The opinion
10/19/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
August 16, 2017 Session
TRAY SIMMONS v. JOHN CHEADLE, ET AL.
Direct Appeal from the Circuit Court for Davidson County
No. 15C4276 Mitchell Keith Siskin, Judge
No. M2017-00494-COA-R3-CV
This appeal involves a dispute between a judgment debtor and the attorneys for the
judgment creditor. In an effort to collect on a final judgment, attorneys for the judgment
creditor served the judgment debtor with a notice of deposition. After some discussion, it
became clear that the debtor failed to bring the requested documents with him to the
deposition, and the attorneys for the creditor refused to go forward with the deposition
that day. The debtor then filed this separate lawsuit, pro se, against the creditor’s
attorneys alleging that they had taken an “unlawful deposition” of him. The trial court
granted summary judgment in favor of the attorneys for the judgment creditor. We
affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed and
Remanded
BRANDON O. GIBSON, J., delivered the opinion of the court, in which ARNOLD B.
GOLDIN, and KENNY ARMSTRONG, J.J., joined.
Tray Simmons, Hermitage, Tennessee, Pro se.
Paul M. Buchanan, Nashville, Tennessee, for the appellees, John Roaten Cheadle, Jr., and
Mary Barnard Cheadle.
OPINION
I. FACTS & PROCEDURAL HISTORY
Appellant Tray Simmons attended Middle Tennessee State University (“MTSU”)
from 1988 until 1993. During that time, Mr. Simmons funded his education by obtaining
student loans from MTSU. When Mr. Simmons defaulted on these loans, MTSU
employed attorneys John Cheadle and Mary Barnard Cheadle (collectively “Counsel”) to
assist in recovering the past-due balance. To that end, MTSU, by and through Counsel,
filed suit against Mr. Simmons, and in 2011 the trial court entered a judgment against Mr.
Simmons for repayment of the student loan. Mr. Simmons appealed this judgment to the
Court of Appeals. We affirmed the ruling of the trial court. See Middle Tennessee State
University v. Simmons, No. M2011-00825-COA-R3-CV, 2012 WL 2244821 (Tenn. Ct.
App. 2012).1
Although MTSU successfully secured a judgment against Mr. Simmons for the
balance of his student loans, Mr. Simmons paid nothing to satisfy the judgment. (Exhibit
CD) Therefore, in October 2014, Counsel served Mr. Simmons with a post-judgment
notice of deposition in an attempt to discover assets. The notice of deposition provided
that the deposition would be held on October 30, 2014, at Counsel’s office, and that Mr.
Simmons was required to bring several documents related to his financial status,
including his tax returns and bank statements.
The events that transpired at Counsel’s office on October 30, 2014, form the basis
of the current lawsuit. Mr. Simmons recorded at least part of the exchange between
himself and Mary Cheadle while he was at Counsel’s office. Portions of the recorded
discussion between Mary Cheadle and Mr. Simmons (which was transcribed by the
Tennessee Board of Professional Responsibility2) are set forth below:
Cheadle: Do you have your driver’s license on you today?
Simmons: Yes, why?
Cheadle: May I take a look at it?
Simmons: Uh, no . . . I refuse. . . .
Cheadle: That’s one of the documents I’m going to have to look at to
do this deposition.
....
1
Rule 10 of the Rules of the Court of Appeals provides that “[w]hen a case is decided by memorandum
opinion, it shall be [so designated], shall not be published, and shall not be cited or relied on for any
reason in any unrelated case.” Because the case at bar is a related case, we cite to our previous
memorandum opinion only for procedural context.
2
The transcript from the Board of Professional responsibility cites Mr. Simmons as speaking with an
“unidentified female.” However, the remainder of the record indicates that Mr. Simmons was speaking
with Mary Cheadle during the recorded interaction.
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Simmons: Well I mean can you tell me . . . why in your letter, why
didn’t you . . . request that.
Cheadle: Okay, well that’s your identification.
Simmons: It’s one of the identifications. I have many.
....
Cheadle: Did you bring any tax returns?
Simmons: I don’t have any tax returns.
....
Cheadle: Alright, where you living at?
Simmons: 4200 Rachel Donelson Pass.
Cheadle: Alright, and where are you banking at?
Simmons: I don’t bank.
....
Cheadle: Alright, this is what I’m gonna do. I’m going to file a motion
to compel, to see your driver’s license.
Simmons: Well here –
Cheadle: And all the documents.
Simmons: . . . And I’m going to do a Motion . . . for Protective Order.
Cheadle: Okay.
Simmons: So we’ll be just motioning. So there it is.
Cheadle: You don’t own this property at Rachel Donelson Pass?
Simmons: This is the same questions that was asked –
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Cheadle: Right. And you have yet to pay anything on this debt that
you owe.
Simmons: Exactly.
Cheadle: So I’m going to keep going through these depositions until
it’s paid.
Simmons: Okay. Let’s go through all your questions.
Cheadle: Alright, who owns that property?
Simmons: You would have to ask them, I don’t know that.
Cheadle: You don’t know who you live with there?
Simmons: I know who I live with, yes.
Cheadle: Okay, who are you living with?
Simmons: Paul.
Cheadle: And what’s his last name?
Simmons: I don’t know his last name. You’ll have to get that from him.
You can pull the tax work.
Cheadle: You don’t know the [] last name of the person you live with?
Simmons: I haven’t asked him lately.
Cheadle: Okay. I’m not going to go forward.
Based on this meeting between Mr. Simmons and Ms. Cheadle on October 30,
2014, Mr. Simmons, pro se, filed the instant lawsuit against Counsel on October 29,
2015, alleging that the “claim for relief of the Plaintiff arises from the illegal depositions
conducted by Attorney John Cheadle and Attorney Mary Barnard Cheadle.” In his
complaint, Mr. Simmons alleged on the morning of the scheduled deposition he called
Counsel’s office and told them that he had shingles but that they would only reschedule
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the time of the deposition and not the day. Mr. Simmons averred that the “illegal
deposition” was conducted by Mary Cheadle on behalf of John Cheadle. Of particular
importance to Mr. Simmons was the fact that no court reporter was present and that he
was not sworn in before speaking with Mary Cheadle on October 30, 2014, which made
the deposition “illegal.” In his prayer for relief, Mr. Simmons requested $1,000,000.00 in
compensatory damages, $1,000,000.00 in punitive damages, Rule 11 sanctions against
Counsel for malicious prosecution, and disbarment of Counsel until they completed a
minimum of 50 hours of ethics training.
Over the next year, Mr. Simmons filed more than fifteen pleadings in this case,
including several motions requesting sanctions against Counsel, one alleging that Mary
Cheadle committed “aggravated perjury” in her responses to interrogatories, a motion for
recusal of the trial court judge, and a motion for default judgment based on Counsel’s
refusal to appear at a deposition that was unilaterally scheduled by Mr. Simmons. On
July 29, 2016, Counsel filed a motion for summary judgment on all of Mr. Simmons’
claims, contending that Mr. Simmons could prove no viable cause of action against them.
Counsel’s motion for summary judgment and Mr. Simmons’ pending procedural motions
were set to be heard on February 2, 2017.
At the hearing on February 2, 2017, the trial court heard Counsel’s motion for
summary judgment first due to it being potentially dispositive of the entire case, which
would make Mr. Simmons’ pending procedural motions moot. At this hearing, Mr.
Simmons, representing himself, maintained that the events that transpired on October 30,
2014, constituted an “unlawful deposition” that caused him severe emotional distress,
including a panic attack on the ride home. Although much of Mr. Simmons’ argument
was difficult to follow, he appeared to claim that he was also entitled to recover against
Counsel for violations of the Tennessee Rules of Professional Conduct, professional
negligence, negligent and intentional infliction of emotional distress, and malicious
prosecution. At the conclusion of the parties’ arguments, the trial court granted
Counsel’s motion for summary judgment on all of Mr. Simmons’ claims. The court
explained to Mr. Simmons that Tennessee did not recognize stand-alone claims for an
unlawful deposition or alleged violations of the Rules of Professional Conduct. Further,
Counsel was adverse to Mr. Simmons and owed him no duty, which negated an essential
element of his claim of professional negligence. Regarding Mr. Simmons’ claims of
emotional distress, the court found that Counsel’s actions were not intentional or reckless,
and that Mr. Simmons lacked sufficient proof that he had been damaged by Counsel’s
actions. The court also dismissed Mr. Simmons’ claim for malicious prosecution because
the underlying case on Mr. Simmons’ unpaid student loans had not been resolved in Mr.
Simmons’ favor. In light of the trial court’s dismissal of all of Mr. Simmons’ claims, the
court declared the remainder of the motions set to be heard that day moot. The court
reiterated its oral ruling in written findings of fact and conclusions of law on February 9,
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2017.
II. ISSUES PRESENTED
Appellant presents a multitude of issues for review on appeal, which we have
consolidated and restated as follows:
1. Whether the trial court erred in holding that there is no cause of
action for an “illegal deposition” under Tennessee law?
2. Whether the trial court erred in holding that there is no private cause
of action for violations of the Tennessee Rules of Professional
Conduct?
3. Whether the trial court erred in granting summary judgment in favor
of Appellees on Appellant’s claims of professional negligence?
4. Whether the trial court erred in granting summary judgment in favor
of Appellees on Appellant’s claims of negligent and/or intentional
infliction of emotional distress?
5. Whether the trial court erred in granting summary judgment in favor
of Appellees on Appellant’s claim of malicious prosecution?
6. Whether the trial court erred in denying Appellees’ procedural
motions as moot?
IV. DISCUSSION
We review a trial court’s ruling on a motion for summary judgment de novo
without a presumption of correctness. Estate of Brown, 402 S.W.3d 193, 198 (Tenn.
2013). Summary judgment is appropriate when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Tenn. R. Civ. P. 56.04. The party moving for summary
judgment may satisfy its burden of production either (1) by affirmatively negating an
essential element of the nonmoving party’s claim or (2) by demonstrating that the
nonmoving party’s evidence at the summary judgment stage is insufficient to establish
the nonmoving party’s claim or defense. Rye v. Women’s Care Ctr. of Memphis,
MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015). When a motion for summary judgment is
properly supported as provided in Tennessee Rule of Civil Procedure 56, in order to
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survive summary judgment, the nonmoving party may not rest upon the mere allegations
or denials of its pleading but must respond, and by affidavits or one of the other means
provided in Rule 56, set forth specific facts at the summary judgment stage showing that
there is a genuine issue for trial. Id. at 265. “[S]ummary judgment should be granted if
the nonmoving party’s evidence at the summary judgment stage is insufficient to
establish the existence of a genuine issue of material fact for trial.” Id. (citing Tenn. R.
Civ. P. 56.04, 56.06).
1. “Illegal Deposition”
Mr. Simmons argues on appeal, as he did before the trial court, that the events that
transpired on October 30, 2014, at Counsel’s office constituted an “illegal deposition”
because “[t]he deposition was taken without a court reporter present, an oath was not
given, [Mr. Simmons] was not sworn in and [Counsel] unlawfully obtained personal data
for their personal gain.” In his appellate brief, Mr. Simmons cites to several statutes and
rules of civil procedure in support of his argument, none of which give rise to any claim
for an “illegal deposition.” As the trial court aptly noted, it has broad discretion under
Rule 37.02 to prescribe penalties for violations of pretrial procedures during the course of
ongoing litigation. See Tenn. R. Civ. P. Rule 37.01. However, nothing therein allows a
party to file a separate cause of action for perceived violations of the rules of discovery,
and Mr. Simmons has provided us with no other authority for such a claim. We therefore
affirm the trial court’s decision to grant summary judgment in favor of Counsel on Mr.
Simmons’ claim for “illegal deposition.”
2. Violations of the Tennessee Rules of Professional Conduct
Mr. Simmons argues at length on appeal about Counsels’ alleged violations of the
Tennessee Rules of Professional Conduct during the “illegal deposition.” Mr. Simmons
admits that he filed a complaint against Counsel with the Tennessee Board of
Professional Responsibility and that the Board found in favor of Counsel. From what we
can glean from the record and Mr. Simmons’ argument, it appears that the allegations in
his Board complaint were substantially similar to his allegations of wrongdoing in this
case. Although the Board ultimately determined that Mr. Simmons’ complaint was
unfounded, Mr. Simmons’ Board complaint was the proper procedural vehicle to pursue
his claims of violations of the Rules of Professional Conduct against Counsel. The
Tennessee Rules of Professional Conduct do not give rise to a private right of action. See
Tenn. S. Ct. R. 8, Scope (21) (providing that “[v]iolation of a Rule should not itself give
rise to a cause of action against a lawyer.”). See also Akins v. Edmonson, 207 S.W.3d
300 (Tenn. Ct. App. 2006). Accordingly, we affirm the trial court’s dismissal of Mr.
Simmons’ claim for violations of the Rules of Professional Conduct.
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3. Professional Negligence
The trial court also granted summary judgment on Mr. Simmons’ claims of
professional negligence and/or negligent misrepresentation against Counsel. Mr.
Simmons acknowledges that Counsel was representing the opposing party during the
deposition and that they are not liable to him for legal malpractice. Mr. Simmons relies
on the following passage from section 552 of the Restatement (Second) of Torts in
support of his theory of professional negligence:
(1) One who, in the course of his business, profession or employment, or in
any other transaction in which he has a pecuniary interest, supplies false
information for the guidance of others in their business transactions, is
subject to liability for pecuniary loss caused to them by their justifiable
reliance upon the information, if he fails to exercise reasonable care or
competence in obtaining or communicating the information.
(2) Except as stated in Subsection (3), the liability stated in Subsection (1)
is limited to loss suffered
(a) by the person or one of a limited group of persons for whose benefit and
guidance he intends to supply the information or knows that the recipient
intends to supply it; and
(b) through reliance upon it in a transaction that he intends the information
to influence or knows that the recipient so intends or in a substantially
similar transaction.
(3) The liability of one who is under a public duty to give the information
extends to loss suffered by any of the class of persons for whose benefit the
duty is created, in any of the transactions in which it is intended to protect
them.
Restatement (Second) of Torts § 552 (emphasis added). Mr. Simmons articulates no
coherent argument on appeal as to how Counsel’s actions toward him, when serving as
opposing counsel in a debt-collection lawsuit, could be portrayed as professional
negligence. The trial court appropriately relied on Robinson v. Omer, 952 S.W.2d 423
(Tenn. 1997), which emphasizes that Tennessee cases involving negligent
misrepresentation allow recovery only when an attorney’s advice was supplied in the
course of a commercial or business transaction for the guidance of others in their business
transactions. Such a situation is not at all analogous to the discussion between Mary
Cheadle and Mr. Simmons on October 30, 2014. We affirm the dismissal of Mr.
Simmons’ claim for professional negligence.
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4. Negligent and/or Intentional Infliction of Emotional Distress
Mr. Simmons next asserts that the trial court erred in dismissing his claims for
negligent and intentional infliction of emotional distress. Mr. Simmons claims that the
“illegal deposition” caused him severe emotional harm. Specifically, Mr. Simmons states
that he “had a panic attack due to the illegal deposition” during which Counsel engaged
in “harassment, pressure, and negligence of care [with] knowledge of the Appellant
having shingles.” According to Mr. Simmons, he called his doctor on his drive home
from the deposition to alert him of his panic attack, and the doctor gave him instructions
to go home and rest.
The events that took place on October 30, 2014, related to Mr. Simmons’
deposition do not give rise to a claim for negligent or intentional infliction of emotional
distress for a litany of reasons. One of these reasons is that claims for intentional
infliction of emotional distress and negligent infliction of emotional distress require a
plaintiff to prove that he suffered severe or serious mental injury as a result of the
plaintiff’s actions. See Lourcy v. Estate of Scarlett, 146 S.W.3d. 48 (Tenn. 2004);
Camper v. Minor, 915 S.W.2d 437 (Tenn. 1996). We affirm the trial court’s holding that
Mr. Simmons’ bare statement that he had a panic attack and was told by a doctor to go
home and rest does not constitute the emotional harm required to sustain a claim for
intentional or negligent infliction of emotional distress.
5. Malicious Prosecution
Mr. Simmons argues that the trial court erred in granting summary judgment in
favor of Counsel because Counsel’s actions taken in conjunction with their debt-
collection efforts, particularly during the purported “unlawful deposition,” were
“malicious.” Mr. Simmons’ particular cause of action is not artfully stated, but it appears
to be most akin to a claim for malicious prosecution. To establish a prima facie case of
malicious prosecution, a claimant must prove three elements: “(1) a prior suit or judicial
proceeding was instituted without probable cause, (2) defendant brought such prior action
with malice, and (3) the prior action was finally terminated in plaintiff’s favor.” Roberts
v. Fed. Exp. Corp., 842 S.W.2d 246, 247-48 (Tenn. 1992). Mr. Simmons cannot
establish the third element of a claim for malicious prosecution because the prior lawsuit,
the debt-collection action, was not terminated in his favor. The trial court held, and we
affirmed, that Mr. Simmons was in fact liable to MTSU for the delinquent student loan.
See Middle Tennessee State University v. Simmons, No. M2011-00825-COA-R3-CV,
2012 WL 2244821 (Tenn. Ct. App. 2012). Because Counsel affirmatively negated an
essential element of Mr. Simmons’ claim for malicious prosecution, we affirm the trial
court’s dismissal of this claim.
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6. Mr. Simmons’ Procedural Motions
At the conclusion of the hearing on Counsel’s motion for summary judgment on
February 2, 2017, Mr. Simmons questioned the court regarding why Counsel’s motion
for summary judgment was heard first although he had a pending motion that was filed
before the motion for summary judgment. The court patiently explained to Mr. Simmons
that:
[D]epending on the outcome of the summary judgment motion, that would
determine whether or not the Court needed to take the time to sift through
the various procedural motions to determine a path forward in the litigation
or not, for example, motions about the sufficiency of interrogatory
responses, things of that nature.
And the Court agreed with [Counsel’s] proposition that the dispositive
motion should go first because depending on the outcome . . . .
. . . of the motion for summary judgment, it could have, and, in fact,
ultimately, did have the effect of making the other procedural matters moot.
Mr. Simmons was not satisfied with that response and continued to debate the issue with
the trial court as he does now on appeal.
Although Mr. Simmons does not specify the precise motions that should have
been heard before Counsel’s motion for summary judgment or how they would have
affected the ultimate outcome in this case, he insists that the trial court committed
reversible error by refusing to hear and/or denying a myriad of motions before dismissing
his case. Some of Mr. Simmons’ pending motions were a motion to strike Counsel’s
interrogatory responses and for sanctions, a motion to strike Counsel’s interrogatory
responses based on an alleged forged signature, a motion to compel responses to
discovery requests, and others. Even if the court heard and granted every one of Mr.
Simmons’ pending motions, it would have not changed the outcome of this case. Mr.
Simmons’ claims were dismissed as a result of his failure to allege facts that amounted to
a viable cause of action. Continuing to engage in protracted litigation would not have
solved that problem for him. We conclude that the trial court did not err in choosing to
promote judicial economy by hearing Counsel’s dispositive motion before Mr. Simmons’
procedural motions.
IV. CONCLUSION
For the foregoing reasons, affirm the order of the trial court. Costs of this appeal
are taxed to the appellant, Tray Simmons. Because Tray Simmons is proceeding in forma
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pauperis in this appeal, execution may issue for costs if necessary.
_________________________________
BRANDON O. GIBSON, JUDGE
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