IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
March 29, 2001 Session
JACK HUTTER v. ROBERT M. COHEN, ET AL.
Appeal from the Circuit Court for Blount County
Nos. L-11686 and L-11709 James B. Scott, Jr., Judge
FILED MAY 8, 2001
No. E1999-01859-COA-R3-CV
CHARLES D. SUSANO, JR., J., dissenting.
I cannot concur in the majority’s affirmance of the trial court’s grant of summary judgment
in these two related legal malpractice actions. My unwillingness to join my colleagues is based upon
my belief that the affidavits of defendants/attorneys Robert M. Cohen and H. Allen Bray are legally
insufficient to require the plaintiff Jack Hutter to engage in what I refer to as litigation “on the
papers.”
The law imposes a threshold obligation upon a defendant seeking summary judgment; such
a defendant “must either affirmatively negate an essential element of the non-movant’s claim or
conclusively establish an affirmative defense.” McCarley v. West Quality Food Service, 960
S.W.2d 585, 588 (Tenn. 1998) (citing Byrd v. Hall, 847 S.W.2d 208, 215 n.5 (Tenn. 1993)). If the
defendant fails to satisfy this threshold obligation, “the non-movant’s burden to produce either
supporting affidavits or discovery material is not triggered and the motion for summary judgment
fails.” McCarley, 960 S.W.2d at 588 (citing Byrd, 847 S.W.2d at 215) (emphasis added).
Our Supreme Court has indicated that non-specific defense affidavits do not trigger an
obligation on the part of the plaintiff to present affidavits and discovery material demonstrating a
genuine issue of material fact. Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998). See also
Harris v. Chern, 33 S.W.3d 741, 743 n.1 (Tenn. 2000).
In each of the cases now before us, the defendant in his affidavit1 basically states the
following: I am a licensed attorney; I know the standards of professional practice applicable to
1
The affidavits are essentially identical. The one signed by Mr. Bray is attached as an appendix to this opinion.
attorneys practicing in Blount County; I have “handle[d]” cases pertaining to, and am familiar with
the law applicable to, family law, landlord/tenant, and unlawful detainer cases; I was retained by the
plaintiff to represent him with respect to a custody matter and a matter pertaining to possession of
a house; I am familiar with the facts surrounding the aforementioned representation; and, finally, “I
did not deviate from or fall below the legally accepted standard of practice for attorneys practicing
law in Blount County, Tennessee, and the surrounding area, nor did I fail to exercise that degree of
care, skill, and diligence which is commonly possessed and exercised by attorneys in practice in this
jurisdiction, relative to my aforementioned representation of Jack Hutter.”
In reading the affidavits, I am struck by what both of them fail to do. In each case, the
affidavit does not state any facts pertaining to the advice given or the services performed by the
attorney. In other words, after reading the affidavits, one is left to ponder: What did the attorney do
or not do in connection with this representation as it pertains to the shortcomings alleged by the
plaintiff as the basis for his legal malpractice case? The affidavits are simply devoid of any
information on this subject. The attorney in each case says that he knows what he did; but he
doesn’t share this information with the reader.
I do not understand how a plaintiff can be expected to demonstrate a genuine issue of
material fact if he or she does not know the material facts upon which the defendant relies to support
his or her position that summary judgment is appropriate. As I understand the concept embodied in
Tenn. R. Civ. P. 56, a trial is not necessary when the facts are clear and undisputed and those facts
show conclusively that the defendant is entitled to a judgment; but this raises an obvious question:
How do we know that the facts are clear and undisputed if a defendant’s supporting material fails
to tell us what the material facts are?
If a defendant’s obligation under Rule 56 is to present facts showing that he or she is entitled
to judgment in summary fashion – and I believe it clearly is – the affidavits before us simply do not
satisfy this obligation. In my judgment, an affidavit that simply asserts that (a) I know the standard,
(b) I know the facts (without revealing them), and (c) I did not deviate from or fall below the
applicable standard, does not comport with my understanding of the letter2 or spirit of Rule 56. If
factual specificity is required in the material submitted by the non-movant,3 why is it not also
required with respect to the material submitted by the movant, who, after all, has the primary burden
2
For example, Rule 56.06 provides that “[s]uppor ting...affidavits shall be made on personal k nowledge , shall
set forth such facts as would be admissible in evidence,...” (Emphasis added).
3
Rule 56.06 further pro vides, in pertinent part, as follows:
When a motion fo r summary ju dgment is m ade and supporte d as prov ided in this
rule, an adverse party may no t rest upon the mere allegations or d enials of the
adverse party’s pleading, but his or her response, b y affidavits or as otherwise
provided in this rule, must set f orth specific facts showing that there is a genuine
issue for trial.
(Emphasis added).
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to convince the court that he or she is entitled to summary judgment? If a generally-worded,
conclusory affidavit, such as the ones now before us, has the effect of triggering the non-movant’s
obligation to bring forth “specific facts,” see Rule 56.06, I believe that such a holding necessarily
means that the non-movant, rather than the movant, has the burden of persuasion on summary
judgment. Obviously, such a result is contrary to well-established summary judgment law. See, e.g.,
Byrd, 847 S.W.2d at 215.
I would hold that the defendants’ affidavits did not trigger an obligation on the part of the
plaintiff to show a disputed material fact, and, consequently, that the defendants are not entitled to
summary judgment. Accordingly, I respectfully dissent.
___________________________________
CHARLES D. SUSANO, JR., JUDGE
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