Stephen Boesch v. Scott D. Hall

03/06/2024

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

February 15, 2024 Session

STEPHEN BOESCH v. SCOTT D. HALL

Appeal from the Circuit Court for Sevier County

No. 20-CV-595-III David R. Duggan, Judge

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No. E2023-00935-COA-R3-CV

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The Circuit Court for Sevier County (“the Trial Court”) dismissed the motion for summary

judgment filed by Stephen Boesch (“Plaintiff”) due to his failure to file a separate statement

of undisputed material facts in accordance with Tennessee Rule of Civil Procedure 56.03.

The Trial Court additionally denied Plaintiff’s oral motion for default judgment against

Scott D. Hall (“Defendant”) and granted Defendant’s motion for summary judgment.

Plaintiff has appealed. Upon our review, we affirm the Trial Court’s judgment.

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

Affirmed; Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which JOHN W.

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

Stephen Boesch, Sevierville, Tennessee, Pro Se.

Gregory Brown, W. Scott Hickerson, and G. Alan Rawls, Knoxville, Tennessee, for the

appellee, Scott D. Hall.

MEMORANDUM OPINION1

1

Rule 10 of the Rules of the Court of Appeals 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shall be designated “MEMORANDUM OPINION,” shall not be published, and shall not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

On September 16, 2020, Plaintiff filed a complaint against his former attorney,

Defendant, in the Trial Court. Defendant previously represented Plaintiff in an action

titled, Boesch v. Holeman, Et Al. Plaintiff alleged that Defendant had acted negligently,

committed legal malpractice, and breached fiduciary duties owed to Plaintiff. He further

alleged that Defendant had fraudulently induced Plaintiff into paying him large sums of

money by “making representations regarding the legal matter which were untrue.” Plaintiff

sought an award of compensatory damages with pre- and post-judgment interest and costs.

On November 5, 2020, Defendant filed a motion to dismiss or, in the alternative, a

motion for a more definite statement, pursuant to Tennessee Rules of Civil Procedure

12.02(6) and 12.05. Defendant claimed that Plaintiff had failed to properly plead legal

malpractice and fraudulent inducement as required by Tennessee Rules of Civil Procedure

8.01 and 9.02. In an accompanying memorandum in support of his motion, Defendant

argued that Plaintiff had failed to state any facts that might entitle him to relief, failed to

include facts regarding the specific actions or omissions committed by Defendant, and

failed to provide facts supporting a theory of legal causation. In sum, Defendant claimed

that Plaintiff’s complaint consisted of nothing more than a statement of the elements of the

alleged causes of action.

On November 18, 2020, Plaintiff filed an amended complaint, alleging specific facts

surrounding the alleged causes of actions against Defendant. Therein, Plaintiff presented

three causes of action: (1) legal malpractice, (2) breach of fiduciary duty, and (3) common

law negligence. Plaintiff sought damages in the amount of $967,000, “exemplary damages

according to proof”, “interest as allowed by law”, “costs of suit incurred”, and “such other

and further relief as the Court deems just and proper.”

In December 2021, Defendant filed a motion to dismiss the amended complaint or,

in the alternative, a motion for a more definite statement. Defendant contended that

Plaintiff’s amended complaint related to decisions regarding trial litigation strategy,

Defendant’s determinations of what proof to present in the case, and his decision not to act

on Plaintiff’s suggestions. Defendant only sought dismissal of Plaintiff’s breach of

fiduciary duty and negligence claims.

With respect to the breach of fiduciary duty claim, Defendant specifically argued

that Plaintiff’s claim was based on an alleged fraudulent act or omission and that Plaintiff

had failed to plead fraud with particularity as required by Tennessee Rule of Civil

Procedure 9.02. He further argued that a finding of a violation of the Tennessee Rules of

Professional Conduct cannot form the basis of civil liability. With respect to the negligence

claim, Defendant argued that this claim was redundant of the legal malpractice claim and

should be “subsumed by the claim of legal malpractice.”

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The Trial Court entered an order on March 3, 2022, dismissing Plaintiff’s claims for

breach of fiduciary duty and negligence. The Trial Court determined that these two claims

were redundant and subsumed by the claim of legal malpractice.

On April 19, 2022, Plaintiff filed a motion for summary judgment pursuant to

Tennessee Rule of Civil Procedure 56.01. Plaintiff argued that Defendant had failed to

timely file an answer to his undismissed claim of legal malpractice, which he claimed was

due thirty days from the date of the Trial Court’s March 3 order. Plaintiff claimed:

Defendant has not filed anything to show that there is a general issue

as to any material fact alleged by Plaintiff. Defendant has not shown that

there is doubt as to the allegations and legal malpractice claim set forth by

Plaintiff in the Amended Complaint. The law allows Defendant to do the

foregoing by filing an Answer, which Defendant elected not to do.

As it stands, there is no general issue as to any material fact or doubt

as to any facts or counts alleged by Plaintiff.

(Paragraph numbering omitted.)

Two days later, on April 21, Defendant filed an answer, denying the substance of

Plaintiff’s allegations. He also raised the following affirmative defenses: (1) that

Plaintiff’s claim was barred by the one-year statute of limitations, (2) that Plaintiff’s

claimed damages were caused, in whole or in part, by his own comparative fault, (3) that

Plaintiff’s claim was barred by the attorney judgment rule, and (4) that any liability was

“subject to setoff for the unpaid legal fees owed for services rendered” by Defendant.

Defendant later filed a response to Plaintiff’s summary judgment motion, arguing

that Plaintiff’s motion was inappropriate at that point in the litigation given that there were

outstanding discovery requests to which Plaintiff had not responded. He further claimed

that he had “cured” his lack of response by filing an answer after Plaintiff filed his summary

judgment motion, and that there were “critical factual disputes.” He also argued that

Plaintiff’s summary judgment motion did not comply with Rule 56.03 in that he did not

file an accompanying “separate concise statement of the material facts as to which the

moving party contends there is no genuine issue for trial.”

On July 6, 2022, Defendant filed a counter-complaint, claiming breach of contract.

According to Defendant, Plaintiff had failed to pay his outstanding balance for legal

services rendered. The claimed outstanding balance owed by Plaintiff was $12,420 plus

interest. Defendant sought $12,420 in arrears; all costs, expenses, and reasonable

attorney’s fees paid or incurred by Defendant’s attempts to collect and enforce obligations

pursuant to the engagement letter; and pre- and post-judgment interest at the contractual

rate. He attached as an exhibit the engagement letter, which outlined the terms of his

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representation of Plaintiff and the fee arrangement. Plaintiff filed an answer and raised

several affirmative defenses.

At a hearing on July 11, 2022, the Trial Court dismissed Plaintiff’s motion for

summary judgment because he failed to comply with Rule 56.03 and Defendant’s having

filed an answer. At the hearing Plaintiff moved orally for default judgment, which the Trial

Court denied. For some reason, a proposed order reflecting these rulings was never

tendered to the Trial Court, despite the parties having agreed upon the contents of the

proposed order. An order eventually was entered on September 28, 2023, nunc pro tunc

July 11, 2022. The Trial Court explained that Plaintiff was free to file another motion for

summary judgment after discovery had concluded.

On April 10, 2023, Defendant filed a motion for summary judgment, a

memorandum of facts and law in support of his motion, a Rule 56.03 statement of

undisputed material facts, and a declaration by him. Plaintiff filed a response to

Defendant’s summary judgment motion, disputing many of Defendant’s statements of

material fact.

After a hearing, the Trial Court entered a judgment resolving the parties’ respective

summary judgment motions on May 30, 2023. The Trial Court found that Defendant’s

summary judgment motion was well-taken and should be granted and that Plaintiff’s

summary judgment motion was not well-taken and should be dismissed.2 The Trial Court

specifically found that Defendant had negated essential elements of Plaintiff’s claim, that

Plaintiff could not prove his claim, and that there was no genuine issue of material fact as

to Defendant’s alleged negligence in representing Plaintiff. Accordingly, Defendant was

entitled to judgment as a matter of law on the remaining claim. The Trial Court further

found that Plaintiff had failed to file a statement of undisputed material facts in accordance

with Rule 56.03 and that his motion was not properly supported.

The Trial Court attached the transcript of its oral ruling as an exhibit as further

explanation for its rulings. The transcript reflects that the Trial Court’s decision to grant

Defendant’s motion was based in part upon its finding that Plaintiff failed to make citations

to the record for the facts he disputed. The Trial Court additionally found the following:

I want to note two more things, and I want this included in the order.

Plaintiff has also filed a motion for summary judgment sometime ago, which

has been responded to. But in filing his motion for summary judgment, he

has failed to file in support of his motion a statement of undisputed material

2

Although the Trial Court had already dismissed Plaintiff’s motion for summary judgment at the

July 11 hearing, the proposed order was never tendered to the Trial Court and therefore never

entered. This may explain why the Trial Court again dismissed Plaintiff’s motion for summary

judgment in its May 2023 judgment.

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facts in support of a motion and about which plaintiff says there is no genuine

issue of fact. So his motion is not properly supported under the rule, and the

plaintiff’s motion for summary judgment will be dismissed.

I will note one final thing, and I want this included in the order. This

grant of summary judgment does not resolve defendant’s counterclaim for

attorney fees. That remains open at this time.

The Trial Court certified its judgment as final pursuant to Rule 54.02. Plaintiff timely

appealed.

Discussion

Although not stated exactly as such, we have condensed Plaintiff’s issues into two

dispositive issues: (1) whether the Trial Court erred by dismissing Plaintiff’s motion for

default judgment and (2) whether the Trial Court erred by dismissing Plaintiff’s motion for

summary judgment.

As a threshold issue, Defendant argues that Plaintiff has not appealed the Trial

Court’s grant of Defendant’s motion for summary judgment, but rather only the dismissal

of his own motion for summary judgment. Defendant accordingly argues that the issues

raised by Plaintiff are moot without Plaintiff’s appeal of the Trial Court’s grant of

Defendant’s motion. Defendant correctly notes that Plaintiff has not appealed or made any

specific argument related to the Trial Court’s grant of Defendant’s motion for summary

judgment. This portion of the Trial Court’s judgment is therefore not at issue. We,

nevertheless, will address the issues Plaintiff has raised on appeal to the extent he contests

the Trial Court’s dismissal of his own motions for default judgment and summary

judgment. We do this because Plaintiff appears to argue, at least implicitly and giving him

the benefit of the doubt, that the Trial Court should have granted one or both of his motions

and therefore never reached the issue of Defendant’s motion for summary judgment.

We first address Plaintiff’s contention that the Trial Court erred by denying his oral

motion for default judgment at the July 11 hearing. A trial court’s grant or denial of a

motion for default judgment is reviewed for abuse of discretion. See Patterson v. SunTrust

Bank, 328 S.W.3d 505, 509 (Tenn. Ct. App. 2010). Our Supreme Court has previously

explained the abuse of discretion standard as follows:

Under the abuse of discretion standard, a trial court’s ruling “will be

upheld so long as reasonable minds can disagree as to propriety of the

decision made.” State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000); State v.

Gilliland, 22 S.W.3d 266, 273 (Tenn. 2000). A trial court abuses its

discretion only when it “applie[s] an incorrect legal standard, or reache[s] a

decision which is against logic or reasoning that cause[s] an injustice to the

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party complaining.” State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999). The

abuse of discretion standard does not permit the appellate court to substitute

its judgment for that of the trial court. Myint v. Allstate Ins. Co., 970 S.W.2d

920, 927 (Tenn. 1998).

Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001).

Tennessee Rule of Civil Procedure 55.01 provides in pertinent part:

When a party against whom a judgment for affirmative relief is sought

has failed to plead or otherwise defend as provided by these rules and that

fact is made to appear by affidavit or otherwise, judgment by default may be

entered as follows:

The party entitled to a judgment by default shall apply to the court.

Except for cases where service was properly made by publication, all parties

against whom a default judgment is sought shall be served with a written

notice of the application at least five days before the hearing on the

application, regardless of whether the party has made an appearance in the

action. . . . .

This Court has previously explained:

The “plain language” of Rule 55.01 shows that entry of default is

permissive rather than mandatory. . . . Implicit in this standard of review is

the underlying proposition that the trial court has discretion to excuse an

insignificant delay beyond the normal 30 days specified in Tenn. R. Civ. P.

12.01 for filing an answer. It is also clear that a trial court should exercise

its discretion in favor of allowing a case to be heard on its merits.

Parks v. Mid-Atl. Fin. Co., Inc., 343 S.W.3d 792, 798 (Tenn. Ct. App. 2011).

We emphasize that default judgments are “drastic sanctions” and are not “favored

by the courts” because they “run counter to the judicial system’s general objective of

disposing of cases on the merits.” Henry v. Goins, 104 S.W.3d 475, 481 (Tenn. 2003). We

further note that Rule 55.01 requires that the party against whom a default judgment is

sought “be served with a written notice of the application at least five days before the

hearing on the application.” Plaintiff did not serve Defendant with notice of his motion for

default judgment or even file a motion for default judgment. Plaintiff only raised the

motion orally during the July 11 hearing.

Although Plaintiff is correct that Defendant never filed a motion for enlargement or

alleged excusable neglect pursuant to Tennessee Rule of Civil Procedure 6.02, this does

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not alter the fact that Plaintiff was required to give Defendant notice that he was seeking

default judgment at the July 11 hearing. Without notice to Defendant, the Trial Court

properly dismissed Plaintiff’s motion. See Decker v. Nance, No. E2005-2248-COA-R3-

CV, 2006 WL 1132048, at *3 (Tenn. Ct. App. Apr. 28, 2006) (“A default judgment should

be vacated when the record indicates that the motion for default judgment was not served

on the defendant in compliance with Rule 55.01.”). We therefore conclude that the Trial

Court acted well within its discretion by denying Plaintiff’s oral motion for default

judgment.

We next turn to Plaintiff’s argument that the Trial Court erred by dismissing his

motion for summary judgment. Regarding the standard of review for cases disposed of by

summary judgment, the Tennessee 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 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

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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.[, Ltd. v. Zenith Radio Corp.], 475 U.S. [574,]

586, 106 S.Ct. 1348 [89 L.Ed.2d 538 (1986)]. 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 Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn.

2015).

The Trial Court dismissed Plaintiff’s motion for summary judgment first at the July

11 hearing and then again in its final judgment entered in May 2023. The Trial Court

dismissed Plaintiff’s motion due his failure to file a statement of undisputed material facts

in accordance with Tennessee Rule of Civil Procedure 56.03. Rule 56.03 provides in

pertinent part:

In order to assist the Court in ascertaining whether there are any material

facts in dispute, any motion for summary judgment made pursuant to Rule

56 of the Tennessee Rules of Civil Procedure shall be accompanied by a

separate concise statement of the material facts as to which the moving party

contends there is no genuine issue for trial. Each fact shall be set forth in a

separate, numbered paragraph. Each fact shall be supported by a specific

citation to the record.

Plaintiff did not file a statement of undisputed material facts with his motion for summary

judgment.

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“The moving party has the ultimate burden of persuading the court that there are no

genuine issues of material fact and that the moving party is entitled to judgment as a matter

of law.” JCR, LLC v. Hance, No. E2022-00765-COA-R3-CV, 2023 WL 5528597, at *4

(Tenn. Ct. App. Aug. 28, 2023) (quoting Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 83

(Tenn. 2008)). As the moving party, Plaintiff bore the initial burden to prove (1) that there

were no genuine issues of material fact and (2) that he was entitled to judgment as a matter

of law. In order to assist the Trial Court in its evaluation of these two questions, Plaintiff

was required by Rule 56.03 to file a statement of undisputed material facts.

This Court has previously quoted the Seventh Circuit in explaining the importance

of filing a statement of material facts:

As the United States Court of Appeals for the Seventh Circuit has noted, the

statements of material facts filed by the parties on a motion for summary

judgment

are not merely superfluous abstracts of the evidence. Rather,

they are intended to alert the court to precisely what factual

questions are in dispute and point the court to the 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.

Waldridge v. American Hoechst Corp., 24 F.3d 918, 923 (7th Cir. 1994).

Owens v. Bristol Motor Speedway, Inc., 77 S.W.3d 771, 774 (Tenn. Ct. App. 2001).

Trial courts may waive the requirements of Rule 56.03 in certain circumstances, but

the Trial Court did not do so here and acted well within its discretion by choosing not to

do so. See id. at 775 (finding that the trial court “acted within its discretion in choosing to

strictly enforce those requirements” of Rule 56.03); Holland v. City of Memphis, 125

S.W.3d 425, 428 (Tenn. Ct. App. 2003) (“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.”). We accordingly affirm the Trial Court’s judgment dismissing Plaintiff’s

motion for summary judgment for failure to comply with Rule 56.03.

Plaintiff’s main contention on appeal is that the Trial Court did not apply the

Tennessee Rules of Civil Procedure equally to Defendant and Plaintiff, given that

Defendant also failed to follow procedural rules but without consequence. Plaintiff

contends: “The Plaintiff was rigidly held to the rules all the while the Defense neglected,

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disregarded or ignored the rules.” Although Defendant did not perfectly comply with the

Tennessee Rules of Civil Procedure, we emphasize that the consequences for

noncompliance with the rules depends on which rule has not been followed and which

party bears the burden at that particular stage of the proceedings. Violations of different

rules may result in different consequences. For example, Plaintiff’s failure to comply with

Rule 56.03 was fatal to his motion for summary judgment given that he bore the initial

burden to prove (1) that there were no genuine issues of material fact and (2) that he was

entitled to judgment as a matter of law. Therefore, although Plaintiff argues that Defendant

failed to attach an exhibit to his response to Plaintiff’s summary judgment motion, this

lapse was inconsequential insofar as Plaintiff had not properly shifted the burden to

Defendant.

Furthermore, as we have already noted, our judicial system disfavors default

judgments and favors deciding cases on the merits. Although Defendant failed to timely

file an answer, the law is clear that a party seeking default judgment must serve the

opposing party with notice that default judgment is being sought prior to the hearing on the

motion. In addition, other alleged procedural missteps by Defendant, such as failing to file

an agreed upon order from the July 11 hearing, do not affect or play a part in the two rulings

that Plaintiff has actually appealed—the Trial Court’s denial of his motions for default

judgment and summary judgment.3 We affirm the Trial Court.

Conclusion

Upon our review, we affirm the Trial Court’s judgment. The costs on appeal are

assessed against the appellant, Stephen Boesch, and his surety if any.

_________________________________

D. MICHAEL SWINEY, CHIEF JUDGE

3

As another example of Defendant’s alleged failure to follow the procedural rules, Plaintiff claims

that Defendant failed to properly serve him with his response to Plaintiff’s motion for summary

judgment. However, despite Plaintiff’s contention, the certificate of service demonstrates that

Plaintiff was properly served with Defendant’s response.

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