A.M. by Amanda M. v. Carol Masek

09/23/2025

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

June 18, 2025 Session

A.M. BY AMANDA M. ET AL. v. CAROL MASEK ET AL.

Appeal from the Circuit Court for Shelby County

No. CT-005202-16 Yolanda Kight Brown, Judge

___________________________________

No. W2024-01412-COA-R3-CV

___________________________________

The family of a child bitten by a dog appeal the dismissal of their lawsuit at the summary

judgment stage. The trial court ruled that the plaintiffs failed to present evidence that the

defendant owners knew or should have known of the dog’s dangerous propensities as

required by Tennessee Code Annotated section 44-8-413(c)(1). The plaintiffs argue that (1)

the trial court committed reversible error when it granted the defendants’ motion for

summary judgment without a hearing; and (2) they presented sufficient evidence to create

a dispute of genuine material fact as to whether the defendant owners should have known

of the dog’s dangerous propensities. Discerning no reversible error, we affirm.

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

Remanded

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which KENNY

ARMSTRONG and KRISTI M. DAVIS, JJ., joined.

Matthew Porter and John B. Bartels, Memphis, Tennessee, for the appellants, A.M., a

minor child, Adam M. and Amanda M.

Andrew H. Owens, Memphis, Tennessee, for the appellees, Carol Masek, Kyle Lowery,

and Samantha Lowery.

OPINION

I. FACTUAL AND PROCEDURAL BACKGROUND

The facts of this case are largely undisputed for purposes of this appeal. At all times

relevant, Defendant/Appellee Samantha Lowery and her husband Kyle Lowery (together

with Mrs. Lowery, “the Lowerys”) were residing in a home rented from its owner, Carol

Masek (together with the Lowerys, “the defendants” or “Appellees”). Ms. Masek did not

reside on the property in question.

On December 26, 2015, the Lowerys invited Plaintiffs/Appellants Amanda and

Adam M., and their minor son, Aiden (collectively, “Appellants”) over to celebrate

Christmas. At the end of the evening, Aiden stayed the night in the Lowerys’ home, while

his parents did not.

The next morning, Mrs. Lowery allowed Aiden to play in the backyard with her

dogs. Mrs. Lowery intended to join Aiden and the dogs outside in a moment. Mrs. Lowery

had never before allowed Aiden to be alone with the dogs. Before Mrs. Lowery could join

Aiden outside, within a span of approximately three minutes, one of the dogs, Benelli,

attacked Aiden.

On December 28, 2016, Appellants filed a complaint for damages against Appellees

in the Shelby County Circuit Court (“the trial court”). The complaint alleged that Aiden

suffered severe physical and emotional injuries, including a brain injury and permanent

scarring, as a result of Appellees’ negligence in failing to control the dog, to warn

Appellants of the dog’s violent tendencies, and to supervise the dog’s interactions with

Aiden. The complaint further alleged that the dog had attacked a cat one to two weeks prior

to the incident and therefore that Appellees had knowledge of the dog’s violent

propensities. Both Mrs. Lowery and Ms. Masek answered the complaint, denying that a cat

had been attacked by the dog at issue or that they had knowledge of any dangerous

propensities in the dog.1

On November 27, 2023, Appellees jointly filed a motion for summary judgment

arguing that they were not liable under Tennessee Code Annotated section 44-8-413, which

governs dog bite cases. In particular, Appellees argued that the dog bite occurred on

residential property leased by the Lowerys from Ms. Masek and that Appellants could not

prove that Appellees had any prior knowledge of the dog’s dangerous propensities.

Appellees further argued that Ms. Masek had no right to control the dog.

In support of their motion, Appellees filed affidavits from all Appellees, as well as

a short statement of undisputed material facts that alleged in relevant part as follows:

2. [Ms.] Masek, the owner of the premises where the alleged incident

occurred, was not residing on the property at the time of the incident. She

had leased the property under an oral lease to [Mrs.] Lowery and [Mr.]

Lowery. Said lease agreement gave the Lowery[s] the right of exclusive

enjoyment in possession of the property. [Ms.] Masek did not have the right

1

Mr. Lowery filed no answer. Mrs. Lowery and Ms. Masek, though represented by the same

counsel, filed separate answers.

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to enter into the property without the Lowery[s’] permission and had no right

to direct or control their ownership and control of their dog. [Ms.] Masek had

no ownership interest in the dog.

3. At no time prior to the alleged attack had any of the defendants heard about

or become aware of any vicious, dangerous or aggressive propensities in the

dog in question, towards people or other animals. The defendants had never

heard or been aware of the dog growling, snapping or otherwise exhibiting

an ill temper towards any other creature. The dog in question always

exhibited an affable and friendly demeanor in the defendants[’] presence and

prior to the date of the incident, defendants were not aware of any behavior

to the contrary.

(Citations omitted). A hearing on Appellees’ motion for summary judgment was scheduled

for July 31, 2024, via ZOOM.

Appellants responded in opposition to Appellees’ motion for summary judgment on

July 22, 2024. Although Appellants admitted all of Appellees’ proposed undisputed

material facts, Appellants alleged other undisputed facts that they asserted were also

relevant to the summary judgment question as they related to Mrs. Lowery’s supervision

of Aiden and the dogs. Appellants also argued that there was a genuine dispute of material

fact “as to the docility of the dog responsible for the attack” and Appellees’ knowledge

thereof such that summary judgment was inappropriate.

Appellees responded to Appellants’ statement of additional undisputed material

facts on July 29, 2024, generally admitting that Mrs. Lowery had never allowed Aiden to

be unsupervised around her dogs prior to the day of the incident and that she intended to

join Aiden and the dogs outside in a moment. However, Appellees argued that Appellants

had presented no proof of an essential element of their case: prior knowledge to put

Appellees on notice of the dog’s dangerous propensities. Appellees further argued that the

claim against Ms. Masek failed because Appellants presented no proof that Ms. Masek had

the right to control the dog.

On July 30, 2024, the clerk of the trial court informed the parties that the hearing on

the motion for summary judgment would need to be reset “due to the [c]ourt being down.”

The email stated that the hearing could not be reset until mid-September and that dates

would be sent to the parties. On August 8, 2024, Appellants’ counsel emailed the trial court

clerk for new dates; counsel never received a response.

Instead, on August 13, 2024, the trial court emailed its ruling granting summary

judgment in favor of Appellees. Inexplicably, the next day, the trial court’s clerk reached

out to Appellants’ counsel concerning how long the proposed hearing would take. A written

order reflecting the grant of summary judgment was entered on August 21, 2024, wherein

the trial court concluded that Appellants did not demonstrate an essential element of their

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claim under section 44-8-413(c)(1) as to the Lowerys and that Appellants failed to show

that Ms. Masek owned or controlled the dog. Appellants thereafter appealed to this Court.

II. ISSUES PRESENTED

Appellants raise the following issues, which are taken from their brief:

1. Whether the trial court abused its discretion in entering an order granting the motion

for summary judgment after Appellants had requested hearing on the motion and it

was scheduled to be set for hearing?

2. Whether the trial court committed error in granting the motion for summary

judgment?

III. STANDARD OF REVIEW

We review the trial court’s grant of summary judgment de novo, with no

presumption of correctness. Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d

235, 250 (Tenn. 2015) (citing Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997); Abshure

v. Methodist Healthcare-Memphis Hosp., 325 S.W.3d 98, 103 (Tenn. 2010)). As part of

our review, we must “take the strongest legitimate view of the evidence in favor of the

nonmoving party, allow all reasonable inferences in favor of that party, and discard all

countervailing evidence.” Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn. 1993) (citations

omitted), holding modified by Hannan v. Alltel Publ’g Co., 270 S.W.3d 1 (Tenn. 2008),

holding modified by Rye, 477 S.W.3d 235. We similarly accept the evidence presented by

the nonmoving party as true and resolve any doubts about the existence of a genuine issue

of material fact in its favor. TWB Architects, Inc. v. Braxton, LLC, 578 S.W.3d 879, 887

(Tenn. 2019) (citing Martin v. Norfolk S. Ry., 271 S.W.3d 76, 84 (Tenn. 2008)).

A party is entitled to summary judgment only 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

judgment as a matter of law.” Tenn. R. Civ. P. 56.04. To the extent that this appeal requires

that we interpret and apply Tennessee Code Annotated section 44-8-413, the interpretation

of statutes and their application to particular facts are questions of law generally amenable

to summary judgment. Metro. Dev. & Hous. Agency v. Trinity Marine Nashville, Inc., 40

S.W.3d 73, 76 (Tenn. Ct. App. 2000). The trial court’s conclusions as to the interpretation

of a statute are likewise not entitled to a presumption of correctness. Goodman v. City of

Savannah, 148 S.W.3d 88, 91 (Tenn. Ct. App. 2003).

IV. ANALYSIS

A.

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The first question in this appeal is whether the trial court committed reversible error

when it ruled on Appellees’ motion for summary judgment without allowing Appellants

the hearing that they had undisputedly requested. Summary judgment in Tennessee is

governed by Rule 56.04 of the Tennessee Rules of Civil Procedure, which provides, in

relevant part, as follows:

The motion [for summary judgment] shall be served at least thirty (30) days

before the time fixed for the hearing. The adverse party may serve and file

opposing affidavits not later than five days before the hearing. Subject to the

moving party’s compliance with Rule 56.03, the judgment sought shall be

rendered forthwith 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. The trial court shall state the legal grounds

upon which the court denies or grants the motion, which shall be included in

the order reflecting the court’s ruling.

Appellants cite no legal authority in their brief that interprets Rule 56.04 as

mandating that trial courts are required to hold oral arguments on motions for summary

judgment when requested by a party. Indeed, Appellants acknowledge that a local rule in

Shelby County specifically grants trial courts the discretion to “hear motions submitted on

briefs and not grant oral argument.” Shelby County Local Rule 6(b). But cf. Pettus v. Hurst,

882 S.W.2d 783, 786 (Tenn. Ct. App. 1993) (“Trial courts may, however, adopt local

practice rules as long as the rules do not conflict with other applicable statutes or rules

promulgated by the Tennessee Supreme Court.”). And Appellees point out that trial courts

are generally given wide “discretion to control the disposition of cases on their dockets[.]”

Kenyon v. Handal, 122 S.W.3d 743, 751 (Tenn. Ct. App. 2003). At oral argument,

Appellants took somewhat inconsistent positions in that they conceded that the trial court’s

decision was reviewed for an abuse of discretion,2 but also argued that Rule 56.04 makes

a hearing on a summary judgment motion mandatory when requested by the opposing

party.3 In any event, in their brief, Appellants assert that the record on appeal indicates that

the lack of oral argument in this particular case was not the product of the trial court’s

discretionary decision but rather a clerical or communication error that should be corrected

on appeal.

Our research likewise reveals no Tennessee cases specifically addressing whether

trial courts have discretion to resolve motions for summary judgment without oral

argument hearings under the circumstances of this case. On the one hand, Tennessee’s

2

An abuse of discretion occurs when a trial court “‘causes an injustice to the party challenging the

decision by (1) applying an incorrect legal standard, (2) reaching an illogical or unreasonable decision, or

(3) basing its decision on a clearly erroneous assessment of the evidence.’” State v. Reynolds, 635 S.W.3d

893, 921 (Tenn. 2021) (quoting Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010)).

3

Appellants therefore argued that the trial court’s failure to do so was an abuse of discretion.

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summary judgment procedure has been repeatedly referred to as judgment “on the papers,”

suggesting that an oral hearing may not be necessary. See, e.g., Leffew v. Acands, Inc., No.

03A01-9508-CV-00280, 1996 WL 141664, at *2 (Tenn. Ct. App. Mar. 29, 1996) (Susano,

J., concurring) (“Summary judgment is designed to resolve cases ‘on the papers’ when it is

clear that all of the material facts required to resolve a given issue are undisputed and that

those undisputed material facts demonstrate conclusively that the moving party is entitled

to a judgment, as a matter of law.” (citing Tenn. R. Civ. P. 56.03)); State ex rel. Cain v.

City of Church Hill, No. E2007-00700-COA-R3-CV, 2008 WL 4415579, at *7 (Tenn. Ct.

App. Sept. 30, 2008); Reed v. Carter Cnty., No. E2002-03131-COA-R3-CV, 2003 WL

22794485, at *5 (Tenn. Ct. App. Nov. 25, 2003). Indeed, Rule 56.04 indicates that summary

judgment should be made “on the papers”—that is, “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits[.]” Tenn. R. Civ. P.

56.04. As a result, this Court has held that parties are not entitled to a summary judgment

hearing in which live testimony is presented. See Chase Manhattan Mortg. Corp. v. St.,

No. W2007-02553-COA-R3-CV, 2010 WL 1462544, at *3 (Tenn. Ct. App. Apr. 14, 2010).

Additionally, federal courts interpreting the federal analogue to Rule 56.04 have

uniformly held that oral hearings on motions for summary judgment are not mandated by

the federal rules of civil procedure. See Sama v. Hannigan, 669 F.3d 585, 590 (5th Cir.

2012) (“District courts are not required to hold an oral hearing on a summary judgment

motion.”); Smith v. School Bd. of Orange Cnty., 487 F.3d 1361, 1367 (11th Cir. 2007) (“It

is well settled in this circuit that [Federal Rule of Civil Procedure] 56(c) does not require

an oral hearing.” (quoting Milburn v. United States, 734 F.2d 762, 765 (11th Cir. 1984))).

Tennessee courts often look to federal precedents involving rules of civil procedure similar

to our own. See Webb v. Nashville Area Habitat for Human., Inc., 346 S.W.3d 422, 430

(Tenn. 2011) (“Although federal judicial decisions ‘interpreting rules similar to our own

are persuasive authority for purposes of construing the Tennessee rule,’ they ‘are non-

binding even when the state and federal rules are identical.’” (quoting Harris v. Chern, 33

S.W.3d 741, 745 n. 2 (Tenn. 2000))).

On the other hand, it cannot be ignored that Rule 56.04 clearly speaks of a “hearing”

taking place, as the deadline for the opposing party’s response is conditioned upon the time

set “for the hearing.”4 Tenn. R. Civ. P. 56.04. As a result, the federal precedent, based on

a rule that does not mention a “hearing” of any kind, can offer little guidance to our

interpretation of Rule 56.04. See generally Fed. R. Civ. P. 56. And the term “hearing” is

typically understood to mean “[a] judicial session, usu[ally] open to the public, held for

purposes of deciding issues of fact or of law, sometimes with witnesses testifying.”

Hearing, Black’s Law Dictionary (9th ed. 2009).

4

This Court therefore questioned at oral argument whether a motion for summary judgment could

ever be ripe for disposition until a hearing was set, unless the parties waived hearing on the motion. As

discussed infra, we do not resolve this issue in this appeal.

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Still, the Tennessee Supreme Court has countenanced grants of summary judgment

even when not requested by a party, but only in “rare cases”:

Summary judgment may be granted in favor of a nonmovant. Thomas

v. Transp. Ins. Co., 532 S.W.2d 263, 266 (Tenn. 1976). Such action should

be taken only in rare cases and with meticulous care. Id. Further, the party

against whom summary judgment is to be rendered must have had notice and

a reasonable opportunity to respond to all the issues to be considered. See id.;

March Group, Inc. v. Bellar, 908 S.W.2d 956, 959 (Tenn. Ct. App. 1995).

Griffis v. Davidson Cnty. Metro. Gov’t, 164 S.W.3d 267, 284 (Tenn. 2005). Thus, notice

and the “opportunity to respond” are minimum requirements in the context of summary

judgment. The question remains whether the “opportunity to respond” indicates that the

parties are entitled to an oral hearing, particularly when requested by the opposing party.

In our view, however, we need not resolve this issue of first impression. Instead,

even if we were to assume arguendo that it was error for the trial court to grant Appellees’

motion for summary judgement without holding a hearing in which Appellants were

permitted to present oral argument, we conclude that the trial court’s failure to allow oral

argument in this case is harmless error. Cf. Housewright v. McCormack, No. E2016-

00272-COA-R3-CV, 2016 WL 6958725, (Tenn. Ct. App. Nov. 29, 2016) (ruling that a

failure to hold a second hearing after a renewed motion for summary judgment was filed

was harmless error without specifically ruling on whether a hearing was required)

(discussed in detail, infra).

Even when a technical error is made in the trial court, it does not necessarily follow

that reversal is the proper remedy. Instead in some instances an “error is deemed harmless

and does not amount to reversible error.” Coffey v. Noll, No. 01A01-9712-CV-00709, 1999

WL 20778, at *6 (Tenn. Ct. App. Jan. 20, 1999). Specifically, Rule 36(b) of the Tennessee

Rules of Appellate Procedure provides that “[a] final judgment from which relief is

available and otherwise appropriate shall not be set aside unless, considering the whole

record, error involving a substantial right more probably than not affected the judgment or

would result in prejudice to the judicial process.” “[T]he harmless error doctrine promotes

public respect for the judicial system by focusing on the underlying fairness of the

proceeding rather than on the virtually inevitable presence of immaterial error.” Smith v.

Smith, No. W2013-02095-COA-R3-CV, 2015 WL 3971836, at *4 n.4 (Tenn. Ct. App. June

30, 2015) (internal quotation marks omitted) (quoting Momon v. State, 18 S.W.3d 152, 165

(Tenn. 1999)). We must therefore determine first whether the harmless error doctrine is

applicable in this situation, and if so, whether the purported error committed by the trial

court was harmless under the circumstances.

Courts outside this state have not uniformly applied the harmless error doctrine to

similar situations. On one side, the Court of Civil Appeals of Alabama has held that when

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a court rules on a motion without the mandatory hearing, harmless error may nevertheless

be applicable to protect the trial court’s judgment:

Although Rule 59(g), Ala. R. Civ. P., provides that postjudgment motions

“shall not be ruled upon until the parties have had opportunity to be heard

thereon,” our Supreme Court has stated that “the denial of a postjudgment

motion without a hearing thereon is harmless error, where (1) there is either

no probable merit in the grounds asserted in the motion, or (2) the appellate

court resolves the issues presented therein, as a matter of law, adversely to the

movant, by application of the same objective standard of review as that

applied in the trial court.” Historic Blakely Auth. v. Williams, 675 So.2d 350,

352 (Ala. 1995).

Hollander v. Nance, 888 So. 2d 1275, 1279 (Ala. Civ. App. 2004); see also C/S Sols., Inc.

v. Energy Maint. Servs. Grp. LLC, 274 S.W.3d 299, 308 (Tex. App. 2008) (“The county

court could have simply ruled without a hearing. It is harmless error at worst for the trial

court to rule on the submitted motion for partial summary judgment at a postsubmission

hearing at which [the opposing party’s] lawyer was present, nothing new was filed or

argued, and no substantive argument is made on appeal regarding harm.”).

In contrast, the Georgia Court of Appeals has held that it is not harmless error for a

court to refuse to conduct oral argument on a motion for summary judgment when

requested under that state’s rules:

To hold that a failure to conduct the timely requested hearing can

nevertheless constitute mere harmless error would not encourage adherence

to the Uniform Rules and would render the mandated hearing a hollow right.

Having timely requested a hearing a litigant should not have summary

judgment granted against him without having had the opportunity to

convince the trial court to the contrary and a trial court should not grant

summary judgment against him without having availed itself of the

opportunity to interrogate counsel. Appellate review of the record is no viable

substitute for the opportunity to argue before the trial court.

Dixon v. McClain, 204 Ga. App. 531, 531, 420 S.E.2d 66, 66–67 (1992) (involving a rule

stating that oral argument “shall be permitted upon request” (quoting Ga. Unif. Super. Ct.

R. 6.3)); see also Otte v. Tessman, 426 N.E.2d 660, 661 (Ind. 1981) (“(P)rejudice is

presumed on appeal where a trial court fails to follow the mandate of Trial Rule 56 which

provides that the trial court fix a time for a hearing on the motion for summary judgment

before ruling upon the motion.” (quoting Otte v. Tessman, 412 N.E.2d 1223, 1231 (Ind. Ct.

App. 1980), vacated, 426 N.E.2d 660 (Ind. 1981) (Staton, J., dissenting))).

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Although we have not been faced with the exact question at issue in this appeal,

Tennessee courts have repeatedly applied the harmless error doctrine to errors in

compliance with Rule 56.04’s timing requirements. For example, in Craven v. Lawson,

534 S.W.2d 653 (Tenn. 1976), the appellant argued that the trial court erred in ruling on the

defendant’s motion for summary judgment the same day it was filed. Id. at 655. The

Tennessee Supreme Court first held that the timing requirements in Rule 56 were intended

“to allow the opposing party time to file discovery depositions, affidavits, etc., as well as

to provide full opportunity to amend.” Id. Because “in prescribing the thirty (30) day

period[,] the rule uses the word ‘shall’[,]” our supreme court held that the timing

requirements were “mandatory and not discretionary.” Id. But the court held that the trial

court’s failure to follow this mandate was nevertheless subject to the harmless error

doctrine:

In this case the facts as pleaded, bearing on the issue made on

defendant’s summary judgment motion are undisputed and the question

presented is one of law only. In the interest of the orderly and expeditious

disposition of litigation and to serve the manifest interest of the parties in this

case we must finally decide that legal issue on this appeal, the effect of which

is to render harmless the error of the trial judge. However, it should be

apparent that where there is the slightest possibility that the party opposing

the motion for summary judgment has been denied the opportunity to file

affidavits, take discovery depositions or amend, by the disposition of a

motion for summary judgment without a thirty (30) day interval following

the filing of the motion, it will be necessary to remand the case to cure such

error.

Id.; see also Tchrs. Ins. & Annuity Ass’n v. Harris, 709 S.W.2d 592, 595 (Tenn. Ct. App.

1985) (“There is no showing in the record that the appellant was prejudiced by the hearing

on the motion within seven days after it was filed.”). More recently, this Court has held

that in order to determine whether a trial court’s decision to prematurely grant a motion for

summary judgment is a harmless error,

we look to whether the trial court’s premature consideration of the motion

prevented the nonmovant from engaging in needed discovery, whether the

nonmovant raised the timeliness issue or sought a continuance of the hearing,

and whether the trial court’s failure to wait thirty days prejudiced the

nonmovant’s defense to the motion.

Ice Stores, Inc. v. Holmes, No. W2007-01552-COA-R3-CV, 2008 WL 4981077, at *4

(Tenn. Ct. App. Nov. 25, 2008); see also Tolliver v. Tellico Vill. Prop. Owners Ass’n, Inc.,

579 S.W.3d 8, 20 (Tenn. Ct. App. 2019) (holding that premature grant of a motion to

dismiss is harmless error when “(1) there was a pending motion for summary judgment,

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(2) the non-moving party had a full and fair opportunity to respond, and (3) summary

judgment is appropriate as a matter of law.”).

This Court has also applied harmless error in a situation quite similar, though not

identical, to this one. In Housewright v. McCormack, the defendants filed a motion for

summary judgment concerning the validity of a deed. 2016 WL 6958725, at *1. The

plaintiffs responded that the motion for summary judgment was deficient in that it was not

accompanied by a statement of undisputed material facts, and that the defendants were not

entitled to judgment based on the undisputed facts that the plaintiffs submitted. Id. at *2.

The trial court held a hearing on the motion for summary judgment and ruled that the

defendants would be permitted to file a statement of undisputed fact and the plaintiffs

would be permitted to depose a witness. The defendants indeed filed a statement of

undisputed material facts, to which the plaintiffs responded. The defendants thereafter filed

a renewed motion for summary judgment with a new statement of undisputed facts and

new affidavits. Id. The trial court eventually granted the defendants’ motion for summary

judgment without holding a second hearing and the plaintiffs appealed to this Court. Id. at

*3.

On appeal, the plaintiffs asserted, inter alia, that the trial court erred in failing to

hold a hearing following the filing of the second motion for summary judgment. Id. at *4.

The Court of Appeals noted, however, that plaintiffs “responded to the statement of

material facts, presented their own affidavits, and even provided the deposition testimony

of [the deposed witness] in support of their response.” Id. Thus, the record clearly indicated

that the plaintiffs “were afforded an opportunity to argue their case and present evidence

in support of their position.” Id. And because “[o]ur harmless error rule considers whether

the error ‘more probably than not affected the judgment’ or ‘the substantial rights of the

party[,]’” we held that “any potential error in failing to hold a new hearing after the filing

of the second motion was harmless.” Id. (quoting Tenn. R. App. P. 36(b)).

Thus, Tennessee courts have previously applied the harmless error doctrine even

when the trial court violates mandatory requirements under Rule 56.04. Here, while Rule

56.04 contemplates that motions for summary judgment are subject to hearings, it does not

go so far as to include a clear and explicit mandate that the trial court always permit oral

argument on a motion for summary judgment when expected by the parties. Based on the

precedent outlined above, however, we conclude that to the extent that Appellants contend

that the trial court erred in failing to hold a hearing prior to the grant of Appellees’ motion

for summary judgment, this purported error is subject to a harmless error analysis.

We therefore proceed to consider whether the trial court’s purported error in ruling

on Appellees’ motion without oral argument was in fact harmless. Appellants do address

the question of harm in their brief, asserting that “the error was not harmless due to the

complexities of the argument to be presented, and the limited guidance offered by

Tennessee case law, in applying the relevant statute to the facts in this case.”

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Respectfully, we cannot agree. For one, as Appellants readily admit, the statute at

issue has been considered by this Court on at least eight occasions. See Munoz v.

Sepulveda, No. M2024-01002-COA-R3-CV, 2025 WL 2603041, at *6 (Tenn. Ct. App.

Sept. 9, 2025) (involving subsection (c)(1)) (discuss in detail, infra); Hudson v. Gravette,

No. M2022-01787-COA-R3-CV, 2025 WL 1342917, at *1 (Tenn. Ct. App. May 8, 2025)

(involving whether a daycare and grooming service was a statutory owner); Needham v.

Gerwig, No. E2023-00394-COA-R3-CV, 2024 WL 227810, at *1 (Tenn. Ct. App. Jan. 22,

2024) (addressing the applicability of the statute, but resolving the appeal on a different

basis); Cruise v. Byrd, No. M2022-01578-COA-R3-CV, 2023 WL 4630165, at *1 (Tenn.

Ct. App. July 20, 2023) (involving whether the property where the incident occurred was

residential), perm. app. denied (Tenn. Dec. 19, 2023); Folad v. Quillco, LLC, 629 S.W.3d

134 (Tenn. Ct. App. 2021) (involving whether store harbored, owned, or controlled dogs);

Greenlee v. Sevier Cnty., No. E2017-00942-COA-R3-CV, 2018 WL 1969330 (Tenn. Ct.

App. Apr. 26, 2018) (involving a different subsection of the Dog Bite Statute); Searcy v.

Axley, No. W2017-00374-COA-R3-CV, 2017 WL 4743111 (Tenn. Ct. App. Oct. 19, 2017)

(involving subsection (c)(1)); Moore v. Gaut, No. E2015-00340-COA-R3-CV, 2015 WL

9584389 (Tenn. Ct. App. Dec. 30, 2015) (involving subsection (c)(1)); see also Cramer v.

Oak Haven Resort, Inc., No. 3:16-cv-491-HBG, 2018 WL 4186392, at *12 (E.D. Tenn.

Aug. 31, 2018) (involving whether the property where the incident occurred was

residential).5 And the issue in this case—concerning the evidence of the dog’s dangerous

propensities—is the central focus of three of these cases. Appellants do not argue that the

statute itself is ambiguous or unclear. Certainly, more caselaw is always helpful to our

understanding of an issue. But Appellants have failed to explain how their appeal cannot

be resolved on the arguments and caselaw available or how holding oral argument in the

trial court would have added to our understanding in a manner that was not available

otherwise.

Moreover, as previously discussed, interpretation and application of a statute is an

issue of law; we therefore apply no presumption of correctness to the trial court’s ruling.

See Metro. Dev. & Hous., 40 S.W.3d at 76; Goodman, 148 S.W.3d at 91. And with all due

respect, the issues in this case are not particularly complex; the parties simply disagree as

to whether evidence was presented to meet the requirements of one discrete subsection of

the statute. Appellants were able to fully and fairly respond to Appellees’ motion for

summary judgment with their own statement of undisputed material facts, affidavits, and

arguments. And Appellants have not pointed to any specific evidence they were unable to

procure or any arguments they were unable to make either in the trial court or on appeal as

a result of the lack of oral argument. As such, we must conclude that the trial court’s

purported error was harmless and does not constitute a reversible error.

5

The two most recent opinions were issued after briefing was completed in this appeal. Appellants

cited an additional case that is designated as a Memorandum Opinion and therefore may not be cited. See

Tenn. R. Ct. App. 10.

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B.

We next consider whether the trial court erred in granting summary judgment to the

Lowerys under Tennessee Code Annotated section 44-8-413.6 The statute, colloquially

known as the “Dog Bite Statute” was enacted to govern cases involving injuries caused by

dogs. The statute provides, in relevant part, as follows:

(a)(1) The owner of a dog has a duty to keep that dog under reasonable

control at all times, and to keep that dog from running at large. A person who

breaches that duty is subject to civil liability for any damages suffered by a

person who is injured by the dog while in a public place or lawfully in or on

the private property of another.

(2) The owner may be held liable regardless of whether the dog has shown

any dangerous propensities or whether the dog’s owner knew or should have

known of the dog’s dangerous propensities.

….

(c)(1) If a dog causes damage to a person while the person is on residential,

farm or other noncommercial property, and the dog’s owner is the owner of

the property, or is on the property by permission of the owner or as a lawful

tenant or lessee, in any civil action based upon such damages brought against

the owner of the dog, the claimant shall be required to establish that the

dog’s owner knew or should have known of the dog’s dangerous

propensities.

(2) The element of proof required by subdivision (c)(1) shall be in addition

to any other elements the claimant may be required to prove in order to

establish a claim under the prevailing Tennessee law of premises liability or

comparative fault.

Tenn. Code Ann. § 44-8-413 (emphasis added). Thus, the statute makes a “distinction

between (1) injuries caused by dogs that are ‘running at large’ . . . and (2) dogs that cause

injury while on their owner’s property.” Moore, 2015 WL 9584389, at *5 (discussing the

legal history of dog bite law in Tennessee leading to the enactment of section 44-8-413 in

2007). When the latter situation is at issue, the residential exception applies and “the statute

clearly retains and codifies the common law requirement that a claimant ‘establish that the

dog’s owner knew or should have known of the dog’s dangerous propensities.’” Id.

(quoting Tenn. Code Ann. § 44-8-413(c)(1)).

Here there is no dispute that the dog bite occurred on residential property that the

Lowerys, the dog’s owners, lawfully leased from Ms. Masek. As such, section 44-8-

413(c)(1) required that Appellants present proof that the Lowerys “knew or should have

known of the dog’s dangerous propensities.”

6

Appellants concede in their brief that summary judgment was correctly granted to Ms. Masek.

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In their motion for summary judgment, Appellees argued that Appellants could not

establish this element of their claim, pointing to their own affidavits that they had no

knowledge of any dangerous propensities in the dog. The trial court therefore ruled that the

burden shifted to the Lowerys to put forth evidence to meet this element of their claim. But

the trial court ruled that the Lowerys did not meet this burden. In particular, the trial court

noted that Appellants relied on the fact that Mrs. Lowery had never before allowed Aiden

to be unsupervised with the dog, indicated that she would be joining Aiden and the dogs in

the yard momentarily, and later stated that she failed to supervise Aiden properly. The trial

court concluded, however, that these facts raised no more than metaphysical doubt as to

Mrs. Lowery’s knowledge of any purported dangerous propensities in the dog.

On appeal, Appellants argue that the proper focus is not on what the Lowerys

actually knew, but on what they “should have known” about the dog’s propensities. Tenn.

Code Ann. § 44-8-413(c)(1). And they point to four pieces of evidence that they assert

indicate that the Lowerys should have known of Benelli’s propensities: (1) that one of the

Lowerys’ cats was found dead in the weeks leading up to the attack; (2) that the dog was a

rescue animal that had only been in the home for a period of eight months; (3) that the dog

was kept fenced; and (4) that Mrs. Lowery acknowledged that she never allowed Aiden to

be unaccompanied in the backyard with the dog prior to the incident.7 We will consider

each of these facts in turn.

Beginning with the argument surrounding the death of the Lowerys’ cat, we note

that while Appellants filed their own statement of additional undisputed material facts,

none of these alleged facts mention the death of a cat. Moreover, the page of the technical

record cited for this evidence contains no mention of a cat. “Judges are not like pigs,

hunting for truffles that may be buried in the record,” and is not our duty to comb through

the record to find the facts to support a parties’ argument Cartwright v. Jackson Cap.

Partners, Ltd. P’ship, 478 S.W.3d 596, 616 (Tenn. Ct. App. 2015) (quoting Flowers v. Bd.

of Pro. Resp., 314 S.W.3d 882, 899 n.35 (Tenn. 2010)); see also 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 where evidence of such fact is recorded.”).

We do note that in a portion of Mrs. Lowery’s deposition testimony that was filed

in connection with a motion to compel filed well in advance of any motion for summary

judgment, Mrs. Lowery does appear to have been asked about the death of cat, responding:

A. I know where you’re going with this. There was an incident where I found

one of my cats outside my back door just dead. Hard as a rock. There was no

7

Appellants also make much of the fact that Mrs. Lowery testified in her deposition that she

believed that she breached a duty to supervise Aiden. While duty and breach of duty are essential elements

in all negligence cases, Cook v. Fuqua, 653 S.W.3d 702, 706 (Tenn. Ct. App. 2022), the only element at

issue in this appeal is the additional element supplied by the dog bite statute. See Tenn. Code Ann. § 44-8-

413(c)(2). As such, this admission is immaterial to the question presented.

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blood, no dismemberment, nothing involved. I mean, to my knowledge, the

cat was not attacked.

Thus, the only evidence presented in this case concerning the death of the cat was that it

did not appear to have been attacked. Respectfully, evidence that a cat died prior to the

incident without any evidence indicating the cause of death or tying the cat’s death to the

dog at issue is insufficient to create a genuine dispute of material fact.

Respectfully, the fact that the dog had only been owned by the Lowerys for eight

months is also not evidence of anything. Specifically, Appellants point to no evidence or

authority to suggest that the Lowerys either should or should not have known of a dog’s

propensities due to an ownership period of eight months. While a longer period of

ownership may buttress an owner’s claim to a lack of knowledge, we cannot conclude that

an eight-month period of ownership or that fact that the dog was rescued suggests anything

concerning a dog’s propensity toward aggression.

We also reject Appellants’ assertion that the Lowerys’ choice to keep the dog in a

fenced backyard in some way indicates that they were on notice of the dog’s purported

dangerous propensities. In Tennessee, multiple laws prohibit dogs at large. See Tenn. Code

Ann. § 44-8-408(b) (“The owner of a dog commits an offense if that dog goes uncontrolled

by the owner upon the premises of another without the consent of the owner of the premises

or other person authorized to give consent, or goes uncontrolled by the owner upon a

highway, public road, street or any other place open to the public generally.”); Tenn. Code

Ann. § 44-8-413(a)(1) (“The owner of a dog has a duty to keep that dog under reasonable

control at all times, and to keep that dog from running at large.”). The Lowerys’ decision

to fence their dogs may be a result of Tennessee law or any other number of considerations.

It is patently unreasonable to assume that their decision to fence their dogs in compliance

with state law, without more, is somehow evidence that the dogs were dangerous.

We likewise cannot conclude that a genuine dispute of material fact was created by

Mrs. Lowery’s admission that she never left Aiden alone in the yard with the dogs prior to

the incident at issue. Here, Mrs. Lowery testified that she had never previously allowed

Aiden to be unsupervised with the dogs in her backyard and that she intended to supervise

Aiden outside immediately but was delayed about three minutes, at which point the

incident occurred. What this evidence does not establish, however, is that Mrs. Lowery’s

decision was in any way based on a fear that the dog at issue was dangerous. Indeed, Mrs.

Lowery testified that Aiden was typically under her supervision at all times both in and

outside the house. It is nothing more than speculation to suggest that Mrs. Lowery’s

supervisory decisions were based on some belief or suggestion that the dog could be

dangerous. Thus, the trial court correctly ruled that this evidence does nothing more than

create “metaphysical doubt” as to the material facts. Rye, 477 S.W.3d at 265.

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As we perceive it, Appellants essentially argue that if their evidence is insufficient,

then the Dog Bite Statute places an insurmountable burden on them that cannot be

overcome without direct proof of actual knowledge by the owner. Appellants point out that

our prior cases involving the statute focus on the owner’s actual knowledge, rather than

any imputed knowledge. And as Appellants explains, “[i]f the owner moves for summary

judgment with his or her own affidavit stating that the dog had not acted dangerously

before, as the owner did here, it appears that the injured party would have to come up with

some specific facts to challenge that assertion.” Appellants contend that it is “quite

difficult” to meet this burden, particularly when relying on circumstantial evidence of

imputed knowledge. As Appellants explain, “Must a plaintiff locate and depose the dog

owner’s mailman or pizza delivery person to see if the dog has ever acted aggressively

towards them? Should plaintiff try to track down every visitor to the home?” Appellants

therefore direct this Court to “establish precedent that makes it easier for plaintiffs to

survive summary judgment based on circumstantial evidence that lends to showing the dog

owner should have known of the dangerous propensities of their pet[.]”

Respectfully, it is clear that the Tennessee General Assembly intended to place a

burden on injured parties who seek to hold dog owners liable for injuries that occurred on

residential property. See generally Tenn. Code Ann. § 44-8-413(c). It is not the purview of

this Court to ease a burden established by the Tennessee General Assembly. Moreover, a

recent case indicates that the burden of section 44-8-413(c) is not insurmountable, even

when the plaintiff relies on circumstantial evidence, rather than proof of a prior bite by the

dog in question. Specifically in Munoz v. Sepulveda, the plaintiff was injured when she

went to the defendant’s property to purchase a lamb. 2025 WL 2603041, at *1. When she

arrived, she approached a pen holding at least two dogs when Suki, a Great Pyrenees, bit

the plaintiff on her hand. Id.

In the course of the lawsuit that followed, the defendant filed a motion for summary

judgment arguing that the plaintiff could not establish that he knew or should have known

of the dog’s dangerous propensities under the Dog Bite Statute. In support of this motion,

the defendant relied on his own affidavit that the dog “had never bitten anyone or exhibited

dangerous tendencies.” Id. The trial court ultimately granted the motion, and the plaintiff

appealed to this Court. Id. at *1–2.

On appeal, the plaintiff argued that she met her burden to establish that the defendant

either knew or should have known of the dog’s dangerous propensities, pointing to (1) the

fact that the defendant placed a beware of dog sign on the defendant’s property; (2) the

defendant testified that the dog was protective of his other animals; (3) the fact that the

defendant allowed the dog to be euthanized after the incident because Suki “didn’t know

how to be with other people”; and (4) a visitor to the defendant’s home prior to the incident

testified that the dog growled at her and showed “its teeth in an aggressive manner,” with

the defendant aware that the dog acted this way toward her. Id. at *4. The defendant argued,

however, that these facts amounted to nothing more than notice that the dog had a

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propensity to growl at strangers. In other words, the defendant argued that without evidence

to show that the defendant knew or should have known that the dog would bite a stranger,

the plaintiff could not meet her burden. Id.

We rejected the defendant’s arguments and concluded that the plaintiff met her

burden under the Dog Bite Statute. Indeed, we held that evidence that the dog was

protective, did not know how to interact with people, and growled at and showed its teeth

to strangers was “sufficient to hold that a dog owner had knowledge or should have had

knowledge that his or her dog was vicious and might bite someone.” Id. at *6. We therefore

held that it was not necessary for the plaintiff to demonstrate that the dog had previously

bitten someone, only “that it has on other occasions exhibited such a tendency to attack

human beings or other animals or otherwise to do harm as should apprise [the dog’s owner]

of its dangerous character.” Id. (quoting Fletcher v. Richardson, 603 S.W.2d 734, 736 n.1

(Tenn. 1980) (quoting Restatement, Second, of Torts § 509, comment g at 17–18 (1977))).

So then, we held that there was sufficient evidence to question the defendant’s credibility

when he denied any knowledge of facts that should have put him on notice of the dog’s

dangerous propensities. Id. (citing Knapp v. Holiday Inns, Inc., 682 S.W.2d 936, 942

(Tenn. Ct. App. 1984)). Because there were genuine disputes of material fact, we reversed

the grant of summary judgment and remanded for further proceedings. Id. at *7.

Thus, the plaintiff in Munoz was faced with exactly the same burden Appellants

find so difficult here: how to rebut an affidavit from the dog’s owner that he had no

knowledge of the dog’s dangerous propensity. But Appellants have presented none of the

type of evidence relied upon by the plaintiff in Munoz. Appellants have presented no

evidence that the Lowerys made comments indicating a belief that the dog could be

dangerous. Appellants have also failed to present any evidence that the dog ever acted in

an aggressive manner prior to the incident, by way of being protective over the other

animals in the home, growling, showing teeth, or otherwise. Instead, we are left only with

the following fact, which was agreed to by Appellants:

At no time prior to the alleged attack had any of the defendants heard about

or become aware of any vicious, dangerous or aggressive propensities in the

dog in question, towards people or other animals. The defendants had never

heard or been aware of the dog growling, snapping or otherwise exhibiting

an ill temper towards any other creature. The dog in question always

exhibited an affable and friendly demeanor in the defendants[’] presence and

prior to the date of the incident, defendants were not aware of any behavior

to the contrary.

In the absence of any evidence to the contrary, this undisputed and agreed-to fact controls

the outcome of this litigation. The trial court therefore did not err in granting summary

judgment in favor of the Lowerys as Appellants failed to demonstrate, at the summary

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judgment stage, that they could produce evidence to establish an essential element of their

claim.

V. CONCLUSION

The judgment of the Shelby County Circuit Court is affirmed, and this cause is

remanded to the trial court for further proceedings consistent with this Opinion. Costs of

this appeal are taxed to Appellants, Aiden M., a minor by and through natural parents and

guardians, Amanda and Adam M., for which execution may issue if necessary.

S/ J. Steven Stafford

J. STEVEN STAFFORD, JUDGE

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