Kelly R. Russell v. Chattanooga Property Management, LLC ( 2022 )

01/25/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs October 1, 2021
KELLY R. RUSSELL V. CHATTANOOGA PROPERTY
MANAGEMENT, LLC
Appeal from the Circuit Court for Hamilton County
No. 19C524 John B. Bennett, Judge
No. E2020-01661-COA-R3-CV
This appeal involves a United Postal Service (“UPS”) worker who was injured when her
foot went through the porch of a residence at which she was delivering a package. The
UPS worker sued the property management company who leased the property, alleging it
was liable for her injuries. The trial court dismissed the case on summary judgment,
finding the property management company had no duty to the UPS worker. Because the
record on appeal does not contain the lease agreement the trial court relied upon in granting
the property management company’s motion for summary judgment, we vacate the trial
court’s order and remand the case to the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated and
Remanded
ANDY D. BENNETT, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD,
P.J., W.S., and THOMAS R. FRIERSON, II, J., joined.
Carl Mark Warren, Chattanooga, Tennessee, for the appellant, Kelly R. Russell.
Alaric A. Henry and Alan Clark Blount, Chattanooga, Tennessee, for the
appellee, Chattanooga Property Management, LLC.
MEMORANDUM OPINION1
FACTUAL AND PROCEDURAL HISTORY
On May 29, 2015, Barry Jackson entered into a management agreement with
Chattanooga Property Management, LLC (“Chattanooga Property”), for Chattanooga
Property to provide management services for his home located at 6578 Hickory Trace
Circle in Chattanooga, Tennessee (“Hickory Trace property”). In April 2016, Chattanooga
Property entered into a lease agreement with Donna Carson, for Ms. Carson to rent the
Hickory Trace property.2
On April 10, 2018, Kelly R. Russell, a United Postal Service (“UPS”) delivery
driver, was delivering a package to the Hickory Trace property, when her foot went through
the tile-covered front porch of the home, causing injuries to her knee, ankle, and shoulder.
Ms. Russell filed suit against Chattanooga Property on April 19, 2019, alleging that
Chattanooga Property “had actual and/or constructive notice of the defective porch but
failed to correct the defect.”3
On January 8, 2020, Chattanooga Property filed a motion for summary judgment
arguing that it did not owe a duty to Ms. Russell. Attached as exhibits to its motion were:
1) an Affidavit of Melanie Butler, Chattanooga Property’s property manager/broker; 2) the
management agreement Chattanooga Property and Mr. Jackson executed; and 3) an
Inspection Detail Report dated July 14, 2017, describing the condition of the “porches /
decks / patios” as “good.” Ms. Russell filed a response to Chattanooga Property’s motion
for summary judgment arguing that Chattanooga Property was an “operator” of the
premises, that it had notice that the porch was defective, and that it could therefore be held
liable for Ms. Russell’s injuries. In support of her response, Ms. Russell provided the
affidavit of Ms. Carson which stated, in part, “On or about July 14, 2017, during the yearly
maintenance inspection of the property, I pointed out to an employee of [Chattanooga
1
Rule 10 of the Rules of the Court of Appeals states:
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. When a case is decided by memorandum opinion it
shall be designated “MEMORANDUM OPINION,” shall not be published, and shall not
be cited or relied on for any reason in any unrelated case.
2
As will be discussed later in the opinion, the lease agreement between Chattanooga Property and Ms.
Carson does not appear in the record on appeal. However, neither party disputes that Ms. Carson entered
into a lease agreement with Chattanooga Property in April 2016.
3
Ms. Russell separately filed a complaint against Ms. Carson and Mr. Jackson which was eventually
consolidated with her suit against Chattanooga Property. Neither Mr. Jackson nor Ms. Carson are parties
to this appeal; therefore, we limit our discussion of the evidence to that relevant to Chattanooga Property.
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Property], Jennifer Digges, that pieces of the porch were rotting and falling off.” Attached
as exhibits to her affidavit were two photos of the porch and an email from Ms. Carson to
Ms. Butler dated April 12, 2018. A hearing was held on Chattanooga Property’s motion
for summary judgment, after which the trial court requested supplemental briefing from
the parties.
On June 19, 2020, Chattanooga Property filed a supplemental motion for summary
judgment arguing that it was not the operator of the property; that Ms. Russell was not a
third-party beneficiary of the management agreement; and that Ms. Carson’s affidavit was
inadmissible. On June 25, 2020, Ms. Russell filed a motion requesting the court to hold
Chattanooga Property’s summary judgment motion in abeyance until the parties completed
further discovery, which the trial court granted.
On September 20, 2020, Ms. Russell filed a supplemental response to Chattanooga
Property’s motion for summary judgment and attached the affidavit of Bruce Mull, a
contractor who made repairs to the porch after Ms. Russell’s injury. Mr. Mull reviewed
photos of the porch area that showed “water damage to the grout” and stated he “would
have recommended replacing the porch based on [those] pictures.” Chattanooga Property
filed a motion to strike Mr. Mull’s affidavit and filed a competing and contradictory
affidavit of Mr. Mull in which Mr. Mull stated, inter alia, “In my opinion, neither the tenant
Donna Carson or anyone at Chattanooga Property could look at that porch before the
accident and know that someone’s foot might go through it.”
On October 7, 2020, Chattanooga Property filed a second supplemental motion for
summary judgment arguing that it owed no common law duties to Ms. Russell because its
duty to repair was based solely on the management agreement. Chattanooga Property
further asserted that Ms. Carson was obligated under the lease agreement to provide it with
a written request to trigger its duty to repair the porch.4 Attached to its supplemental
motion was Mr. Mull’s second affidavit and excerpts of the deposition testimony of Ms.
Russell, Ms. Carson, and Mr. Jackson. Ms. Russell filed a second supplemental response
arguing that summary judgment should be denied because “there exists a genuine issue of
material fact as to whether or not Chattanooga Property Management had notice of the
defective porch before the porch collapsed.” Ms. Russell attached the July 14, 2017
Inspection Report; excerpts from the deposition of Cindy Altemose, Chattanooga
Property’s property technician; and the original affidavit of Mr. Mull as exhibits to her
second supplemental response.
After reviewing the briefs, affidavits, sworn testimony, written discovery, contracts,
and arguments of counsel, the trial court granted Chattanooga Property’s motion for
summary judgment. Without summarizing the relevant undisputed facts, citing any
4
Again, the lease agreement Chattanooga Property references is not attached to its motion and does
not appear in the record.
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caselaw, or providing any other context for its ruling, the trial entered the following order
on November 17, 2020:
The Motion for Summary Judgment will be granted because of the
limited extent of duty that a property management company such as
Chattanooga Property Management, LLC has in this case and further the
Court finds that the four exceptions do not apply to this present case.
The Court finds that this case does not involve a common area so the
third exception does not apply.
The Court finds that this is not a case involving property leased for
purposes involving the admission of the public so the fourth exception does
not apply.
With regard to the first two exceptions, to the caveat lessee rule the
first exception involves dangerous conditions on the premises existing at the
time the lease [was executed and] this property was leased “as is” at the time
of the lease; therefore, the first exception does not apply.
As to the second exception, although there is a duty to repair once
notice is [sic] been provided, there was no notice provided to the property
management company to make a repair and, therefore, there was no
contractual obligation to make a repair that ever arose. The Court finds for
these reasons a summary judgment is GRANTED. (A copy of the transcript
of the ruling is attached as Exhibit A[5] to this order).
5
The excerpt of the court’s oral ruling attached as Exhibit A is nearly identical to the written order. Like
the written ruling, it references no case law or statutes from which it derives the “exceptions” the court
references. In its entirety, the oral ruling states:
THE COURT: Okay. All right. Mr. Henry, if you would prepare the order.
The motion for summary judgment will be granted because of the limited extent
of duty that a property management company such as your client has and that, excuse me,
the four exceptions do not appear to be present in this case.
Certainly, this is not a case involving a common area. So the third exception does
not apply.
This is not a condition involving property leased for purposes involving the
admission of the public. So the fourth exception does not apply.
With regard to the first two exceptions, to the caveat lessee rule the first exception
involves dangerous conditions on the premises at the time of the lease and this property
was leased as is at the time of the lease; therefore, the first exception does not apply.
As to the second exception, although there is a duty to repair once notice has been
provided, there was no notice provided to the property management company to make a
repair and, therefore, there was not [a] contractual obligation to make a repair that ever
arose.
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On appeal, Ms. Russell raises the following solitary issue: “Whether the trial court
erred in not finding that there existed a genuine issue of material fact as to whether the
Defendant had actual or constructive notice of the rotting porch before the porch collapsed
injuring the Plaintiff.”
STANDARD OF REVIEW
This appeal arises from the grant of summary judgment by the trial court. We
review a trial court’s summary judgment determination de novo, with no presumption of
correctness. Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn.
2015). This means that “we make a fresh determination of whether the requirements of
Rule 56 of the Tennessee Rules of Civil Procedure have been satisfied.” Id. We “must
view the evidence in the light most favorable to the nonmoving party and must draw all
reasonable inferences in that party’s favor.” Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn.
2002); see also Acute Care Holdings, LLC v. Houston Cnty., No. M2018-01534-COA-R3-
CV, 2019 WL 2337434, at *4 (Tenn. Ct. App. June 3, 2019).
Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.” TENN. R. CIV. P. 56.04. When a party moves for summary judgment
but does not have the burden of proof at trial, the moving party must either submit evidence
“affirmatively negating an essential element of the nonmoving party’s claim” or
“demonstrating that the nonmoving party’s evidence at the summary judgment stage is
insufficient to establish the nonmoving party’s claim or defense.” Rye, 477 S.W.3d at 264.
Once the moving party has satisfied this requirement, the nonmoving party “‘may not rest
upon the mere allegations or denials of [its] pleading.’” Id. at 265 (quoting TENN. R. CIV.
P. 56.06). Rather, the nonmoving party must respond and produce affidavits, depositions,
responses to interrogatories, or other discovery materials that “set forth specific facts
showing that there is a genuine issue for trial.” TENN. R. CIV. P. 56.06; see also Rye, 477
S.W.3d at 265. If the nonmoving party fails to respond in this way, “summary judgment,
if appropriate, shall be entered against the [nonmoving] party.” TENN. R. CIV. P. 56.06. If
the moving party fails to show he or she is entitled to summary judgment, however, “‘the
non-movant’s burden to produce either supporting affidavits or discovery materials is not
triggered and the motion for summary judgment fails.’” Martin v. Norfolk S. Ry. Co., 271
S.W.3d 76, 83 (Tenn. 2008) (quoting McCarley v. W. Quality Food Serv., 960 S.W.2d 585,
588 (Tenn. 1998)). A disputed fact is material if it is determinative of the claim or defense
at issue in the motion. Id. at 84 (citing Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993)).
For those reasons the motion for summary judgment is granted.
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ANALYSIS
Ms. Russell’s claim against Chattanooga Property is a premises liability cause of
action sounding in negligence. To establish a claim for negligence, the plaintiff must
establish proof of the following elements: “1) a duty of care owed by the defendant to the
plaintiff; (2) breach by the defendant of that duty of care; (3) injury or loss; (4) cause in
fact; and (5) proximate or legal cause.” Miranda v. CSC Sugar, LLC, No. W2017-01986-
COA-R3-CV, 2018 WL 3302035, at *3 (Tenn. Ct. App. July 5, 2018) (citing Hale v.
Ostrow, 166 S.W.3d 713, 716 (Tenn. 2005); Bradshaw v. Daniel, 854 S.W.2d 865, 869
(Tenn. 1993)). Our focus in this appeal is on the first element: whether Chattanooga
Property owed a duty to Ms. Russell, a UPS delivery driver who came upon the porch of
the home it managed for Mr. Jackson and leased to Ms. Carson. The existence of a duty
of care in a particular case is a question of law. Hale, 166 S.W.3d at 716; Staples v. CBL
& Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000).
“[L]egal duty has been defined as the legal obligation owed by a defendant to a
plaintiff to conform to a reasonable person standard of care for the protection against
unreasonable risks of harm.” West v. E. Tenn. Pioneer Oil Co., 172 S.W.3d 545, 551 (Tenn.
2005). In cases involving leased premises, the general rule in Tennessee is that “‘a
landlord[6] is not liable to a tenant or a third party for harm caused by a dangerous condition
on the leased premises.’” Richardson v. H & J Props., LLC, No. W2019-02082-COA-R3-
CV, 2020 WL 6158463, at *3 (Tenn. Ct. App. Oct. 21, 2020) (quoting Lethcoe v. Holden,
31 S.W.3d 254, 256 (Tenn. Ct. App. 2000)). Over time, however, our Supreme Court has
carved out the following exceptions to this general rule:
The first exception involves dangerous conditions on the premises existing
at the time of the lease when the landlord has actual or constructive notice of
the condition and the tenant does not. The second exception involves
dangerous conditions caused either by the landlord’s failure to make repairs
it has a duty to make or the landlord’s negligence in performing repairs,
regardless of whether it had a duty to make the repairs. The third exception
involves the dangerous conditions on portions of property over which the
landlord has retained control. The fourth exception involves dangerous
conditions on property leased for purposes involving the admission of the
6
“Landlord” is defined as “[s]omeone who rents a room, building, or piece of land to someone else.”
BLACK’S LAW DICTIONARY (11th ed. 2019). Chattanooga Property functioned as a landlord in this case.
Pursuant to paragraph 2.10 of the management agreement, entitled “LEASING,” Chattanooga Property was
entitled to “negotiate lease term, rental amount, or other terms that may be deemed reasonable or customary
. . . [and] sign, renew and/or cancel leases; to collect rents due or to become due and give receipts of same;
to terminate tenancies; to execute, sign and serve in the name of, or on behalf of, [Mr. Jackson] such notices
as deemed necessary by [Chattanooga Property] . . . .”
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public.
Denton v. Hahn, No. M2003-00342-COA-R3-CV, 2004 WL 2083711, at *6 (Tenn. Ct.
App. Sept. 16, 2004) (footnotes omitted). On appeal, Ms. Russell focuses only on the
second exception, arguing that Chattanooga Property “had actual or constructive notice of
the rotting porch” which triggered its duty to repair the porch.7
The second exception comes into play when the landlord has a contractual duty to
repair and maintain the leased premises. Crow v. LeDoux, No. E2004-01640-COA-R3-
CV, 2005 WL 1160629, at *4 (Tenn. Ct. App. May 17, 2005); see also Helton v. Reynolds,
640 S.W.2d 5, 9 (Tenn. Ct. App. 1982) (“While the duty to repair is a tort duty, it arises
out of the contract which delineates the duty owed.”). Furthermore, “where a landlord has
agreed to keep premises in repair and, after notice, neglects to repair, he is liable for one
injured by the defective condition.” Ghormley v. Carl B. Cook, Inc., 756 S.W.2d 264, 267
(Tenn. Ct. App. 1988) (citing Cotton Press & Storage Co. v. Miller, 186 S.W.87, 88 (Tenn.
1916)). If “the landlord fails to repair, his conduct toward injured third parties is tortious.”
Id. (citing Helton, 640 S.W.2d at 9).
When applying the second exception to the facts of this case, the trial court held:
“although there is a duty to repair once notice has been provided, there was no notice
provided to the property management company to make a repair and, therefore, there was
not [a] contractual obligation to make a repair that ever arose.” Apparently, the trial court
is referencing the “contractual obligation” outlined in the lease agreement between Ms.
Carson and Chattanooga Property as the source for Chattanooga Property’s “duty to
repair.” In its brief, without any citation to the appellate record, Chattanooga Property
quotes extensively from the lease agreement to support its arguments that it did not have a
duty to repair the porch.8 As we have mentioned, we have reviewed the record and do not
find the lease agreement included. The substance of the lease agreement is essential to the
trial court’s ruling and to Chattanooga Property’s arguments on appeal. While it is
typically the appellant’s duty to determine the contents of the appellate record (see TENN.
R. APP. P. 24), when summary judgment is granted in favor of the appellee, the appellee
“also has some responsibility for the adequacy of the record.” Range v. Baese, No. M2006-
00120-COA-R3-CV, 2008 WL 186645, at *3 (Tenn. Ct. App. Jan. 22, 2008) (citing
7
Pursuant to Tenn. R. App. P. 13(b), our review of issues will generally extend only to those issues
presented for our review. Therefore, we do not review any of the other exceptions the trial court considered.
“We will not undertake to search the record and then revise Plaintiffs’ brief in its entirety so as to create
issues of claimed errors by the Trial Court when the Plaintiffs raise no such specific claimed errors because
to do so would have this Court serve as Plaintiffs’ attorney.” Murray v. Miracle, 457 S.W.3d 399, 403
(Tenn. Ct. App. 2014).
8
In its appellate brief, Chattanooga Property boils down its argument to the following sentence, which
highlights the importance of the lease agreement to its case: “The proper rule of law to be applied to
Chattanooga Property is not whether Chattanooga Property is liable based upon a common law negligence
theory, but rather whether Chattanooga Property fulfilled its obligations under the Lease Agreement.”
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Jennings v. Sewell-Allen Piggly Wiggly, 173 S.W.3d 710, 713 (Tenn. 2005); Svacha v.
Waldens Creek Saddle Club, 60 S.W.3d 851, 855 (Tenn. Ct. App. 2001)).
In Svacha v. Waldens Creek Saddle Club, the Court of Appeals reviewed a trial
court’s grant of summary judgment to a defendant in which the lower court relied upon the
plaintiff’s testimony in rendering its decision. Svacha, 60 S.W.3d at 855. The transcript
of plaintiff’s testimony was not filed in the trial court nor was it included in the record on
appeal. Id. This Court concluded that the appellee shared some of the burden to ensure
that the appellate record contains the evidence considered by the trial court stating, “[i]t is
a Rule 56 movant’s burden to see that all proof considered by a trial court in arriving at its
determination to grant a motion for summary judgment is ‘on file.’” Id. at 856. The court
ultimately held, “[w]ithout this potentially crucial evidence in the record, we cannot
determine if the [t]rial [c]ourt properly granted Defendants’ motion.” Id. The Svacha court
vacated the granting of appellee’s motion for summary judgment and remanded the case to
the trial court. Id.Here, like the appellee in Svacha, Chattanooga Property had a responsibility to
“ensure the appellate record is sufficient to determine if the trial court’s summary judgment
in its favor was proper.” Jennings, 173 S.W.3d at 713; see TENN. R. APP. P. 24(a)
(providing that after the appellant has designated portions of the record or transcript for
appeal, the appellee may designate additional parts to be included). Just as we cannot
consider attachments to a party’s brief that were not included in the record on appeal, we
will not consider Chattanooga Property’s quotations from the lease agreement. See TENN.
R. APP. P. 13(c) (“The . . . Court of Appeals . . . may consider those facts established by
the evidence in the trial court and set forth in the record and any additional facts that may
be judicially noticed or are considered pursuant to rule 14 [regarding motions for
consideration of post-judgment facts].”); TENN. CT. APP. R. 6(b) (“No assertion of fact will
be considered on appeal unless the argument contains a reference to the page or pages of
the record where evidence of such fact is recorded”); Jackson v. Aldridge, 6 S.W.3d 501,
502 n.1 (Tenn. Ct. App. 1999) (refusing to consider a copy of a transcript and summons
appended to appellant’s brief because the documents were “not part of the appellate
record.”). Without the ability to review the entirety of the lease agreement between
Chattanooga Property and Ms. Carson, we are unable to undertake a de novo review of the
proof the trial court relied upon when granting Chattanooga Property’s motion for
summary judgment. By failing to include this crucial piece of evidence in the appellate
record, the parties have left us ill-equipped to perform our duties on appeal. Therefore, in
light of the deficient record, we vacate the trial court’s order and remand the case to the
trial court for further proceedings consistent with this opinion.
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CONCLUSION
For the foregoing reasons, the judgment of the trial court is vacated, and the case is
remanded. Costs of this appeal are assessed against the parties equally for which execution
may issue if necessary.
_/s/ Andy D. Bennett________________
ANDY D. BENNETT, JUDGE
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