JOHN J. BANDEIAN, JR., M.D., )
)
Plaintiff/Appellant, )
) Davidson Sixth Circuit
VS. ) No. 95C-3587
)
MARTIN H. WAGNER, M.D., )
) Appeal No.
Defendant/Appellee, ) 01-A-01-9703-CV-00140
)
RAY W. HESTER, M.D., and GERALD )
R. BURNS, M.D., )
)
Defendants. ) FILED
October 29, 1997
IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE Cecil W. Crowson
Appellate Court Clerk
APPEAL FROM THE DAVIDSON SIXTH CIRCUIT COURT
AT NASHVILLE, TENNESSEE
HONORABLE THOMAS W. BROTHERS, JUDGE
John J. Bandeian, M.D.
3169 West State Street
Bristol, TN 37620
PRO SE FOR PLAINTIFF/APPELLANT
Ed R. Davies, #3231
DAVIES, CANTRELL & HUMPHREYS
150 Second Avenue North, Suite 225
Nashville, TN 37201
ATTORNEY FOR DEFENDANTS/APPELLEES
AFFIRMED AND REMANDED.
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
BEN H. CANTRELL, JUDGE
CONCURS IN SEPARATE OPINION:
WILLIAM C. KOCH, JR., JUDGE
JOHN J. BANDEIAN, JR., M.D., )
)
Plaintiff/Appellant, )
) Davidson Sixth Circuit
VS. ) No. 95C-3587
)
MARTIN H. WAGNER, M.D., )
) Appeal No.
Defendant/Appellee, ) 01-A-01-9703-CV-00140
)
RAY W. HESTER, M.D., and GERALD )
R. BURNS, M.D., )
)
Defendants. )
OPINION
The plaintiff, John J. Bandeian, Jr., M.D. has appealed from the summary dismissal of
his suit against the defendant, Martin H. Wagner, M.D. for libel.
Plaintiff’s second amended complaint asserts that an unsigned letter containing untruthful
statements about plaintiff and another physician was mailed to a patient by the defendant.
Defendant’s motion for summary judgment is supported by his affidavit that:
2. I have read Exhibit 1 to the Complaint (letter said to
have been postmarked on October 24, 1994 and referred to
hereinafter as the or this letter).
3. I did not write this letter.
4. I did not commission, cause, direct, or assist any other
person in the writing of this letter.
5. I have no knowledge as to the identity of the author of
this letter.
6. I did not mail, commission, cause, direct, or assist in
the mailing of this letter.
A party seeking a summary judgment may do so in several ways. Brown v. J. C. Penney
Life Ins. Co., Tenn. App. 1992, 861 S.W.2d 834.
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In a suitable case, the simplest support for a defendant’s motion for summary judgment
is his affidavit that “I did not commit the act attributed to me in the complaint.” The plaintiff
must then present admissible evidence that the defendant did commit the act attributed to him.
The present case involves such a simple situation. The complaint alleged wrongdoing
by defendant. The defendant swears that he is not the guilty party. Plaintiff has attempted to
produce evidence that defendant is guilty. The issue on appeal is whether the evidence offered
by plaintiff is competent, admissible evidence creating a dispute as to the fact denied by
defendant.
Plaintiff’s 13-page “Statement of the Facts” is attached as an exhibit to this opinion. It
would be extremely difficult to abbreviate or adequately summarize this statement. A careful
study of the details of the evidence in the “statement of facts” fails to disclose any competent,
admissible evidence that contradicts defendant’s affidavit quoted above. No competent,
admissible evidence is found that defendant wrote the letter, or that he conspired or collaborated
with anyone who did, or that he and only he had a motive and opportunity to write the letter.
Generally, an ordinary witness must confine his testimony to a narration of facts based
on first-hand knowledge and avoid stating a mere personal opinion. Walden v. Wylie, Tenn. App.
1982, 645 S.W.2d 247. The opinion of plaintiff and that of his witnesses is not competent
evidence of the participation of defendant in the alleged wrong. TRCP Rule 56.01, Braswell v.
Carothers, Tenn. App. 1993, 863 S.W. 722.
A verdict for the plaintiff cannot be based upon speculation, conjecture, guesswork, or
a mere spark or glimmer of evidence. Ogle v. Winn-Dixie, Greenville, Inc., Tenn. App. 1995,
919 S.W.2d 45; Sadec v. Nashville Recycling Co., Tenn. App. 1988, 751 S.W.2d 428.
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When faced with a properly supported motion for summary judgment, the opponent of
the motion must produce competent, material evidence showing a clear entitlement to maintain
his action. Merritt v. Wilson County Board of Zoning Appeals, Tenn. App. 1983, 656 S.W.2d
846.
If evidence filed by plaintiff in response to a properly supported motion for summary
judgment does not controvert factual statements in defendant’s evidence, the response is
inadequate. TRCP Rule 56. Kelton v. Snell, Tenn. App. 1985, 689 S.W.2d 186.
If the parties had gone to trial upon the evidence offered by them for and against the
summary judgment, the Trial Judge would have been obligated to direct a verdict for the
defendant because the evidence offered by plaintiff would have required the jury to engage in
unwarranted speculation. Stokes v. Leung, Tenn. App. 1982, 651 S.W.2d 704, Crowe v. Provost,
Tenn. App. 1963, 374 S.W.2d 645.
The summary judgment for the defendant was therefore justified and correct.
The judgment of the Trial Court is affirmed. Costs of this appeal are assessed against the
plaintiff-appellant. The cause is remanded to the Trial Court for further appropriate proceedings.
AFFIRMED AND REMANDED
_______________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
____________________________________
BEN H. CANTRELL, JUDGE
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CONCURS IN SEPARATE OPINION
WILLIAM C. KOCH, JR., JUDGE
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