Opinion

Christy Gail Bowman v. Mounir Benouttas

519 S.W.3d 586
2016 Tenn. App. LEXIS 668
2016 WL 4768922

Court: Court of Appeals of Tennessee
Filed: Sep 9, 2016
Status: Published
Author: Clement
On the bench: Clement, Dinkins, McBrayer
Cited by: 16 cases
Authority: More cited than 66.9%

“A suit against a state official in his official capacity is a suit against the state.”

How later courts described this case

“A suit against a state official in his official capacity is a suit against the state.”
“With respect to the trial court’s decision regarding . . . [a] motion for discretionary costs, we review the trial court’s decision[] under an abuse of discretion standard.”
“The most indicative factor in determining whether a principal-agent relationship exists is the right of the principal to control the conduct of the work of the agent.”

Written by the judges who cited it.

The opinion

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

July 12, 2016 Session

CHRISTY GAIL BOWMAN V. MOUNIR BENOUTTAS ET AL.

Appeal from the Circuit Court for Coffee County

No. 40417 Walter C. Kurtz, Judge

No. M2015-01723-COA-R3-CV – Filed September 9, 2016

At issue in this case is whether a defendant, which claims to be merely the broker of a

shipment that was being delivered, may be held vicariously liable for the negligence of

the delivery driver. This action arises out of a motor vehicle accident involving a tractor-

trailer that was owned and operated by Mounir Benouttas. At the time of the accident,

Mr. Benouttas was delivering a shipment pursuant to a contractual arrangement with

MGR Freight Systems, Inc. In addition to suing Mr. Benouttas and MGR, Plaintiff sued

AllStates Trucking, Inc., which had contracted with MGR to deliver the shipment to

AllStates‟ customer. Plaintiff claimed AllStates was vicariously liable under the doctrines

of respondeat superior and joint venture. Plaintiff later amended her complaint to include

the additional theory of implied partnership. The trial court summarily dismissed all

claims against AllStates because Plaintiff could not establish an agency relationship, joint

venture, or implied partnership. Plaintiff appeals contending summary judgment was

inappropriate because material facts are at issue. Plaintiff also challenges the trial court‟s

decision to consider only the legal theories Plaintiff explicitly stated in her complaint, the

court‟s partial denial of Plaintiff‟s motion to amend her complaint, denial of her motion

for summary judgment, and its decision to allow AllStates to rely on untimely filings.

Finding no error with the trial court‟s decisions, we affirm.

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

FRANK G. CLEMENT, JR., P.J., M.S., delivered the opinion of the Court, in which

RICHARD H. DINKINS and W. NEAL MCBRAYER, JJ., joined.

Ronald J. Berke, Jeremy M. Cothern, & Charles A. Flynn, Chattanooga, Tennessee, for

the appellant, Christy Gail Bowman.

Terrill L. Adkins & Hannah S. Lowe, Knoxville, Tennessee, for the appellee, AllStates

Trucking, Inc.

OPINION

On July 16, 2012, Christy Gail Bowman (“Plaintiff”) was injured in a multivehicle

accident on Interstate 24 in Coffee County, Tennessee, when her car collided with a

tractor-trailer that was owned and being operated by Mounir Benouttas. At the time of the

accident, Mr. Benouttas was hauling freight pursuant to a contract with MGR Freight

Systems, Inc. (“MGR”).1

The shipment being delivered by Mr. Benouttas had been “brokered” to MGR by

AllStates Trucking, Inc. (“AllStates”). AllStates is a freight company that ships goods on

behalf of its customers using its own fleet. AllStates is also a licensed broker of general

commodities, and when demand for AllStates‟ shipping services exceeds its fleet

capacity, AllStates “brokers” the shipments by contracting with carriers such as MGR to

complete the deliveries pursuant to a “broker-carrier” agreement.

On June 6, 2013, Plaintiff commenced this action in which she named Mr.

Benouttas, MGR, and AllStates as defendants, among others.2 Plaintiff alleged that Mr.

Benouttas was negligent in the operation of his truck and caused the accident that injured

Plaintiff. Plaintiff also alleged that Mr. Benouttas was acting as an agent of MGR and

AllStates at the time of the accident and that MGR and AllStates were vicariously liable

under the principles of agency or joint venture.3

After discovery, AllStates filed a motion for summary judgment arguing that it

could not be held vicariously liable because there was not an agency relationship between

AllStates and Mr. Benouttas or MGR, and the parties were not engaged in a joint venture.

In support of this motion, AllStates presented a statement of undisputed facts in which it

identified its contractual relationship with MGR and the lack of any contractual

relationship with Mr. Benouttas. Specifically, AllStates identified the “independent

brokerage contract” it had with MGR, pursuant to which MGR agreed to provide

transportation services. Under the terms of this contract “MGR agreed to employ all

persons necessary to perform its services under the contract and agreed to accept the

MGR Freight Systems, Inc., previously used the name MGR Express, Inc., and there was some

initial confusion between the parties as to whether MGR Freight and MGR Express were the same entity.

The parties now agree, however, that for purposes of this action, MGR Freight Systems and MGR

Express can be considered one and the same.

The issues on appeal are limited to Plaintiff‟s claims against AllStates. The claims against Mr.

Benouttas and MGR remain in the trial court while the claims against the other defendants were

dismissed. Plaintiff was entitled to appeal the dismissal of her claims against AllStates because the order

dismissing AllStates was designated as a final, appealable judgment pursuant to Tenn. R. Civ. P. 54.02.

On June 12, 2013, Plaintiff filed an amended complaint that asserted the same general

allegations and claims for relief.

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responsibilities of an independent contractor and explicitly stated that nothing in the

contract created an employee-employer relationship between the broker and the

carrier[.]” Further, “[t]he agreement . . . provided that neither party was authorized to act

for or in any manner represent itself as an agent of the other or to conduct or enter into

any agreement for or on behalf of the other party[.]”

AllStates‟ statement also identified facts to establish that on January 1, 2012,

MGR contracted with Mr. Benouttas to transport the shipment in question. According to

AllStates‟ statement of undisputed facts, “Mr. Benouttas was not an employee of

AllStates,” “did not receive any payment or compensation from AllStates related to the

load he was hauling,” “[had] never entered into a contract with AllStates,” and “[had]

never even heard of AllStates before the accident giving rise to this litigation[.]”

Additionally, AllStates stated that it had no communication with Mr. Benouttas, gave him

no instructions regarding the load he was hauling, provided no equipment, and “did not

exercise any control whatsoever over the handling of the cargo, loading or unloading, or

transportation of the cargo carried out by [Mr. Benouttas.]”4

Plaintiff filed a response to AllStates‟ motion for summary judgment in which she

argued that AllStates should be held vicariously liable under the legal theories of agency

and joint venture. Additionally, Plaintiff asserted that AllStates could be held vicariously

liable under the theories of implied partnership, loaned servant, and vicarious liability for

an independent contractor. Further, Plaintiff argued that AllStates should be liable for its

own negligence under a theory of negligent hiring and “other theories that may be

identified through additional discovery.”

Additionally, in her response to AllStates‟ statement of undisputed material facts,

Plaintiff admitted that MGR was responsible for employing the persons necessary to

satisfy its duties under the brokerage contract with AllStates but denied that the

brokerage contract created an independent contractor relationship between AllStates and

MGR. Plaintiff also admitted that the brokerage agreement provided that neither party

was authorized to act or represent itself as the agent of the other but denied that such

statement was representative the actual relationship of the parties. Further, Plaintiff

denied AllStates‟ claim that Mr. Benouttas was not its employee and that he did not

receive any payment from AllStates but admitted that Mr. Benouttas had never entered

into a contract with AllStates, had never heard of AllStates before the accident, received

no communication or instruction from AllStates regarding the load he was hauling, and

received no equipment from AllStates for use in his hauling activities. Plaintiff also

denied AllStates‟ assertion that it did not exercise any control over the handling or

transportation of the cargo by Mr. Benouttas.

This statement of facts was accompanied by several exhibits, including the brokerage contract,

the operating agreement between MGR and Mr. Benouttas, and Mr. Benouttas‟ deposition.

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Plaintiff also submitted a statement of additional material facts that identified facts

regarding AllStates‟ business practices. Specifically, Plaintiff stated that “AllStates

brokers over half of the loads that they receive [and] . . . uses a „core group‟ of outside

shipping companies that [it] will broker shipments to, which includes [MGR.]” When

brokering shipments to third parties, AllStates frequently contacts multiple companies

who could potentially deliver the brokered load. After inquiring about each company‟s

availability, AllStates makes a determination as to who to select following a price

negotiation.

Plaintiff also identified facts to establish that once AllStates contracts with a client

for a specific shipment, Allstates‟ local delivery driver picks up the freight from the

customer and brings the freight to AllStates‟ facility, where the loads are assembled.

AllStates then provides the brokered company, such as MGR, with the bill of lading

provided by the customer, which informs the delivery driver of when the freight needs to

be delivered. Plaintiff‟s statement of additional facts goes on to provide that “[o]nce the

shipment is brokered to another company, AllStates does not participate in . . . selecting

the time of pick-up or the route that the driver will take[.]” Further, “AllStates does not

have any role in selecting the delivery route, and did not control the manner in which the

delivery occurred[.]” Once the brokered shipment is completed, AllStates is paid by its

customer. Thereafter, AllStates pays MGR the agreed upon fee for its services, and

AllStates retains the rest. Mr. Benouttas is compensated for his services by MGR, not

AllStates.

On March 2, 2015, an agreed order was entered setting the motion for summary

judgment for hearing on May 4, 2015; however, Plaintiff subsequently filed a motion for

continuance asking for additional time for further discovery. The trial court granted

Plaintiff‟s motion and set the summary judgment hearing for July 7, 2015. The court

directed the parties to complete discovery by June 10, 2015, and instructed Plaintiff to

file any additional response to the motion for summary judgment by June 26, 2015. Any

reply by AllStates was to be filed by July 2, 2015.

On June 26, 2015, Plaintiff filed a supplemental response in opposition to

AllStates‟ motion for summary judgment, arguing once again that AllStates should be

held vicariously liable under the theories of agency, joint venture, implied partnership,

loaned servant, vicarious liability for an independent contractor, and negligent hiring.

Plaintiff argued that these theories of recovery involved questions of fact for the jury to

resolve; therefore, summary judgment was improper.

Accompanying this additional response, Plaintiff filed a supplemental statement of

material facts in which Plaintiff specifically incorporated the assertions set forth in her

previous statement of facts. Plaintiff also stated that MGR had been cited multiple times

for inadequate safety measures by the United States Department of Transportation and

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that the records of these citations were available to the public at large, including brokers

like Allstate, when making hiring decisions. Further, Plaintiff stated that “[MGR] and

AllStates entered into a perpetual contract for freight services with each delivery to be

negotiated separately at some point in the 2000s,” and between the years 2010 and 2015,

approximately 350 deliveries were made by MGR under this contract.

Plaintiff‟s supplemental statement of facts also claimed that AllStates loaded

MGR‟s trucks in a way that dictated the order of delivery. Further, according to Plaintiff,

when dealing with MGR, “AllStates would dictate the pickup location, the order of

deliveries, the timeframe for the deliveries, and had the right and ability to control the

drivers and equipment, including sending specific instructions for deliveries in bills of

lading or by facsimile to [MGR] and selecting the equipment used.”

AllStates filed a reply on July 6, 2015, arguing that Plaintiff had failed to identify

evidence sufficient to establish an agency relationship or a joint venture. Additionally,

AllStates argued that Plaintiff should be barred from asserting liability under the theories

of implied partnership, vicarious liability for an independent contractor, loaned servant,

and negligent hiring because she failed to assert these theories in her complaint. AllStates

also filed a response to Plaintiff‟s statements of facts, in which it admitted that MGR had

been cited for inadequate safety measures but denied that AllStates exercised control over

MGR‟s drivers or equipment and that an employment or joint venture relationship existed

between Mr. Benouttas and AllStates.

Plaintiff filed an objection to AllStates‟ reply, claiming that the filing was

untimely because it was filed after the July 2, 2015 deadline; therefore, the court should

not consider it in ruling on the motion for summary judgment. Plaintiff additionally filed

a motion for summary judgment arguing that because AllStates failed to timely file its

responsive papers, it failed to respond to the factual and legal assertions made in

Plaintiff‟s supplemental response, and thus, the issue of AllStates‟ vicarious liability was

unopposed.5

On July 7, 2015, the parties appeared before the court for a hearing on AllStates‟

motion for summary judgment. That same day, Plaintiff filed a motion for leave to amend

her complaint, seeking to specifically assert claims for implied partnership, loaned

servant, vicarious liability for an independent contractor, and negligent hiring. After the

hearing, the trial court entered an order in which it stated:

Plaintiff titled this motion a “Rule 56 Motion for Judgment as a Matter of Law for the Non-

Moving Party.” However, the trial court properly recognized that this motion was more accurately a

motion for summary judgment. See Tenn. R. Civ. P. 56.01 (“A party seeking to recover upon a claim . . .

may, at any time after . . . service of a motion for summary judgment by the adverse party, move with or

without supporting affidavits for a summary judgment in the party‟s favor upon all or any part thereof.”).

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The Court will allow the amendment for implied partnership because it is

really a species of joint venture. The Court has addressed this theory in its

decision on the summary judgment motion.

The motion [to amend] is denied as to the remaining theories and/or causes

of action. This motion comes after the discovery deadline, after other

parties have settled and/or been dismissed, and twenty-five (25) months

after the case was filed. The Court finds the expansion of this lawsuit to add

these dubious issues to come too late. It appears to the Court that plaintiff‟s

counsel, perhaps having some doubts about agency and/or joint venture, has

now at the last minute decided to throw in every possible theory he could

think up with the hope that one might stick. He filed his motion on the very

morning of the argument on the summary judgment motion. To allow this

amendment would necessitate reopening discovery and would be

prejudicial to the defendants and to the orderly and expedient system of

justice.

Additionally, the court denied Plaintiff‟s motion for summary judgment and

declined to strike AllStates‟ reply as untimely; however, because of the technical

violation of the scheduling order, the trial court ordered AllStates to pay Plaintiff‟s

attorney‟s fees in the amount of $100.00 as a sanction.

Further, the trial court granted AllStates‟ motion for summary judgment. The court

reasoned that whether one is an agent or an independent contractor depends upon who

has the right to control the methods and manner in which the work is done. It also

observed that a joint venture in Tennessee law requires proof of a common purpose, some

agreement between the two entities, and the equal right on the part of each to control the

venture as a whole and any relevant instrumentality. The trial court found that the

element of control necessary to support a finding of an agency relationship between

AllStates and Mr. Benouttas was not present in this case. Further, the court reasoned that

this lack of control also meant that the assertion of joint venture and implied partnership

was without basis. The court also noted that Plaintiff‟s statement of facts acknowledged

the status of AllStates as a broker in the transaction, and the principles of joint venture

and implied partnership are incompatible with the generally accepted definition of

“broker.” Accordingly, the court determined that AllStates‟ motion for summary

judgment should be granted.

Thereafter, Plaintiff filed a motion under Tenn. R. Civ. P. 54.02 to have the trial

court‟s order be entered as a final judgment, which was granted by the trial court.

Additionally, AllStates filed a motion for discretionary costs, in which it requested

$1,621.37 for court reporter fees, deposition fees, and other expenses incurred in

litigation. The court granted this motion and awarded costs in the amount of $1,500.00.

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Plaintiff initiated this appeal and raises several issues. Generally stated, Plaintiff

argues that the trial court erred in granting AllStates‟ motion for summary judgment

because material questions of fact exist regarding the issues of agency, joint venture, and

implied partnership. Additionally, Plaintiff argues that the trial court erred by partially

denying her motion to amend and by considering only the legal theories explicitly stated

in Plaintiff‟s original complaint, as well as implied partnership, in ruling on AllStates‟

motion for summary judgment. Further, Plaintiff contends that the trial court erred by

permitting AllStates to rely on its untimely reply filings and by declining to grant

Plaintiff‟s motion for summary judgment.

AllStates raises one issue on appeal: whether the trial court abused its discretion in

failing to award the entirety of the discretionary costs set forth in its motion for

discretionary costs.

STANDARD OF REVIEW

We review a trial court‟s summary judgment ruling de novo without a

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

235, 250 (Tenn. 2015). In doing so, we make a fresh determination of whether the

requirements of Tenn. R. Civ. P. 56 have been satisfied. Id. (citing Estate of Brown, 402

S.W.3d 193, 198 (Tenn. 2013)).

Summary judgment is appropriate when the “pleadings, depositions, answers to

interrogatories, and admission 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; see also Martin v. Norfolk S. Ry.

Co., 271 S.W.3d 76, 83 (Tenn. 2008). The party moving for summary judgment bears the

burden of demonstrating both that no genuine dispute of material fact exists and that it is

entitled to a judgment as a matter of law. Martin, 271 S.W.3d at 83. When the moving

party does not bear the burden of proof at trial, the moving party may satisfy its burden of

production either: (1) by affirmatively negating an essential element of the nonmoving

party‟s claim; or (2) by demonstrating that the nonmoving party‟s evidence at the

summary judgment stage is insufficient to establish the nonmoving party‟s claim or

defense. Rye, 477 S.W.3d at 264.

With respect to the trial court‟s decisions regarding Plaintiff‟s motion to amend,

whether to consider AllStates‟ reply filing, and AllStates‟ motion for discretionary costs,

we review the trial court‟s decisions under an abuse of discretion standard. See Kincaid v.

SouthTrust Bank, 221 S.W.3d 32, 42 (Tenn. Ct. App. 2006); Owens v. Owens, 241

S.W.3d 478, 497 (Tenn. Ct. App. 2007). In order to ascertain whether a trial court‟s

decision constitutes an abuse of discretion, we review the decision to determine whether

the factual basis is properly supported by the evidence in the record, whether the trial

court properly identified and applied the most appropriate legal principles applicable to

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the decision, and whether the court‟s decision was within the range of acceptable

alternate dispositions. Gooding v. Gooding, 477 S.W.3d 774, 781 (Tenn. Ct. App. 2015)

(citing Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524-25 (Tenn. 2010)).

ANALYSIS

I. ALLSTATES‟ MOTION FOR SUMMARY JUDGMENT

Individuals are ordinarily liable only for their own conduct; however under certain

circumstances, a person may be held vicariously liable for the tortious acts of other

persons, notwithstanding his freedom from individual fault. See Lawrence A. Pivnick,

1 Tenn. Cir. Ct. Prac. § 5:16 (2016). In ruling on AllStates‟ motion for summary

judgment, the trial court considered the application of vicarious liability under three

theories—respondeat superior, joint venture, and implied partnership—and ultimately

granted summary judgment in favor of AllStates on these issues. On appeal, Plaintiff

argues that the trial court erroneously granted summary judgment because there is a

genuine question of material fact as to whether AllStates can be held vicariously liable

under these theories.

A. The Doctrine of Respondeat Superior

Under the doctrine of respondeat superior, a principal can be held vicariously

liable for the tortious conduct of its agent if the agent was acting on the principal‟s

business and within the scope of his or her employment when the injury occurred. Tucker

v. Sierra Builders, 180 S.W.3d 109, 120 (Tenn. Ct. App. 2005) (citing Johnson v.

LeBonheur Children’s Med. Ctr., 74 S.W.3d 338, 346 (Tenn. 2002)). However, a

principal is generally not liable for the actions of its independent contractors. See Fed.

Ins. Co. v. Winters, 354 S.W.3d 287, 295 (Tenn. 2011). Thus, the first question to

consider in assessing Allstates‟ liability is whether an agency relationship existed

between the parties in this case. See Tucker, 180 S.W.3d at 120.

The creation of a principal-agent relationship does not require an explicit

agreement, contract, or understanding between the parties. Johnson, 74 S.W.3d at 343.

Instead, determining whether such a relationship exists requires a careful analysis of the

facts in a given case. Tucker, 180 S.W.3d at 120. The following factors should be

considered when determining whether a person is an agent or an independent contractor:

(1) the right to control the conduct of the work, (2) the right of termination,

(3) the method of payment, (4) the freedom to select and hire helpers, (5)

the furnishing of tools and equipment, (6) the self-scheduling of work

hours, and (7) the freedom to render services to other entities.

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Id. (citing Beare Co. v. State, 814 S.W.2d 715, 718 (Tenn. 1991)); see also McInturff v.

Battle Ground Acad. of Franklin, No. M2009-00504-COA-R3-CV, 2009 WL 4878614, at

*2 (Tenn. Ct. App. Dec. 16, 2009).

The most indicative factor in determining whether a principal-agent relationship

exists is the right of the principal to control the conduct of the work of the agent. Tucker,

180 S.W.3d at 120. The extent of control over the manner in which work is performed is

one of the most significant differences between an agent and an independent contractor.

McInturff, 2009 WL 4878614, at *3; see also Powell v. Va. Constr. Co., 13 S.W. 691,

692 (Tenn. 1890) (“[a]n independent contractor is one who, exercising an independent

employment, contracts to do a piece of work according to his own methods, and without

being subject to control of his employer, except as to the result of his work.”(emphasis

added)).

“Although the principal‟s right to control the actions of the agent is an important

factor in finding the existence of an agency relationship . . . the right of control is not

necessarily as important as the principal‟s exercise of actual control over the agent[.]”

White v. Revco Disc. Drug Cntrs. Inc., 33 S.W.3d 713, 723 (Tenn. 2000) (internal

citations omitted); see also Sodexho Mgmt., Inc. v. Johnson, 174 S.W.3d 174, 181 (Tenn.

Ct. App. 2004) (“[T]he mere existence of the right to control certain aspects of another‟s

operations is not determinative of the agency issue. . . . [O]ur determination should be

based on the extent of control exercised over the agent/contractor, including whether the

principal retained and exercised control over the means of accomplishing the result as

distinguished from controlling the result but not the means.”).

Plaintiff contends that AllStates maintained control over Mr. Benouttas and MGR

by reserving the right to provide MGR‟s drivers with specific instructions via bills of

lading or facsimile, select the equipment to be used in the delivery, monitor the progress

of deliveries, and contact MGR‟s drivers directly via cellphone. Additionally, Plaintiff

argues that AllStates exercised control by assembling shipments at its facility and loading

delivery trucks in a manner that determined the order of delivery.

In this case, although AllStates reserved the right to communicate with MGR‟s

drivers, there is no evidence that AllStates ever communicated with Mr. Benouttas. To

the contrary, it is undisputed that Mr. Benouttas had never heard of AllStates prior to the

accident in question. Additionally, although Mr. Benouttas received the bill of lading

from AllStates, this document simply listed when and where the shipment was to be

delivered and did not contain any specific instructions for Mr. Benouttas regarding the

shipment. Moreover, it is undisputed that AllStates did not provide any equipment to Mr.

Benouttas. Instead, Mr. Benouttas owned the truck that was involved in the accident. The

undisputed facts also establish that AllStates did not actively monitor the progress of Mr.

Benouttas‟ shipment and was unaware of the accident in question until much later.

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Further, although AllStates assembled the commodities at its facility and loaded

Mr. Benouttas‟ truck, this fact does not negate the remaining undisputed facts, which

show that Mr. Benouttas and MGR operated independently of AllStates. Specifically, it is

undisputed that AllStates did not select the time of pick-up or the route to be taken.

Additionally, AllStates did not provide Mr. Benouttas or any MGR‟s drivers with funds

to cover their expenses. Moreover, Mr. Benouttas received payment from MGR, not

AllStates, and there is no evidence that AllStates had the right to terminate Mr. Benouttas

or any of MGR‟s drivers, schedule their work hours, or prevent them from rendering

services to other entities.

Additionally, the brokerage contract between AllStates and MGR undercuts

Plaintiff‟s argument that an agency relationship existed. As mentioned above, this

contract granted MGR the authority to employ all persons necessary to perform its

contractual obligations. Pursuant to this contract, MGR agreed to “accept the

responsibility of an independent contractor,” and it specified that “nothing herein shall be

construed as an employer-employee relationship between [MGR] and [AllStates].”

Further, the contract stated that “the relationship of [MGR] to [AllStates] shall, at all

times, be that of an independent contractor.”

Based on these facts, it is clear that although AllStates maintained some degree of

control over the result and objective of the parties‟ relationship—i.e., delivering

shipments to a particular location at a particular time—AllStates did not control the

means and manner by which Mr. Benouttas and MGR accomplished this objective. Such

an arrangement is not indicative of an agency relationship between the parties. To the

contrary, it shows that Mr. Benouttas and MGR were independent contractors of

AllStates. See Sodexho Mgmt. Inc., 174 S.W.3d at 181 (“Where [an entity] represents the

will of the principal as to the result of the work but not as to the means or manner of

accomplishing the work, it is an independent contractor.”). Further, as described above,

additional factors—such as MGR‟s right to select the delivery drivers, the fact that Mr.

Benouttas supplied the necessary equipment and scheduled his own work hours, and the

fact that AllStates did not have the right to terminate MGR‟s drivers or prevent them

from working for other entities—also support the conclusion that Mr. Benouttas and

MGR were independent contractors. See Tucker, 180 S.W.3d at 120 (listing the factors

for considering whether an agency relationship exists). Accordingly, we affirm the trial

court‟s determination that AllStates cannot be held vicariously liable under the

respondeat superior doctrine.

B. Joint Venture

Additionally, the trial court concluded that AllStates could not be held vicariously

liable under a joint venture theory based on the facts of this case. Plaintiff contends this

was error.

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The Tennessee Supreme Court has described a joint venture as follows:

A joint venture is an association of persons with intent, by way of contract,

express or implied, to engage in and carry out a single business adventure

for joint profit, for which purpose they combine their efforts, property,

money, skill, and knowledge, but without creating a partnership in the legal

or technical sense of the term, or a corporation, and they agree that there

shall be a community of interest among them as to the purpose of the

undertaking, and that each coadventurer shall stand in the relation of

principal, as well as agent, as to each of the other coadventurers, with an

equal right of control of the means employed to carry out the common

purpose of the adventure.

Fain v. O’Connell, 909 S.W.2d 790, 793 (Tenn. 1995) (quoting 30 Am.Jur., p. 939).

Thus, the elements necessary to establish a joint venture are: (1) a common purpose; (2)

some manner of agreement among the parties; and (3) an equal right on the part of each

party to control both the venture as a whole and any relevant instrumentality. Id. (citing

Cecil v. Hardin, 575 S.W.2d 268, 271-72 (Tenn. 1978)).

Because each member of a joint venture is considered the agent of the others, the

negligence of one member can be imputed to the rest. See Fain, 909 S.W.2d at 792

(quoting W. Page Keeton, et al., Prosser and Keeton on the Law of Torts, § 72, at p. 516-

17 (5th ed. 1984)) (“The law then considers that each [coadventurer] is the agent or

servant of the others, and that the act of any one within the scope of the enterprise is to be

charged vicariously against the rest.”).

It is undisputed that Mr. Benouttas had never entered an agreement or contract

with AllStates. In fact, Mr. Benouttas had never heard of AllStates prior to the accident.

Thus, Plaintiff failed to establish a joint venture between Mr. Benouttas and AllStates.

However, Plaintiff contends there was a joint venture between AllStates and MGR

because they entered a perpetual brokerage contract for the shipment of goods.

As discussed above, in order to establish a joint venture, both parties must have an

equal right to control the venture and any relevant instrumentalities. Here, although

AllStates assembled the loads at its facility and retained the contractual right to “inspect

all equipment used” and “reject any such equipment that it deem[ed] inadequate,” MGR

and its drivers controlled their operations. Specifically, MGR was responsible for hiring

the drivers needed to complete the deliveries and was required to maintain liability

insurance for the cargo. Additionally, MGR or its drivers supplied the trucks and

equipment to be used in the shipment and were responsible for selecting the route and

manner of delivery. Therefore, the requirement of “equal control” is not present.

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Accordingly, the trial court correctly determined that AllStates cannot be held

vicariously liable under a joint venture theory.

C. Implied Partnership

The trial court concluded that AllStates did not have an implied partnership with

MGR or Mr. Benouttas. Plaintiff contends this was error.

In Tennessee, a partnership is the association of two or more persons to carry on as

co-owners of a business for profit. Tenn. Code Ann. § 61-1-202(a). In order to form a

partnership, the intent of the parties need not be expressed orally or in writing. Bass v.

Bass, 814 S.W.2d 38, 41 (Tenn. 1991). Instead, “[t]he existence of a partnership can be

implied from the circumstances where it appears that the individuals involved have

entered into a business relationship for profit, combining their property, labor, skill,

experience, or money.” Id. Further, any entity that receives a share of the profits of a

business is presumed to be a partner of the business, unless the profits were received as

payment for, inter alia, “services as an independent contractor or of wages or other

compensation to an employee.” Tenn. Code Ann. § 61-1-202(c)(3). However, “[w]hen a

partnership agreement is not written, the proponent of the partnership must prove the

existence of the partnership by clear and convincing evidence.” Kuderewski v. Estate of

Hobbs, No. E2000-02515-COA-R3-CV, 2001 WL 862618, at *3 (Tenn. Ct. App. July 30,

2011); see also Tanner v. Whiteco, L.P., 337 S.W.3d 792, 798 (Tenn. Ct. App. 2010)

(“[C]lear and convincing evidence is required to establish an implied partnership.”).

In this case, the trial court concluded that the undisputed facts did not show the

existence of an implied partnership between the parties. Specifically, the court concluded

that “[t]here is no combination of property, labor, skill and money all of which is

necessary to find the [existence of a] partnership.” After reviewing the record, we agree

with this conclusion. As discussed above, the labor, skill, and equipment needed to fulfill

the brokerage contracts were controlled by MGR and its drivers, not by AllStates.

Additionally, although AllStates and MGR have a long-term contractual relationship,

MGR is only one of several companies that AllStates contacts to broker shipments.

Further, there is no evidence in this case that the parties shared business profits or

combined money. Instead, the only funds exchanged between AllStates and MGR were

the pre-negotiated payment MGR received for its delivery services. Moreover, it was

MGR that paid Mr. Benouttas, not AllStates.

Therefore, the trial court correctly determined that AllStates cannot be held

vicariously liable under an implied partnership theory.

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II. PLAINTIFF‟S ADDITIONAL ISSUES

Plaintiff contends the trial court erred by refusing to consider the legal theories of

loaned servant, vicarious liability for an independent contractor, and negligent hiring.

Plaintiff also argues that the trial court erred by denying her motion to amend the

complaint with respect to these additional theories.6 Further, Plaintiff contends that the

trial court erred by declining to strike AllStates‟ untimely filings and by denying

Plaintiff‟s motion for summary judgment.

A. Tennessee Rule of Civil Procedure 8.01

Rule 8.01 of the Tennessee Rules of Civil Procedure requires that pleadings

contain, inter alia, “a short and plain statement of the claim showing that the pleader is

entitled to relief.” Tenn. R. Civ. P. 8.01. Although a complaint, “need not contain detailed

allegations of all the facts giving rise to the claim,” it “must contain sufficient factual

allegations to articulate a claim for relief.” Webb v. Nashville Area Habitat for Humanity,

Inc., 346 S.W.3d 422, 427 (Tenn. 2011).

In this case, the complaint alleges that AllStates should be held vicariously liable

under the theories of agency or joint venture. Specifically, the complaint states:

11. [A]t all times relative to the Complaint herein, Defendant Mr.

Benouttas was performing his duties as an agent of Defendant AllStates and

was acting within the scope and course of his agency with Defendant

AllStates.

12. Alternatively, Plaintiff alleges that Defendant Mr. Benouttas was

operating his vehicle with a joint purpose and/or joint venture with

Defendant AllStates.

....

38. At all times relative to the Complaint herein, one of, some

combination of, or all of Defendants . . . [MGR] and AllStates were the

employers of Defendant Mr. Benouttas and he was within the scope and

course of his employment at the time of the collision that is subject of this

lawsuit.

As noted above, the trial court granted Plaintiff‟s motion to amend the complaint with respect to

the implied partnership theory and considered such theory in ruling on the motion for summary judgment.

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39. Alternatively, Defendant Mr. Benouttas was acting as an agent

and/or as part of a joint venture with one of, some combination of, or all of

the Defendants . . . [MGR] and AllStates.

40. Accordingly, Defendants . . . [MGR] and/or AllStates are liable for

the acts and omissions of Defendant Mr. Benouttas under the theories of

vicarious liability, respondeat superior, agency principles, and/or joint

venture principles.

Notably, the complaint fails to mention the legal theories of loaned servant,

vicarious liability of an independent contractor, or negligent hiring. Despite the liberal

pleading standard set forth in Tenn. R. Civ. P. 8.01, “[t]here is no duty on the part of the

court to create a claim that the pleader does not spell out in his complaint.” Moses v.

Dirghangi, 430 S.W.3d 371, 376 (Tenn. Ct. App. 2013) (quoting Trau-Med of Am., Inc.

v. Allstate Ins. Co., 71 S.W.3d 691, 704 (Tenn. 2002)). In fact, “[w]hen the Court is

dealing simply with allegations of pleadings, . . . the Court is not free to construct

additional facts or allegations.” Chism v. Mid-South Milling Co., Inc., 762 S.W.2d 552,

555 (Tenn. 1998), superseded by statute on other grounds. Accordingly, because Plaintiff

failed to include allegations of loaned servant, negligent hiring, and vicarious liability of

an independent contractor in her complaint, we conclude that the trial court did not err by

declining to consider these additional legal theories. See Vise v. Swift, No.1, 1989 WL

89752, at *3 (Tenn. Ct. App. Aug. 8, 1989) (concluding that when respondeat superior

was the sole theory of liability alleged in the complaint, Plaintiff could not thereafter rely

on a theory of negligent entrustment).

For the foregoing reasons, we find no error with the trial court‟s determination that

the complaint did not assert claims based on the legal theories of loaned servant,

vicarious liability of an independent contractor, or negligent hiring.

B. Tennessee Rule of Civil Procedure 15.01

Alternatively, Plaintiff contends the trial court erred by denying her Rule 15.01

motion to amend the complaint to include these additional theories.

After a responsive pleading has been served, “a party may amend the party‟s

pleadings only by written consent of the adverse party or by leave of the court[.]” Tenn.

R. Civ. P. 15.01. Although leave to amend “shall be freely given when justice so

requires,” see id., the decision of whether to grant a motion to amend is within the trial

court‟s discretion, and this court will reverse the trial court‟s decision only for an abuse

of discretion. Kincaid, 221 S.W.3d at 42. As mentioned above, in order to ascertain

whether the trial court has abused its discretion, we review the court‟s decision to

determine whether the factual basis for the decision is properly supported by the evidence

in the record, whether the trial court properly identified and applied the most appropriate

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legal principles applicable to the decision, and whether the court‟s decision was within

the range of acceptable alternate dispositions. Gooding, 477 S.W.3d at 781.

“There are several considerations a trial court should evaluate when determining

whether to grant or deny a motion to amend a complaint.” Kincaid, 221 S.W.3d at 42.

These factors include: (1) undue delay in filing; (2) lack of notice to the opposing party;

(3) bad faith by the moving party; (4) repeated failure to cure deficiencies by previous

amendments; (5) undue prejudice to the opposing party; and (6) futility of amendment.

Id. “When a motion to amend is denied, the trial court should „give a reasoned

explanation for its action.‟” Id. (quoting Henderson v. Bush Bros. & Co., 868 S.W.2d

236, 238 (Tenn. 1993)).

In this case, the trial court addressed Plaintiff‟s motion to amend in its order,

stating: