John B. Evans v. Piedmont Natural Gas Co., Inc.

01/22/2018

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

August 24, 2017 Session

JOHN B. EVANS v. PIEDMONT NATURAL GAS CO., INC.

Appeal from the Circuit Court for Davidson County

No. 13C4240 Kelvin Jones, Judge

No. M2017-00123-COA-R3-CV

John B. Evans (“Plaintiff”) appeals the December 13, 2016 order of the Circuit Court for

Davidson County (“the Trial Court”) granting summary judgment to Piedmont Natural

Gas Co., Inc. (“Piedmont”) after finding and holding that there was no evidence that

Piedmont or its agent had committed any intentional, reckless, or malicious act which

caused the damages claimed by Plaintiff. Plaintiff additionally raises an issue regarding

the Trial Court’s grant of discretionary costs to Piedmont, which included costs taxed to

Piedmont by this Court in a previous appeal. We find and hold that Piedmont made a

properly supported motion for summary judgment and that Plaintiff failed to demonstrate

specific facts in the record showing that Piedmont or its agent had committed any

intentional, reckless, or malicious act. We, therefore, affirm the grant of summary

judgment. We further find and hold that costs taxed to Piedmont by this Court in the

previous appeal are not properly included in an award of discretionary costs pursuant to

Tenn. R. Civ. P. 54.04. We, therefore, modify the award of discretionary costs by

reducing the discretionary costs from $1,133.00 to $643.00.

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

Affirmed as Modified; Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which RICHARD H.

DINKINS and THOMAS R. FRIERSON, II, JJ., joined.

Keith C. Dennen, Nashville, Tennessee, for the appellant, John B. Evans.

William B. Jakes, III, Nashville, Tennessee, for the appellee, Piedmont Natural Gas Co.,

Inc.

OPINION

Background

This is the second time that this case has been before us on appeal. By way of

background, we quote from our Opinion in the first appeal, Evans v. Piedmont Natural

Gas Co., Inc. (“Evans I”), wherein we stated:

In 1984, a contractor for Nashville Gas Company (“Nashville Gas”)

installed a natural gas pipeline through the west side of property now

owned by John Evans. At some point, which is not clear from the record, a

sewer line was also installed on the west side of the property. Mr. Evans

acquired the property in March 2012.

In January 2013, sewage overflowed into the basement of the home

located on Mr. Evans’s property. In response to the overflow, Mr. Evans

called a plumber who excavated the sewer line. Mr. Evans claims the

excavation revealed that the sewer line had been damaged with a backhoe

or similar machine. According to Mr. Evans, no dig permits for his

property had been issued except for the gas line installation by Nashville

Gas in 1984. Therefore, he asserts that Nashville Gas must have damaged

his sewer line during the installation of the gas line in 1984. He also

alleges that the installer improperly used plastic joint tape to repair the

damage and buried the line nearly three feet deep.

On June 26, 2013, Mr. Evans sued Piedmont Natural Gas Company

(“Piedmont”) in Davidson County General Sessions Court. In its entirety,

his general sessions warrant stated that he sought:

Damages due to the intentional destruction of property to wit;

a sewer line, in connection with the installation of a gas

pipeline by the Defendant and/or its agents, and the

intentional concealment of said destruction, and damages

accruing from the backup of waste into the home as a result

of that destruction, together with the consequential and

punitive damages, all in an amount under $25,000.00 dollars.

On August 19, 2013, the general sessions court awarded Mr. Evans

$4,179.40 in compensatory damages. Then, after a separate hearing

conducted two months later, the court awarded Mr. Evans $10,000 in

punitive damages.

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On October 14, 2013, Piedmont appealed the general sessions

court’s decision to the circuit court. Piedmont moved for summary

judgment on March 18, 2014, on the following grounds: (1) Piedmont was

not liable for acts of its predecessor, Nashville Gas; (2) the statute of

repose, Tennessee Code Annotated § 28–3–202, barred Mr. Evans’s claim;

and (3) Mr. Evans failed to allege facts to support his request for punitive

damages. Both parties agree that the following relevant facts are

undisputed:

[ ] In 1984, gas service was extended to Cash Lane which intersects

with Due West Avenue at the location of the plaintiff’s property.....

[sic]

[ ] The gas line installation on Cash Lane in 1984 was performed by

Holmes Construction Company, a contractor hired by Nashville Gas....

[ ] Piedmont has not serviced or repaired the gas line on Cash Lane

near, or in the vicinity of, plaintiff’s sewer line since 1984.

[ ] Other than the permit issued for the installation of the natural gas

pipeline by Piedmont, no other “dig permits” had been issued for the

Evans Property between 1980 and 2013.

After conducting a hearing, the court granted Piedmont’s motion for

summary judgment. As grounds for summary judgment, the court’s order

stated in relevant part:

The court determined that there was no genuine issue

as to any material fact which supported the plaintiff’s theories

of recovery against Piedmont. There is no evidence in the

record that Piedmont or its predecessor, the Nashville Gas

Company, damaged the sewer line in question, repaired the

sewer line in question or intentionally concealed any damage

or repair to the sewer line in question. There is no proof in

the record that the sewer line was damaged at the time of the

gas installation in 1984. There is no proof in the record that

either Piedmont or the predecessor, the Nashville Gas

Company, was ever aware of any damage to the sewer line at

any time before 2013 when the problem which is the subject

of plaintiff’s claim began.

The court was also of the opinion that the plaintiff’s

claims were barred by the 4 year statute of repose, T.C.A. §

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28–3–202. The gas line in question was installed in 1984 and

the damages which are the basis of the plaintiff’s claim

occurred in 2013.

....

The court was further of the opinion that there was no

genuine issue as to any material fact on the plaintiff’s claims

for punitive damages. The court determined that there was no

factual or legal basis for punitive damages under the criteria

of Hodges v. S.C. Toof & Co., 833 S.W.2d 896 (Tenn. Ct.

App. 1992).

Evans v. Piedmont Natural Gas Co., Inc., No. M2014-01099-COA-R3-CV, 2015 WL

9946268, at **1-2 (Tenn. Ct. App. Aug. 18, 2015), Rule 11 appl. perm. appeal denied

Jan. 20, 2016.

In Evans I, this Court affirmed the grant of summary judgment on the issue of

punitive damages, but vacated the grant of summary judgment on the other grounds after

finding and holding that Piedmont as the surviving company by merger to Nashville Gas

Company was responsible for Nashville Gas Company’s liabilities and that the Trial

Court had improperly limited Plaintiff’s discovery. Id. at **7-8. We remanded the case

to allow Plaintiff to conduct further discovery and for further proceedings. Id.

Upon remand, the Trial Court entered a Case Management Order memorializing

the parties’ agreement to dates for completion of written discovery, depositions, and

expert disclosures, among other things. After the time deadlines had passed for written

discovery, depositions, and expert disclosures, Piedmont filed a motion for summary

judgment alleging that Plaintiff could not prove any intentional conduct on the part of

Piedmont or its agents that caused the damages of which Plaintiff complained. In

response to the motion for summary judgment, Plaintiff filed, among other things, his

own affidavit, photographs he had taken showing the damaged sewer line, and copies of

records of Tennessee One Call with respect to Plaintiff’s property from 1984 through

2013 documenting over fifty calls by various utilities and others.

After a hearing, the Trial Court entered its order on December 13, 2016 granting

summary judgment to Piedmont after finding and holding that “there is no evidence that

the defendant or any entity whose acts it may be responsible for was guilty of any

intentional, reckless or malicious act which caused the damages claimed by the plaintiff.”

On December 22, 2016, the Trial Court entered an order granting Piedmont’s motion for

discretionary costs. Plaintiff appeals to this Court.

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Discussion

Although not stated exactly as such, Plaintiff raises two issues on appeal: 1)

whether the Trial Court erred in granting summary judgment to Piedmont; and, 2)

whether the Trial Court erred in its award of discretionary costs to Piedmont. Piedmont

raises an additional issue regarding whether Plaintiff’s appeal is frivolous.

We first consider whether the Trial Court erred in granting summary judgment to

Piedmont. As our Supreme Court has instructed:

Summary judgment is appropriate when “the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter of law.”

Tenn. R. Civ. P. 56.04. We review a trial court’s ruling on a motion for

summary judgment de novo, without a presumption of correctness. Bain v.

Wells, 936 S.W.2d 618, 622 (Tenn. 1997); see also Abshure v. Methodist

Healthcare–Memphis Hosp., 325 S.W.3d 98, 103 (Tenn. 2010). In doing

so, we make a fresh determination of whether the requirements of Rule 56

of the Tennessee Rules of Civil Procedure have been satisfied. Estate of

Brown, 402 S.W.3d 193, 198 (Tenn. 2013) (citing Hughes v. New Life Dev.

Corp., 387 S.W.3d 453, 471 (Tenn. 2012)).

***

[I]n Tennessee, as in the federal system, 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. We reiterate that a moving party

seeking summary judgment by attacking the nonmoving party’s evidence

must do more than make a conclusory assertion that summary judgment is

appropriate on this basis. Rather, Tennessee Rule 56.03 requires the

moving party to support its motion with “a separate concise statement of

material facts as to which the moving party contends there is no genuine

issue for trial.” Tenn. R. Civ. P. 56.03. “Each fact is to be set forth in a

separate, numbered paragraph and supported by a specific citation to the

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record.” Id. When such a motion is made, any party opposing summary

judgment must file a response to each fact set forth by the movant in the

manner provided in Tennessee Rule 56.03. “[W]hen a motion for summary

judgment is made [and] . . . supported as provided in [Tennessee Rule 56],”

to survive summary judgment, the nonmoving party “may not rest upon the

mere allegations or denials of [its] pleading,” but must respond, and by

affidavits or one of the other means provided in Tennessee Rule 56, “set

forth specific facts” at the summary judgment stage “showing that there is a

genuine issue for trial.” Tenn. R. Civ. P. 56.06. The nonmoving party

“must do more than simply show that there is some metaphysical doubt as

to the material facts.” Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.

Ct. 1348. The nonmoving party must demonstrate the existence of specific

facts in the record which could lead a rational trier of fact to find in favor of

the nonmoving party. If a summary judgment motion is filed before

adequate time for discovery has been provided, the nonmoving party may

seek a continuance to engage in additional discovery as provided in

Tennessee Rule 56.07. However, after adequate time for discovery has

been provided, summary judgment should be granted if the nonmoving

party’s evidence at the summary judgment stage is insufficient to establish

the existence of a genuine issue of material fact for trial. Tenn. R. Civ. P.

56.04, 56.06. The focus is on the evidence the nonmoving party comes

forward with at the summary judgment stage, not on hypothetical evidence

that theoretically could be adduced, despite the passage of discovery

deadlines, at a future trial.

Rye v. Women’s Care Cntr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn.

2015).

Piedmont made a properly supported motion for summary judgment alleging that

Plaintiff could not prove any intentional conduct on the part of Piedmont or its agents that

caused the damages of which Plaintiff complained. The burden then shifted to Plaintiff

to show genuine disputed issues of material fact showing an intentional act of Piedmont

or its agent which caused the damages of which Plaintiff complains. Importantly,

Plaintiff sued only for intentional destruction and intentional concealment of said

destruction. Plaintiff’s complaint did not allege any negligent conduct, or any conduct

other than intentional conduct.

Plaintiff failed to produce any evidence showing any intentional conduct on the

part of Piedmont or its agent. In his brief on appeal, Plaintiff argues that “there is no

question that the person or entity that damaged, ‘repaired’ and then buried the sewer line

acted intentionally, recklessly and maliciously.” Plaintiff, however, failed to show that

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the person or entity who damaged, repaired, and buried the sewer line was Piedmont or

an entity for whose actions Piedmont would be liable. We note that despite Plaintiff’s

successful argument in Evans I that the Trial Court erred in granting summary judgment

before he had a chance to complete certain very specific discovery, Plaintiff undertook no

additional depositions or written discovery of any type after the remand to the Trial

Court.

In his reply brief on appeal, Plaintiff asserts that the sewer line was installed in

1980, that in 1984 a natural gas line was installed, that the alleged damage occurred at the

intersection of the sewer line and the natural gas pipeline, and that between 1984 and

2013, “the Metropolitan Government of Nashville and Davidson County, Tennessee did

not issue any permits authorizing excavation on the Evans property.” Plaintiff argues that

the facts provide circumstantial evidence that shows that it is more likely than not that

Piedmont or its agent caused the damages of which Plaintiff complains. We respectfully

disagree with Plaintiff as the evidence presented to the Trial Court at this time can lead to

nothing but pure speculation as to who caused the damage to the sewer line. Was it done

in the initial installation? Was it done by someone digging without obtaining the required

permit? Was it done when the natural gas line was installed? The answers to those

questions are pure speculation.

Plaintiff has failed to produce at the summary judgment stage any evidence

showing any intentional, malicious, or reckless act on the part of Piedmont, its agent, or

any entity. As Plaintiff’s suit was solely for intentional destruction and intentional

concealment of said destruction, and Plaintiff failed to produce any evidence of genuine

disputed issues of material fact showing any such intentional conduct by Piedmont or its

agent, we find no error in the Trial Court’s grant of summary judgment to Piedmont.

Next, we consider whether the Trial Court erred in awarding discretionary costs to

Piedmont. Plaintiff raises two arguments with regard to this issue. First, Plaintiff argues

that the equities do not favor an award of discretionary costs. Second, Plaintiff argues

that the Trial Court improperly included costs taxed to Piedmont by this Court in Evans I.

We will discuss these arguments in turn.

We review a Trial Court’s decision to award discretionary costs for abuse of

discretion. Quebecor Printing Corp. v. L & B Mfg. Co., 209 S.W.3d 565, 583 (Tenn. Ct.

App. 2006). As this Court has explained:

Tenn. R. Civ. P. 54.04(2) permits prevailing parties in civil actions

to recover “discretionary costs.” The purpose of this provision is not to

punish the losing party but rather to help make the prevailing party whole.

Owens v. Owens, 241 S.W.3d 478, 496–97 (Tenn. Ct. App. 2007); Scholz v.

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S.B. Int’l, Inc., 40 S.W.3d 78, 85 (Tenn. Ct. App. 2000). The particular

equities of the case may influence a trial court’s decision to award

discretionary costs, Perdue v. Green Branch Mining Co., 837 S.W.2d 56,

60 (Tenn. 1992), and, therefore, parties are not entitled to discretionary

costs simply because they prevail. Scholz v. S.B. Int’l, Inc., 40 S.W.3d at

85; Sanders v. Gray, 989 S.W.2d 343, 345 (Tenn. Ct. App. 1998).

The party seeking discretionary costs has the burden of convincing

the trial court that it is entitled to these costs. Carpenter v. Klepper, 205

S.W.3d 474, 490 (Tenn. Ct. App. 2006); Stalsworth v. Grummons, 36

S.W.3d 832, 835 (Tenn. Ct. App. 2000). As a general matter, a party

seeking discretionary costs can carry its burden by filing a timely and

properly supported motion demonstrating (1) that it is the prevailing party,

(2) that the costs being sought are included in Tenn. R. Civ. P. 54.04(2), (3)

that the costs are necessary and reasonable, and (4) that it has not engaged

in conduct during the litigation that would justify depriving it of the costs it

is requesting. Trundle v. Park, 210 S.W.3d 575, 582 (Tenn. Ct. App.

2006); Waggoner Motors, Inc. v. Waverly Church of Christ, 159 S.W.3d

42, 65–66 (Tenn. Ct. App. 2004); Mass. Mut. Life Ins. Co. v. Jefferson, 104

S.W.3d 13, 35–36 (Tenn. Ct. App. 2002).

Duran v. Hyundai Motor America, Inc., 271 S.W.3d 178, 214–15 (Tenn. Ct. App. 2008).

In pertinent part, Tenn. R. Civ. P. 54.04, provides:

Costs not included in the bill of costs prepared by the clerk are allowable

only in the court’s discretion. Discretionary costs allowable are: reasonable

and necessary court reporter expenses for depositions or trials, reasonable

and necessary expert witness fees for depositions (or stipulated reports) and

for trials, reasonable and necessary interpreter fees not paid pursuant to

Tennessee Supreme Court Rule 42, and guardian ad litem fees; travel

expenses are not allowable discretionary costs. . . .

Tenn. R. Civ. P. 54.04(2).

Plaintiff argues that the equities do not favor an award of discretionary costs

because “Piedmont is a subsidiary of Duke Energy, one of the largest companies in the

United States . . . [and] Piedmont has a guaranteed return on equity of ten (10%)

percent.” Plaintiff also argues that Piedmont, not Plaintiff, appealed to the Trial Court

the decision from the General Sessions Court, where Plaintiff was the prevailing party.

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A careful and thorough review of the record on appeal reveals that although this

Court remanded Evans I to allow Plaintiff to conduct further discovery, Plaintiff took no

steps upon remand to conduct any further discovery. Furthermore, as discussed above,

Plaintiff sued only for intentional conduct and produced no evidence whatsoever showing

any intentional conduct by Piedmont or its agent. We find no abuse of discretion in an

award of discretionary costs to Piedmont.

We must, however, consider Plaintiff’s second argument with regard to the

amount of the award of discretionary costs. Plaintiff argues and Piedmont concedes that

the Trial Court included costs of $490.00 taxed to Piedmont by this Court in Evans I.

Costs taxed by this Court in a prior appeal are not included within the list of allowable

discretionary costs pursuant to Tenn. R. Civ. P. 54.04. The Trial Court had no authority

to tax costs already taxed by this Court. As such, it was error to include costs taxed

against Piedmont by this Court in Evans I in the award of discretionary costs. We,

therefore, modify the award of discretionary costs from the $1,133.00 awarded by the

Trial Court to $643.00.

Finally, we consider Piedmont’s issue regarding frivolous appeal. As Plaintiff was

partially successful on one of his issues, and in the exercise of our discretion, we decline

to hold this appeal frivolous.

Conclusion

The judgment of the Trial Court is affirmed as to the grant of summary judgment

and modified as to the proper amount of the award of discretionary costs, and this cause

is remanded to the Trial Court for collection of the costs below. The costs on appeal are

assessed one-half against the appellant, John B. Evans, and his surety; and one-half

against the appellee, Piedmont Natural Gas Co., Inc.

_________________________________

D. MICHAEL SWINEY, CHIEF JUDGE

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