DUTTON v. FARMERS GROUP Inc.
| Decision Date | 22 June 2010 |
| Docket Number | No. E2009-00746-COA-R3-CV,No. 3-278-08,3-278-08,E2009-00746-COA-R3-CV |
| Parties | VICTORIA DUTTON, et al.v.FARMERS GROUP, INC., et al. |
| Court | Tennessee Court of Appeals |
David T. Black, Maryville, Tennessee, for the appellants, Victoria Dutton, Geoffrey Carel, and Dezirae Carel.
Bruce A, McMullen, Kenny Saffles, and Stacie Winkler, Knoxville, Tennessee, for the appellees, Farmers Group, Inc. and Mid-Century Insurance Co.
Daniel M. Gass and P. Alexander Vogel, Knoxville, Tennessee, for the appellee, East Tennessee Restoration.
Ellis A. Sharp and Zachary B. Tenry, Knoxville, Tennessee, for the appellee, Servpro Industries, Inc.
John M. Norris, Strawberry Plains, Tennessee, for the appellee, Air Doctor.
November 3, 2009 Session
Appeal from the Circuit Court for Knox County
Plaintiffs' home flooded and incurred severe water and mold damage when the hot water tank burst. Plaintiffs began to experience varying illnesses after moving back into the home. Despite Defendants' assurances that the home was safe, three years after moving back into the home, Plaintiffs discovered that their home was contaminated with toxic mold. Thereafter, Plaintiffs filed suit against Defendants alleging various claims. Defendants moved to dismiss the Complaint asserting that the statute of limitations barred the claims. After a hearing, the trial court agreed and dismissed Plaintiffs' Complaint. Plaintiffs then filed a motion to alter or amend the judgment; the trial court denied the motion. Plaintiffs appeal. We reverse.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Reversed; Case Remanded
The home of Victoria Dutton, Geoffrey Carel, and Dezirae Carel (collectively "Plaintiffs") flooded after their hot water tank burst. As a result, Plaintiffs' home experienced extreme water and mold damage. On the day of the flooding, January 10, 2002, Plaintiffs notified their home insurance carrier, the Farmers Group, Inc. ("Farmers") and Mid-Century Insurance Company ("Mid-Century"), of the damage to their home.1 Servpro Industries, Inc. ("Servpro") was hired to remediate Plaintiffs' home. Servpro conducted water extraction, cleanup, and restoration in Plaintiffs' home. After Servpro's initial remediation of the home, Plaintiffs called Farmers/Mid-Century to report that Servpro's cleanup of the home was insufficient. After a Farmers/Mid-Century representative determined that fans were needed to dry out the home, Servpro placed two larger dryer fans in Plaintiffs' residence.
On January 19, 2002, Plaintiffs again notified Farmers/Mid-Century that Servpro's work in the home was insufficient. At that time, Plaintiffs reported mold growing on the baseboards and walls of the home. Representatives of Farmers/Mid-Century subsequently visited the home and denied alternative housing for Plaintiffs.
Larry Freeman, Regional Manager of the Provident Group, Inc. ("Provident") conducted toxic mold sampling in Plaintiffs' home on January 29, 2002. Those tests revealed that the home was 100% contaminated with mold spores in extremely toxic amounts making the home unsafe for human occupation. Thereafter, Farmers/Mid-Century provided Plaintiffs with alternative living arrangements while further remediation and testing were conducted.
After the remediation of the home was complete, Farmers/Mid-Century informed Plaintiffs that it was safe for them to return as their home had passed a toxic mold spore sampling test. Relying on that representation, Plaintiffs returned to their home in March 2002. Shortly after their return, Plaintiffs became ill.
Ms. Dutton and Mr. Carel subsequently filed suit against Farmers, Mid-Century, Provident, Servpro, and East Tennessee Restoration ("ETR") in October 2005. In the complaint, they claimed to have suffered damages as a result of the defendants' failure to remediate the water damage in their home. Eventually, the suit was voluntarily non-suited on June 15, 2007.
On June 16, 2008, Ms. Dutton, Mr. Carel, and Ms. Carel, 2 as pro se litigants, filed the instant lawsuit against Farmers, Mid-Century, Provident, James D. Wilson, Larry Freeman, Servpro, ETR, Mold Masters, Air Doctor, and Provident Group Laboratory (collectively "Defendants"), 3 but the Complaint at issue in this appeal did not reference the 2005 lawsuit. In the Complaint, Plaintiffs allege various claims including negligence, intentional and negligent misrepresentation, and violations of the Tennessee Consumer Protection Act ("TCPA").
In response, Defendants filed separate motions to dismiss, or, alternatively, motions for summary judgment, asserting that the statute of limitations barred Plaintiffs' claims. On two separate occasions, the trial court continued hearings on the motions to dismiss to allow time for Plaintiffs to retain counsel. After a hearing on the motions, the trial court granted the motions and dismissed Plaintiffs' claims pursuant to Rule 1 2.02 and Rule 56 of the Tennessee Rules of Civil Procedure.4 A final Order dismissing Plaintiffs' claims was entered on December 22, 2008 ("December Order").
The following day, ETR filed a motion to substitute the order and final judgment pursuant to Rule 60 of the Tennessee Rules of Civil Procedure. ETR filed the motion because a rough draft of the proposed order granting the motions to dismiss was inadvertently submitted to the trial court instead of the final version. The trial court granted ETR's Rule 60 motion to substitute the original Order and entered a second final Order on January 9, 2009 ("January Order").
Plaintiffs then filed a motion to alter or amend the judgment on February 6, 2009. After specifically finding that the motion to alter or amend judgment was timely filed, the trial court denied the motion on March 23, 2009. On April 8, 2009, Plaintiffs filed a notice of appeal, challenging the trial court's dismissal of their claims.
Plaintiffs raise the following issues on appeal, which we restate:
1. Whether the trial court erred in finding that Plaintiffs should have discovered their injuries in March 2002.
2. Whether the trial court erred in finding that the statute of limitations barred Plaintiffs' claims, and as a result, dismissing Plaintiffs' claims pursuant to Rule 12.02 and Rule 56 of the Tennessee Rules of Civil Procedure.
Defendants raise the following issue on appeal:
1. Whether Plaintiffs timely filed the motion to alter or amend the final judgment.
When this court reviews a trial court's ruling on a motion for judgment on the pleadings, we must accept as true "all well-pleaded facts and all reasonable inferences drawn therefrom" alleged by the parties opposing the motion, which in this case are Plaintiffs. Cherokee Country Club, Inc. v. City of Knoxville, 152 S.W.3d 466, 470 (Tenn. 2004); McClenahan v. Cooley, 806 S.W.2d 767, 769 (Tenn. 1991). However, under Rule 12.03 of the Tennessee Rules of Civil Procedure, a motion for judgment on the pleadings becomes the equivalent to a motion for summary judgment pursuant to Rule 56 if "matters outside the pleadings are presented to and not excluded by the court[.]" Tenn. R. Civ. P. 12.03.
Defendants presented their motions to dismiss pursuant to Rule 12.02 or alternatively to Rule 56 of the Tennessee Rules of Civil Procedure. Our review of the Final Order indicates that the trial court considered the motions as ones for summary judgment. The Final Order states that the trial court considered "the arguments made on behalf of the parties" and "the record as a whole." It appears that the trial court resolved these issues upon summary judgment. Therefore, we employ the standard of review for summary judgment.
SeeMaggartv. AlmanyRealtors, Inc., No. M2005-02532-COA-R3-CV, 2007 WL 2198204, at *2 (Tenn. Ct. App. M.S., July 26, 2007).
In reviewing a trial court's grant of a motion for summary judgment, this court must determine whether the requirements of Tenn. R. Civ. P. 56 have been met. Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 88 (Tenn. 2000). Our inquiry involves only a question of law with no presumption of correctness attached to the trial court's judgment. Id. Under Tenn. R. Civ. P. 56.04, "[s]ummary judgment is appropriate when the moving party can show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law." Hannan v. AlltelPubl'g, 270 S.W.3d 1, 5 (Tenn. 2008) ). In Tennessee, the moving party who does not bear the burden of proof at trial must either:
(1) affirmatively negate an essential element of the nonmoving party's claim; or
(2) show that the nonmoving party cannot prove an essential element of the claim at trial.
Hannan, 270 S.W.3d at 9. A "conclusory assertion" is not enough to shift the burden. Id. at 5 (quoting Byrd, 847 S.W.2d at 215). It is also not enough for the moving party to "cast doubt on a party's ability to prove an element at trial." Hannan, 270 S.W.3d at 8.
Therefore, a properly supported motion for summary judgment demonstrates that there are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. See Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 83 (Tenn. 2008); see also Staples, 15 S.W.3d at 88; McCarley v. W. Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998). If the moving party fails to make a properly supported motion, the non-movant's burden to produce either supporting affidavits or discovery materials is not triggered, and the motion for summary judgment fails. See Martin, 271 S.W.3d at 83. If the moving party makes a properly supported motion, then the non-moving party is required to produce evidence of specific facts establishing that genuine issues of material fact exist. I...
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