Metropolitan Life Insurance Company v. Dorothy L. Nelson

02/05/2020

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

January 14, 2020 Session

METROPOLITAN LIFE INSURANCE COMPANY v. DOROTHY L.

NELSON ET AL.

Appeal from the Circuit Court for Shelby County

No. CT-004898-18 Jerry Stokes, Judge

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No. W2019-00654-COA-R3-CV

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This case involves a forcible entry and detainer action regarding a parcel of real property

that was purchased at a foreclosure sale. The purchaser at foreclosure brought this

detainer action against the previous owners of the property. The General Sessions Court

ruled in favor of the purchaser, as did the Circuit Court pursuant to a de novo appeal.

Although the prior owners now appeal to this Court to raise certain grievances, we affirm.

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

Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the court, in which JOHN W. MCCLARTY

and KENNY ARMSTRONG, JJ., joined.

Dorothy L. Nelson, and Dwayne L. Nelson, Memphis, Tennessee, Pro se.

Natalie K. Brown, Memphis, Tennessee and Bret J. Chaness, Patty Whitehead, Peachtree

Corners, Georgia, for the appellee, Metropolitan Life Insurance Company.

MEMORANDUM OPINION1

1

Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

This Court, with the concurrence of all judges participating in the case, may affirm,

reverse or modify the actions of the trial court by memorandum opinion when a formal

opinion would have no precedential value. When a case is decided by memorandum

opinion it shall be designated “MEMORANDUM OPINION”, shall not be published, and

shall not be cited or relied on for any reason in any unrelated case.

BACKGROUND AND PROCEDURAL HISTORY2

This case concerns real property located in Memphis at 4435 Cloudburst Road

(“the Property”). The Appellants herein, Dorothy and Dwayne Nelson (“the Nelsons”),

acquired the Property via a warranty deed on June 18, 1997. The warranty deed was later

recorded in the Shelby County Register’s Office on June 25, 1997.

As is relevant herein, the Nelsons executed a deed of trust on May 31, 2000 in

order to secure a loan with a principal amount over $80,000.00. The Property was

thereby conveyed to Marsha Fogle as Trustee, and on June 9, 2000, the deed of trust was

recorded in the Shelby County Register’s Office. In pertinent part, the deed of trust

specified as follows as it pertained to the consequences of a potential future foreclosure

sale:

In the event of a sale of said property under and by virtue of this

trust, the said Grantor or Grantors and all persons holding him or them shall

be and become the tenants at will of the purchaser of the same, from and

after the execution and deliver[y] of a deed to such purchaser, said tenancy

to be terminated at the option of said purchaser without notice.

The deed of trust was ultimately later assigned to Metropolitan Life Insurance Company

(“Metro Life”), and on December 2, 2016, Rubin Lublin TN, PLLC was appointed as

Substitute Trustee.

The present controversy originated when the Nelsons defaulted on their

obligations. Upon their default, on June 21, 2018, the Property was sold at foreclosure to

Metro Life. The Substitute Trustee’s Deed, which is dated June 29, 2018, was recorded

in the Shelby County Register’s Office on July 5, 2018.

As a result of the Nelsons’ continued possession of the Property after foreclosure,

Metro Life caused a detainer warrant to issue against them in the Shelby County General

Sessions Court in August 2018. When a judgment for possession was later entered in

Metro Life’s favor on October 17, 2018, the Nelsons timely appealed to the Shelby

County Circuit Court (“the trial court”).

Subsequently, on January 8, 2019, Metro Life moved for summary judgment in

the trial court. The motion was accompanied by a brief in support of the motion, as well

as a statement of undisputed material facts. Metro Life maintained that given its

2

Many of the background facts detailed herein are taken from the statement of undisputed

material facts proffered by the Appellee. As the Appellants did not specifically respond to the statement

of undisputed facts, they are admitted. See Holland v. City of Memphis, 125 S.W.3d 425, 428 (Tenn. Ct.

App. 2003) (“[T]he material facts set forth in the statement of the moving party may be deemed admitted

in the absence of a statement controverting them by the opposing party.”).

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constructive possession of the Property stemming from the foreclosure and the Nelsons’

continued possession of the Property thereafter, it was entitled to a judgment granting it

possession of the Property. Although the Nelsons filed a one-page response in opposition

to the motion for summary judgment, they did not respond to or dispute the statement of

undisputed material facts proffered by Metro Life, nor did they set forth a separate

statement of material facts of their own. On March 22, 2019, the trial court entered an

order granting Metro Life’s motion for summary judgment, holding that it was entitled to

possession of the Property. This appeal followed.

ISSUES PRESENTED

Restated verbatim, the following issues appear in the “Statement of the Issues”

section of the Nelsons’ appellate brief:

1. The trial court erred in that it incorrectly decided facts that were not true.

2. The trial court erred when it failed to provide due process of the Defendants’ facts

to be heard.

3. The trial court erred when it granted judgment as a matter of law in favor of

Metropolitan Life Insurance Company although there was no contract that was

made between Both Parties.

STANDARD OF REVIEW

Our review of the trial court’s grant of summary judgment involves a question of

law. Accordingly, our standard of review is de novo, and we afford no presumption of

correctness to the trial court’s determination. Maggart v. Almany Realtors, Inc., 259

S.W.3d 700, 703 (Tenn. 2008). In determining whether a grant of summary judgment

was proper, we are obligated to make a fresh determination that the requirements of Rule

56 of the Tennessee Rules of Civil Procedure have been satisfied. Hughes v. New Life

Dev. Corp., 387 S.W.3d 453, 471 (Tenn. 2012). By rule, a motion for summary

judgment should only be granted if “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Tenn. R. Civ. P. 56.04.

DISCUSSION

As a preliminary matter, we note, as Metro Life has on appeal, that the Nelsons’

brief is noncompliant with our rules of appellate procedure. Although the Nelsons are

proceeding pro se and are to be given a certain amount of leeway, we “must not excuse

pro se litigants from complying with the same substantive and procedural rules that

represented parties are expected to observe.” Young v. Barrow, 130 S.W.3d 59, 63

(Tenn. Ct. App. 2003). Pursuant to Rule 27 of the Tennessee Rules of Appellate

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Procedure, the brief of the appellant shall contain, among other things, a “statement of the

case, indicating briefly the nature of the case, the course of proceedings, and its

disposition in the court below,” a “statement of facts, setting forth the facts relevant to the

issues presented for review with appropriate references to the record,” and an argument

section setting forth:

the contentions of the appellant with respect to the issues presented, and the

reasons therefor, including the reasons why the contentions require

appellate relief, with citations to the authorities and appropriate references

to the record (which may be quoted verbatim) relied on[.]

Tenn. R. App. P. 27(a).

Here, the brief submitted by the Nelsons is noncompliant in many respects. Generally

speaking, the factual references scattered throughout the brief are not supported by

citations to the record. Moreover, the section denominated as the Nelsons’ “Argument”

consists entirely of a sparse two-sentence passage, itself devoid of citations to the record

or any legal authority. Moreover, we observe that one of the Nelsons’ raised issues in the

case is not even peripherally broached in the brief. Indeed, whereas the second phrased

issue by the Nelsons purports to raise a “due process” concern, the phrase “due process”

does not appear anywhere else in the appellate brief.

Given the profound deficiencies in the Nelsons’ brief, it would be entirely proper

for this Court to dismiss this appeal and treat the raised issues as effectively waived. See

generally Bean v. Bean, 40 S.W.3d 52, 56 (Tenn. Ct. App. 2000) (declining to address

issues raised in the appeal because of numerous deficiencies in the appellant’s brief).

Nonetheless, we will do our best to discern the gist of the Nelsons’ complaints and, to the

extent that we are able to do so, address the substance and merits of the matter before us.3

The Nelsons’ first phrased issue on appeal generally charges that the trial court

“incorrectly decided facts that were not true.” Having reviewed the record transmitted to

us, it is clear that no relief should follow from this assertion, for the Nelsons failed to file

a statement disputing any of the facts set forth in Metro Life’s statement of undisputed

material facts. As a prior panel of this Court has explained, it is incumbent on the

opponent to a motion for summary judgment to respond to submitted factual assertions if

he or she desires to dispute them:

The statements of material facts submitted by the parties on a motion

3

See Lacy v. Hallmark Volkswagen Inc. of Rivergate, No. M2016-02366-COA-R3-CV, 2017 WL

2929502, at *3 (Tenn. Ct. App. July 10, 2017) (noting that this Court can waive briefing requirements for

good cause and stating that public policy prefers cases to be resolved on their merits). Litigants should

not construe our decision to attempt to tackle the merits of this case as a harbinger that we will be as

forgiving of briefing deficiencies in the future.

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for summary judgment are “intended to alert the court to precisely what

factual questions are in dispute and point the court to specific evidence in

the record that supports a party’s position on each of these questions. They

are, in short, roadmaps, and without them the court should not have to

proceed further, regardless of how readily it might be able to distill the

relevant information from the record on its own.” Owens v. Bristol Motor

Speedway, Inc., 77 S.W.3d 771, 774 (Tenn. Ct. App. 2001) (perm app.

denied) (quoting with approval, Waldridge v. American Hoechst Corp., 24

F.3d 918, 923 (7th Cir.1994)). Although the trial court may, at its

discretion, waive the requirements of the rule where appropriate, the court

may also refuse to consider the factual contentions of a non-complying

party even where such facts are ascertainable by the record. Id. Thus the

material facts set forth in the statement of the moving party may be

deemed admitted in the absence of a statement controverting them by

the opposing party. See ROBERT BANKS, JR. & JUNE F.

ENTMAN, TENNESSEE CIVIL PROCEDURE, § 9–4(i) (1999)

(quoting Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1313 n. 1 (7th

Cir.1995)). Accordingly, failure to file a response in opposition to a motion

for summary judgment generally will prove fatal in the trial court and upon

appeal.

Holland v. City of Memphis, 125 S.W.3d 425, 428 (Tenn. Ct. App. 2003) (emphasis

added).

Similarly, it is incumbent on an opponent to a summary judgment motion to set

forth in writing any additional facts he or she deems material to the case, but again, the

Nelsons failed to do so. See Tenn. R. Civ. P. 56.03 (“[T]he non-movant’s response may

contain a concise statement of any additional facts that the non-movant contends are

material and as to which the non-movant contends there exists a genuine issue to be

tried.”). Here, the point ostensibly intended by the Nelsons’ second phrased issue is

foreclosed by this consideration. Although it is somewhat unclear as to what the Nelsons

mean when they attack the trial court for its alleged failure to provide “due process of the

Defendants’ facts to be heard,”4 the Nelsons had the opportunity at summary judgment to

dispute the facts set forth by Metro Life and to submit their own statement of material

facts. To the extent they desire for additional facts to be heard, they are without recourse.

The opportunity was available to set forth additional facts at summary judgment, and they

failed to do so.

As it is, the facts established by the summary judgment record, which, again, were

not properly contested by the Nelsons, support the trial court’s judgment. Metro Life had

acquired constructive possession of the Property by acquiring title stemming from the

4

As alluded to earlier, a developed “due process” argument appears to be absent.

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foreclosure. As this Court explained previously, “If the trust deed establishes a

landlord/tenant relationship between the mortgagor and foreclosure sale purchaser, then a

constructive entry on the part of the purchaser attaches upon the passing of title; this

constructive entry provides the basis for maintaining the unlawful detainer action.”

CitiFinancial Mortg. Co., Inc. v. Beasley, No. W2006-00386-COA-R3-CV, 2007 WL

77289, at *7 (Tenn. Ct. App. Jan. 11, 2007). Here, the deed of trust provided for a

landlord/tenant relationship upon foreclosure, and Metro Life acquired title when it

purchased the Property at foreclosure. It therefore had constructive possession, and given

the Nelsons’ continued possession of the Property, judgment in its favor was proper. See

Fed. Nat’l Mortg. Ass’n v. Daniels, 517 S.W.3d 706, 712 (Tenn. Ct. App. 2015) (“[T]o

succeed on its motion for summary judgment, FNMA was required to establish (1) its

constructive possession of the property and (2) its loss of possession by Mr. Daniels’s act

of unlawful detainer.”).

Metro Life’s right to a judgment is not overcome in any way by the last of the

Nelsons’ raised issues in the “Statement of the Issues” section of their brief. Therein, the

Nelsons complain that the trial court’s judgment was improper because no contract

existed between them and Metro Life. The suggestion, therefore, seems to be that the

antecedent foreclosure here was improper on this account. This concern is without merit.

The facts show that, prior to foreclosure, Metro Life acquired an interest in the Property

by assignment. That Metro Life was not the original party in privity with the Nelsons is

simply not dispositive as to what transpired in this case.

Having dealt with the three issues nominally articulated by the Nelsons, we turn

our attention in closing to a few other matters for the sake of completeness. Although not

strictly raised as issues in the “Statement of the Issues” section of the Nelsons’ brief, a

few other arguments/concerns are peppered throughout their brief’s presentation. One

such topic relates to a general concern that fraud/conspiracy was committed in this case

by Metro Life. We need not reach this particular concern here due to the fact that (1) it is

not raised as an issue, (2) the allusions to fraud are not supported with citations to the

record, and (3) no facts regarding supposed fraud were ever properly injected into the

record at the summary judgment stage. Again, the Nelsons failed to submit an additional

statement of material facts at summary judgment.

Lastly, we turn our attention to an exhibit attached to the Nelsons’ appellate brief,

an exhibit they assert is a “certified copy of the release of deed of trust.” A few

observations are in order as to this exhibit and the argument it is intended to support.

First, the “Statement of the Issues” section of the Nelsons’ brief raises no issue

concerning whether the mortgage at issue had been paid prior to foreclosure. Second, the

referenced exhibit was not introduced into the record at the summary judgment stage of

the proceedings.5 Third, and perhaps most noteworthy, the release of deed of trust that is

5

It was submitted in connection with a document styled “Affidavit Statement of Evidence,”

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relied upon is in relation to a prior mortgage and indebtedness and not the encumbrance

and indebtedness that precipitated the foreclosure in this case.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is hereby affirmed.

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ARNOLD B. GOLDIN, JUDGE

which was filed after judgment had been entered and after a notice of appeal was filed.

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