) title ownership in fee for more than 7 years of a 285 acre tract with open, notorious, continuous,
adverse and hostile possession of said tract, and (6) bar of the suit for failure to file a timely claim.
Page 2 On June 19, 1998, Appellee filed a Request for Production of Documents and served “
First Interrogatories Propounded to Plaintiffs by Defendant.” On August 24, 1998, Appellee filed a
Motion to Compel the requested discovery. Appellants answered on November 18, 1998.
Interrogatory answer No. 3 states that “[p]laintiffs can locate their boundaries, along with Robert
Lavender (copy of deed attached).” The deed attached is a copy of the same quit claim deed filed with
the Complaint. No other deed was submitted under Appellee’s Request for Production of Documents,
which asked Appellants to identify all documents proving title.
On December 15, 1998, Appellee filed its Motion for Summary Judgment, and the
following day filed its Statement of Material Facts Not in Dispute as required by T.R.C.P. Rule 56.03.
That Motion and Statement asserted ownership of the legal title and possession of the land which
Appellants claim and denied Appellants’ title. Appellee further asserted that Appellants’ responses to its
discovery requests indicate that Appellants’ source of legal title is insufficient as a matter of law to
establish their title to the land in question. Appellees filed no Rule 56.03 response to Appellant’s
Statement Of Material Facts Not In Dispute. The Trial Court granted Appellee’s Motion for Summary
Judgment.
DISCUSSION
The Motion for Summary Judgment was heard by the Trial Court on January 21, 1999.
After oral argument by counsel, the Trial Court stated:
“First of all there is no response. A Motion for Summary Judgment and a Statement of Material Facts that are not in dispute. All of the attached materials are materials which the Defendant has filed in support of this Motion and there is some question about some of these things in my mind. Particularly the deed here, I feel like at this point I have really no choice but to sustain.”
When evaluating a motion for summary judgment, the Trial Court should consider “(1)
whether a factual dispute exists; (2) whether the disputed fact is material to the outcome of the case;
and (3) whether the disputed fact creates a genuine issue for trial.” Byrd v. Hall, 847 S.W.2d 208, 214
(Tenn. 1993). No presumption of correctness attaches to decisions granting summary judgment when
Page 3 they involve only questions of law. Hembree v. State, 925 S.W.2d 513 (Tenn. 1996); Tenn.R.App.P.
13(d). The Court of Appeals must view the evidence in the light most favorable to the opponent of the
motion and all legitimate conclusions of fact must be drawn in favor of the opponent. Gray v. Amos,
869 S.W.2d 925 (Tenn. Ct. App. 1993).
Rule 56.03 of the Tennessee Rules of Civil Procedure states that a party opposing a
Motion for Summary Judgment “ . . . must respond to each fact set forth by the movant [in movant’s Rule
56.03 Statement] . . . ” regardless of whether or not the fact is disputed. The language of Rule 56.03 is
clear and unequivocal. The party opposing summary judgment “must respond to each fact set forth by
the movant . . . .” Appellants ignored this requirement and filed nothing in opposition to the Motion for
Summary Judgment. However, prior to the filing of Appellee’s Motion For Summary Judgment,
Appellants had filed sworn answers to interrogatories with the Trial Court.
The requirement that the party opposing a Motion for Summary Judgment must respond
to each fact set forth by the movant in its Rule 56.03 Statement is triggered by the filing of the movant’s
Rule 56.03 Statement. In this case, however, the Appellee’s purported Rule 56.03 Statement does not
satisfy Rule 56.03, as it is not a “separate concise statement of the material facts as to which the moving
party contends there is no genuine issue for trial” with specific citations to the record. Instead, Appellee’
s Rule 56.03 filing states only that Appellants filed the complaint and what it alleged, that Appellee filed
an answer and what it claimed, that Appellee submitted certain discovery requests to Appellants, and
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IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE
FILED November 23, 1999
Cecil Crowson, Jr. Appellate Court Clerk
KENNETH DAVIS, T.Q. HEIDEL, JR. ) and GAIL F. WORTLEY, ) 03A01-9902-CH-00072 ) Plaintiffs/Appellants ) Appeal As Of Right From The ) MORGAN COUNTY v. ) CHANCERY COURT ) BOWATER, INC., ) HON. FRANK V. WILLIAMS, III ) Defendant/Appellee. )
For the Appellants: For the Appellee: Gail F. Wortley James Frank Wilson 3715 Powers Street P. O. Box 160 Knoxville, TN 37917 Wartburg, TN 37887
REVERSED AND REMANDED Swiney, J.
OPINION
In this dispute over Bowater, Inc.’s cutting of timber on a certain tract of land, Kenneth
Davis, T. Q. Heidel, Jr. and Gail F. Wortley (“Appellants”), appeal the Trial Court’s grant of summary
Page 1 judgment to Bowater (“Appellee”). Appellee’s T.R.C.P. Rule 56 motion for summary judgment and its
Rule 56.03 Statement of Material Facts Not in Dispute filed with the Trial Court in support of its Motion
For Summary Judgment assert that it is the owner of the legal title and in possession of the land which
Appellants claim to own, and that Appellants’ responses to discovery requests submitted to them asking
them to identify the source and extent of their title and boundaries are, as a matter of law, insufficient to
establish Appellants’ legal title to the land in question. Appellants did not file a Rule 56.03 response to
Appellee’s Rule 56.03 Statement of Material Facts Not in Dispute. The Trial Court granted Appellee’s
motion for summary judgment. The sole issue presented for review is whether the Trial Court erred in
granting Appellee summary judgment. We reverse the judgment of the Trial Court.
BACKGROUND
Appellants filed their Complaint in this case on April 3, 1998, alleging that they are the
owners of a 58 acre tract of land in Morgan County. They alleged that the land was acquired by their
grandfather, T. Weidemann, in 1950 and “is as described in the Deed record book Y-4, Page 511, in
the Morgan County Register of Deeds Office.” They further alleged that Appellee had invaded their
property and cut timber, for which they sought damages of $75,000 for the decrease in value of the
property. They attached to the complaint a copy of what appear to be pages 571 and 572 of Deed
Book Y-4, which appear to contain a Deed of June 23, 1950, quit claiming one-half interest in a 58 acre
parcel of land from Frederick Stone to T. Weidemann.
Appellee filed its Answer on May 22, 1998, denying generally the allegations in
Appellants’ Complaint, and also asserting affirmative defenses: (1) failure to state a claim upon which
relief can be granted, (2) equal or greater negligence by Appellants in failing to mark the bounds of the
land they claim, (3) Special Warranty Deed dated July 19, 1988 from Billy Williamson Lumber and Tie
Company, Inc. to Appellee, and marking of its property lines in accordance with this deed in 1990 and
1995, “including the bounds of its property it believes it timbered resulting in Plaintiff’s claim,” (4) laches,
(5) title ownership in fee for more than 7 years of a 285 acre tract with open, notorious, continuous,
adverse and hostile possession of said tract, and (6) bar of the suit for failure to file a timely claim.
Page 2 On June 19, 1998, Appellee filed a Request for Production of Documents and served “
First Interrogatories Propounded to Plaintiffs by Defendant.” On August 24, 1998, Appellee filed a
Motion to Compel the requested discovery. Appellants answered on November 18, 1998.
Interrogatory answer No. 3 states that “[p]laintiffs can locate their boundaries, along with Robert
Lavender (copy of deed attached).” The deed attached is a copy of the same quit claim deed filed with
the Complaint. No other deed was submitted under Appellee’s Request for Production of Documents,
which asked Appellants to identify all documents proving title.
On December 15, 1998, Appellee filed its Motion for Summary Judgment, and the
following day filed its Statement of Material Facts Not in Dispute as required by T.R.C.P. Rule 56.03.
That Motion and Statement asserted ownership of the legal title and possession of the land which
Appellants claim and denied Appellants’ title. Appellee further asserted that Appellants’ responses to its
discovery requests indicate that Appellants’ source of legal title is insufficient as a matter of law to
establish their title to the land in question. Appellees filed no Rule 56.03 response to Appellant’s
Statement Of Material Facts Not In Dispute. The Trial Court granted Appellee’s Motion for Summary
Judgment.
DISCUSSION
The Motion for Summary Judgment was heard by the Trial Court on January 21, 1999.
After oral argument by counsel, the Trial Court stated:
“First of all there is no response. A Motion for Summary Judgment and a Statement of Material Facts that are not in dispute. All of the attached materials are materials which the Defendant has filed in support of this Motion and there is some question about some of these things in my mind. Particularly the deed here, I feel like at this point I have really no choice but to sustain.”
When evaluating a motion for summary judgment, the Trial Court should consider “(1)
whether a factual dispute exists; (2) whether the disputed fact is material to the outcome of the case;
and (3) whether the disputed fact creates a genuine issue for trial.” Byrd v. Hall, 847 S.W.2d 208, 214
(Tenn. 1993). No presumption of correctness attaches to decisions granting summary judgment when
Page 3 they involve only questions of law. Hembree v. State, 925 S.W.2d 513 (Tenn. 1996); Tenn.R.App.P.
13(d). The Court of Appeals must view the evidence in the light most favorable to the opponent of the
motion and all legitimate conclusions of fact must be drawn in favor of the opponent. Gray v. Amos,
869 S.W.2d 925 (Tenn. Ct. App. 1993).
Rule 56.03 of the Tennessee Rules of Civil Procedure states that a party opposing a
Motion for Summary Judgment “ . . . must respond to each fact set forth by the movant [in movant’s Rule
56.03 Statement] . . . ” regardless of whether or not the fact is disputed. The language of Rule 56.03 is
clear and unequivocal. The party opposing summary judgment “must respond to each fact set forth by
the movant . . . .” Appellants ignored this requirement and filed nothing in opposition to the Motion for
Summary Judgment. However, prior to the filing of Appellee’s Motion For Summary Judgment,
Appellants had filed sworn answers to interrogatories with the Trial Court.
The requirement that the party opposing a Motion for Summary Judgment must respond
to each fact set forth by the movant in its Rule 56.03 Statement is triggered by the filing of the movant’s
Rule 56.03 Statement. In this case, however, the Appellee’s purported Rule 56.03 Statement does not
satisfy Rule 56.03, as it is not a “separate concise statement of the material facts as to which the moving
party contends there is no genuine issue for trial” with specific citations to the record. Instead, Appellee’
s Rule 56.03 filing states only that Appellants filed the complaint and what it alleged, that Appellee filed
an answer and what it claimed, that Appellee submitted certain discovery requests to Appellants, and
then states Appellee’s legal conclusion that Appellants’ responses to discovery requests indicating their
source of legal title are “insufficient as matter of law to establish their title.” This document is not a
Statement of Material Facts to which there is no genuine issue for trial as contemplated by Rule 56.03.
There was no proper Rule 56.03 filing by Appellee which triggered the requirement that Appellants file
their Rule 56.03 response.
Attached to Appellee’s Motion for Summary Judgment as exhibit A were copies of
Appellants’ responses to interrogatories and requests to produce documents. The sworn interrogatory
answers aver that Appellants inherited the land in question from their parents. They attached a copy of a
Page 4 quit claim deed, which they swore was to their grandfather, and which they say covered the property in
dispute, property they inherited from their parents. They also attached a copy of a property tax notice
and a portion of a tax map, showing parcel 1.02 of tax map 51. The property tax notice was also for
parcel 1.02 of tax map 51, and apparently was addressed to two of the Appellants. Parcel 1.02
contains 58 acres, and adjoins a 285 acre tract. Appellee in its answer to the complaint alleged that it
was in possession of a tract of land in Morgan County containing 285 acres and that it cut timber on
this 285 acres.
From this record, we cannot say that the requirements of Rule 56, given our standard
of review of a Trial Court’s granting of summary judgment, have been satisfied. As did the Trial Court,
we have “. . .some question about some of these things. . . .” There appear to be genuine issues of
material fact. The Trial Court erred in granting Appellee’s Motion for Summary Judgment.
CONCLUSION
The judgment of the Trial Court is reversed and this cause is remanded to the Trial Court
for such further proceedings, as may be required, consistent with this Opinion. The costs on appeal are
assessed against the Appellee.
_________________________________________ D. MICHAEL SWINEY, J.
Page 5 CONCUR:
___________________________________ HOUSTON M. GODDARD, P.J.
___________________________________ HERSCHEL P. FRANKS, J.
Page 6