In Bilbo v. Ocoee Place Condominium Homeowners Ass’n, No. E2013-02532-COA-R3-CV (Tenn. Ct. App. Dec. 12, 2014), plaintiffs filed suit alleging negligent construction of condos. Defendant HOA filed a motion for summary judgment stating that it did not own the property the condos were built on and that the HOA had no control over the construction of the condos. For the purposes of the summary judgment motion, plaintiffs agreed that defendant “had no decision-making authority,” “did not have any role whatsoever in the construction,” and “did not own the land…upon which the condominiums were constructed.”
Based on these facts, the trial court granted defendant summary judgment. Plaintiffs subsequently filed a motion to alter or amend the summary judgment pursuant to Tennessee Rules of Civil Procedure 54.02 and 60.02 claiming to have newly discovered evidence. The Court of Appeals affirmed the trial court’s grant of summary judgment.
When a motion is made to alter summary judgment based on additional evidence under Rule 54.02, a court should consider:
1) the movant’s efforts to obtain evidence to respond to the motion for summary judgment; 2) the importance of the newly submitted evidence to the movant’s case; 3) the explanation offered by the movant for its failure to offer the newly submitted evidence in its initial response to the motion for summary judgment; 4) the likelihood that the nonmoving party will suffer unfair prejudice; and 5) any other relevant factor.
Bilbo (citation omitted). Here, plaintiffs supported their motion by offering evidence that the defendant HOA did own the land, supported by copies of certain deeds. The Court of Appeals pointed out, however, that plaintiffs provided no explanation as to why the deeds, which were public record, were not obtained prior to summary judgment ruling. The Court also noted that plaintiffs did not offer information regarding their attempts to obtain evidence to use in response to defendant’s motion.
Regarding plaintiffs’ Rule 60.02 motion to alter or amend, the Court of Appeals pointed out that this rule only applies to final judgments, and when plaintiffs filed their motion the summary judgment was not a final order. Further, plaintiffs’ brief stated that they sought relief “due to ‘a mistake of counsel,’” as counsel did not know that the affidavit submitted by defendant would be sufficient for summary judgment. According to the Court, though, “counsel’s ignorance of the law or Rules does not justify Rule 60 relief.” Bilbo (citation omitted).
This case is an important reminder to be diligent in responding to summary judgment motions. A failure to find obtainable evidence or a mistake of counsel will not typically result in relief from an adverse ruling.