Hannan v. Alltel Publishing Co.

Michael HANNAN et al.

ALLTEL PUBLISHING CO.

Supreme Tennessee, Court of

at Knoxville.

Jan. 2008 Session.

Oct. Mowles, Knoxville,

Linda J. Hamilton Tennessee, Appellant, for the Alltel Pub- lishing Company. Kinnard, Madisonville, Tennes-

J. Lewis see, Michael Appellees, for the Hannan and Elizabeth Hannan. Burnette, Sevierville, Ten-

Richard L. Curiae, nessee, for the Amicus Association for Justice.

OPINION HOLDER, C.J., JANICE M. delivered court, opinion the which BARKER, A. M. CORNELIA WILLIAM WADE, JJ., CLARK, R. and GARY KOCH, JR., J., joined. C. WILLIAM dissenting. print plain-

The defendant failed listings in tiffs’ advertisement and business telephone directory. plaintiffs The filed against claiming suit the defendant loss damages as result of profits and other The the omission. defendant moved plaintiffs summary judgment alleging The damaged. heading of “Real Estate.” prove they unable to der the were however, not include the did supplement, granted trial court the defendant’s pages ad- quarter-page yellow Hannans’ summary judgment. motion for the Hannans compensate To vertisement. held that the defendant Appeals Court of omission, the Han- printed for the Alltel of the negate failed to an essential element advertise- yellow pages quarter-page nans trial claim and reversed the plaintiffs’ charge. following year the at no ment affirm the judgment. court’s We the trial Appeals’ decision and remand to Alltel, against filed suit The Hannans court. of the omissions claiming that as a result directory: from the November History

I. Facts and Procedural lost business and have Plaintiffs have expose unable to their business Elizabeth been plaintiffs, The Michael and (“the many and of their associates Hannans”), public op- Hannan owned and they have left the busi- Plains, have assumed in erated two businesses Tellico from the Tellico departed ness and Realty Tennessee —Tellico Plains and a Plains area. Plaintiffs have suffered Bed and Magnolia House Breakfast. and have suf- dramatic loss of business in Hannans advertised these businesses fered much economic loss and emotional telephone published by directories the de- they so that have been forced to distress (“Alltel”). fendant, Publishing Alltel Co. estate and bed and break- leave the real through From November November fast business. placed quarter-page the Hannans a for containing advertisement information yellow pages

both businesses in the direc- provide failure to Defendant’s] [The 2003, however, tory. In November advertising by the Plaintiffs purchased yellow pages directory published their failure to include particularly and quarter-page without Hannans’ adver- in regular Plaintiffs name white [sic] addition, In yellow pages directory tisement. Alltel omitted Tel- and Realty negligence lico Plains from the to actionable and November amounts action for pages directory provides 2003 white and failed to a cause of recov- ery. Tellico ... Realty list Plains under the “Real heading

Estate” yellow pages di- in the sought damages The Hannans rectory. yellow pages directory did $225,000. amount of listing Realty contain a for Tellico Plains summary judg- a motion for Alltel filed under the “Real Estate Consultants” “are un- claiming ment that the Hannans heading. listings Alltel included for the any damages prove they able to suffered Magnolia House Bed and Breakfast in alleged as a result of Alltel’s breach yellow pages. both the and white Hannans’ pointed contract.” Alltel to the years through from the The Hannans contacted Alltel about the tax returns in- yellow pages gross and 2004 to that the Hannans’ missing advertisement show $42,138 yellow pages the omitted direc- come from a white increased year them that the directories contained tory listings, Alltel informed which listings nearly for be advertisement and supplement directories would $69,355 year, the calen- published. published directory Alltel entire year dar the advertisement was supplement previously with the omitted which directory yellow pages Tellico omitted from the listings pages the white Realty yellow and in un- of eleven months. pages period Plains addition, upon Alltel relied the Han- lars the amount of loss or documen- deposition testimony nans’ as evidence that tation which would reflect Hannans would be unable to amount of loss for these omissions they damages sustained result of you that we’re here about. Do have testimony omitted advertisement. This any way doing that? gross concerned the Hannans’ increased absolutely way doing A I have inability quan- income their anyone else. that. And neither does

tify damages. Specifically, their Alltel re- In addition to the motion for testimony following deposition lies on the judgment, Alltel filed a Statement Mate- from Michael Hannan: Dispute. rial Facts Not in Alltel contend- Q you agree your Would me that with following material issues were ed that gross receipts up significantly were dispute: not in in November year your in the business was an adver- paid publish Hannans Alltel to previ- not compared listed phone directory; in the local tisement year you ous when listed? were initial placed advertisement was gross A That sales were— our listing directory although the business Q Significantly higher year in the “Real Estate heading included under you compared listed as to weren’t directory; in the the adver- Consultants” year you were listed? to placed supplement in a tisement was A you asking compare If are me to those telephone directory;2 the Hannans lines, yes. two phone in the direc- placed advertisements Q you you give And told me cannot 2004; 2001, 2002, tory in and the explanation for that? each of the gross Hannans’ income for A may Other than the fact that we have $87,703, years through 2004 was I piece property, sold of our own $69,355, $55,645, $42,138, respectively. may had to don’t know. We have for response Hannans’ to the motion liquidate by start to then.1 that the Han- summary judgment stated following Alltel also relied on the testi- Alltel’s of the agreed nans statement mony from Elizabeth Hannan: dispute and that the material facts not damages Hannans establish

Q responded my Your husband would granted court proof in dol- at trial. The trial questions quantifying about inability to following deposition Michael Hannan's 1. Alltel also relied on the vertisement. testimony occurring year explain profit from Michael Hannan: the low net marginally only rele- prior is omission Q why you you do have an Do know vant, however, to the amount of income why year preceding explanation in the for have from the advertisement would resulted you had net the failure to list such low income, because, gross net in addition to $1,949? $2,000, profit of expenses for that profit Hannans’ reflects the you you. I I tell A still can’t tell couldn’t year, to the adver- earlier; which would be unrelated you now. I don't know I can’t tell tisement. presume, possi- stuff works. I it's how this paid a or some- ble that we could have debt According deposition testimony cop- thing; I don’t We could have low- know. directory supplemental attached to ies money ered the amount of we owed on summary judgment, Alltel's motion piece land for instance. I don't know the supple- placed was not advertisement answer. Rather, missing directory. only the mental exchange to show that the Alltel relies on this supple- directory listings placed in the dam- Hannans cannot the amount of directory. ages the omitted ad- mental sustained as a result of motion for judgment. Alltel’s at 211 & n. 2. These statements have led to reversed, On some confusion appeal, Appeals among Court of Tennessee courts as the proof required for the finding negate that Alltel failed to an es- production. to meet its burden of Al- sential element of the Hannans’ claim. We though interpretations we stated that granted application permission Alltel’s both rules are “consistent in most material to appeal.

respects,” this also stated that “con- clusory assertion[s]” were not sufficient to Analysis II. shift nonmoving party. the burden to the Summary judgment appropri added). Id. at (emphasis ate can show In the seminal case governing federal genuine there is no issue of material fact summary judgment procedure, Celotex and that it is entitled to judgment as a Catrett, Corp. 477 U.S. 106 S.Ct. 56.04; matter of Tenn. R. law. Civ. P. (1986), 91 L.Ed.2d 265 the plurality Hall, (Tenn. opinion that a moving party may held shift 1998). Byrd, this Court set out the the burden of to a principles basic in determining involved party by alleging that “there is an absence a summary judgment whether motion for support of evidence to the nonmoving par granted. should be The moving party has ty’s 325, 106 case.” Id. S.Ct. the ultimate burden of persuading the Circuit, Sixth example, has read Celo court that “there are no disputed, material tex to the moving party merely allow to creating genuine facts issue for trial ... challenge nonmoving the party “put up to and that he is entitled to as a or up” shut on a critical issue to shift the Byrd, matter of law.” 847 S.W.2d at 215. production. burden of Street v. J.C. Brad If moving party the properly sup makes a Co., (6th & 886 F.2d 1478 Cir. ford motion, ported the production burden of 1989). moving party the shifts burden then shifts to the nonmoving party to show production simply by “asserting that the genuine issue of material fact exists. opposing party will not be to produce able Id. To meet its burden production Then, sufficient evidence at trial.” Id. if shift the burden to the nonmoving party, nonmoving “put up” cannot the moving party must affirmatively either evidence needed to show a material fact is negate an essential element of the non- in dispute, summary judgment will be moving party’s claim or establish an affir granted. Id. Decisions within federal defense. Id. mative at 215 n. 5. If the vary, circuits but most seem either to fol moving party does not satisfy its initial up the “put up” approach low or shut or to production, burden of the court should dis require moving party merely point to miss the motion for judgment. to in nonmoving party’s deficiencies See id. at 215. Summary judgment should evidence. See Nissan Fire & Marine Ins. granted only when, be with the facts (9th Cos., v. Fritz 210 Co. F.3d 1102 in nonmoving party, viewed favor of the it Cir.2000); Fairbanks v. Wunderman Cato genuine is clear that no issue of material Johnson, (9th Cir.2000); 212 F.3d fact exists. Id. at 210-11. Stores, Inc., Adler v. Wal-Mart 144 F.3d In Byrd, (10th we stated that the Cir.1998); Russ v. Int’l Pa Co., (5th federal rules for per Cir.1991); 943 F.2d “virtually identical,” Clark, Inc., and thus federal & Clark Coats 929 F.2d provided (11th “helpful guidance” Cir.1991); in our Whetstine v. Gates interpretation Co., (7th Tenn. R. Civ. P. 56. Id. Rubber 895 F.2d 394-95 Cir. Co.,

1990); 841 F.2d defines an Byrd P.R. Tel. affirmative defense as Kauffman (1st Cir.1988). 1169, 1172-73 “i.e., a defendant be entitled to sum would mary judgment if he demonstrated that up adopt “put did not This Court nonmoving party cannot establish an approach burden-shifting in up” shut Byrd, essential element of his case.” subsequent Citing Byrd or cases. n. Clearly, at 215 character dissenting opinion Brennan’s Justice ization of “affirmative defense” conflicts Celotex, moving party held that we most defini commonly understood affir conclusively either establish an must pleading, tion: “In matter asserted [a] “affirmatively negate defense or mative which, assuming complaint defendant nonmoving party’s element of essential true, a defense to it.” to be constitutes claim” to shift burden (6th ed.1990); Dictionary Black’s Law nonmoving party. Byrd, R. (describing see also Tenn. P. 8.03 Civ. Celotex, 5; see also 477 U.S. at 215 n. as accord and “affirmative defenses” such (Brennan, J., dissent 106 S.Ct. award, satisfaction, express arbitration and ing). fault, risk, dis assumption comparative cited to Justice Although we duress, estoppel, charge bankruptcy, Celotex, dissenting opinion Brennan’s fraud, consideration, illegality, failure of important opinions the two differ some license, release, laches, judi- res payment, offers respects. Justice Brennan’s dissent frauds, cata, statute of limita statute two methods of possible waiver, tions, repose, statute work par- shifting the burden Judy compensation immunity); M. ers’ ty: af- party may “the submit Cornett, Byrd v. Hall: Legacy The Gos of negates an essen- firmative evidence Summary Judgment in Ten siping about nonmoving party’s the tial of element (2001) nessee, 175, 69 Tenn. 190 L.Rev. (2) claim,” may moving party or “the dem- Byrd’s of (noting that definition affirmative to the Court that the onstrate disparate “yoked together two defense to establish party’s insufficient burden”). carrying the movant’s means nonmoving par- an element of essential the Celotex, of “affirmative de- ty’s at 106 This characterization claim.” 477 U.S. confu- Byrd, In Justice fense” has caused understandable adopted S.Ct. we cases, has In later this Court cited shifting first the bur- sion. Brennan’s method moving party the moving Byrd providing the production, permitting den of shifting methods its burden: only two for party to submit affirmative evidence (1) moving may affirmatively party of the non- negates an essential element an essential element non- adopt negate claim. did not moving party’s We claim; party’s moving moving method of bur- Justice Brennan’s second stead, may a establish an affirmative defense. permitted party In its den-shifting. we Mall, 130 Blair v. W. Town S.W.3d to shift burden estab- See moving party (Tenn.2004); Staples CBL & Byrd, 768 “an affirmative defense.” lishing Inc., Assocs., (Tenn.2000); n. Brennan’s S.W.3d at 215 5. Justice 847 S.W.2d Serv., Quality v. W. Food McCarley discuss the use dissenting opinion does not (Tenn.1998). In these possible as a S.W.2d affirmative defense upon cases, called satisfy its have not been option we for Celotex, Byrd’s definition “affirmative 477 discuss production. See burden Blair, 768; (Brennan, J., at See defense.” 106 S.Ct. 2548 U.S. 88; McCarley, 960 Staples, 15 S.W.3d at dissenting). analytical acknowledge that insistence on the ley at 588. We now court’s S.W.2d Byrd, provid term “af- has Byrd this Court misused the enunciated framework reasonable, describing predictable firmative defense” in differ- ed a ent, valid, yet burden-shifting.3 for our state.”4 jurisprudence method Thus, moving party may Cornett, shift the burden supra note at 220. nonmoving party by production Serv., Quality Food McCarley W. showing nonmoving party cannot reaffirmed establish an essential element of the claim announced in burden-shifting principles at trial. Byrd reversed shifting This second method of the bur its mo- moving party supported den of outlined in the that the non- allegation tion with from Jus opinion significantly also differs moving party could not an essential tice Brennan’s second method burden- case, element of its case at trial. In that shifting. opinion Byrd requires The against filed suit the defen- plaintiff moving party to demonstrate that the non- negligence serving dant restaurant moving party cannot establish an essential in food undercooked chicken that resulted Byrd, element of the claim at trial. 847 poisoning. The restaurant moved for sum- Brennan, n. 5. Justice how in the mary judgment, identifying evidence ever, give would poi- food plaintiffs record that showed demonstrating easier burden of bacon soning could been caused have nonmoving party’s evidence—at the sum had day. plaintiff eaten earlier that mary judgment stage —is insufficient chicken tested neither the bacon nor the Celotex, establish an essential See element. bacteria, doctor plaintiffs was (Bren 77 U.S. at S.Ct. 4 pinpoint unable to the cause of the food nan, J., Therefore, dissenting). the stan motion as- poisoning. restaurant’s adopted Byrd clearly dard we differs serted that the would be unable to from poses Justice Brennan’s standard and sum- prove causation at trial and therefore moving party. a heavier burden for the The tri- mary judgment appropriate. summary judgment. On Byrd, granted Our discussion that in de al court shows although that the spite language suggesting contrary, appeal, the this Court held we doubt” as to the cau- began departure our from the federal stan restaurant “cause[d] illness, failed to departure plaintiffs dard and continued that in sation of the it plain- element of the McCarley, subsequent negate and cases. One an essential Therefore, trial court agrees commentator and noted that tiffs claim. Id. the has sufficiency the Byrd path prematurely “the court set Tennessee on considered nonmoving party’s the evidence when the appears spared that to have us the dubious moving party ... The failed to shift its burden practices spawned Celotex. decision, Byrd especially production. the McCar language quotation this con- Noting "affirma- 4. The dissent’s the curious use of the term Byrd, tive defense” in Professor Cornett ob- reference spicuously omits the commentator’s is "a tradi- serves that an affirmative defense McCarley] "insistence [in to this Court’s " way the tional for the defendant to defeat Byrd analytical framework enunciated plaintiff’s by carrying its own burden of claim reasonable, predicable providing "a sum- Cornett, proof.” Judy Legacy M. mary judgment jurisprudence in this state.” Summary Judgment Gossiping v. Hall: about Cornett, supra, note at 220. 189-90, Tennessee, L Rev. 69 Tenn. (2001). Mall, of her motion failed to support In Town 180 S.W.3d fidavit Blair W. summary- the defendant moved for plain- element of the negate an essential case, slip-and-fall alleging in a an de- tiffs claim or establish affirmative prima that did not establish a plaintiff Associates, Staples Id. In & fense. CBL negligence. support In facie case Inc., at affirmed that S.W.3d we motion, plain- offered the the defendant motion, properly support its the mov- “[t]o testimony that she did not deposition tiffs affirmatively negate ing party must either had long slippery substance know how non-moving an essential element of the lot or present parking been on the whether an conclusively claim or establish party’s presence. of its We defendant knew affirmative defense.” cast acknowledged evidence offer doubt on could whether that a clearly These cases show proof at trial to show the defendant had production burden of party’s condition. The dangerous notice of the It is not differs from the federal burden. however, not af- deposition testimony, did moving party challenge enough for negate an essential element of firmatively shut nonmoving party “put up or plaintiffs claim because evidence a party’s to cast doubt on up” even lacked not the defendant did show at trial. Nor ability prove an element dangerous condition. Id. at notice of the the standard has our Court ever followed Thus, the defendant failed to shift dissent, Koch in his put forth Justice plaintiff, the burden of may simply show improperly granted the trial court “lacks nonmoving party motion. Id.5 summary judgment element of its claim.” an essential reaffirmed these burden- This Court has Blair, 768; Staples, at See shifting faced with mov- principles when 88; at McCarley, 960 S.W.2d In conclusory allegations. ing party’s to Justice is identical 588. This standard Kellum, 522, 525 Blanchard standard, rejected in which we Brennan’s (Tenn.1998), physician defendant 5; at 215 n. see Byrd, 847 S.W.2d Byrd. sup- moved Celotex, 106 S.Ct. 2548 477 U.S. ported her motion with affidavit (Brennan, J., dissenting). acceptable simply provided stated that she medical treatment and did violate Tennessee, a mov summary, care. reversed the sum-

standard of We to shift the burden conclusory ing party af- who seeks because this mary judgment existed); cited, relationship agency McPher Court that no to the cases several In addition Clinic, moving No. W2006-01936- Appeals cases have found that Ear of son Shea (Tenn.Ct. negated COA-R3-CV, ele party successfully an essential WL *6 nonmoving party’s claim. See ment 2007) (holding Apr.27, that defendant's App. Ctr., Hughes & Health No. Hinson v. Claiborne negated the contract existed affidavit that no M2006-02306-COA-R3-CV, WL claim); beneficiary Law plaintiff’s party third Feb.26, 2008) (Tenn.Ct.App. *5-6 Inc., Hotels, Edgewater son ex rel. Lawson physi (holding expert opinion that the that (Tenn.Ct.App.2004) 821-22 negated injury the cau did cause an cian successfully ne (holding that the defendant malprac plaintiff's medical sation element pool the hotel gated plaintiff's claim that Guider, claim); No. Burnette v. Estate tice providing records by was over-chlorinated E2006-01164-COA-R3-CV, WL employee checked chlorine that showed an Dec.27, 2007) (Tenn.Ct.App. *4 day question recorded the in and levels on the agency actual (holding a claim for chlorine). proper level principal's affidavit negated purported nonmoving party to the that imposing who Justice Koch also asserts stringent moving a less standard on the proof bears the burden of at trial must party necessary keep is Tennessee’s (1) affirmatively negate either: an essen- growing caseload under control and to con- tial element of the nonmoving party’s judicial serve resources. Justice Koch claim; or show showing cites to statistics that the number cannot an essential element of year every of cases filed has increased the claim at trial.6 studies, however, since the 1960s. These generally, focus on state courts and some Justice Koch in asserts his dissent that twenty years of the studies are more than opinion our today “brushes aside fifteen regard specifical- old. With to Tennessee years post-Byrd precedent,” v. Hall but ly, Justice Koch states that “Tennessee is he cites to Court of Appeals exception, a clearance rate with below purport to follow his ap desired one percent hundred 2005.”7 The dis- proach. To the contrary, uphold we are note, however, sent fails to that the clear- ing years ten over of Tennessee Supreme ance rate civil cases Tennessee has precedent, beginning with this hovered between 93% and 100% over the Court’s reiteration Byrd principles eight years8 last during which the sum- in McCarley Blanchard, continuing and mary judgment standard refined Staples, and Blair. See also Doe ex rel. McCarley has been rule. The most Doe v. Roman Catholic Diocese Nash recently data available shows in fiscal ville, (2005); Robinson year 2006-2007, chancery and Omer, (Tenn.1997). circuit courts had clearance rates of 96% today Our decision is true to McCarley Further, respectively.9 and 97% according through Blair. It is Justice Koch’s view study cited Justice Koch his that, if adopted, effectively would overturn dissent, among Tennessee ranked last ten years of post-Byrd precedent. 1,275 states in filings per capita civil words, burden-shifting These are the two may methods year a case be filed in one fiscal available to the disposed year. the mov- of within the next fiscal ing party Nonetheless, proof does not bear the percentage burden of at wheth- indicates differs, trial. burden-shifting analysis backlog er the courts have a of cases at the however, party bearing if the any particular year. Ideally, burden at end of fiscal trial party. always example, For courts would have a clearance rate of plaintiff who partial files motion for sum- 100%. mary judgment element of his or her by alleging claim shifts the burden undisputed Report Judiciary, 8. Annual of the Tennessee facts that Statistics, show the existence of that element Fiscal Year 2006-2007 avail- and entitle the http://www.tsc.state.tn.us/geninfo/ able Similarly, as a matter of law. a defendant Publications/AnnualReport/20 06-2007/2006- defense, asserting an affirmative such as lach- 20report% 20statistics.pdf. 07% 20annual% es, production by alleging shifts the ratings burden of The clearance were derived from the undisputed filings facts that dispositions reported show existence of number the affirmative defense. report chancery the annual for both the

circuit courts. percentage 7. A "clearance rate” comput- is a 2005-2006, comparing ed year year the number of in cases filed 9. In the fiscal Justice year a certain dispo- with the number of case Koch notes that Tennessee courts had less year. rate, sitions within that chancery The number of case than clearance the and 100% filings dispositions, and the number of case circuit courts had a and clearance 97% 98% however, may may respectively. Report not be related to the rate See Annual year. Judiciary, same cases within a supra certain In other Tennessee note at 21. 100,000 filed it per any profits citizens.10 So have made. See would been exception. Harris, is an The appears Tennessee at 335. S.W.2d of tend less liti- citizens to be summary Alltel contends that citizens, than our trial gious other U.S. and Han- appropriate is because the keep- have an in job courts done excellent de prove nans cannot within reasonable pace filings every with the number ing of they dam gree certainty of that suffered that year. agree judg- While we (1) They the ages. base this assertion on: ment should be utilized to out frivo- weed increase showing Hannans’ tax returns claims, lous is no that the there evidence year during income the the adver gross burden-shifting put place structure and Hannan’s tisement was omitted Mr. McCarley and refined in further not ex deposition testimony he could through already Blair does not do so. income; gross plain the increase case, the Hannans have this testimony that deposition Mrs. Hannan’s alleged failing negligent Alltel was anyone deter neither she nor else could Alltel, the print to advertisements. damages of mine amount sustained hand, other characterizes the Hannans’ Thus, of Alltel re a result the omission. as a claim rather claim breach contract upon from Hannans only lies negligence stage, than a claim. At this we summary judg of motion for support upon not determine have been called to may appro be Summary judgment ment. issue, leave such determination and we moving relies priate party for the who trial What is upon court remand.11 nonmoving party, upon evidence from clear, however, is that the Hannans must affirmatively ne but if that evidence prove they damaged. be able nonmov- gates an essential element damages The cannot be uncer existence of claim or shows that the non- ing party’s tain, speculative, or remote. Overstreet moving prove an essential party cannot (Tenn.Ct. Inc., Shoney’s, 4 S.W.3d at trial. The element the claim (discussing damages in tort App.1999) however, not, may merely point party Brodie, law); Cummins 667 S.W.2d proof party’s omissions (discussing dam (Tenn.Ct.App.1983) can allege nonmoving party contract). for breach of The amount ages Blair, at trial. See the element uncertain, however, damages be if may 768. plaintiff lays a sufficient foundation complaint deposition testi- fact to a fair and allow trier of make consistently mony of both of the Hannans of damages. reasonable Over assessment is Sizzlin, allege damages. What street, 703; existence 4 S.W.3d at Western (Tenn. testimony from is that deposition clear Harris, Inc. v. amount of quantify neither can Ct.App.1987) (discussing damages is Cummins, question then contract); damages. The relevant breach of quantify this failure to the amount Thus, recovery available for whether at 765. damages affirma- it is whether is sufficient show profits loss of uncertain Courts, 2,003 100,000 filings per citi Examining Work 2006: Hawaii with State Perspective Statis A National the Court zens. from at, (Robert Project C. et LaFountain tics eds., 2007) National Center for State Courts note, however, we rec- We have never ncsconline.org/D_Re at http://www. available "negligent con- ognized a breach of tort search/csp/2006_files/EWSC-2007WholeDoc- tract.” ument.pdf. litigious next least state

H than doubt as to tively provide the Hannans cannot does little more cast fact to proof sufficient to allow the trier of income.12 In the Hannans lost whether make a fair and reasonable assessment of fact, that the Hannans only Alltel asserts Harris, damages. the See prove could not use the tax returns to damages specif- 386. The assertion of in a clearly falls short of meet- damages. This amount, however, ic At required. is not moving party’s produc- burden of ing trial, provide the Hannans must a founda- tion in Tennessee. tion that would allow a fair and reasonable damages, party assessment of and neither III. Conclusion has indicated that this foundation cannot negate Alltel failed to an essen- Because Rather, whole, provided. be taken as a tial of the Hannans’ claim or element show the Hannans state there is no prove that the Hannans could not an es- dollars, way quantify nor is there trial, sential element of their claim at of, precise documentation amount of burden never shifted to the Hannans a damages sustained as result of the omis- they damages. could prove show Therefore, deposition testimony sion. Therefore, summary judgment inap- was negate does not an element of the essential propriate. judgment claim, nor Hannans’ does it show that the Appeals appeal is affirmed. are Costs cannot prove Hannans the existence of Publishing appellant, taxed to the Alltel damages at trial. Co., if may execution issue nec- which The Hannans agree that the material essary. of fact are issues as stated Alltel. The however, not agree, Hannans do KOCH, JR., J., WILLIAM C. inferences drawn from those facts. Alltel dissenting. that it impossible contends to assess the damages upon existence of based the Han- KOCH, JR., J., WILLIAM C. returns, nans’ tax an which show increase dissenting. in profits during year the advertise- decision in this case alters Court’s directory. ment was omitted from the practice in While Alltel is correct that Hannans’ moving par- by dramatically changing tax returns do not tax prove damages, the ty’s production. burden of From hence- returns do not disprove the existence of forth, parties seeking summary judg- damages, nor do they possi- foreclose the longer ment in Tennessee’s courts will no bility that the Hannans be able to will be able to shift burden damages the existence of at trial. Therefore, by demonstrating Alltel’s reliance on the Han- nonmoving party’s tax evidence is in- negate nans’ returns does not an es- sential element of the Hannans’ claim and element sufficient to establish essential addition, argument January proceeds 12. In Alltel’s is based on be sold until 2004. The faulty premise. Alltel assumes that all of the from that sale would be included in the 2004 gross period sales in 2004 resulted from a return, although federal income tax it was the during which the directories contained no advertising responsible that was for at- advertising. assumption ignores This tracting property who listed the seller proper- realities of the real estate business—a short, with the Hannans. the link between ty may profits listed for sale not realize until a year tax and the effect of the Hannans’ example, property much later date. For lack advertisement or thereof is tenuous listed sale in October when advertis- best. directories, ing may included in the the states with by the non- Tennessee was not one of of a claim or defense asserted Fed. summary judgment procedure when party. change This in direction and it did not adopted,3 beyond required to deter- R.Civ.P. goes far what oppor- before it had an adopt in rush to one mine whether judg- tunity to examine how appropriate. this case was or was not in other federal undermine, being ments were used rather decision will Court’s as Summary judgments, and state courts. enhance, summary judg- utility than part today, them did become we know opportunities as to weed proceedings ment courts un- in Tennessee’s procedure and to avoid the time of the out frivolous lawsuits Procedure til the Tennessee Rules of Civil expense unnecessary trials. January 1970. At effective on became time, R. P. 56 of Tenn. Civ. the advent I. important “one of the most was hailed as used exten- Summary judgments were pro- to Tennessee and desirable additions and in several states sively England Pro- in the Rules of Civil cedure contained they part became a of the Federal before cmt.; P. 56 see Tenn. R. Civ. cedure.” From Rules of Civil Procedure 1937.1 Pemberton, Tennessee Donald W. also into days of their introduction the earliest Procedure, 4 Mem. St. Rules Civil purpose jurisprudence, American (1974). Another ac- U.L.Rev. “pierce the summary judgments was to expert procedure on the knowledged proof and to order pleadings assess explained courts Tennessee’s need for genuine to see whether there is a summary judgment is philosophy Judge Joseph trial.”2 Hutcheson As [a] where, in a a needless trial case to avoid seventy years ago, noted almost may indicate dis- pleadings although issues, facts outside factual [sjummary procedure putes is not over clearly if unwary to take known would penny pleadings catch contrivance genuine is “no issue deprive into its toils and them show that there litigants measure, trial, liberally any material fact.” of a it is a liberal truth. Its designed arriving at the Paine, Developments F. Recent Donald off from purpose litigants is not to cut New Tennessee Procedure: The really by jury they if right their of trial Procedure, L.Rev. 37 Tenn. Rules Civil on a they will offer have evidence which (1970). 501, out, in trial, carefully test this it is to years in the fol decisions This Court’s deter- by inquiring of trial advance rule reflect that of the lowing adoption such evidence exists. mining whether ap understanding purpose our mirrored R. P. 56 Coleman, of Tenn. Civ. plication F.2d Whitaker Fed. (5th Cir.1940). application courts’ the federal Miller, Court, P. characterizing Tenn. R. Civ. Wright, 3.This Arthur R. 1. 12A Charles Alan Marcus, Kane, far-reaching depar Kay “probably L. Federal the most Mary Richard 56 as advisory com- prior Practice and Procedure 474-75 past,” observed ture from the adoption rule, of Fed.R.Civ.P. note to 1937 summary judgments mittee's adoption (2008) ("Federal Pro- app. Practice and C against summary remedies were confined "). cedure Co. v. public Allstate Ins. officials. certain Co., 483 S.W.2d & Indem. Accident Hartford ad- All Federal Practice and Procedure 2. 12A 1972). (Tenn. Amendment visory committee's note to 1963 56(e), app. C. to Fed.RCiv.P. R.Civ.P. 56. We noted that summary moving party whether has met its sum judgments provided quick, inexpensive mary judgment burden. The defendant in way to conclude cases when there exists no supported summary the Celotex case dispute regarding the material facts. judgment motion nothing with other than Henard, 527, Bowman v. 547 S.W.2d 529 an assertion that the failed had Ross, (Tenn.1977); Corp. EVCO v. 528 produce any evidence that the defendant’s 20, (Tenn.1975). 24-25 We also product plaintiffs injuries. had caused the noted that summary judgments The United States Circuit Court for the substitutes for trials of disputed factual District of Columbia reversed sum Dixon, Layhew issues. v. 739, mary judgment concluding after (Tenn.1975). However, cautioned we summary judgment motion “fatally de that summary judgments “go to the merits fective” because the defendant had “made litigation” and, therefore, that a evidence, no effort to any adduce in the nonmoving party facing summary judg otherwise, form of affidavits or support ment should “neither ignore it nor it treat its motion.” Catrett v. Johns-Manville lightly.” Fowler v. Happy Goodman (D.C.Cir. 181, Sales Corp., 756 F.2d Family, 496, (Tenn.1978). 1985). Rather, when motion for summary judg properly ment is made and supported, the The United States Supreme Court re nonmoving party “may not upon rest versed. Although the Court issued a five- allegations mere or denials of the adverse decision, to-four the majority and the dis party’s pleading, but ... must set forth agreed sent regarding how burden of specific facts showing that genu there is a production and the of persuasion burden

ine issue for trial.” Tenn. R. P. 56.06. Civ. summary judgment proceedings op should 1986, In the United Supreme States justices’ erate. The disagreement was Court handed down three opinions that limited to application agreed- them refined judgment practice in the upon principles to the facts of the Celotex federal courts.4 These signaled case. Rehnquist, Justice writing for the the lower federal courts that summary majority, stated that there was “no ex judgments could upon, be relied more than press implied requirement or in Rule 56 they had been in past, to weed out moving that the party support its motion frivolous lawsuits and to avoid the time expense affidavits other similar unnecessary materials trials.5 Among other things, these opinions negating opponent’s clari- claim.” Celotex fied the issues surrounding the burden of Catrett, Corp. 328, 477 U.S. at 106 S.Ct. production and the persuasion burden of contrary, 2548. To the pointed he out that under Fed.R.Civ.P. 56. “the moving burden party may be discharged by ‘showing’ is, particular, pointing the Court’s decision in Cel- —that otex Corporation v. out to the Catrett district court—that outlined there is an standards to applied be determining absence of to support evidence the non- Inc., Liberty Lobby, Miller, Anderson v. Wright, 477 U.S. 5. 10A Charles A. Arthur R. 242, (1986); 106 S.Ct. Kane, L.Ed.2d 202 Mary Kay Federal Practice and Proce- Catrett, Corp. Celotex 477 U.S. (3d ed.1998). § dure at 468 (1986); S.Ct. 91 L.Ed.2d 265 Matsushi ta Elec. Indus. Co. Corp., v. Zenith Radio U.S. 106 S.Ct. 89 L.Ed.2d 538 (1986).

moving party’s case.” Corp. Celotex 106 S.Ct. 2548. Justice Brennan Catrett, 477 U.S. 106 S.Ct. 2548. also explained affirmatively must the absence of show supplied

Justice fifth vote for White may the record. This re- concurring reversal. He stated in his quire to moving party depose the opinion enough that is not to “[i]t move nonmoving party’s or to estab- witnesses summary judgment supporting without inadequacy documentary lish evi- any way conclusory motion in or awith literally If dence. there is no evidence plaintiff assertion no has evidence record, moving may in the party prove to case.... his It is the defendant’s by reviewing demonstrate this for the can, to if he negate, task the claimed basis admissions, interrogatories, court Catrett, 477 Corp. for the suit.” Celotex v. exchanges parties and other between the (White, J., U.S. at 106 S.Ct. 2548 way, that are the record. Either concurring). Despite the fact that Celotex however, moving party affir- must Corporation’s summary judgment motion matively demonstrate there is only supported by was its assertion that judg- in the to support evidence record Ms. Catrett had no evidence to her nonmoving party. ment for the case, in reversing Justice White concurred Catrett, remanding the case to the circuit court Corp. v. 477 Celotex U.S. adequacy to address the of Ms. Catrett’s 106 2548. Once a has S.Ct. response Corporation’s to Celotex motion. regard carried its burden to the suffi with All U.S. at 328- Catrett, Corp. evidence, Celotex v. nonmoving party’s ciency of (White, J., concurring).6 2548 S.Ct. pointed Justice Brennan out that the bur production nonmoving den shifted dissenting Justice Brennan used his (1) to or party point to evidence overlooked v. opinion Corporation in Celotex Catrett ignored by moving estab party that to focus on how and the burden of (2) a material to dispute, lishes factual in a production shifted rehabilitate evidence attacked proceeding. the burden of where (3) moving party, produce to additional nonmoving proof at trial would be on the showing genu the existence of a evidence he party, stated (4) trial, ine issue submit carry could its burden of either why discovery explaining further affidavit by submitting “affirmative evidence that Catrett, necessary. Corp. is v. Celotex negates non- an essential element n. U.S. at 332-33 & S.Ct. moving party’s by demonstrating claim” or trial and the Many of Tennessee’s courts nonmoving par to the trial court “the citing relying Appeals began ty’s is an Court insufficient establish af Corporation on v. Catrett soon party’s essential Celotex element Catrett, However, 477 U.S. Corp. ter it filed.7 differences claim.” v. Celotex interrogatories seeking Corporation's infor assert that Justice 6. Some commentators concurring opinion White’s causation. "inconsistent” about her evidence of mation Cornett, Rehnquist's plurality opinion. Legacy Byrd with Justice Judy M. v. Hall: Entman, See, e.g., F. Flawed Activism: Judgment June Gossiping Summary Ten About Opin Supreme Advisory nessee, The Tennessee Court's Tenn. 185 n. 66 L.Rev. Liability Summary Tort ions Joint ("Cornett”). 193, 217 Judgment, 24 Mem. St. U.L.Rev. Walden, commentators, In Moman v. (1994) ("Entman”). Other (Tenn.Ct.App.1986), Appeals held however, the Court of have noted that Justice White’s deci 56.03, motion, upon sum- Rule "[u]nder been on the fact that sion could have based against a respond mary judgment be entered failed to Celotex shall Ms. Catrett had among the physicians maliciously three sections of the Court of had interfered with Hall, Appeals employment. his began emerge. Compare Mo (Tenn.1993). Walden, (Tenn.Ct. phy- The defendant man v. 719 S.W.2d 531 sicians filed a motion App.1986), and Kilpatrick Bryant, Shel after the failed to answer their (Tenn.Ct. by Eq. No. 1990 WL 165790 interrogatories seeking to discover the Nov.1,1990),8 App. Thurman-Bryant identity persons knowledge of all having Supply Unisys Elec. Corp., Co. No. physicians support his claims. The did not 03A01-9105-CV-00152, 1991 WL 222256 affidavits, plain- their motion with and the Nov.4, (Tenn.Ct.App. 1991),perm. app. de opposing day tiff filed an affidavit on the (Tenn. concurring only, nied in results summary judgment motion was 25,1992).9 Mar. summary heard. The trial granted court a When this Court became aware of the judgment, Appeals and the af- Court conflicting Appeals opinions Court of re- concluding plaintiffs firmed after that the garding application Corpora- of Celotex respond physicians’ failure to to the inter- tion v. to Tenn. R. P. Catrett Civ. we rogatories required “the ultimate conclu- granted an appeal to address the issue. support sion that there is no evidence to case, We took the not out of a concern that Hall, plaintiffs] complaint.” Byrd [the v. the trial appellate courts grant- were 03A01-9104-CV-00116, No. 1991 WL ing many too summary judgments, but 1991). (Tenn.Ct.App. Sept.5, at *1 rather because we were convinced that summary judg- This Court reversed summary judgments devices, helpful were ment the plaintiffs because eleventh-hour when used appropriately, dis- resolve opposing summary judgment affidavit in putes just, speedy, inexpensive genuine motion created issues material Ross, Corp. manner. v. EVCO 528 S.W.2d Hall, Byrd fact. v. at 847 S.W.2d 217. at 24-25.10 significance Byrd v. Hall is that The case the Court selected involved the explicitly the Court “embraced” the views claim hospital employee of a who had been White, Rehnquist, of Justices and Brennan discharged as the County head of the Scott Corporation regard- v. Celotex Catrett Hospital’s radiology department ing production two burden and the bur- showing language who failed to make a Appeals sufficient found in the Court of to establish the existence of an essential ele- dealing opinion Corporation with Celotex v. party’s ment to that case and on which the Catrett.” party will proof bear the burden of at If trial. non-moving party fails to establish the anything, 10.If the Court was concerned that element, existence of an essential there can be being grant courts too hesitant to genuine any issue as to material fact since summary judgments appropriate cases. complete proof concerning failure of an Banks, Entman, Robert Jr. & June F. Tennes non-moving essential party’s element of the 9-4(c), (2d § see Civil Procedure at 9-55 necessarily case all renders other facts imma- ed.2004); Morton, Note, Lawrence W. Sum terial." mary Judgment, 9 Mem St. U.L.Rev. (1979) (noting that Tenn. R. Civ. P. 56 "has summary judgment 8. This Court affirmed the reception received than part Kilpatrick Bryant, a less enthusiastic v. (Tenn. 1993). judiciary, particularly ap much of the at the level”); Wellford, Celotex, pellate Buckner initially Court This filed an order on March Summary Judgment and the Tennessee Su 16, 1992, denying application permis- for preme Waiting Court: Other Shoe However, appeal sion to without comment. B.J., Drop, July-Aug.1992, Tenn. at 25, 1992, we filed a revised order on March stating that we did "not concur with some of firm foundation summary judgment providing credited with “a persuasion

den of Hall, Byrd practice” proceedings. a stable 214. The both burden- approved Court “may spared have well methods Justice shifting identified noted problems of the been some that have permissible ways for the mov- Brennan as Cornett, 69 Tenn. practice.” in federal carry production ing party its burden has not L.Rev. 176. While judgment summary proceeding. in a repeated endorsement again explicitly its satisfy ability moving party burden-shifting regard to the first With method, by demonstrating moving party stated burden of we its “affirmatively carry could burden is in party’s the non- element of negating] essential to establish an essential element sufficient Hall, moving party’s claim.” defense, nonmoving party’s claim regard at 215 n. 5. With Appeals the trial courts the Court method, we stated burden-shifting second R. repeatedly interpreted Tenn. Civ. have be entitled to that a “would pre to do permit moving parties P. 56 to demon- [or she] if he See, e.g., Pyles, No. cisely that. Holt nonmoving party cannot strated that M2005-02092-COA-R3-CV, 2007 WL his [or an element of establish essential 2007), (Tenn.Ct.App. Apr.24, at *8 Hall, at Byrd case.” v. 847 S.W.2d her] (Tenn. 2007); Sept. denied app. perm. “summary explained 215 n. 5. that a We Hahn, No. -00342-COA- Denton v. M2003 when, being appropriate after judgment is (Tenn. R3-CV, 2083711, at *11 2004 WL to substan- given opportunity a reasonable 2004) (No R.App. Tenn. Ct.App. Sept.16, claims, is nonmoving party tiate its filed); Gaylord v. application Cagle 11P. any establish essential element unable to Co., No. M2002-00230-COA-R3- Entm’t the burden of its case on which it have will (Tenn.Ct. CV, at *3 2002 WL Hall, trial.” v. proof Byrd of at Dec.5, 2002), app. denied perm. App. point at 213. reenforced this S.W.2d We Rubin, (Tenn. 30, 2003); v. June Wilson summary granting a when we stated that (Tenn.Ct.App.2002); 104 S.W.3d if, sufficient judgment appropriate is after Co., 84 Cooper Realty Mgmt. v. Fleck non- discovery elapsed, the time for has Blair (Tenn.Ct.App.2002); is to demonstrate moving party unable 756 S.W.2d Corp., Allied Maintenance v. can sufficient evi- present that he or she Moman v. (Tenn.Ct.App.1988); trial to a motion dence at withstand Walden, 533. Hall, v. Byrd directed verdict. at 213.11 a number of this issued Court has While v. narrowly construing Byrd opinions has Byrd v. Hall our decision

While Hall,13 not, today, until criticism,12 been it has at least it has also escaped not interpretation Byrd v. Hall subsequent explicitly "em- 11.Despite we fact that Tennessee's courts. second method braced” Justice Brennan’ Byrd v. shifting production in the burden of 180-93; Hall, Cornett, did not Ent- Tenn. L.Rev. at "[w]e the Court now states man, 24 St. at 206-26. method of Mem. U.L.Rev. adopt second Justice Brennan’s cramped burden-shifting.” read- While this ambigu with the ing Byrd v. is consistent on the Hall These decisions have relied Byrd reach in this v. Hall language desires to in footnote 5 of results that Court ous carry case, entirely stating could it is inconsistent "affirmatively ne- production by language Byrd Hall but also burden expressly repudiated plain language law or matter of demonstrate Byrd embracing v. Hall Justice Brennan’s nonmoving cannot establish es- Thus, burden-shifting second tri- method. of a claim defense for sential element al appellate courts have continued to proof which it will have burden employ Justice Brennan’s second burden- trial. shifting Many of method. the intermedi- change Such a dramatic established appellate opinions officially ate court prompts summary judgment practice sev-

reported permis- after Court denied question questions. eral foremost appeal. Accordingly, sion to Term. under why believe this does Court now 4(G)(2), Sup.Ct. R. these decisions became change necessary? Corp. v. Is Celotex “controlling authority for all purposes.” Catrett, Hall, Byrd as construed authority These are no controlling summary judgments bad Are law? longer. longer needed to weed out frivolous law- to avoid the and expense suits and time II. unnecessary Are properly trials? The Court’s decision in this case brushes supported summary judgment made and years aside fifteen of post-Byrd v. Hall motions with the liti- interfering somehow decisions relying Hall’s version gants’ constitutionally right protected to a of Justice Brennan’s second burden-shift- jury trial? Does the now believe ing method. Parties seeking a summary judgments inappropriately longer will no be able to shift litigation side in than favor one more an- burden opinion provides other? The Court’s few party by demonstrating that the nonmov- answers. ing insufficient, party’s evidence is as a law, matter to be little that litigation of There can doubt establish an essential element of of party’s one has increased since the 1960s. While Now, claims or parties seeking many defenses. keen observers of American courts a summary judgment deny phenomenon to symptomatic will be able shift that is the burden production only they of of exaggerated litigiousness, unfettered (1) establish an awards, affirmative as a defense and excessive fundamental Inman, gatfing] an essential element Memphis of the nonmov- ers Nat’l Bank v. 588 757, ing party’s claim” rather than the clear lan (Tenn.Ct.App.1979); S.W.2d 760 see also guage Byrd stating Ry., in elsewhere v. Hall that a Martin v. Southern No. E2006- Norfolk * 01021-COA-R3-CV, when, 1958644, "summary judgment appropriate is af 2007 WL at 8 6, 2007) J., being given (Susano, ter a opportunity (Tenn.Ct.App. July reasonable to dis claims, nonmoving party senting) (observing prin substantiate its that it a "bedrock is any ciple” party's jury is unable to “a establish essential element of demand and its right alleged its it pursue case on which will have the its burden cause action can Hall, proof legitimately at trial." 847 S.W.2d at be thwarted if the sued can demonstrate, See, 1, e.g. 213. 1 ex under Doe rel. Doe S.W.3d the rubric of Tenn. R. 154 22, Mall, 56, (Tenn.2005); 41 Blair v. Civ. it West Town P. is entitled 761, Hence, (Tenn.2004); judgment. per 130 Staples S.W.3d 767 if the material facts Inc., Assoc., 83, (Tenn. taining dispute CBL & 15 are and S.W.3d 88 to defense not in if Serv., 2000); McCarley Quality conclusively West those facts show that the defen Food 585, (Tenn. 1997). judgment, 588 dant entitled to a trial, right jury its constitutional loses over, question certainly must goes away This be answered case is and the defendant summary judgment”), perm. app. granted negative. Malady, in the State v. 952 (Tenn. 13, 2007). (Tenn.Crim.App.1996); Plant Union Nov. law,15 by

problems they Corporation’s with substantive the Rand Institute nationwide, Civil Justice found that tort agree grown.16 that the caseload has litigation growth percent showed three National Center for State found Courts higher- 1981 and 1984 but between incoming that all in trial state courts prod- malpractice stakes torts such as and (defined filed, newly reopened, and liability and growing quickly uct cases) in exceeding reactivated rose explode latent “tend in injury mass torts 100 million for the second time ten number.”19 and civil years.17 Between 1984 and criminal caseloads state courts increased delay20 in the Increases caseload lead to thirty by percent, outstripping eight sap already judicial and threaten to scarce Examining the Work percent report increase A population.18 resources.21 Galanter, (noting proportion lawyers Against 15. Marc The Turn Law: Tlte Expanding Accountability, Against population Recoil increased around 1970 and (2002) (reject- Tex. L.Rev. n. century). than end more doubled ing "ubiquitous portrayal of a world of claims, litigation, outlandish and excessive Courts, Examining the Work State 2006: awards” advanced media such Perspective A National the Court Statis- from antilitigation "canonical texts” as Walter K. ah, (Robert Project et tics C. LaFountain (1991)). Litigation Explosion Olson's The See eds., 2007) State National Center for Courts Inst, at, et also Deborah R. Hensler Rand http://www. ncsconline.org/D_Re- available at Justice, Litigation, Civil (1987). in Tort at 24 Trends search/csp/2006_files/EWSC-2007WholeDoc-

ument.pdf. Galanter, Vanishing 16. Marc An Trial: Kauder, State 18. Neal National Court Case- Examination Trials Related Matters Trends, 1984-1993, Courts, Highlights Legal load Caseload Empirical Federal State 1 J. Courts, (Nat'l http:// Williamsburg, Stud. available Ctr. for State marcgalanter.net/Documents/papers/ Va.), Aug. http://www. available at (noting thevanishingtrial.pdf the number of ncsconline.org/d_research/CSP/Highlights/vol filings the federal courts has increased lnol.pdf. 2002); fivefold from 1962 to Marc S. Galan ter, Reading Landscape Disputes: What of Hensler, 6, Litigation, in at 19. Trends Tort 30 (And We Know and Don’t Know Think We (explaining discrepancy in used numbers Know) Allegedly About our Contentious and by opponents proponents and of the tort re- 4, (1983) Society, Litigious 37 31 UCLAL.Rev. by demonstrating form debate discordant (finding filings large increase in federal and suits). subcategories in tort trends of per capita filings); in Marc Ga increase Panic, lanter, Beyond Litigation 37 Pro delay, generally, Barry Mahoney, 20. On see Acad, 18, ceedings of the of Political Sci. (Na- Changing in Courts 210-11 Times Trial http://marcgalanter.net/ available at 1988) Center for State Courts tional available (stat Documents/beyondthelitigationpanic.pdf (concluding http://www.nesonline.org at that ing filing civil "[p]ercapita rates of cases high percentage "in a number of courts a of in localities in recent dec have risen most ... longer take the maximum time than concluding that the data for the ades” but periods set forth in either the standards “portray nothing years that resem 1978-1984 Bar adopted American Association or supposed Arthur Mil explosion”); bles the R. of endorsed the Conference Civil those ler, Judgment: The to Are the Pretrial Rush Civiletti, Justice”); Benjamin Zeroing in R. on Crisis,” Explosion,” "Liability "Litigation and Justice, Litigation Real Crisis: Irrational Efficiency Eroding Day in Clichés Our Court Costs, Delays, 46 Md. Needless Excessive Commitments?, Jury and Trial N.Y.U. (1986). 44-46 L.Rev. (2003) (noting 994 — 95 L.Rev. “some litiga of evidence indicates that volume Kauder, State Caseload 21. See National arguing that tion has increased” but there is Trends, 1984-1993, (noting at proportion no increase in the of lawsuits to Galanter, jurisdiction general heard injuries). Tex. L.Rev. at state courts of See also jury’s perver- of Courts, possibility reduced the the National Center State numbers of balance substantive/procedural State noted “with Courts sion of the court the drain on state magnitude, this and unauthorized improper by means not be underestimat- resources should the rise Given redistribution.”27 wealth “the also found that The Center ed.”22 demand on the concomitant litigation and has judges trial and courtrooms number of resources, to it is essential judicial state filings.”23 increases kept pace with ability dispose of courts’ to maintain the no a clear- exception, litigation. Tennessee is meritless percent one hundred ance rate below prompts a second decision Court’s justice is It is true that “[s]low 2005.24 this practical effect will question. What bad, injustice is not an admissi- speedy but in Tennessee’s litigation decision have However, ble substitute.”25 is that its effects will courts? The answer judgments, by performing essential pro- It far-reaching. and will significant be claims,26 weeding out meritless task for those who are vide another safe harbor jus- accomplish goals the twin strive expert evi- unprepared. cases which commentator celerity. tice and As one an essential necessary dence is noted, the Celotex decision “fostered claim, medi- plaintiffs of a such as element efficiency, procedural value of reduced cases,28 defendants, defendants will malpractice and cal danger of harassment 1,924 incoming per judge in many many non-traffic cases criminal and 27 times as times courts, Examining federal while State civil cases as district state. the Work Courts, 2006, many judges). operating with 14 times as 22. at Courts, 2006, Examining 22. the Work State Courts, Mahoney Changing in Trial 25. Times Rottman, at 21. See also David B. Trends and Rosenberg, Court (quoting Maurice at 205 Challenges Issues in the State Courts: and Causes, Remedies, Status, Congestion: Achievements, in The Book the States 236 Courts, Explosion Law the Public and the (The 2004) Council of State Governments Jones, ed.1965)). (Harry W. (finding that "the overall demand for access strong likely judges’ time remains state increase”). Miller, 78 N.Y.U.L.Rev.at 1016. al., Hannaford-Agor 23. Paula et Trial Trends Redish, Summary Judgment and 27. Martin H. System, Implications Civil Justice Vanishing Implications the Liti- Trial: (Nat’l Highlights State Caseload Ctr. for Matrix, gation 57 Stan. L.Rev. Courts, Va.), Williamsburg, June (2005). http://www.ncsc0nline.0rg/d— available (ex- research/CSP/Highlights/Voll lNo3.pdf regularly and Summary judgments are fre jury plaining the decline in both bench and granted determine quently when the courts by pointing limita- trials to such institutional plaintiff’s expert does not meet that the tions, management in addition to case flow § 29-26- requirements of Tenn.Code Ann. Rottman, ADR). techniques and See also Allen, See, 115(b) e.g., v. (Supp.2008). Eckler Courts, at 239 Trends and Issues the State 379, (Tenn.Ct.App.2006); 387 231 S.W.3d var- (noting that the "flood tide” of new and Handal, 743, 765-66 Kenyon v. 122 S.W.3d “challenges the institutional ca- ied demands Totty Thompson, 121 (Tenn.Ct.App.2003); v. courts"). pacity state 676, (Tenn.Ct.App.2003); 681-82 S.W.3d Bicknell, 106, (Tenn. Courts, 115 2006, v. 73 S.W.3d Roberts Examining the Work State Hosp., Ct.App.2001); Dunham v. Stones River (noting a state is unable to “[i]f at 30 Inc., 47, (Tenn.Ct.App.2000); 52 40 S.W.3d incoming, dispose many as are of as County Gen. v. Jackson-Madison percent, Mabon will 100 clearance rate be below [its] 826, (Tenn.Ct.App. Hosp., S.W.2d 831 grow, 968 likely pending caseload is [its] Tenn., 1997); result”). Health Servs. Rose v. H. C.A. backlog may an increase in also [its] 144, Inc., 2005, (Tenn.Ct.App. 149 947 S.W.2d report also found that in there 20

longer summary judgment be entitled to a Damages susceptible are often not they plaintiffs computation, demonstrate that the exact & Provident Acci Life Co., expert qualified is to render an dent Ins. Co. v. Indem. 156 opin- Globe 571, 576, Successfully 1057, (1928), ion. Tenn. 3 challenging particular a S.W.2d 1058 expert’s qualifications impartial judgment and must be left to the does not demon- Thurman, of the jury. strate Goodall v. 38 plaintiff prove cannot (1 Head) 209, (1858); Tenn. 217-18 Over simply essential element of its case. It Inc., 694, Shoney’s, street v. 4 S.W.3d 703 plaintiff demonstrates that the cannot es- However, plaintiff (Tenn.Ct.App.1999). tablish an essential element of its case provide must nevertheless sufficient evi Thus, expert. with that rather than the dence to enable the trier of fact to make a litigation ending disqualification fair and reasonable assessment expert, it will continue while the Bank, damages. BancorpSouth Inc. v. plaintiff attempts yet to find ex- another (Tenn.Ct. Hatchel, 223, 223 S.W.3d 230 pert. Determining many how chances a Motors, App.2006); Waggoner Inc. Wa given qualified must be to find a Christ, 159 verly Church S.W.3d 57 expert before a case can be dismissed re- (Tenn.Ct.App.2004). While open question.29 mains an need not be mathemat regarding damages Chesor, ically precise, Brown v. III. (Tenn.Ct.App.1999), 483 it must opinion The Court’s in this case creates both the existence and the amount dam who, plaintiffs a safe harbor two almost ages certainty. Wright with reasonable years they four complaint, after filed their Tech., Grisoni, Med. Inc. v. are still unable to substantiate their claim (Tenn.Ct.App.2001); 595 Overstreet v. (“Alltel”) Publishing Company’s that Alltel Inc., 4 Shoney’s S.W.3d listings failure to include their in the local $225,000 telephone damages book caused them in When are an essential element damages. action, When Mr. Hannan deposed plaintiffs was cause of defendant year one after filing complaint, may prevail summary over he on a motion for stated that it that the “impossible” identify judgment by demonstrating plain was quan- produce the records or documents that could tiff has failed to evidence of its tify Corp. the losses he and claim- Serv. damages. Independence his wife were Ins. Co., ing. “impossi- F.Supp.2d He also testified that it Ins. was Hartford Life (D.Conn.2007); specify any couple ble” to Maier-Schule business GMC, Likewise, Corp., lost. Hannan Inc. v. Motors when Ms. General losses, stated, (W.D.N.Y.1994); quantify asked to she F.R.D. Monroe v. their Am., Inc., way doing Hyundai Ga.App. “I absolutely have that. Motor (2004); anyone And neither does else.” 606 S.E.2d Roed v. 1996); Inc., against Ayers Hosp., granted Rutherford client, (Tenn.Ct.App.1984). lawyers gather the evidence their these they presented have at the should thirty years ago, 29. Over we warned the bar and, judgment hearing invoking R. Tenn. Civ. taking summary judgment perils about 59, opportunity to defend P. ask for a second lightly. Happy motions too Fowler v. Good against summary judgment motion. This Family, Regrettably, man 575 S.W.2d at 498. granted procedural over” Court them this "do always this advice has not been heeded. 715, Clarke, v. 724 in Stovall today, many lawyers Even far too find them (Tenn.2003). adversary’s unprepared selves when their summary judgment heard. After motion is

21 MacDonald-Cartier, 18, N.J.Super. 323 listings the absence in the No- (1999). telephone vember 2003 book. The court 1205, Accordingly, 731 A.2d 1209 trial, overlooked the fact that at the Han- granted summary courts have motions for required prove nans also be would judgment in cases of plaintiff where only the but existence also the amount of damages fered no evidence of other than damages certainty. their with reasonable allegations complaint, in its Draft-Line Co., 841, Corp. F.Supp. v. Hon 781 lawyer regretta- 846 The Hannans and their (D.P.R.1991), bly give go did not the courts much to on. president or where the Even when the evidence is viewed plaintiff corporation testified that the basis Hannans, light most to the it is favorable $4,000,000 for the damage claim was noth any difficult to reach conclusion other than ing more than “feeling.” his Zirin Labs. enough that the record does not contain Int’l, Co., Inc. v. Mead-Johnson & 208 to enable a jury anything evidence to do (E.D.Mich.1962). 633, F.Supp. speculate more than about that amount of However, requirement a plain damages. simply Hannans’ There is damages tiff its does not necessarily establishing evidence the amount of the place plaintiff the burden on the to pro damages Hannans’ with reasonable cer- damages duce detailed evidence of at the tainty. Accordingly, I hold that would stage because that Alltel production carried its burden of with goes sort of evidence amount regard summary motion plaintiffs damages, not to plaintifPs and that the burden of shifted right to recover. When faced a mo to the Hannans to demonstrate that their summary tion for judgment challenging damages claim for be presented should adequacy of its of damages, evidence jury. that, I would also hold even need demonstrate that dam though the Hannans had fifteen over ages they exist and that entirely are not months to marshal their of dam- evidence speculative. Cormier v. Dist. Columbia ages, they failed to demonstrate both that Auth., 340, & Sewer Water 946 A.2d 348 they had been damaged awarding and that (D.C.2008); see also damages entirely v. Arthur An them spec- Allard would not be (USA), F.Supp. 488, Accordingly, prop- dersen Co. ulative. the trial court 491-92 erly granted Alltel’s motion for (S.D.N.Y.1996); Trucks, Carswell Inc. v. judgment. Co., 1238,1239 Int’l Harvester 334 F.Supp.

(S.D.N.Y.1971); Petty Chrysler Corp., 815,

343 Ill.App.3d 278 Ill.Dec. (2003);

N.E.2d Carroll Phila. Auth.,

Hous. Pa.Cmwlth. A.2d (1994); AccuWeb, Foley Inc. v. Lardner, STATE of & Wis.2d 746 N.W.2d (2008). n. 453 8 While the existence of damages is an Robert Jonathan HARRISON. claim, essential element of the Hannans’ so Supreme Tennessee, Court of establishing the amount of at Jackson. damages certainty. these with reasonable April 2008 Session. Thus, the of Appeals go did not far enough when it decided to reverse the trial Oct. solely

court because Alltel “prove” did not damaged Hannans had not been

Case Details

Case Name: Hannan v. Alltel Publishing Co.

Court Name: Tennessee Supreme Court

Date Published: Oct 31, 2008

Citation: 270 S.W.3d 1

Docket Number: E2006-01353-SC-R11-CV

Court Abbreviation: Tenn.