Myra Pate v. State

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

October 17, 2003 Session

MYRA PATE v. STATE OF TENNESSEE

Appeal from the Claims Commission of the State of Tennessee

No. 20101368 Vance W. Cheek, Jr., Commissioner

FILED NOVEMBER 20, 2003

No. E2003-00297-COA-R3-CV

Myra Pate (“Plaintiff”) filed a claim with the Tennessee Division of Claims Administration after she

slipped and fell on her way to class at Pellissippi State Technical Community College (“PSTCC”).

When her claim was denied, Plaintiff filed a complaint in the Tennessee Claims Commission

(“Commission”) against the State of Tennessee (“the State”). The State filed a motion for summary

judgment claiming Plaintiff had filed for Chapter 13 bankruptcy and failed to disclose the existence

of her claim against the State. The State argued Plaintiff was judicially estopped from pursuing this

lawsuit and also that she lacked standing. When Plaintiff failed to file a timely response to the

motion for summary judgment, the Commission granted the motion solely because no response had

been filed. Plaintiff appeals. We vacate the grant of summary judgment and remand for further

proceedings.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the

Claims Commission Vacated; Case Remanded.

D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS , J., and

CHARLES D. SUSANO, JR., J., joined.

M.J. Hoover, III, Knoxville, Tennessee, for the Appellant Myra Pate.

Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Heather

C. Ross, Senior Counsel, Nashville, Tennessee, for the Appellee State of Tennessee.

OPINION

Background

This is a slip and fall case brought by Plaintiff who alleges that on April 4, 2000, she

was on her way to class at PSTCC when she tripped and fell on the pavement. According to

Plaintiff, there was a gap in the pavement measuring 1 to 1 ½ inches as well as a metal bar “which

stuck out above the pavement” causing her to fall, resulting in a three part proximal humerus fracture

to her left shoulder. Plaintiff claims the State was negligent by not correcting the defective pavement

and in allowing such a hazardous condition to exist. Plaintiff sought $300,000 in damages for her

physical injuries and lost wages.

In its answer to the complaint, the State generally denied any liability to Plaintiff and

further denied any hazardous condition existed. The State also denied the existence of any act or

omission on the part of a State employee which resulted in Plaintiff’s injuries. The State also alleged

Plaintiff’s claim was barred under comparative fault principles because Plaintiff’s negligence in not

watching where she was walking was greater than any claimed negligence by the State.

On October 31, 2002, the State filed a motion for summary judgment claiming

Plaintiff was judicially estopped from maintaining this lawsuit because she failed to disclose the

existence of this claim in her petition for Chapter 13 bankruptcy. The State also claimed that

Plaintiff was no longer the real party in interest and lacked standing to proceed with the present case

because she had filed for Chapter 13 bankruptcy. In support of its motion, the State attached

portions of Plaintiff’s deposition wherein she admitted contemplating legal action against the State

within one week of the accident. Plaintiff filled out a “Claim for Damages” on December 6, 2000,

and filed this claim with the Division of Claims Administration on March 13, 2001. Plaintiff also

acknowledged in her deposition that she made a demand upon the State to settle the claim in March

of 2001. On May 3, 2001, Plaintiff filed for Chapter 13 bankruptcy. When her personal injury claim

was denied by the Division of Claims Administration, Plaintiff filed the present complaint with the

Claims Commission on November 19, 2001. Plaintiff admitted in her deposition that she did not

disclose the present lawsuit or claim as an asset in her bankruptcy petition and she did not inform

her bankruptcy attorney or the United States Bankruptcy Court about this lawsuit. Plaintiff claimed

she did not disclose the present lawsuit because the complaint was not filed until after she had

already filed for bankruptcy. She did not consider the present claim an “asset” because she had not

yet received any money. According to Plaintiff, “[i]t doesn’t become an asset to me until you get

some money. Money is an asset and nothing is nothing.”

On December 16, 2002, the Commission entered an Order of Dismissal. In pertinent

part, the Order of Dismissal provides:

This claim was appealed to the Tennessee Claims

Commission from denial of the Division of Claims Administration on

September 10, 2001. By letter dated September 21, 2001, the

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Commission advised counsel for the Claimant that the Rules of Civil

Procedure and the Rules of Evidence of the State of Tennessee were

applicable to Claims Commission procedure and that the Tennessee

Claims Commission Rules complemented the Rules of Civil

Procedure. Counsel for the Claimant filed a formal Complaint on

November 19, 2001. The State filed its Answer on February 14,

2002, following an extension of time granted by the Commission

within which to do so.

On October 31, 2002, the State filed a Motion for Summary

Judgment, Memorandum in Support of Motion, and Statement of

Undisputed Facts on Behalf of the State of Tennessee. A response to

the State’s Motion was due no later than December 2, 2002. A

response to the State’s Motion has not been filed as of the date of this

Order.

****

The issue before the Commission is whether the Defendant is

entitled to dismissal of this claim for failure to respond to the State’s

Motion for Summary Judgment?

The Commission concluded that the State was entitled to dismissal of the claim because no response

to the motion for summary judgment had been filed. In reaching its conclusion, the Commission

relied on Tennessee Claims Commission Rule No. 0310-1-1-.05(5)(c) which provides, among other

things, that the failure to file a response to a motion shall indicate that there is no opposition to the

motion.

After her claim was dismissed, Plaintiff filed a motion to reconsider and later

informed the Commission that she would be filing a response to the motion for summary judgment

by January 10, 2003. The Commission denied the motion to reconsider and entered an Order

reaffirming its dismissal of the claim. The Commission noted in this Order that Plaintiff stated she

would be filing a response to the State’s motion for summary judgment no later than January 10,

2003. The Commission then observed that as of January 22, 2003, the date on which the

Commission reaffirmed its dismissal, Plaintiff still had filed no response.

Plaintiff appeals raising several issues. First, Plaintiff claims the State’s motion for

summary judgment did not meet the “stringent standards” of Tenn. R. Civ. P. 56 and, therefore,

should not have been granted. Plaintiff also claims she is not judicially estopped from pursuing the

present claim even though she did not disclose the claim in her Chapter 13 bankruptcy. In her third

issue, Plaintiff claims she is the “real party in interest” and has standing to pursue this claim.

Finally, Plaintiff claims the Commission erred in denying her motion to reconsider. The State,

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obviously, contends the grant of summary judgment was appropriate, as was the denial of Plaintiff’s

motion to reconsider.

Discussion

Initially, we will discuss whether the Commission erred when it granted the State’s

motion for summary judgment solely because Plaintiff failed to file a timely response. The standard

for review of a motion for summary judgment is set forth in Staples v. CBL & Associates, Inc., 15

S.W.3d 83 (Tenn. 2000):

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. 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.

To properly support its motion, the moving party must either

affirmatively negate an essential element of the non-moving party’s

claim or conclusively establish an affirmative defense. See McCarley

v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998);

Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997). If the moving

party fails to negate a claimed basis for the suit, the non-moving

party’s burden to produce evidence establishing the existence of a

genuine issue for trial is not triggered and the motion for summary

judgment must fail. See McCarley v. West Quality Food Serv., 960

S.W.2d at 588; Robinson v. Omer, 952 S.W.2d at 426. If the moving

party successfully negates a claimed basis for the action, the non-

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moving party may not simply rest upon the pleadings, but must offer

proof to establish the existence of the essential elements of the claim.

The standards governing the assessment of evidence in the

summary judgment context are also well established. Courts must

view the evidence in the light most favorable to the nonmoving party

and must also draw all reasonable inferences in the nonmoving

party’s favor. See Robinson v. Omer, 952 S.W.2d at 426; Byrd v.

Hall, 847 S.W.2d at 210-11. Courts should grant a summary

judgment only when both the facts and the inferences to be drawn

from the facts permit a reasonable person to reach only one

conclusion. See McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.

1995); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).

Staples, 15 S.W.3d at 88-89. A fact is “material” for summary judgment purposes, if it “must be

decided in order to resolve the substantive claim or defense at which the motion is directed.” Luther

v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999)(quoting Byrd v. Hall, 847 S.W.2d at 211).

As relevant to this appeal, Tenn. Code. Ann. § 9-8-403(a)(1) provides that

proceedings in the Commission “shall be conducted pursuant to rules of the Tennessee Rules of Civil

Procedure where applicable and otherwise pursuant to rules and regulations promulgated by the

commission.” In accordance with this statutory provision, the Commission has developed Rules of

Procedure found at Tenn. Comp. R. & Regs. 0310-1-1. The Commission’s Rules of Procedure

(hereafter “Commission Rules”) begin as follows:

0310-1-1-.01 APPLICABILITY OF TENNESSEE RULES OF

CIVIL PROCEDURE AND CORRELATION WITH T.C.A.

§ 9-8-403(a)(1). Proceedings before the Tennessee Claims

Commission shall be conducted pursuant to the Tennessee Rules of

Civil Procedure (TRCP) and subsequent amendments and

interpretations where applicable except where specifically modified

by these rules.…

The Commission Rules then modify several of the Tennessee Rules of Civil Procedure, although the

majority of the Tennessee Rules of Civil Procedure remain intact. It is important that the

Commission Rules do not modify Tenn. R. Civ. P. 56 and, therefore, Rule 56 applies to claims

before the Commission in the same manner as it would to a claim brought in a chancery or circuit

court.

In the present case, the language relied upon by the Commission when granting the

State’s motion for summary judgment solely because Plaintiff did not file a response is found in

Commission Rule 0310-1-1-.01(5)(c). In relevant part, this Commission Rule modifies Tenn. R.

Civ. P. 7.02 as follows:

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TRCP Rule 7.02 is followed in its entirety and the following language

is also added:

****

(c) Each party opposing a motion shall serve and file a response

no later than fifteen (15) days after service of the motion,

except that in case of motions for summary judgment the time

shall be thirty (30) days after service of the motion. Failure

to file a response shall indicate that there is no opposition to

the motion. Provided, however, the Commission may act on

the motion prior to the times set forth.…

The State argues that the Commission acted properly by granting the motion for

summary judgment solely because Plaintiff failed to respond. The State relies heavily on Cavnar

v. State, No. M2002-00609-COA-R3-CV, 2003 Tenn. App. LEXIS 151 (Tenn. Ct. App. Feb. 26,

2003), no appl. perm appeal filed. In Cavnar, the plaintiff filed his claim against the State alleging

he was misdiagnosed at Middle Tennessee Mental Health Institute and the staff at that facility had

subjected him to mental abuse and torture. The State filed a motion to dismiss claiming the

Commission lacked subject matter jurisdiction and that the plaintiff failed to state a claim upon

which relief could be granted. Id. at * 3. The Commission dismissed the complaint because the

plaintiff failed to file a timely response to the motion to dismiss and because it lacked jurisdiction

over some of the claims. Id. at ** 4-6. As pertinent to this appeal, the Cavnar Court stated:

Tenn. Code Ann. § 9-8-403(a)(1)(Supp. 2002) provides that

matters such as Mr. Cavnar's suit shall be conducted under the

Tennessee Rules of Civil Procedure where applicable, and otherwise

they shall be conducted in accordance with the Commission's rules

and regulations. Tenn. Comp. R. & Regs. 0310-1-1-.01(5)(c) (2001)

requires parties opposing a motion before the Commission, other than

a summary judgment motion, to file and serve a response to the

motion no later than fifteen days from service of the motion. Under

the Commission's rule, "failure to file a response shall indicate that

there is no opposition to the motion." Where an opponent to a motion

fails to respond, the Commission may permissibly grant the motion

on its merits, if to do so appears otherwise appropriate. This court

reviews the Commission's decision to dismiss a claim using the abuse

of discretion standard. Tuck v. State, 1996 Tenn. App. LEXIS 354,

No. 03 A01-9510-BC-00355, 1996 WL 310012 at *3-4 (Tenn. Ct.

App. June 11, 1996) (No Tenn. R. App. P. 11 application filed).

The Commission dismissed Mr. Cavnar's claim, in part,

because he did not file a timely response to the State's motion to

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dismiss. While pro se litigants are entitled to fair and equal treatment

as they pursue litigation, they are not excused from complying with

applicable substantive and procedural law. Whitaker v. Whirlpool

Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000); Irvin v. City of

Clarksville, 767 S.W.2d 649, 652 (Tenn. Ct. App. 1988). The

Commission allowed Mr. Cavnar thirty days to respond to the State's

motion - fifteen days more than its rule required. To the extent that

the Commission took Mr. Cavnar's silence as indicating that he did

not oppose the State's motion for dismissal, it was simply applying

Tenn. Comp. R. & Regs. 0310-1-1-.01(5)(c) according to its express

language. We find no abuse of discretion in the Commission's

enforcement of its own rule.

Cavnar, 2003 Tenn. App. LEXIS 151, at ** 4-6. The Court in Cavnar then specifically noted that

the plaintiff’s failure to file a response was not the sole basis upon which the complaint was

dismissed. Id. at * 6. The Court then discussed each of the plaintiff’s various claims and concluded

dismissal was proper either because the Commission lacked subject matter jurisdiction or because

the plaintiff failed to state a claim upon which relief could be granted. In other words, the motion

to dismiss would have been proper even if the plaintiff had filed a timely response, and, therefore,

it was “otherwise appropriate” to grant the motion on its merits. Id at *5.

Pursuant to Tenn. R. Civ. P. 56, the non-moving party’s burden to produce evidence

establishing the existence of a genuine issue for trial is not triggered unless and until the moving

party either affirmatively negates an essential element of the non-moving party’s claim or

conclusively establishes an affirmative defense. Staples, 15 S.W.3d at 88. In other words, until the

moving party affirmatively negates an essential element of the non-moving party’s claim or

conclusively establishes an affirmative defense, the non-moving party has no duty to respond. It

necessarily follows that a motion for summary judgment should not be granted solely because the

non-moving party failed to respond. This is so because there first must be a determination that the

moving party met her burden either by affirmatively negating an essential element of the non-moving

party’s claim or conclusively establishing an affirmative defense before the motion can be granted.

If the moving party has met her burden, and assuming no timely response has been filed by the non-

moving party, then the proper manner for the Commission to dispose of the motion for summary

judgment would be to grant the motion because the non-moving party failed to respond and it is

otherwise appropriate under Rule 56 to grant the motion.

To the extent Commission Rule 0310-1-1-.01(5)(c) authorizes the Commission to

grant a motion simply because the other side has not responded and is deemed to have “no

opposition to the motion,” this Rule is not dispositive or the sole consideration as to a motion for

summary judgment under Tenn. R. Civ. P. 56. As noted earlier, the Commission Rules do not

modify Tenn. R. Civ. P. 56, and, therefore, all the elements of Rule 56 are just as applicable before

the Commission as before a trial court. A rule that a motion for summary judgment can be granted

solely because the non-moving party failed to respond would eviscerate the standards set forth in

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Staples, supra. For example, assume the State, due to a glaring mathematical error, filed a motion

for summary judgment believing the statute of limitations had expired when it clearly had not.

Further assume the non-moving party, relying on the holding of Staples, did not respond to the

motion because her burden to produce evidence establishing the existence of a genuine issue for trial

had not been triggered because the State had failed either to negate an essential element of her claim

or to conclusively establish an affirmative defense. Under the State’s interpretation of Rule 0310-1-

1-.01(5)(c), the claimant’s lawsuit would be dismissed even though a cursory examination of the

motion by the Commission would show the State was not “entitled to a judgment as a matter of law

on the undisputed facts.” Staples, 15 S.W.3d at 88. This does not mean that failing to respond to

a motion for summary judgment has no consequences. To be sure, failing to respond to a motion

for summary judgment is risky. If the moving party is successful in affirmatively negating an

essential element of the non-moving party’s claim or conclusively establishing an affirmative

defense, the non-moving party by not responding misses her only opportunity to establish the

existence of a genuine issue for trial.

The result we reach today is not inconsistent with Cavnar. In Cavnar, because the

defendant filed a motion to dismiss and not a motion for summary judgment, the requirements of

Tenn. R. Civ. P. 56 never came into play. Furthermore, the Commission in that case did not dismiss

the complaint solely because the plaintiff failed to respond to the motion to dismiss. It also is

important that the Cavnar Court held that when “an opponent to a motion fails to respond, the

Commission may permissibly grant the motion on its merits, if to do so appears otherwise

appropriate.” Cavnar, 2003 Tenn. App. LEXIS 151, at * 5 (emphasis added). In our opinion, under

Tenn. R. Civ. P. 56, “otherwise appropriate” requires more than just that the non-moving party failed

to respond. The Commission still must determine whether or not it is “otherwise appropriate” by

deciding whether the moving party met the necessary elements of Rule 56 before granting summary

judgment. Put simply, here the Commission ignored the holding of Cavnar and failed to consider

whether it was or was not “otherwise appropriate” to grant this Rule 56 motion. Therefore, we hold

the Commission erred by granting the State summary judgment solely because Plaintiff failed to file

a timely response to the motion for summary judgment.

In the present case, the basis for the State’s motion for summary judgment is twofold.

First, the State claims that because Plaintiff failed to inform the Bankruptcy Court of the existence

of the present claim, she is judicially estopped from pursuing same. Second, the State claims that

because Plaintiff has filed for Chapter 13 bankruptcy, she no longer is the real party in interest and

lacks standing. According to the State, the Chapter 13 Trustee alone has standing to prosecute this

case for the benefit of the bankruptcy estate. Prior to granting the State’s motion for summary

judgment, the Commission never made the necessary determination as to whether there is any

genuine issue of material fact and whether the State is entitled to judgment as a matter of law on the

undisputed facts. The Commission never addressed whether the State was entitled to summary

judgment on either or both of these grounds. This is a determination best made initially by the

Commission rather than this Court. We, therefore, vacate the grant of summary judgment and

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remand this case to the Commission to make this required determination. The remaining issues are

pretermitted.1

Conclusion

The judgment of the Claims Commission is vacated, and this cause is remanded to

the Commission for further proceedings as are necessary consistent with this Opinion. The costs on

appeal are assessed against the Appellee State of Tennessee.

___________________________________

D. MICHAEL SWINEY, JUDGE

1

While this case was on appeal, Plaintiff filed a Motion for Consideration of Post-Judgment Facts. In light of

our re solution of this ap peal, Plaintiff’s mo tion is denied as moot.

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