Wilson v. Schwind

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

October 29, 2007 Session

RAY A. WILSON, ET AL. v. ROBERT J. SCHWIND, M.D., ET AL.

Appeal from the Law Court for Washington County

Nos. 22428, 25019 Thomas J. Seeley, Jr., Judge

No. E2007-00305-COA-R3-CV Filed December 28, 2007

In this medical malpractice action, Ray A. Wilson and his wife, Beverly Wilson, (the “Plaintiffs”)

sued the anesthesiologist and medical group responsible for administering anesthesia for Mr.

Wilson’s cataract surgery. Plaintiffs allege that the improper administration of anesthetic resulted

in permanent blindness in Mr. Wilson’s right eye. The defendants filed a Motion for Summary

Judgment and attached an affidavit and deposition of an expert witness. At the hearing on the

summary judgment motion, the Trial Court granted Plaintiffs’ oral motion to take a voluntary

dismissal of their case without prejudice. The defendants filed a motion to alter or amend the order

of dismissal so as to be “with prejudice,” and the Trial Court granted the defendants’ motion.

Plaintiffs filed a motion requesting a rehearing. At the hearing on Plaintiffs’ motion, the Trial Court

set aside its order amending the dismissal to be with prejudice and allowed Plaintiffs 30 days to file

an expert witness affidavit in response to the defendants’ Motion for Summary Judgment. Plaintiffs

attempted to fax file an affidavit in opposition to the Motion for Summary Judgment. A few months

later, Plaintiffs filed a second lawsuit in the same court against the same parties, alleging the same

malpractice that was the basis of the first lawsuit. The defendants filed a Motion to Dismiss the

second lawsuit. Following a hearing on both cases, the Trial Court found that fax filing an affidavit

was not permitted by the Tennessee Rules of Civil Procedure, and therefore, Plaintiffs had not

responded to the defendants’ Motion for Summary Judgment. Consequently, the Trial Court granted

summary judgment to the defendants in the first case. The Trial Court dismissed the second lawsuit

upon finding that the first case was pending when the second case was filed and when the Motion

to Dismiss was heard. Plaintiffs appeal. We find no error in the Trial Court’s rulings, and we affirm.

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

Remanded

D. MICHAEL SWINEY , J., delivered the opinion of the court, in which CHARLES D. SUSANO , JR., J.,

and SHARON G. LEE, J., joined.

Bob McD. Green, Johnson City, Tennessee, for the Appellants, Ray A. Wilson and wife, Beverly

Wilson.

Charles T. Herndon, IV, and Bradley E. Griffith, Johnson City, Tennessee, for the Appellees, Robert

J. Schwind, M.D., and Anesthesia and Pain Consultants, P.C.

OPINION

I. Background

Plaintiffs filed suit against Judaun Alison, M.D., Robert James Schwind, M.D.,

University Physicians Practice Group, and Anesthesia and Pain Consultants, P.C. (“Case No.

22428”). The complaint alleged that the defendants performed cataract surgery on Mr. Wilson’s

right eye and administered anesthesia before the surgery. The complaint also alleged that the

improper administration of the anesthetic caused permanent blindness in Mr. Wilson’s eye.

Plaintiffs later voluntarily dismissed Judaun Alison, M.D., and University Physicians Practice Group

from the lawsuit, leaving Robert James Schwind, M.D., and Anesthesia and Pain Consultants, P.C.,

as the remaining defendants (collectively the “Defendants”).

Defendants filed an Answer denying any negligence on their part. Defendants then

filed a Motion for Summary Judgment, a concise statement of facts pursuant to Tenn. R. Civ. P. 56,

and Dr. Schwind’s deposition testimony and affidavit. Plaintiffs did not respond to Defendants’

Motion for Summary Judgment but did file a Motion for Extension, which apparently was not ruled

on by the Trial Court. At the hearing on Defendants’ summary judgment motion, Plaintiffs moved

orally for a voluntary dismissal. The Trial Court granted Plaintiffs’ motion and dismissed the case

without prejudice by order entered March 24, 2005.

Defendants filed a Motion to Alter or Amend Judgment, requesting that the Trial

Court amend its previous order to state that the dismissal of Plaintiffs’ case was with prejudice,

instead of without prejudice. Defendants asserted that Plaintiffs did not have the absolute right to

take a voluntary dismissal when a motion for summary judgment was pending. The Trial Court

conducted a hearing on Defendants’ motion on June 6, 2005, which Plaintiffs’ counsel failed to

attend. During the hearing, the Trial Court ordered that “the voluntary dismissal of the Plaintiff’s

[sic] cause of action entered with the Court on March 24, 2005 is to be altered and amended and

summary judgment is granted to the Defendants.” An order reflecting this ruling was entered on

June 7, 2005.

Plaintiffs filed a Motion Requesting Rehearing, stating that Plaintiffs’ counsel failed

to attend the June 6, 2005, hearing due to a calendaring error in his office. The Trial Court held a

hearing on Plaintiffs’ motion, after which it entered the following order on August 12, 2005:

This cause came on for hearing . . . on the 5th day of August, 2005,

on the Plaintiff’s “Motion Requesting Hearing”, and from the

argument of counsel, there being no additional filings, the Court did

set aside the Order of June 6, 2005, and granted the Plaintiff 30 days

additional time from August 5, 2005, within which to file an affidavit

of an expert witness in opposition to the motion for summary

judgment, though the case had been voluntarily dismissed by Plaintiff

through Order of this Court on March 24, 2005, and all of which was

-2-

objected to by the Defendant.

IT IS THEREFORE, ORDERED that the previous Order of this

Court granting the motion to alter or amend the Order of Voluntary

Dismissal of the Plaintiff, is set aside, and the Plaintiff is granted 30

days from August 5, 2005, in which to obtain and file an affidavit

from a qualified expert in opposition to the motion for summary

judgment.

Plaintiffs faxed a Response to Defendant’s Concise Statement of Facts and an

Affidavit of Jeffrey A. Green, M.D., to the court clerk’s office on the evening of September 6, 2005,

which was filed by the court clerk the following day. On May 17, 2006, Defendants filed a motion

asking the Trial Court to “alter or amend the Order entered by this Court on or about August 12,

2005, and/or for relief from the Order of August 12, 2005, and or [sic] to reinstate Order Sustaining

Summary Judgment, dismissing this cause with prejudice . . . .”

No further action was taken in Case No. 22428 for several months. In the meantime,

on February 23, 2006, Plaintiffs filed a second lawsuit in the same court, Case No. 25019, against

Defendants concerning the same claims and issues raised in the first lawsuit. Defendants filed a

Motion to Dismiss Case No. 25019 “based on the fact that this same cause of action is pending in

a prior case with the same issues and the same parties . . . and/or for failure to state a claim upon

which relief may be granted.” Plaintiffs responded by asserting that the Trial Court’s August 12,

2005, order had resulted in the dismissal of Case No. 22428 without prejudice, thus leaving Plaintiffs

free to refile their lawsuit.

On November 22, 2006, the Trial Court held a hearing in Case No. 22428 and Case

No. 25019. At this time, the Trial Court granted Defendants’ Motion to Dismiss Case No. 25019

“because the exact same cause of action was pending in this Court in Civil Action Number 22428.”

As to Case No. 22428, the Trial Court reinstated its previous grant of Defendants’ Motion to Alter

or Amend, granted summary judgment to Defendants, and dismissed Plaintiffs’ complaint with

prejudice. Orders reflecting these dismissals were entered on January 8, 2007. Plaintiffs appeal.

II. Discussion

Plaintiffs state the issue for our review as follows:

1. Whether the Trial Court erred in dismissing Case No. 25019 with prejudice

following the entry and reinstatement of a Voluntary Dismissal Without Prejudice entered in the

original case, Case No. 22428.

Given the issue as raised by Plaintiffs in this appeal, we believe the dispositive

question to be whether Case No. 22428 was voluntarily dismissed without prejudice before the entry

of summary judgment in that case and before the dismissal of Case No. 25019 based on a prior suit

-3-

pending. Plaintiffs argue that they already had taken a voluntary dismissal without prejudice in Case

No. 22428 before summary judgment was entered in that case and before Case No. 25019 was

dismissed, and, therefore, the Trial Court erred in granting summary judgment in Case No. 22428

and dismissing Case No. 25019.

In a non-jury case such as this one, we review the record de novo with a presumption

of correctness as to the trial court’s determination of facts, and we must honor those findings unless

there is evidence which preponderates to the contrary. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60

S.W.3d 721, 727 (Tenn. 2001). A trial court’s conclusions of law are subject to a de novo review

with no presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d

706, 710 (Tenn. 2001).

Before we can decide whether the Trial Court erred in dismissing Case No. 25019,

we first must determine the Trial Court’s disposition of Case No. 22428. Plaintiffs maintain that the

Trial Court reinstated its original order granting Plaintiffs’ motion for voluntary dismissal without

prejudice, and that this dismissal without prejudice concluded Case No. 22428 and left Plaintiffs free

to file another lawsuit against Defendants. Defendants assert that the Trial Court set aside its order

granting Defendants’ request that the dismissal be “with prejudice” to allow Plaintiffs an additional

30 days within which to file an expert witness affidavit to rebut Defendants’ Motion for Summary

Judgment before the Trial Court would rule on Defendant’s summary judgment motion. Defendants

further assert that the Trial Court properly granted Defendants summary judgment after the passage

of the additional 30 days. After a careful review of the record, we agree with Defendants’

interpretation of the Trial Court’s August 12, 2005, order and the resulting orders of the Trial Court.

In two different places in its August 12, 2005, order, the Trial Court set aside its June

7, 2005, order dismissing Plaintiffs’ complaint with prejudice and granted Plaintiffs an additional

30 days to file an expert witness affidavit in opposition to Defendants’ Motion for Summary

Judgment. In light of the Trial Court’s specific provision allowing Plaintiffs an additional 30 days

in which to file an expert witness affidavit in opposition to Defendants’ Motion for Summary

Judgment, we can conclude only that the Trial Court’s intent was to vacate its orders dismissing the

case either with or without prejudice and then to decide Defendants’ Motion for Summary Judgment

after first giving Plaintiffs another opportunity to rebut the expert evidence already presented by

Defendants. If, as Plaintiffs argue, the intent and the result of the August 12, 2005, order was a

dismissal without prejudice of their lawsuit, there then would have been no lawsuit pending in which

to give Plaintiffs an additional 30 days to file an expert witness affidavit in response to Defendant’s

Motion for Summary Judgment and no lawsuit pending in which to file such an affidavit.

It is important to note that Plaintiffs attempted to fax file an affidavit in accordance

with the Trial Court’s order. If Plaintiffs truly interpreted the Trial Court’s August 12, 2005, order

solely as a reinstatement of the previous order of voluntary dismissal without prejudice, then, in their

view, the case would have been over and there would have been neither a need to file an affidavit

in opposition to Defendants’ summary judgment motion nor any case pending in which to file any

such affidavit. In Plaintiffs’ Response to Defendants’ Motion to Dismiss filed in Case No. 25019,

-4-

Plaintiffs argue that “[t]he language used in that Order provided that the Plaintiff[s] ‘obtain and file’

an opposing Affidavit, using the word ‘and’ as a connective simply indicates that the Court would

like to be reassured of the correctness of his decision in reinstating the Voluntary Non-Suit without

Prejudice and that there was in fact a viable cause of action present.” While we admire Plaintiffs’

creativity, we decline to adopt this reasoning.

We have previously stated that “the trial judge is in the best position to interpret his

own orders.” Mark Pirtle Chevrolet, Inc. v. Celebration Nissan, Inc., No.

M2002-00554-COA-R3-CV, 2003 WL 21047139, at *3 (Tenn. Ct. App. M.S., May 9, 2003). We

find the same to be true in this case as well. In its January 8, 2007, order reinstating the grant of

summary judgment to Defendants in Case No. 22428, the Trial Court stated in pertinent part as

follows regarding the August 5, 2005, hearing:

6. . . . [B]y the agreement of the parties the Plaintiff was given 30

days from August 5, 2005, to file a competent Affidavit from an

expert witness sufficient to rebut the Motion for Summary Judgment,

before Rehearing.

7. On or about September 6, 2005, the Plaintiff attempted to FAX

file an Affidavit of Jeffrey A. Green, M.D., which filing was in

violation of T.R.C.P. 5A.02(4)(c)1, as the document required an

official seal, and is not permitted to be filed by FAX, and the

Affidavit did not set forth the basis on which Jeffrey A. Green, M.D.,

was familiar with the standard of care in Johnson City, Tennessee or

similar communities. The Court notes that to the date of the hearing

on November 22, 2006, a period in excess of [a] year from the

previously ineffective FAX filing, a proper affidavit has still not been

filed with this Court.

* * *

10. The court finds that the original non-suit was improvidently

granted, was granted in violation of Local Rule 5.01(E), and was

granted without a sufficient reason set forth by Plaintiff. The motion

to alter or amend, which was originally unopposed is re-instated [sic],

and the motion for summary judgment is granted, there having been

no competent opposition filed to it to date of this hearing.

IT IS THEREFORE, ORDERED that the previous Order of this

1

Rule 5A.02(4)(c) of the Tennessee Rules of Civil Procedure provides as follows: “(4) The following

documents shall not be filed in the trial court by facsimile transmission: . . . (c) A will or codicil to a will; a bond; or any

pleading or document requiring an official seal . . . .” Tenn. R. Civ. P. 5A.02(4)(c).

-5-

Court granting the motion to alter or amend the Order of Voluntary

Dismissal of the Plaintiff, is reinstated, Summary Judgment is

granted, and this cause is hereby dismissed with full prejudice.

The Trial Court’s January 8, 2007, order clearly shows that the Trial Court’s intent

in its August 12, 2005, order was to allow Plaintiffs an additional 30 days to file an expert witness

affidavit before ruling on Defendants’ Motion for Summary Judgment. The fact that Plaintiffs

attempted to file an affidavit in accordance with the Trial Court’s August 12, 2005, order lends

further credence to the only logical conclusion that the Trial Court, as well as the parties, understood

that the case had not been dismissed and that Plaintiffs had an additional 30-day opportunity to

submit an expert witness affidavit before the Trial Court ruled on Defendants’ Motion for Summary

Judgment.

Taking all of this into consideration, we find that the Trial Court’s August 12, 2005,

order did not result in reinstatement of the order of voluntary dismissal without prejudice. Instead,

the Trial Court allowed Plaintiffs an additional 30 days to file an expert witness affidavit in

opposition to Defendants’ Motion for Summary Judgment before finally ruling on Defendants’

Motion for Summary Judgment. Plaintiffs failed to properly file such an affidavit, and the Trial

Court granted summary judgment to Defendants.

Plaintiffs on appeal never take issue with the merits of the Trial Court’s decision to

grant Defendants summary judgment if Case No. 22428 was not dismissed without prejudice as a

result of the August 12, 2005, order. Despite the fact that Plaintiffs did not raise this issue, we feel

it best to discuss briefly the grant of summary judgment.

The Tennessee Supreme Court has described the process for reviewing a trial court’s

grant of summary judgment as follows:

The standards governing an appellate court’s review of a motion for

summary judgment are well settled. Since our inquiry involves

purely a question of law, no presumption of correctness attaches to

the lower court’s judgment, and our task is confined to reviewing the

record to determine whether the requirements of Tenn. R. Civ. P. 56

have been met. See Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.

1997); Cowden v. Sovran Bank/Central South, 816 S.W.2d 741, 744

(Tenn. 1991). Tennessee Rule of Civil Procedure 56.04 provides that

summary judgment is appropriate where: (1) there is no genuine issue

with regard to the material facts relevant to the claim or defense

contained in the motion, see Byrd v. Hall, 847 S.W.2d 208, 210

(Tenn. 1993); and (2) the moving party is entitled to a judgment as a

matter of law on the undisputed facts. See Anderson v. Standard

Register Co., 857 S.W.2d 555, 559 (Tenn. 1993). The moving party

has the burden of proving that its motion satisfies these requirements.

-6-

See Downen v. Allstate Ins. Co., 811 S.W.2d 523, 524 (Tenn. 1991).

When the party seeking summary judgment makes a properly

supported motion, the burden shifts to the nonmoving party to set

forth specific facts establishing the existence of disputed, material

facts which must be resolved by the trier of fact. See Byrd v. Hall, 847

S.W.2d at 215.

Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 88 (Tenn. 2000).

In the case before us, we agree with the Trial Court’s decision that Defendants’

affidavit and deposition of Robert J. Schwind, M.D. filed with the Trial Court in support of

Defendants’ Motion for Summary Judgment properly supported that motion. As a result, the burden

shifted to Plaintiffs “to set forth specific facts establishing the existence of disputed, material facts

which must be resolved by the trier of fact.” Plaintiffs failed to file an opposing expert affidavit to

rebut Defendants’ expert testimony and, consequently, did not establish any disputed, material facts

necessitating a trial. Therefore, we find that the Trial Court correctly granted summary judgment

to Defendants, and we affirm the Trial Court’s judgment on this issue.

The Trial Court dismissed Case No. 25019 based upon its finding that Case No.

22428 was pending. Plaintiffs do not raise as an issue whether the Trial Court erred if there was a

prior suit pending. Plaintiffs base their entire argument on their position that there was no prior suit

pending as Case No. 22428 had been dismissed without prejudice, a position we have rejected.

However, we will discuss briefly the Trial Court’s decision to dismiss Case No. 25019 under the

prior suit pending doctrine.

The Tennessee Supreme Court has described the prior suit pending doctrine as

follows:

For well over a century our courts have consistently held that where

two courts have concurrent jurisdiction over a matter, the first of

those courts to acquire jurisdiction takes exclusive jurisdiction over

it. Any subsequent actions must, therefore, be dismissed.

* * *

It has been clearly established, and held repeatedly, that in order for

the doctrine of prior suit pending to apply, three conditions must be

met; they are as follows:

(1) The two cases must involve identical subject matter, and

(2) The suits must be between the same parties, and

(3) The former suit must be pending in a court of this state having

jurisdiction over both the subject matter and the parties.

-7-

Estate of McFerren v. Infinity Transp., LLC, 197 S.W.3d 743, 746 (Tenn. 2006). Clearly the two

suits filed by Plaintiffs fit this description. Case No. 22428 and Case No. 25019 were filed in the

same court, have the same parties, and involve the same subject matter – a medical malpractice

action for the blindness allegedly resulting from anesthesia administered by Defendants prior to Mr.

Wilson’s eye surgery. Furthermore, the Trial Court found, and we have affirmed this decision, that

Case No. 22428 still was pending when Plaintiffs filed Case No. 25019 and at the time of the hearing

on the Motion to Dismiss in Case No. 25019. Therefore, the Trial Court correctly applied the

doctrine of prior suit pending to dismiss Case No. 25019, and we affirm.

III. Conclusion

After careful review, we affirm the Trial Court’s dismissal of both of Plaintiffs’

lawsuits and remand for collection of costs. Costs on appeal are taxed against the Appellants, Ray

A. Wilson and Beverly Wilson, and their surety, if any.

_________________________________________

D. MICHAEL SWINEY, JUDGE

-8-