April Elaster v. Gary Massey, Jr.

02/22/2018

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs February 2, 2018

APRIL ELASTER v. GARY MASSEY JR., ET AL.

Appeal from the Circuit Court for Hamilton County

No. 15C877 Don R. Ash, Senior Judge

___________________________________

No. E2017-00020-COA-R3-CV

___________________________________

In this legal malpractice case, defendant-attorneys filed a motion for summary judgment

alleging that they complied with the applicable standard of care. In response to the

summary judgment motion, Appellant failed to offer any expert proof that defendant-

attorneys breached the applicable standard of care. Accordingly, the trial court granted

summary judgment on this basis. Discerning no error, we affirm.

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

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which FRANK G.

CLEMENT, JR., P.J., M.S., and JOHN W. MCCLARTY, J., joined.

April Elaster, Chattanooga, Tennessee, Pro Se.

William S. Walton, Nashville, Tennessee, for the appellees, Gary Massey, Jr., Massey &

Associates, PC, and Danny Ellis.

OPINION

BACKGROUND

Plaintiff/Appellant April Elaster suffered a work-place injury in 2005. With the

help of counsel, Ms. Elaster filed a workers’ compensation claim against her employer.

Following the withdrawal of her initial attorney, Ms. Elaster retained the services of

Defendants/Appellees Gary Massey Jr., d/b/a Massey and Associates, and Danny Ellis

(together, “Appellees”). Appellees represented Ms. Elaster from 2009 until 2014. Since

2014, Ms. Elaster represented herself in the workers’ compensation proceeding.

On July 20, 2015, Ms. Elaster filed a pro se complaint for legal malpractice

against Appellees. Therein, Ms. Elaster alleged that Appellees failed to adequately

represent her in the workers’ compensation case. Specifically, Ms. Elaster alleged that

Appellees “settled” the workers’ compensation case without informing her. Ms. Elaster

further alleged that she had no knowledge that a “monetary settlement had been taken on

her claim” until she performed her own investigation in July 2014. Appellees filed an

answer denying the material allegations in the complaint. The parties thereafter entered

into a period of discovery.

After encountering alleged problems obtaining discovery from Ms. Elaster,

Appellees filed a motion to compel on November 3, 2015, which motion was eventually

granted by the trial court. Additional disputes occurred regarding Ms. Elaster’s

deposition; the deposition eventually took place on February 22, 2016. Ms. Elaster also

submitted written discovery to Appellees on March 9, 2016. Appellees responded on

March 25, 2016. Ms. Elaster, however, was unsatisfied with certain responses submitted

by Appellees, particularly where Appellees refused to supply certain information on

grounds that the information was privileged or irrelevant and unlikely to lead to the

discovery of admissible evidence. As such, Ms. Elaster filed several pleadings with the

trial court concerning what she alleged were discovery violations by Appellees.

In the meantime, on April 20, 2016, Appellees filed a motion for summary

judgment, arguing, inter alia, that they had complied with all relevant standards of care in

their representation of Ms. Elaster and that Ms. Elaster’s claim in her complaint that

Appellees had obtained a settlement of Ms. Elaster’s workers’ compensation claim was

patently false. Appellees’ motion was accompanied by a statement of undisputed material

facts. Therein, Appellees alleged that Ms. Elaster had been twice examined by

physicians, neither of whom supported her claim for impairments in the underlying

workers’ compensation proceeding.1 Further, Appellees alleged that despite negotiating a

settlement for Ms. Elaster’s “disputed and doubtful” claim, she later repudiated the

agreement and no settlement had ever been entered into by Appellees on behalf of Ms.

Elaster with regard to her workers’ compensation claim. Finally, Appellees alleged they

had never received any “monetary settlement” in connection with their representation of

Ms. Elaster and that the representation was terminated in July 2014. Importantly, the

statement of undisputed material facts also alleged that both Mr. Massey and Mr. Ellis

were familiar with the recognized standard of care with regard to the legal representation

at issue and that neither attorney had breached the applicable standard of care. In support

1

With regard to the medical issues, the statement of undisputed facts cited two letters by separate

physicians. In one letter, Barry R. Vaughn, M.D. stated that Ms. Elaster’s conduct “suggest[s] the

possibility of symptom magnification,” and opined that she had reached “the maximum medical

improvement that I can provide for her.” In the second letter, Timothy A. Strait, M.D. stated the

following: “The patient has had more than sufficient time to have reached medical improvement. There is

no compelling evidence to indicate a permanent anatomic impairment. Furthermore, there are no

objective findings to mandate any physical restrictions.” Dr. Strait’s letter, though on office stationary,

was unsigned.

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of their assertions regarding the standard of care, Appellees relied on the affidavits of

both Mr. Massey and Mr. Ellis.

On May 17, 2016, Ms. Elaster filed a motion to compel discovery, arguing that

Appellees had refused to provide requested documents and that Appellees’ objections

regarding privilege and relevance were not well-founded. Appellees responded in

opposition. On May 26, 2016, Ms. Elaster also filed a motion seeking to delay the

hearing on the summary judgment motion, noting that she had issued a subpoena to the

Tennessee Department of Labor and Workforce Development (“Department of Labor”)

and that she needed time to review the documents. Again, Appellees opposed Ms.

Elaster’s request, arguing that the documents at issue were easily obtainable simply by

signing a release and that evidence showed that the Department of Labor had already

released the relevant documents to Ms. Elaster but that Ms. Elaster had not retrieved the

released documents. In a later filing, Ms. Elaster admitted that she was able to obtain her

file from the Department of Labor in June of 2016.

On May 31, 2016, Ms. Elaster filed an affidavit in opposition to the motion for

summary judgment. Therein, Ms. Elaster asserted that despite Appellees’ assertion

otherwise, she had never claimed that Appellees received a money settlement and

retained the funds without remitting those funds to Ms. Elaster. Ms. Elaster also included

certain alleged portions of Mr. Massey’s response to a Tennessee Board of Professional

Responsibility complaint filed by Ms. Elaster.

The parties appeared as scheduled for the summary judgment hearing on June 6,

2016. At the hearing, the trial court granted Ms. Elaster’s request for a continuance. Ms.

Elaster thereafter requested that the trial court recuse itself. The trial court later entered

an order granting the motion to recuse; the matter was delayed while a new judge was

assigned.

On July 11, 2016, Ms. Elaster filed a response to Appellees’ statement of

undisputed material facts. Therein, Ms. Elaster admitted that no settlement agreement

was ever finalized, that she never entered into any settlement agreement with her former

employer, that no settlement funds were ever paid, and that both Mr. Massey and Mr.

Ellis were familiar with the standard of care required in the underlying workers’

compensation case. Ms. Elaster “challenge[d] the validity of” certain allegations that

multiple physicians had examined her and opined that she had reached maximum medical

improvement and/or that she did not qualify for the assignment of anatomical impairment

rating; Ms. Elaster did not cite any specific documents to undermine the alleged

conclusions cited by Appellees regarding the medical examinations performed during the

pendency of her workers’ compensation action. Ms. Elaster also did not dispute that

Appellees encouraged her to settle her workers compensation “on a disputed and doubtful

basis” or that the attorney-client relationship terminated in July 2014. Ms. Elaster

disputed, however, that either Mr. Massey or Mr. Ellis complied with the applicable

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standard of care. In support for this dispute, Ms. Elaster cited only to her complaint. On

July 22, 2016, Ms. Elaster filed a second motion to compel, arguing that her former

employer had failed to supply requested information.

Eventually, on October 4, 2016, Senior Judge Don Ash conducted a hearing on

Appellees’ motion for summary judgment. Following the hearing, the trial court entered

an order granting the motion for summary judgment on the ground that Ms. Elaster failed

to provide any qualified expert proof to support her claim. In the order, the trial court

ruled that Ms. Elaster’s pending motion to compel was rendered moot by the decision.

Following the trial court’s ruling, Ms. Elaster filed a pleading essentially asking the trial

court to reconsider its ruling. Appellees responded in opposition, and Ms. Elaster

thereafter filed a reply noting that the trial court had not specifically ruled on her motions

to compel discovery. The trial court thereafter conducted a hearing on the pending

motions. Ultimately, the trial court entered three orders on December 28, 2016: (1)

denying Ms. Elaster’s July 2016 motion to compel against her former employer; (2)

denying Ms. Elaster’s May 2016 motion to compel against Appellees regarding

documents that were alleged to have been privileged, subject to the work product

exception, or irrelevant and unlikely to lead to the discovery of admissible evidence; and

(3) denying Ms. Elaster’s motion to alter or amend the judgment. Ms. Elaster thereafter

appealed to this Court.2

ISSUES PRESENTED

Ms. Elaster raises three issues in this case, which are taken, and slightly restated,

from her brief:

1. Whether the trial court allowed Ms. Elaster adequate discovery

pursuant to the Tennessee Rules of Civil Procedure when Appellees

were allowed to plead privilege without (1) a privilege log

describing which documents were being withheld and/or (2) an

explanation of how the documents were privileged.

2. Whether expert testimony is required in a legal malpractice case to

establish the standard of care where evidence exists of obvious

common sense errors that were made with such frequency and in

violation of state regulatory agency rules that meet the exception

articulated in Blocker v. Dearborn, 851 S.W.2d 825, 827 (Tenn.

1990).

2

During the pendency of this appeal, Ms. Elaster filed a motion to remand to the trial court so

that she could file a motion under Rule 60.02 of the Tennessee Rules of Civil Procedure for relief from

the trial court’s final judgment. We granted Ms. Elaster’s request, but the trial court eventually denied Ms.

Elaster’s motion.

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3. Whether the trial court erred when it failed to consider issues

articulated in Ms. Elaster’s pleadings identified as elements of legal

malpractice and instead narrowly focused on the one issue of the

settlement from which she based her decision stating that the other

issues were of no consequence.

As we perceive it, however, this appeal involves a single issue: Whether the trial court

erred in granting summary judgment in favor of Appellees, resulting in the dismissal of

Ms. Elaster’s legal malpractice complaint.

STANDARD OF REVIEW

The trial court in this case granted summary judgment in favor of Appellees.

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; and (2) the

moving party is entitled to judgment as a matter of law on the undisputed facts. Tenn. R.

Civ. P. 56.04. On appeal, this Court reviews a trial court’s grant of summary judgment de

novo with no presumption of correctness. Rye v. Women’s Care Ctr. of Memphis,

MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015) (citing Bain v. Wells, 936 S.W.2d 618, 622

(Tenn. 1997)), cert. denied, 136 S. Ct. 2452, 195 L.Ed. 2d 265 (2016). In reviewing the

trial court’s decision, we must view all of the evidence in the light most favorable to the

nonmoving party and resolve all factual inferences in the nonmoving party’s favor.

Luther v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999); Muhlheim v. Knox Cnty. Bd. of

Educ., 2 S.W.3d 927, 929 (Tenn. 1999). If the undisputed facts support only one

conclusion, then the court’s summary judgment will be upheld because the moving party

was entitled to judgment as a matter of law. See White v. Lawrence, 975 S.W.2d 525,

529 (Tenn. 1998); McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995). When a moving

party has filed a properly supported motion for summary judgment, the nonmoving party

must respond by pointing to evidence that shows summary judgment is inappropriate.

Rye, 477 S.W.3d at 264–65.

DISCUSSION3

3

We note that Ms. Elaster is self-represented in this appeal, as she was in the trial court. We

recognize and appreciate Ms. Elaster’s right to appear before this Court self-represented. The law is well-

settled in Tennessee, however, that pro se litigants must comply with the same standards to which lawyers

must adhere. Watson v. City of Jackson, 448 S.W.3d 919, 926 (Tenn. Ct. App. 2014). As explained by

this Court:

Parties who decide to represent themselves are entitled to fair and equal treatment by the

courts. The courts should take into account that many pro se litigants have no legal

training and little familiarity with the judicial system. However, the courts must also be

mindful of the boundary between fairness to a pro se litigant and unfairness to the pro se

litigant’s adversary. Thus, the courts must not excuse pro se litigants from complying

with the same substantive and procedural rules that represented parties are expected to

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This case involves allegations of legal malpractice. As our supreme court has

explained:

In order to make out a prima facie legal malpractice claim, the plaintiff

must show (1) that the accused attorney owed a duty to the plaintiff, (2) that

the attorney breached that duty, (3) that the plaintiff suffered damages, (4)

that the breach was the cause in fact of the plaintiff's damages, and (5) that

the attorney’s negligence was the proximate, or legal, cause of the

plaintiff's damages. See Lazy Seven Coal Sales, Inc. v. Stone & Hinds, 813

S.W.2d 400, 403 (Tenn. 1991); Horton v. Hughes, 971 S.W.2d 957, 959

(Tenn. Ct. App. 1998). As with any tort claim, the plaintiff has the burden

of proving each of these elements.

Gibson v. Trant, 58 S.W.3d 103, 108 (Tenn. 2001). Moreover,

Whether a lawyer’s conduct meets the applicable professional standards is

generally believed to be beyond the common knowledge of laypersons.

Thus, except in cases involving clear and palpable negligence, most courts

considering the issue have held that cases of legal malpractice cannot be

decided without expert proof regarding the applicable standard of care and

whether the lawyer's conduct complies with this standard.

Lazy Seven Coal, 813 S.W.2d at 406 (quoting Cleckner v. Dale, 719 S.W.2d 535, 540

(Tenn. Ct. App. 1986), abrogated on other grounds by Chapman v. Bearfield, 207

S.W.3d 736 (Tenn. 2006)); see also Blocker v. Dearborn & Ewing, 851 S.W.2d 825, 827

(Tenn. Ct. App. 1992) (“[E]xcept in cases of palpable negligence, expert proof is required

to establish the standard and to determine whether the attorney's conduct comports with

it.”) (citing Cleckner, 719 S.W.2d at 540).

Here, Appellees submitted the affidavits of Mr. Massey and Mr. Ellis to support

their contention that neither attorney had violated the applicable standard of care.

Generally, where “a defendant-attorney presents expert proof that he or she did not

breach the duty of care, the plaintiff-client must present rebuttal expert proof that a

breach of care did occur in order to create a genuine issue of material fact.” Strong v.

Baker, No. M2007-00339-COA-R3-CV, 2008 WL 859086, at *7 (Tenn. Ct. App. Mar.

31, 2008) (citing Bursack v. Wilson, 982 S.W.2d 341, 343-45 (Tenn. Ct. App. 1998)).

Ms. Elaster agreed that the attorneys were knowledgeable regarding the standard of care

but denied that they had complied with the applicable standard in this case. To rebut the

observe.

Jackson v. Lanphere, No. M2010-01401-COA-R3-CV, 2011 WL 3566978, at *3 (Tenn. Ct. App. Aug.

12, 2011) (quoting Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003) (internal citations

omitted)).

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affidavits of the attorneys, however, Ms. Elaster only cited her complaint. Where a

properly supported motion for summary judgment has been filed, the Tennessee Supreme

Court has described the non-movant party’s burden as follows:

[A]ny party opposing summary judgment must file a response to each fact

set forth by the movant in the manner provided in Tennessee Rule 56.03.

“[W]hen a motion for summary judgment is made [and] . . . supported as

provided in [Tennessee Rule 56],” to 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 Tennessee Rule 56, “set forth specific facts” at the summary

judgment stage “showing that there is a genuine issue for trial.” Tenn. R.

Civ. P. 56.06. The nonmoving party “must do more than simply show that

there is some metaphysical doubt as to the material facts.” Matsushita

Elec. Indus. Co., 475 U.S. at 586, 106 S.Ct. 1348. The nonmoving party

must demonstrate the existence of specific facts in the record which could

lead a rational trier of fact to find in favor of the nonmoving party. If a

summary judgment motion is filed before adequate time for discovery has

been provided, the nonmoving party may seek a continuance to engage in

additional discovery as provided in Tennessee Rule 56.07. However, after

adequate time for discovery has been provided, summary 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. Tenn. R. Civ. P. 56.04, 56.06. The focus is on the evidence the

nonmoving party comes forward with at the summary judgment stage, not

on hypothetical evidence that theoretically could be adduced, despite the

passage of discovery deadlines, at a future trial.

Rye, 477 S.W.3d at 265. Thus, a party opposing summary judgment cannot simply rely

on the allegations made in his or her complaint but must present specific evidence

showing a material issue of fact. Id. (citing Tenn. R. Civ. P. 56.06). Here, in the face of

Appellees’ properly supported motion for summary judgment, Ms. Elaster failed to

present any expert proof to support her allegation that the standard of care was violated

by Appellees in this case. Instead, Ms. Elaster chose to rely solely on the allegations in

her pleading to support her claim. Except in unusual circumstances, discussed infra,

without competent expert proof regarding the standard of care, a legal malpractice claim

must fail. See Lazy Seven Coal Sales, 813 S.W.2d at 406.

Ms. Elaster argues, however, that expert proof to establish the standard of care was

not necessary in this case because this case involves obvious and palpable errors for

which no expert proof is required, citing Blocker v. Dearborn & Ewing, 851 S.W.2d at

827. See also Strong, 2008 WL 859086, at *7 (noting that expert proof may be excused

in the “extreme case[]” where there are “allegations of obvious negligence”). To support

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this assertion in her brief, Ms. Elaster cites a letter sent by the attorney for her former

employer to the Department of Labor on March 3, 2017, opposing Ms. Elaster’s request

for mediation in the workers’ compensation administrative action. According to Ms.

Elaster, the statements contained in the letter show “a lack of diligence” by Appellees.4

We note that this letter was first presented to the trial court in Ms. Elaster’s motion under

Rule 60.02 following remand from this Court. The trial court denied the Rule 60.02

motion, however, and Ms. Elaster has not designated the denial of her Rule 60.02 motion

as an issue in this appeal. As such, any issues concerning the trial court’s failure to revise

its judgment based upon Ms. Elaster’s purported newly discovered evidence is waived.

See generally Childress v. Union Realty Co., 97 S.W.3d 573, 578 (Tenn. Ct. App. 2002)

(holding that issues may not be raised where they are not designated as issues on appeal).

Even considering these statements, we cannot conclude that they establish such

palpable or common sense errors that would negate the requirement of expert proof in

this case. Importantly, Ms. Elaster cites no law to suggest that delays or similar errors as

alleged in this case constitute the type of palpable errors for which expert proof would be

excused. Indeed, other cases have come to opposite conclusions. For example, in Moffitt

v. Smith, No. 02A01-9705-CV-00095, 1998 WL 70648 (Tenn. Ct. App. Feb. 23, 1998),

the plaintiff alleged that his former attorney “was inadequate in every stage of the matter-

pre-trial, trial, and appellate.” Id. at *4. The Court of Appeals held, however, that

“[u]ndoubtedly, these are not matters within the common knowledge of a layperson.” Id.

Similarly, in Strong v. Baker, No. M2007-00339-COA-R3-CV, 2008 WL 859086 (Tenn.

Ct. App. Mar. 31, 2008), the plaintiff alleged “numerous allegations concerning supposed

improprieties on the part of [the former attorney].” Id. at *7. We concluded, however,

that these “allegations relate[d] to matters of substantive and procedural law as well as

litigation tactics and strategy.” Id. “The appropriateness or legality of these actions” was

therefore “not within the knowledge of most nonlawyers.” Id.; see also Rose v. Welch,

115 S.W.3d 478, 480, 485 (Tenn. Ct. App. 2003) (holding that allegations of “failure to

investigate and develop [the] case” were not the type of allegations that are within the

common knowledge of laymen).

The same is true of this case. Here, in addition to the lack of diligence asserted by

Ms. Elaster in her brief, Ms. Elaster’s complaint alleges various allegations of

professional negligence against Appellees, including “failing to disclose” the alleged

4

Ms. Elaster appears to assert that the statements by her former employer’s attorney “should be

recognized by this Court” as the necessary expert proof in this case. Setting aside the fact that this

evidence was not presented during the summary judgment stage of litigation, see Rye, 477 S.W.3d at 265,

we note that nowhere in the statement presented by Ms. Elaster does the attorney state that Appellees

breached the applicable professional standard of care in their representation of Ms. Elaster. As such, even

if we were inclined to consider a late-filed, unsworn statement from an attorney who does not appear to

have consented to provide expert proof in this case, the statement from Ms. Elaster’s former employer’s

counsel does not rebut Appellees’ affidavits indicating that they complied with the applicable standard of

care.

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settlement, “failure[] to investigate[,]” failing to provide “full and accurate

communications[,]” and failure to provide “competent legal advice[.]” In her brief, Ms.

Elaster asserts that these actions violated various Rules of Professional Conduct

applicable to Tennessee attorneys regarding competence, informed consent, and

communication. Notwithstanding the alleged settlement of the workers’ compensation

claim, which Ms. Elaster now admits did not occur, none of these allegations or the other

allegations made against Appellees in this case involve the type of palpable negligence

necessary to fall into the exception to the expert proof requirement. See Garner’s

Dictionary of Legal Usage 335 (3d ed. 2011) (describing “palpable” as a near synonym

of “evident” meaning “what is easily noticed or readily comprehended”). Indeed, other

courts have held that allegations of professional negligence resting on rules of

professional conduct did not fall within the knowledge of lay jurors. See Ball ex rel.

Hedstrom v. Kotter, 746 F. Supp. 2d 940 (N.D. Ill. 2010) (holding that jurors’ lay

knowledge would not necessarily have extended to professional conduct rules governing

conflicts of interest and controlling case law); see also Carlson v. Morton, 229 Mont.

234, 236, 745 P.2d 1133, 1135 (Mont. 1987) (holding that reference to rules of

professional conduct are not sufficient to show a violation of the standard of care in the

absence of expert proof). Indeed, the Tennessee Supreme Court has stated that while the

Rules of Professional Conduct are not irrelevant in determining the standard of care, “in a

civil action charging malpractice, the standard of care is the particular duty owed the

client under the circumstances of the representation, which may or may not be the

standard contemplated by the [Rules of Professional Conduct].” Lazy Seven, 813 S.W.2d

at 405. Thus, the need for expert proof arises from the fact that “‘[t]he standard of care

applicable to a particular case will vary depending upon the type of legal activity

involved.’” Id. at 406 (quoting Cleckner, 719 S.W.2d at 540 n.4).

Here, Ms. Elaster alleges that she suffered harm as a result of Appellees’ lack of

diligence and delay throughout the workers’ compensation representation. The

undisputed facts show, however, that despite a “disputed and doubtful” claim, Appellees

obtained a settlement of Ms. Elaster’s workers’ compensation claim, that she, as was her

right as the client, refused to accept that settlement, and that the attorney-client

relationship was thereafter severed. Whether Appellees’ alleged lack of diligence, delay,

and failure to investigate constitutes a breach of the standard of care based upon these

particular facts is not within the common knowledge of laymen. The allegations at issue,

even if taken as true, are simply not of the “extreme” or obvious type necessary to

warrant an exception to the expert proof requirement.5 See Strong, 2008 WL 859086, at

*7. As such, expert proof was required. The trial court’s decision to grant summary

judgment on this basis is therefore affirmed.

5

We express no opinion as to whether these allegations, if proven, constitute professional

negligence. Rather, we simply conclude that expert proof was required to show that these allegations

constitute a breach of the standard of care applicable to the legal representation in this case.

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Finally, Ms. Elaster argues that the trial court erred in granting summary judgment

where she was not afforded appropriate discovery, specifically with regard to her

contention that Appellees should not be allowed to rely on the claimed privilege of

certain documents in the absence of a privilege log and/or an explanation of how the

documents were privileged. Here, Ms. Elaster filed two motions to compel prior to the

grant of summary judgment in favor of Appellees, as well as essentially a renewal of

those motions post-judgment. The trial court ruled that the pre-judgment motions to

compel were rendered moot by the grant of summary judgment, but later considered the

substantive merits of the motions after Ms. Elaster’s post-judgment motion. The trial

court, however, again denied the motions.

A request for additional discovery is an appropriate way to respond to a motion for

summary judgment. According to the Tennessee Supreme Court, a non-moving party

may thwart summary judgment by “submitting an affidavit explaining the necessity for

further discovery pursuant to Tenn. R. Civ. P. 56.06.” Martin v. Norfolk S. Ry. Co., 271

S.W.3d 76, 84 (Tenn. 2008) (citations omitted). As we have explained:

The interest in full discovery, however, must be balanced against the

purpose of summary judgment: “[to] provide[ ] a quick, inexpensive way to

conclude cases when there exists no dispute regarding the material facts.”

Hannan v. Alltel Publishing Co., 270 S.W.3d 1, 13 (Tenn. 2008)

[overruled on other grounds by Rye v. Women’s Care Ctr. of Memphis,

MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015)]. Indeed, “[t]he philosophy of

summary judgment is to avoid a needless trial in a case where, although the

pleadings may indicate disputes over factual issues, facts outside the

pleadings if known would clearly show that there is ‘no genuine issue as to

any material fact.’” Id. at 12 (quoting Donald F. Paine, Recent

Developments in Tennessee Procedure: The New Tennessee Rules of Civil

Procedure, 37 Tenn. L.Rev. 501, 516 (1970)).

Cardiac Anesthesia Servs., PLLC v. Jones, 385 S.W.3d 530, 537 (Tenn. Ct. App. 2012).

As such, we have held that the trial court did not err in granting summary judgment

where the party failed to file an affidavit requesting additional time for discovery or

failed to put forth an argument as to how the discovery responses would assist the non-

moving party in arguing the summary judgment motion. Id. Thus, “a trial court’s decision

to deny additional time for discovery, in order for the non-moving party to meet summary

judgment, ‘must be viewed in the context of the issues being tried and the posture of the

case at the time the request for discovery is made.’” Id. at 537–38 (quoting Regions

Financial Corp. v. Marsh USA, Inc., 310 S.W.3d 382, 401 (Tenn. Ct. App. 2009)).

Consequently, “a trial court only errs in refusing to grant additional time for discovery

prior to the hearing on a motion for summary judgment when the non-moving party can

show that ‘the requested discovery would have assisted [the non-moving party] in

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responding to [the moving party’s] motion for summary judgment.’” Cardiac Anesthesia,

385 S.W.3d at 538 (quoting Regions, 310 S.W.3d at 401).

Although Ms. Elaster filed an affidavit in response to the summary judgment

motion on May 31, 2016, the affidavit does not request additional discovery, nor does it

describe how additional discovery is necessary to respond to the pending summary

judgment motion.6 Likewise, Ms. Elaster fails to state in her brief to this Court how the

lack of a privilege log and explanation of how the documents were privileged would have

assisted her in responding to the motion for summary judgment. Indeed, from our review

of the contentions on this issue in Ms. Elaster’s appellate brief, we fail to discern how

Ms. Elaster’s inability to obtain details regarding certain allegedly privileged documents

had any effect on Ms. Elaster’s failure to provide expert proof in this matter. Given that

Ms. Elaster has failed to illuminate to this Court how these documents would have

assisted her in responding to the summary judgment motion, which was ultimately

granted on the basis of Ms. Elaster’s lack of expert proof, we cannot conclude that the

trial court erred in granting summary judgment in these circumstances. See Tenn. R. App.

P. 36(b) (“A final judgment from which relief is available and otherwise appropriate shall

not be set aside unless, considering the whole record, error involving a substantial right

more probably than not affected the judgment or would result in prejudice to the judicial

process.”).

CONCLUSION

The judgment of the Circuit Court of Hamilton County is affirmed and this cause

is remanded to the trial court for further proceedings as are necessary and consistent with

this Opinion. Costs of this appeal are taxed to Appellant April Elaster, for which

execution may issue if necessary.

_________________________________

J. STEVEN STAFFORD, JUDGE

6

Ms. Elaster also filed a motion asking for an extension of time to obtain discovery on May 26,

2016. The motion asked for an additional sixty days to obtain discovery. The summary judgment motion

eventually granted by the trial court was not heard until October 4, 2016, more than sixty days following

this request. Additionally, this motion was not filed in the nature of an affidavit, nor does it specifically

describe why the requested documents were necessary to respond to Appellees’ motion for summary

judgment. Finally, we note that one basis for the motion was that Ms. Elaster was awaiting documents

subpoenaed from the Department of Labor. Ms. Elaster admitted in the trial court, however, that she

obtained her Department of Labor file shortly following the filing of this motion, in June 2016.

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