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

> Court of Appeals of Tennessee · September 23, 2025

URL: https://www.frixlaw.com/law-library/cases/11142891

## Case

- **Court:** Court of Appeals of Tennessee
- **Decided:** September 23, 2025
- **Precedential status:** Published
- **Opinion:** Opinion of the court
- **Judges:** Presiding Judge J. Steven Stafford
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11142891

## How later opinions describe it (automated extraction)

- holding that premature grant of a motion to dismiss is harmless error when “(1) there was a pending motion for summary judgment, -9- (2) the non-moving party had a full and fair opportunity to respond, and (3) summary judgment is appropriate as a matter of law.”

## Opinion text

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.
-2-
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
-3-
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.

-4-
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.
-5-
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.
-6-
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
-7-
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))).

-8-
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,

-9-
(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.”
- 10 -
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11142891. Public record. Not legal advice.