1 For ease of reference, we sha ll refe r to both Woodridge Hospital and Front ier Health coll

ectively as either “Frontier H ealth” or “the d efendant.” It is un disputed tha t Frontier H ealth owns the hospital.

2 Ms. Shelburne also brought suit against Cart

er County. That

action is stil

l pending

in the t rial cou rt and i s not a subject of thi s appeal. This matt er is bef ore us purs

uant to t he provisions of Tenn . R. Civ.P. 54.02. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE July 13, 2001 Sess

ion SHIRLEY A. SHELBURNE, INDIVIDUALLY AND AS NEXT FRIEND OF 

### TRAVIS

LEE SHELBURNE v. FRONTIER HEALTH, ET AL 

### . Appeal from the Circuit Court for Carter County No. C7500 Thomas J. Seeley, Jr., Judge FILED OCTOBER 29, 2001
No. E2000-02551-COA-R3-CV

This is a neglig

ence action that

finds its genesis

in the suicide of a

county jail in

mate. Prior to his death, the decedent

had been evaluated

by Richard Kirk, a member of a crisis response team operate d by the defendant Woodridge H ospital, a facility owned and operated by the defendant Frontier Health. 1 Kirk concluded thedecedent did not s uffer from any

psychiatri

c illness and did

not require further care or treatment. The widow of the decedent, Shirley A. Shelburne, individually and as the next friend of her son, Travis Lee Sh elburne, sued Fr

ontier Health

on t he b asi s of vic ari ous lia bil ity. 2 In respon se to the defendant’s third motion for summary judgment, the trial court dismissed the plai n tiff’s action. The plain tiff filed a motion t

o alter or amend t

he grant of summa

ry judgmen

t, which was denied. The plaintiff appeals, arguing (1) that this case should

be remanded for the trial court to reconsider

the evidence submitted in support of the plaintiff’s motion to alter or amend in light of the Supreme Court’s decision in Harris v. C hern, 33 S.W .3d 741 (Tenn. 2000); (2) that Frontier Health is not entitle

d to summary judgment, which was granted on the basis of Kirk’s alleged stat uto ry immunity; and (3) that Frontier Health’s third motion for summary judgment constitutes an improper “appeal” of the den ial of i ts s econ d su mma ry ju dgme nt m oti on b y a different trial judge. We affirm.

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

Affirmed; Case Remanded
C HARLES D. S USANO , J R ., J., delivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J., and D. M ICHAEL S WINEY , J., joined.-2-

Robert Lewis King, Johnson City, Tennessee, for the appellant, Shirley A. Shelburne, individually and as next friend of Travis Lee Shelburne.
Thomas C. McKee, Johnson Cit y, Ten nessee, for the appell ees, Fronti er Health and Woodridge Hospital.
OPINION
I.
On November 12, 1997, Richard Shelburne attempt

ed, without succe

ss, to commit

suicide by hanging himself with shoelaces in his cell at the Carter County Jail. Thereafter, a t the request of jail personnel, Richa

rd Kirk conducte

d aninterview and evaluation of Mr. Shelburne. Mr. Shelburne told Kirk that he had momentarily lost his will to live following an argument with his wife the night before. He stated he regretted the suicide attempt

and denied having any current suicidal ideation, plan, or intent. In a written report, Kirk noted that Mr. Shelburne appeared alert and c oherent, that h e was cooperative during the interview, and that he exhibited a stable mood and affect. Kir

k diagnosed

the decedent as

“ha[ving] been su

bjected to a situa

tional distress tha

t was promptly relieved after reassur

ance and support

provided by

his wif e and Carter County jail staff.” Kirk conclude d that “ [t]here was no evidence of any psyc hiatric illness that needed any further care or treatment.” One week later, Mr. Shelburne killed himself with a pistol that he h ad taken off the person of a Carter County Sheriff’s deputy

. Thereafter, the plaintiff brou ght the instant ac

tion against Fro

ntier Health

and Car ter Cou nty, alleging that the defenda

nts negligently failed to prevent her husband’s suicide. Frontier Health filed three motions for summary judgment, the first two of which were denied. In its third motion, Frontier Health asserted

that Kirk was entitled to statutory immunity, and that because the plaintiff is barred at law from suing Kirk, she is likewis

e barred from maintaining a suit based on respondeat superior against Frontier Health.
The trial court granted Frontier H ealth’s mo tion and, finding no just reason for delay, directed the entry of

a final judgment pursuant to Tenn. R. Civ. P. 54.02. Subsequently, the plaintiff filed a motion to alter or amend

the judgment purs

uant to Tenn. R. Civ. P.

59.04. That motion was denied, and this appeal followed.
II.
The plaintiff first argues th at the trial court erred in denying her motion to alter or amend. She asserts that the trial court failed to apply the appropriate standard in its review and that it erre d in failing to create a record for appellate review as require d by the Suprem

e Cour t’s decision in Harris v. Chern, 33 S.W.3d 741 (Tenn. 2000).-3-

In Harris, the Supreme Court held that a trial court should consider the following factors when a litigant submits additional evidence in support of a motion s eeking to reverse a grant of partial summary judgment pursuant to Tenn. R. Civ. P. 54.02:

1) the movant’s eff

orts to obt ain evidence to respond to the motion for summary judgment; 2) the importance of the newly submitted evidence to the movant’s case; 3) the expl anation offered by the movant for its failure to offer the newl y submitte d evidence in its initial respo nse to the motion for summary judgment; 4) the likelihood that the nonmoving party will suffer

unfair prejudice; and 5) any other relevant factor. Harris, 33 S.W.3d at 742. While noting that the question of the standard applicable to a ruling on a motion to alter or a

mend filed pursua

nt to Tenn. R. Civ. P. 59 .04 was not direct ly at issue, the Harris Cou rt s tat ed t hat “ma ny o f t he same consider ations discussed he

rein would be appl

icable when a litigant submits additional evidence as part of a R ule 59.04 motion to alter or amend a s ummary judgment.” Id. at 746 n.4. We have expressly adopted the Harris analysis in ca se s involving Rule 59.04 motions. See King v. City of Gatlinburg, C/A No. E2000-00734-COA-R3- CV, 2001 WL 483419, a

t *3 (Tenn. Ct. App. E.S., fil ed May 8, 2 001); Smith v. Haley, C/A No. E2000-01203-COA-R3-CV, 2001 WL 208515, at *6 (Tenn. Ct. App. E.S., filed March 2, 2001).
The rubric of Harris does not come into play in a case, such as the instant one, where the trial court has in fact considered

the newly submitted evidence. Harris addresses the factors a trial court should weigh in det ermining whether or not to consider newly submitted e vidence. In t he instant case, the trial court’s or derreflects that it c onsidered the ev

idence submitted b

y the plaintif

f in support of her Rule 59.04 motion and, upon reviewing the evidence, denied the motion. Hence, we find no basis in Harris for disturbing the trial court’s grant of summary ju

dgment to the def

endant.
III.
The plaintiff next arg

ues that Frontier

Health is no t entitled to a summary judgment predicated

on the basis of Kirk’s statutory immunity. As a threshold matter, she contends that Kirk is not entitled to immunit y because his assessment of Mr

. Shelburne was no

t, according to

her, the type of evaluation for which immunity is provided. Even if Kirk is immune, she argues, Frontier Health may nevertheless be held vicariously liable for his actions.
A.
Our standard of revi

ew on a grant of

summary judg

ment is well-sett

l ed. “Our inquiry involves purely a question of law; therefore, we review the r ecord witho ut a presumption of correctness

to determine whether the absence of genuine issues of material facts entitle the defendant to judgment as a matter of law.” Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997). The moving party – in thi

s case, the defe

ndant – has the initial burden of producing competent, material-4-

evidence showing that thereis no genuine issue as to any material fact. Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn. 1993). This burden may be met by eit

her affirmative

ly negating an essential element of the nonmoving party's claim or by conclusively establishi ng an aff irmative defense. Id. at 215 n.5.
If the moving party successfully neg ates an essential element

of a claim, the non

moving party must then establish that there are disputed material facts creating genuine issues that must be resolvedby the trier of fact. Id. at 215. The n onmoving p arty cannot rel y upon his or he r pleadings to overcome a prop

erly-suppo

rted motion for summ

ary ju dg ment. Id. ; Robinson, 952 S.W.2d at 426; Tenn. R. Civ. P. 56.06. T he nonmoving party may contradict the fa ctual predicate of the motion by (1) pointing to evidence overlooked or ignored by the moving party that establish es a materia l factual di spute, (2) b y rehabilitat ing t h e evidence attacked in the moving party’s papers, (3) by producing additional evidence showing the existence of a

genuine issue f

or trial, or (4) submitting an af

fidavit explaining

why furthe

r discovery

is necessary as provided for in Tenn. R. Civ. P., Rule 56.06. Robinson, 952 S.W.2d at 426 n.4. In addition, the evidence must be viewed by the cour t in the light most favorable to

the nonmoving party, and all inferences must be drawn in favor of the nonmoving part y. Byrd, 847 S.W.2d at 210-11. Summary judgment should be granted only when the facts and conclusions permit

a reasonable pe

rson toreach only

one ultimate conc

lusion – that the movin

g party is entitled to a judgment as a matter of law. Robinson, 952 S.W.2d at 426.
When reviewing a grant of summary judgment, a n appellate court

must de cide anew if judgment in a summary fashion is appro p riate. Cowden v. Sovran Bank/Ce ntral South, 816 S.W.2d 741, 744 (Tenn. 1991).
B. The pertinent pro

visions of the statut

es at issue in this ca

se are as follows : T.C.A. § 9-8-307 (Supp. 2000) (a)(1) The commission or each commissioner

sitting individually has exclusive jurisdiction to determine all monet ar y claims against the state basedon the acts or omissions of “state employees,” as defined in § 8-4 2 -101(3), falling within one (1) or more of the following categories:

* * *3 This statute ha s since been amende d effective Jun e 12, 20 01. See 2001 Tenn. Pub. Act s ch. 377.
4 The provisions of Title 33 ap plicable to this case were eff ective until

March 1, 2001. See 2000 Tenn. Pub. Acts ch. 947. -5-

(D) Legal or m edi cal mal prac tic e by a state employee; provided, that the state employ

ee has a profes s ion al/client relationship with the claimant...

* * * (h) Stateofficers and em

ployees ar e absolutely

immune from liabilit

y for acts or omissions within the scope of the officer’s or employee’s office or employment, except

for willful, malic

ious, or criminal a

cts or omissions or for acts or omissions done for personal gain. For purposes of this chapter, “state officer” or “empl oy ee” has the meaning set forth in § 8-42-101(3).

T.C.A. § 8-42-101(3)(D) (Supp. 2000) 3
“State employee” also incl

ud es persons who are both members of community-based

screening agencies that function under title 33, chapter 2, part 6 and who screen individuals to make jud gm ents required by title 33, c

hapter 2, part 6. ...The commis sioner shall register only the names of prope

rly qualified and designated persons withthe boardof claims. Persons designated under this item are not eligible for workers’ compensation benefits fro m the state of Tennessee. T.C.A. § 33-2-601 (Supp. 2000) 4
The [D]epartment [of Men tal Health and Men

tal Retardation] sha

ll develop a system for assuring the most appropriate and effective c are for individuals admitted to and dis charged from state-supported mental health institutes. This system shall includ e a com mun itybased screening process. The system shall be de

signed to minimize length of confinement,

pro mot e sp eedy r etu rn t o th e com mun ity, and maximiz e the indiv idual’s ab ility to remai n in a commu nity setting.
C.
Frontier Health argues that it is entitled to summary judgment because, so the argument goes, Kirk is absolutely

immune from liabilit

y by virtue of

his status as a

member of a community-based-6-

screening agency that screens individuals to make commitment decisions pursuan

t to T.C.A. § 33-2- 601 et seq. Kirk’s status, the defendant contends, qualifies him as a “state employee,” as tha tterm is defined in T.C.A. § 8-4 2-101(3)(D ), and renders him absolutely immune for acts or omissions within the scope of his employmen t. See T.C.A. § 9-8-307(h). Because the plaintiff cannot sue Kirk, the defendant argues, she is also barred from suing Frontier Health under a theory of respondeat superior

. In order for Kirk to

qualify as a

“state employee”

and thus have abso

luteimmunity for a

cts or omissions committed w

ithin the scope of h

is employmen

t, two requiremen

ts mu st be satisfied: (1) Kirk must be a member of a community-based screening agency that functions under T.C.A. § 33-2-601 et seq. and (2) he must screen individuals to make “judgments required by title 33, chapter 2, part 6.” See T.C.A. § 8-42-101(3)(D). To determine what type of “judgments” are “re quired” by this part, we look to T.C.A. § 33-2-601, which is a general provision directing the Department of Mental Health to develop a comprehensive system to ensure “the most appropriate and e ffective care for in d ividuals admitted to and discharged from state-supported mental health institutes,” with an emphasis on mi nimizing confinement and maximizing a person’s ability to remain in the community

. To accomplish these

goals, the statut

e requires the system to include a “community-based screening process.” Upon reviewing this statute, we find that the “judgments” required under this part involve determinations regarding a n individual’s nee

d for admission to a

state-supported

mental health faci lit y. Thus, a “state employee” under T.C.A. § 8-42-101(3)(D) is one who screens individua

ls to determine their s

uitability fo

r admission to state

-supported menta

l health institutes.
In sup por t of its sum mar y judgment motion, Frontier Health submitted affidavits establishing the following fact s. Kirk is employ ed by Front

ier Health at the

Woodridge Hospita

l facility in Johnson Cit y, Tennessee, as th e director of the

Crisis Response Tea

m. The Crisis

Response Team was establi she d in 1995 to provide community-based screening for commitments to and hospitalizations in state-supporte d mental health fa

cilit ies. Ki rk is licensed by the State of Tennessee as a licensed clinic

al so cial work er, the duties of which include the evaluation of persons thought to be possibly su

icidal. Kirk is also

certified by

the Department of

Mental Health to

perf orm evaluations to determine a person’s need for commitment for psychiatric hospitalization. As a nonphysician, Kirk completeda training program provided by the Department of Mental Health in order to receive this ce

rtification. At al

l times relevant to

this liti gation, Kirk was registered with the Tennessee Board of

Claims as a member

of a mental health community-based screening ag ency who is designated to make judgments under title 33, chapter 2, pa rt 6 and who may complete the certificates of need require d for the commitmen

t of individuals to sta

te-supported men

tal health facilities.
Kirk asserted by way of a

ffi davit tha t in evaluating th e decedent, he w

as performing h

is customary

du ties with the Crisis Response Team, that is, to determine whether commitment to a psychiatri c facility was necessary. He determined in the course of his evaluation that Mr. Shelburne didnot meet the criteria for commitment set forth in T.C.A. § 33-6-103(a)-(e) (Supp. 2000). Kirk stated that had he determined that Mr. Shelburne was in need of hospitalization, he had the option-7-

of committing him to Wood ridge Hospital in

Johnson City, L

akeshore Menta

l Health Inst

it ute in Knoxville, or Central State Psychiatric Hospital in Nashville.
The evi den ce pr esen ted by th e def end ant est abl ish es t hat Kir k is a me mbe r ofa com mun itybasedscreening agency and that he c onducted an evaluation of Mr. Shelburn e in order to make a determination regarding Mr. Shelburne’s need for commitment pursuant to title 33, chapter 2, part 6. These facts, if l

eft uncontradic

ted, establish

that Kirk is a “state employee” for the purposes of T.C.A. § 9-8-307(h) and that he is absolutely immune for his evaluation of Mr. Shelburne.
The plaintiff ar gues that

Kirk is not entitled t

o immunity as a

state employ

ee because his assessment of Mr. Shelburne was not the type of evaluation for which immunity is provided. She argues that immunity is available only in those instances where an evaluation resul

ts in the admission or discharge of a patient to a state-supported mental health institute, and that because Mr. Shelburne was neither admitted to nor discharged from a state-supported mental health institut e, Kirk is not af for dedimmunity for h

is conduct. The pla

intiff further c

ontends that T.C.A.

§ 33-2-601 is “designed for and aimed at

situations in

which a free person, at large in the community – not alrea dy confined as the la

te Mr. Shelburne – was in need of being taken into custody, screened for mental health problems and possible commitment.”
We find nothing in the language of T.C.A. § 8-42-101(3)( D) or§ 33-2-601 to support the plaint iff’s asse rtion that a member of a community

-based screen

ing agency

is considered a “

state employee” only if his or her eva luation of an individual results in the admission of thatindividual to a mental health institute. T.C.A. § 8-42-101(3)(D) defines a “state employee” a s one who screens indivi duals t o make decisions regarding hospitalization; T.C.A. § 33-2-601 requires the implementation of a screening process to ensure the most appropriate and effective treatment of individuals. The plain andordinary meaning of the term “screen” is “[t]o separate” or “[t]o examine carefully in order to determinesuitability.” Webster’s II New Riverside U

niversity Diction

ary1049 (1994). It is logical to assume that some of the individuals evaluated by community-based scree ning agencies will be “screened out” by the evalua tions, that is, they will be deemed unsuitable for hospitalization; that is the very purpose of estab

lishing a scree

ning process.

We see nothing in the

se provisions to justify holdingthat members of such sc

reening age

ncies have immunity

from suit only when their decis

ions result in commitm

ents. We further find no merit in the plaintiff’s contention that immunity is

available only when individuals

are screened for admission to one of the five state-owned mental heal th institutes. T.C.A. § 33-2-601 refers to the admission to and discharge from “state-supported mental he alth institutes.” We do not read “state-supported” so narrowly as to suggest that it means only “stateow ned.” However, even i f the plaintiff’s

interpretation is

correct, it is imma

terial in this case . I n an affidavit, Kirk s

tated that had he d

etermined Mr. Sh

elbur ne was in need of hospitalization, he could have admittedhim to one of three facilities,including Lakeshore Mental Health Institute and Central State Mental Health Institute, both of which are state-owned facilities. Accordingly, we find no merit in this arg

ument.-8-

The plaintiff argues that T.C.A. § 33-2-601 contemplates evaluations of “free” persons in the community

and that because Mr. Shelburne

was in the county jail, his evaluation somehow does not fallunder this provision. We find absolutely no support for this argument in the language of T.C.A. § 33-2-601. We will not consider it further. Next, the plaintiff asse

rts that Kirk does n

ot enjoy immu

nity because he did not have a “professional/client

relationship” with Mr. Shelb urne within the meaning of T.C.A. § 9-8- 307(a)(1)(D). We do not find this provision to be relevant to the question of immunity

in the instant case. T.C.A. § 9-8-307(a)(1) addresses the jurisdiction of the Tennessee Claims Commission and defines the types of

claims that may

be brought ag

ainst the State for

the acts or omission

s of state employees;

but that section does not override theoperation of subsection(h), which provides that state employees a

re absolutely

immune for conduc

t with in the s cope of their emp loyment. Thu

s, regardless

of whether subsection (a)(1)(D) is satisfied, Kirk still enjoys abso

lute immunity f

rom suit. The plaintiff’s a

rgument is without

merit.
The plaintiff further argues that there is no documentary e vidence to indicate that

the purpose of Kirk’s evaluation of Mr. Shelburne was to make a commitment determination. Even if t hi s assertion were true, we do not find it materi al. Kirk ’s affidavit establishes that he made a determination that commitmentwas not appropriate. The plaintiff has not demonstrated any facts to contradict this proof. While Dr. Schacht opines that Kirk’s documentation of his evaluation was “generic” and not in keeping withprofessional standards, these allegations go only to the adequac y of his documentation; they do not create a dispute as to whether Ki rk in fact made a commitment determination. This issue is found adversely to the plaintiff.
D. Having determined that K irk is entitled to

immunity for

his evaluation of Mr. Shelburne, we must now determine whether, as a matter of law, Kirk’s immunity also shields Frontier Health from a su it p redi cat ed o n vi cari ous lia bil ity. It has long be

en the law in this Sta

te that “if an injured person is barred by law from suing the servant he is likewise barred from maintaining a suit against the master when liabi lity is predicated

solely on the d octri ne of respondeat superior .” Stewart v. Craig, 208 Tenn. 212, 217, 344 S.W.2d 761, 763 (1961); Carr by Carr v. Carr, 726 S.W.2d 932, 933 (Tenn. Ct. App. 1986); Willis v. Guyton, C/A No. 02A01-9311-CV-00247, 1995 WL 328714, at *2 (Tenn. Ct. App. W.S., filed June 2, 1995). Thus, b ecause Kirk is imm

u ne f rom suit by vir

tue of his status as a

“state employee”pursuant to T.C.A. § 9-8-307(h), Frontier Health cannot, as a matter of law, be held lia

ble for his negligent acts under the theory of respondeat superior

. The plaintiff argues that even if Kirk is immune, Frontier Health may nevertheless be liable under the recent decision of the

Western Section of this Court in Johnson v. LeBonheur Children’s Medical Center, C/A No. W1999-01719-COA-RM-CV, 2000 WL 705300 (Tenn. Ct. App. W.S., filed May 25, 2000), perm. app. granted December 4, 200

0. With all due respect

to our colleagues-9-

in the Western Sectio

n, we do not agre

e with the decision

reached in

the Johnson case. Under the Rules of the Supreme Court, that unpublished decision is not control ling

. See Tenn. Sup. Ct. R. 4(H). We also note that the Supreme Court has granted permission to appea l in John son . We believe that the instant case is governed by the principles set forth in Stewart and its progeny.
IV.
Fin all y, the plaintiff argues that the defendant’s third motion for summary judgment was an improper “lateral appeal” of

the denial of its second summary judgment motion to another trial judge within the same circuit. Frontier Health’s second sum mary judgment m otion was d enied by Judge Jean A. Stanley; its third summary judgment motion was granted by Judge Thomas J. Seeley, Jr.
We do not agree with the

plaintiff that the trial court’s consideration of the defendant’s third motion for summary judgment was improper. The order denying Frontier Health’s second summary judgment motion was nota final judgment. A trial court has “the privilege of re

versing itself u

p to andincluding the date of

entry of a final judgment.” Guess v. Maury, 726 S.W.2d 906, 922 (Tenn. Ct. App. 1986); see also Waste Management, Inc. v. South Central Bell Tel. Co., 15 S.W.3d 425, 429 (Tenn. Ct. App. 1997) (“as long as its jud gment has no t become fin al, the tri al court may chan ge its mind after reconsidering the proof and the applicable law”). I n considering the t

hird motion , Judge Seeley wasnot bound by a ny prior det

erminations made b

y him or by

another judge a

cting in the same case; he was free to reconsider the proof a nd the applicable law and render a judgment accordingly. This issue is also found adversely to the plaintiff.
V.
The judgment of the tr

ial court is affir

med. This case is

remanded fo r collection of c osts assessed below, pursuant to applicable law. Costs on appeal are taxed to the appellant, Shirley A. Shelburne, individually and as next friend of Travis Lee Shelburne.

_______________________________ CHARLES D. SUSANO, JR., JUDGE