# FILED October 29, 19 97 Cecil W. Crowson Ap pellate Cou rt Clerk JOHN J. BANDEIAN, JR., M.D., ) ) Plaintiff/Appellant, ) ) Davidson Sixt

h 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., an d GERALD ) R. BURNS, M.D., ) ) Defendants . )

IN THE COURT OF AP PEALS OF

TENNESSEE MIDDLE SECT ION AT NASHV ILLE APPEAL FROM THE DAVIDSON SIXTH CIRCUIT COURT

AT NASHVILL E, TENNESSEE HONORABL E THOMAS W. BROTH ERS, JUDGE John J. Bandeian, M.D. 3169 West State Street Bristol, TN 37620 PRO SE FOR PLAINT

IFF/APPEL

LANT Ed R. Davies, #3231 DAVIES, CANTREL

L & HUMPHREYS 150 Second Avenue North, Suite 225 Nashville, TN 37201 ATTORNEY FOR DEFENDANTS/APPEL LEES 

### AFFIRMED AND REMANDED.

HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

CONCUR: BEN H. CANTRELL , JUDGE CONCURS IN SEPARATE OPINI ON: WILL IAM C. KOCH, JR., JUDGE-2-

JOHN J. BANDEIAN, JR., M.D., ) ) Plaintiff/Appellant, ) ) Davidson Sixt

h 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., an d 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 ag ainst the d

efenda nt, Martin H. Wagne

r, M.D. f or libel.
Plaintiff’s second

amended complaint asserts that an unsigned letter con taining untruthfu l statemen ts about pl aintiff a

nd anothe r phy sician wa s mailed to a patien t by the defe ndant.
Defend ant’s moti on for sum mary judgmen t is suppor

ted by his affid avit that: 2. I have read Ex h ibit 1 to the Complaint ( letter sa

id to have bee n postm arked on October 24, 1994 a

nd refe rred to hereinafter as the or this letter). 3. I did not write this letter. 4. I did notcommission, 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 a s sist in the mailing of this letter. A party see

king a summary

judgment may do

so in several way s. Brown v. J. C. Penney Life Ins. Co ., Tenn. App. 1992, 861 S.W.2d 834.-3- In a suitable case, thesimplest support for a defendant’s motion for summary judgme nt is his affidavit that “I did not commit the act attributed to me in the compla int.” The plaintiff must then present

admissible

evidenc e that the

defenda nt did commi

t the act a ttributed to him.
The present case involves such a simple situation. The complaint alleged wrongdoing by defen dant. The

defenda nt swear s that he isnot the g uilty party . Plaintiff

has atte mpted to produce evidence that defendant is guilty . The issue on appeal is whether the evidence offered by plaintiff is competent, admissibl e evi dence creating a dispute as to the f act denied by defenda nt.
Plaintiff’s 13-page “Statement of the Facts” is attached as an exhibit to th is opi ni on. It would be extremely difficult t o abbreviate or adequately summarize this statement. A careful study of the details of the evidence in the “sta tement of facts” fails to di sclose a

ny c ompetent , adm issible e vidence

that cont

radicts d efenda nt’s aff idavit quo ted above . No compe tent, admissible

evidence is found that

defendant wrote the letter, or that he conspire d or collaborated with anyone who did, or that he and only he had a

motive and opportunity to write the letter.
Genera lly, an ordina

ry witness mu st

confine his testimony to a narration of f acts based on first-hand knowledge and avoid stating a mere personal opinion. Walden v. W ylie , Tenn. App. 1982, 645 S.W.2d 24 7. The opinion of pla intiff and that of h

is witness es is n o t 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 spec ulation, 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 Recyc ling Co ., Tenn. App. 1988, 751 S.W.2d 428.-4- When faced

with a properly suppor

ted motion for summary judg ment, the opponent of the motion must produce competent, material evidence showing a clear entitleme nt to mainta

in his action. Merritt v . Wils on County B oard of Zonin g Appeals , Tenn. App. 1983, 656 S.W.2d 846.
If evidence fi led byplaintiff in response to a properly supported motion for summary judgment does not controvert factual statements in def enda nt’s evid

ence, th e respon se is inadequate. TRCP Rule 56. Kelton v. S nell , Tenn. App. 1985, 689 S.W.2d 186.
If th e p ar ti es ha d g on e t o t ri al up on th e e vi de nc e o ff er ed by th em for and against the s ummary judgmen t, the Tri al Judge w ould have been obli gated t

o direct a verdict for th e defendant because the evidence offer ed by

plaintiff would hav e requir

ed the jur y to engag e in unwarranted

speculation. Stokes v. Leung , Tenn. App. 1982, 651 S.W.2d 704, Crowe v. P rovost, Tenn. App. 1963, 374 S.W.2d 645.
The summa

ry judgmen t for the d efenda nt was the

refore justified and corr ect.
The judgment of

the Trial Court is affirmed. Costs of this appeal are assessed against the plaintiff -appell ant. The cause isremande d to the Tria l Court for

further appropr iate pro ceeding s. 

### AFFIRMED A ND REMAND ED

_______________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION
CONCUR:

____________________________________ BEN H. CANTRELL , JUDGE-5-

CONCURS IN SEPARATE OPINI ON WILL IAM C. KOCH, JR., JUDGE