FILED

October 29, 1997

Cecil W. Crowson

Appellate Court Clerk

JOHN J. BANDEIAN, JR., M.D., )

 )

Plaintiff/Appellant, )

 ) Davidson Sixth Circuit

VS. ) No. 95C-3587

 )

MARTIN H. WAGNER, M.D., ) 

 ) Appeal No.

Defendant/Appellee, ) 01-A-01-9703-CV-00140

 )

RAY W. HESTER, M.D., and GERALD )

R. BURNS, M.D., )

 )

Defendants. )

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE DAVIDSON SIXTH CIRCUIT COURT

AT NASHVILLE, TENNESSEE

HONORABLE THOMAS W. BROTHERS, JUDGE

John J. Bandeian, M.D.

3169 West State Street

Bristol, TN 37620

PRO SE FOR PLAINTIFF/APPELLANT

Ed R. Davies, #3231

DAVIES, CANTRELL & HUMPHREYS

150 Second Avenue North, Suite 225

Nashville, TN 37201

ATTORNEY FOR DEFENDANTS/APPELLEES

AFFIRMED AND REMANDED.

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

BEN H. CANTRELL, JUDGE

CONCURS IN SEPARATE OPINION:

WILLIAM C. KOCH, JR., JUDGE
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JOHN J. BANDEIAN, JR., M.D., )

 )

Plaintiff/Appellant, )

 ) Davidson Sixth Circuit

VS. ) No. 95C-3587

 )

MARTIN H. WAGNER, M.D., ) 

 ) Appeal No.

Defendant/Appellee, ) 01-A-01-9703-CV-00140

 )

RAY W. HESTER, M.D., and GERALD )

R. BURNS, M.D., )

 )

Defendants. )

O P I N I O N

The plaintiff, John J. Bandeian, Jr., M.D. has appealed from the summary dismissal of

his suit against the defendant, Martin H. Wagner, M.D. for libel.

Plaintiff’ssecond amended complaint asserts that an unsigned letter containing untruthful

statements about plaintiff and another physician was mailed to a patient by the defendant.

Defendant’s motion for summary judgment is supported by his affidavit that:

2. I have read Exhibit 1 to the Complaint (letter said to

have been postmarked on October 24, 1994 and referred to

hereinafter as the or this letter).

3. I did not write this letter.

4. I did not commission, cause, direct, or assist any other

person in the writing of this letter.

5. I have no knowledge as to the identity of the author of

this letter.

6. I did not mail, commission, cause, direct, or assist in

the mailing of this letter.

A party seeking a summary judgment may do so in several ways. Brown v. J. C. Penney

Life Ins. Co., Tenn. App. 1992, 861 S.W.2d 834.
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In a suitable case, the simplest support for a defendant’s motion for summary judgment

is his affidavit that “I did not commit the act attributed to me in the complaint.” The plaintiff

must then present admissible evidence that the defendant did commit the act attributed to him.

The present case involves such a simple situation. The complaint alleged wrongdoing

by defendant. The defendant swears that he is not the guilty party. Plaintiff has attempted to

produce evidence that defendant is guilty. The issue on appeal is whether the evidence offered

by plaintiff is competent, admissible evidence creating a dispute as to the fact denied by

defendant.

Plaintiff’s 13-page “Statement of the Facts” is attached as an exhibit to this opinion. It

would be extremely difficult to abbreviate or adequately summarize this statement. A careful

study of the details of the evidence in the “statement of facts” fails to disclose any competent,

admissible evidence that contradicts defendant’s affidavit quoted above. No competent,

admissible evidence is found that defendant wrote the letter, or that he conspired or collaborated

with anyone who did, or that he and only he had a motive and opportunity to write the letter. 

Generally, an ordinary witness must confine his testimony to a narration of facts based

on first-hand knowledge and avoid stating a mere personal opinion. Walden v. Wylie, Tenn. App.

1982, 645 S.W.2d 247. The opinion of plaintiff and that of his witnesses is not competent

evidence of the participation of defendant in the alleged wrong. TRCP Rule 56.01, Braswell v.

Carothers, Tenn. App. 1993, 863 S.W. 722.

A verdict for the plaintiff cannot be based upon speculation, conjecture, guesswork, or

a mere spark or glimmer of evidence. Ogle v. Winn-Dixie, Greenville, Inc., Tenn. App. 1995,

919 S.W.2d 45; Sadec v. Nashville Recycling Co., Tenn. App. 1988, 751 S.W.2d 428.
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When faced with a properly supported motion for summary judgment, the opponent of

the motion must produce competent, material evidence showing a clear entitlement to maintain

his action. Merritt v. Wilson County Board of Zoning Appeals, Tenn. App. 1983, 656 S.W.2d

846.

If evidence filed by plaintiff in response to a properly supported motion for summary

judgment does not controvert factual statements in defendant’s evidence, the response is

inadequate. TRCP Rule 56. Kelton v. Snell, Tenn. App. 1985, 689 S.W.2d 186.

If the parties had gone to trial upon the evidence offered by them for and against the

summary judgment, the Trial Judge would have been obligated to direct a verdict for the

defendant because the evidence offered by plaintiff would have required the jury to engage in

unwarranted speculation. Stokes v. Leung, Tenn. App. 1982, 651 S.W.2d 704, Crowe v. Provost,

Tenn. App. 1963, 374 S.W.2d 645.

The summary judgment for the defendant was therefore justified and correct.

The judgment of the Trial Court is affirmed. Costs of this appeal are assessed against the

plaintiff-appellant. The cause is remanded to the Trial Court for further appropriate proceedings.

AFFIRMED AND REMANDED 

_______________________________________

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

____________________________________

BEN H. CANTRELL, JUDGE
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CONCURS IN SEPARATE OPINION

WILLIAM C. KOCH, JR., JUDGE