IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

November 6, 2013 Session

MARY C. SMITH v. UHS OF LAKESIDE, INC. ET AL.

Appeal by Permission from the Court of Appeals, Western Section

Circuit Court for Shelby County

No. CT-004669-05 Kay S. Robilio, Judge

No. W2011-02405-SC-R11-CV - Filed July 15, 2014

This appeal involves the manner in which a trial court granted motions for summary

judgment in a proceeding involving the death of a patient whose treatment for viral

encephalitis was delayed because he was also being assessed for involuntary commitment to

a psychiatric hospital. The widow of the deceased patient filed suit against three health care

providers in the Circuit Court for Shelby County. In her original complaint and four

subsequent amended complaints, the widow asserted eight causes of action against one or

more of the providers. The trial court eventually granted a series of summary judgments

dismissing all the claims against one of the providers without explaining the grounds for its

decisions and requested counsel for the provider to prepare appropriate orders “establish[ing]

the rationale for the [c]ourt’s ruling in quite specific detail.” The provider’s counsel prepared

detailed orders adopting all the arguments the provider had made in favor of its summary

judgment motions, and the trial court signed these orders over the widow’s objections. The

widow appealed, arguing that the trial court had failed to provide reasons for its decisions

and that the orders did not accurately reflect what had occurred at the summary judgment

hearings. The Court of Appeals vacated the disputed orders because the trial court had failed

to state the legal grounds for its decisions as required by Tenn. R. Civ. P. 56.04 and

remanded the case to the trial court. Smith v. UHS of Lakeside, Inc., No. W2011-02405-

COA-R3-CV, 2013 WL 210250, at *12-13 (Tenn. Ct. App. Jan. 18, 2013). We granted the

provider’s application for permission to appeal. We have determined that the record

establishes that the contested orders were not the product of the trial court’s independent

judgment, and therefore, we hold that the trial court failed to comply with Tenn. R. Civ. P.

56.04.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals

Affirmed as Modified
WILLIAM C. KOCH,JR.,J., delivered the opinion of the Court, in which GARY R. WADE, C.J.,

JANICE M. HOLDER, CORNELIA A. CLARK, and SHARON G. LEE, JJ., joined.

Ashley D. Cleek and Marty R. Phillips, Jackson, Tennessee, for the appellant, UHS of

Lakeside, Inc.

Mimi Phillips, Memphis, Tennessee, for the appellee, Mary C. Smith.

OPINION

I.

1

James B. Smith worked at the Federal Express facility in Memphis driving a piece of

warehouse equipment known as a “tug.” He reported for work on Sunday, September 5,

2004, but in the middle of his shift, some co-workers found him asleep in the tug’s driver’s

seat. Mr. Smith appeared lethargic and began crying when he was awakened. After being

asked whether he wanted to go home, Mr. Smith responded that he did. Mr. Smith left work

at approximately 1:00 p.m. but never made it home that day.

Approximately two hours after Mr. Smith left work, deputies employed by the Shelby

County Sheriff found him asleep in his automobile parked on a dead end gravel road two

miles from the FedEx facility. When the deputies awakened him, Mr. Smith made

nonsensical statements, including that he was nineteen years old and that he was seeing

2

worms coming out of the ground. After satisfying themselves that Mr. Smith was not

intoxicated, the deputies took him into custody and transported him to the Lakeside Triage

3

Center (“Triage Center”) to evaluate whether he should be involuntarily committed for

psychiatric treatment. The deputies informed the Triage Centerstaff that they had found Mr.

4

Smith asleep in his automobile and that they believed he was “possibly delusional.”

This case was resolved in the trial court upon summary judgment in favor of UHS of Lakeside, Inc. 1

(“Lakeside”). Accordingly, our recitation of facts should not be read as definitive factual statements.

Although some facts do not appear to be in dispute, others are taken in the light most favorable to Ms. Smith

as the non-moving party.

Mr. Smith was 63 years old at the time. 2

See Tenn. Code Ann. § 33-6-402 (2007) (authorizing an officer to take an individual into custody 3

for the purpose of obtaining an immediate examination for certification of need for emergency involuntary

diagnosis and treatment).

See Tenn. Code Ann. § 33-6-404 (2007) (amended 2009) (describing the process for obtaining a 4

certificate of need for emergency involuntary diagnosis and treatment).

-2-
The Triage Center was operated by Lakeside but was physically located within the

Memphis Regional Medical Center (“The Med”). The operator of The Med, Shelby County

Health Care Corporation (“Shelby County Health Care”), had contracted with Lakeside to

provide screening for persons believed to be in need of involuntary commitment or other

psychiatric services in order to direct them to an appropriate facility. The contract required

Shelby County Health Care to “contract with independent contractor physicians to provide

‘medical clearances’” for persons arriving at the Triage Center. A “medical clearance” is an

examination to determine whether a person has physical medical issues that require

immediate medical attention.

Persons arriving at the Triage Center were not expected to remain there for more than

six to eight hours. The facility consisted of a small intake room, several small interview or

isolation rooms, and a common room with chairs for the patients. It was staffed by a

registered nurse and two social workers or assessors, with a physician on call. A physician

5

would ordinarily stop by the Triage Center, typically once in the morning and once in the

evening, to perform medical clearances.

Mr. Smith arrived at the Triage Center at 5:25 p.m. on Sunday, September 5, 2004 –

the day before Labor Day – and was transported by ambulance to St. Francis Hospital on

September 7, 2004, at 6:30 p.m. This lawsuit centers on the treatment Mr. Smith received

during his 49-hour stay at the Triage Center.

When Mr. Smith arrived at the Triage Center, he was mentally confused and had a

temperature of 100o Fahrenheit. Dr. John O’Connell examined Mr. Smith and later in the

6

evening cleared him medically, which paved the way for an evaluation of whether Mr. Smith

should be involuntarily committed. Dr. O’Connell was unable to obtain a good medical

history from Mr. Smith because of Mr. Smith’s confusion.

Between 2:30 and 3:00 a.m. on September 6, 2004, Cindy Zahn, an assessor employed

by Lakeside, conducted a psychological assessment of Mr. Smith. She found him to be

confused or nonsensical throughout the assessment, as he was unable to respond effectively

to her questions. It was at this point that the Triage Center staff contacted Mr. Smith’s wife

who had been searching for him since September 5, 2004. Ms. Smith stated that Mr. Smith

An assessor typically had experience and training in the mental health field but was not authorized 5

to complete a certificate of need.

Dr. O’Connell’s employment status is disputed, particularly if he performed his duties in relation 6

to Shelby County Health Care, Lakeside, or both.

-3-
did not have a history of psychiatric problems or substance abuse and that he had been

complaining about not feeling well for several days.

Ms. Zahn passed this information on to Avalon Nathaniel, Lakeside’s on-duty nurse.

Even though her preliminary assessment was that Mr. Smith had a mood disorder, Ms. Zahn

suggested to Ms. Nathaniel that Mr. Smith’s condition could be caused by something other

than a psychiatric disorder. At this point, the evaluation of Mr. Smith proceeded on two

parallel tracks – first, an evaluation for involuntary commitment because Dr. O’Connell had

issued a medical clearance earlier on the evening of September 5, 2004, and second, further

medical tests.

At approximately 3:50 a.m. on September 6, 2004, Dr. O’Connell ordered a urinalysis,

blood work, and a CT scan of Mr. Smith’s head. At 6:10 a.m., Mr. Smith’s temperature had

increased to 101o. Mr. Smith’s family arrived at the Triage Center at 8:00 a.m. They insisted

that Mr. Smith did not have a psychiatric disorder and requested either that he be released in

their care or that he be transferred to another hospital for medical tests. Melissa Mills, a

nurse employed by Lakeside, informed Mr. Smith’s family that he could not be released at

that time because he was still being evaluated for involuntary commitment. At 9:43 a.m., the

Triage Center received the results of Mr. Smith’s tests showing an elevated white blood cell

count as well as elevated blood nitrogen (“BUN”) and creatinine levels.

At 2:20 p.m. on September 6, 2004, in anticipation of involuntary commitment, Ms.

Mills arranged for Mr. Smith to be transferred to Lakeside Hospital, a psychiatric hospital

also operated by Lakeside. Later, at 5:00 p.m., Veronica Jackson, a licensed clinical social

worker, signed a certificate of need to involuntarily commit Mr. Smith to Lakeside Hospital.

By this point, Mr. Smith was drooling, unable to swallow, and so unsteady on his feet that

he appeared to be intoxicated.

At 7:10 p.m., Dr. O’Connell, believing that Mr. Smith had experienced a sudden

psychotic break, signed the second certificate of need to involuntarily commit Mr. Smith.

However, some time between 9:00 and 11:00 p.m., Dr. O’Connell revoked Mr. Smith’s

medical clearance because he decided that Mr. Smith’s medical problems should be

addressed before he was transported to Lakeside Hospital. Dr. O’Connell also ordered

additional medical tests because he was now concerned that Mr. Smith’s symptoms might

be caused by medical problems.

Mr. Smith was still in the Triage Center at 7:00 a.m. the following morning. Ms.

Mills became concerned that Mr. Smith was “going to crash,” and suggested to Dr.

O’Connell that Mr. Smith be transported to an emergency room. Dr. O’Connell agreed and

ordered Mr. Smith to be transported to The Med’s emergency room. Ms. Mills began

-4-
contacting The Med’s emergency room at 10:30 a.m. but was repeatedly informed that Mr.

Smith would not be accepted because the emergency room was on “diversion status.”

7

Mr. Smith lost control of his bladder at 1:00 p.m. At 3:20 p.m., his blood work

showed an even higher white blood cell count and increased BUN and creatinine levels. By

4:15 p.m., Dr. O’Connell became convinced that Mr. Smith’s symptoms arose from a disease

or pathological condition rather than a psychiatric disorder, but The Med’s emergency room

continued to decline to accept Mr. Smith because it was on “diversion status.”

At 4:30 p.m., Dr. O’Connell ordered Mr. Smith to be transported to Baptist East

Hospital, but Baptist East reported that it was backed up and could not accept Mr. Smith.

Accordingly, Dr. O’Connell approved transporting Mr. Smith to St. Francis Hospital. Mr.

Smith left the Triage Center at 6:30 p.m. by ambulance and arrived at St. Francis Hospital’s

emergency room at 7:15 p.m. At the time of his arrival, Mr. Smith was largely unresponsive

and his temperature was 103o.

The physicians at St. Francis Hospital diagnosed Mr. Smith with viral encephalitis.

His temperature eventually rose to 105o, and he experienced cerebral edema, seizures, and

strokes. He remained in the intensive care unit for several weeks. By November 17, 2004,

he had stabilized enough to be released. However, Mr. Smith never regained full function.

He was bedridden, required a feeding tube and diapers, and was unable to communicate

effectively.

Mr. Smith began to develop respiratory problems in December 2004, which resulted

in several hospitalizations at Methodist South Hospital. Mr. Smith died at Methodist South

Hospital on February 1, 2005.

II.

Ms. Smith filed her initial complaint against Lakeside, Shelby County Health Care,

and Methodist Healthcare - Memphis Hospitals(“Methodist Healthcare”). She filed her first

8

amended complaint on September 6, 2005, but was required to file a second amended

The precise meaning of “diversion status” is not detailed in the record, other than to signify that The 7

Med declined to accept the transfer of Mr. Smith to the emergency room.

The record does not contain a copy of Ms. Smith’s initial complaint. However, the record reflects

8

that Ms. Smith may have originally filed one lawsuit against Shelby County Health Care and Lakeside and

a separate lawsuit against Methodist Healthcare, as the record contains a separate complaint against

Methodist Healthcare filed January 20, 2006. The record further reflects that these lawsuits were

consolidated at some point.

-5-
complaint on December 9, 2005, because she had misnamed a corporate defendant in the first

amended complaint. These complaints alleged five causes of action: (1) a health care

liability claim, (2) an intentional infliction of emotional distress claim, (3) a negligent

infliction of emotional distress claim, (4) a claim for violating the Emergency Medical

Treatment and Active Labor Act (“EMTALA”) for failing to appropriately screen Mr. Smith

when he arrived at the Triage Center, and (5) a claim for violating EMTALA for failing to

appropriately transfer Mr. Smith to St. Francis Hospital.

On November 21, 2006, approximately one year after Ms. Smith filed her second

amended complaint, Lakeside filed its first motion for summary judgment and statement of

undisputed facts. In its motion, Lakeside asserted that Ms. Smith’s health care liability claim

should fail because Methodist Healthcare’s negligence was the independent, intervening

cause of Mr. Smith’s death. It also challenged both EMTALA claims, as well as the

intentional infliction of emotional distress and negligent infliction of emotional distress

claims. Ms. Smith filed responses to Lakeside’s motion, and Lakeside filed replies to these

responses.

The trial court conducted hearings on April 26 and May 16, 2007, apparently focusing

on the EMTALA claims, and then took the motion under advisement. In a letter dated

August 20, 2007, the trial court informed the parties of its decision to deny Lakeside’s

motion “at this time” because discovery was not complete and because the trial court desired

additional evidence regarding whether the Triage Center was separate from Lakeside

Hospital and the effect of The Med’s “diversionary” status on the EMTALA claims. On

November 9, 2007, the trial court entered an order prepared by Ms. Smith’s counsel denying

Lakeside’s motion for summary judgment “without prejudice to the ability of one or both of

these [d]efendants to renew[] their [m]otions, based on additional evidence developed in

discovery.”

9

Ms. Smith filed her third amended complaint on June 12, 2009, naming Lakeside and

Shelby County Health Care as defendants. This complaint reiterated the previous allegations

and causes of actions. However, it added a new claim against Lakeside for false

imprisonment, as well as a new claim for battery against Shelby County Health Care.

The copy of the November 9, 2007 order contains handwritten deletions, although the source or 9

significance of these deletions is unknown.

-6-
On February 12, 2010, Lakeside filed two new motions for summary judgment and

renewed its three prior motions for summary judgment. These motions directly challenged

10

Ms. Smith’s health care liability, intentional infliction of emotional distress, negligent

infliction of emotional distress, EMTALA, and false imprisonment claims. Ms. Smith

vigorously contested each of these motions. Both parties filed lengthy briefs articulating

their respective positions.

Against this backdrop of the parties’ multiple, complex filings, and with the trial

scheduled to begin on April 12, 2010, the trial court conducted a lengthy hearing on

Lakeside’s motions for summary judgment on March 17, 2010. The trial court announced

its decision as soon as the parties completed their presentations. The court stated:

Okay. I’m going to rule in favor of the plaintiff on the

EMTALA issue; the false imprisonment, I’m going to rule in

favor of Defendant; outrageous conduct, I’m going to rule in

favor of the plaintiff; negligent infliction of emotional distress

is awfully close, awfully close, but I’m going to rule in favor of

the plaintiff; agency is the one that’s left and I’m going to rule

in favor of the defendant on the question of agency, realizing

that it might make folks unhappy.

Some of these issues are awfully close, highly contested

and you all want to think about how you want to proceed.

The trial court then observed that “the appellate court is going to want a rationale from our

rulings.” Accordingly, the trial court stated, “As far as a basis for the ruling, I’m going to

let you [Lakeside’s counsel] make those. . . . And in the same way [p]laintiff’s counsel can

then, you were successful on EMTALA, outrageous conduct and the negligent infliction of

emotional distress, the motions in which you were successful, you’ll prepare the order and

the rationale for the Court’s ruling.”

Ms. Smith’s counsel informed the trial court that she intended to seek an interlocutory

appeal from the trial court’s decision. At this juncture, Methodist Healthcare requested a

The parties acknowledge that Ms. Smith settled with Shelby County Health Care. The record

10

suggests that this settlement occurred on July 30, 2009. By the time Lakeside filed its motions for summary

judgment on February 12, 2010, the motions identified only Lakeside and Methodist Healthcare as

defendants.

-7-
severance, and a discussion ensued regarding whether Ms. Smith’s case against Methodist

Healthcare would be ready to be tried on April 12, 2010.

11

In light of the trial court’s failure to explain the factual and legal basis for its

decisions, it comes as no surprise that the parties returned to court on March 25, 2010.

Counsel for both parties had prepared orders with regard to the issues that the court had ruled

on in their favor. However, the orders prepared by Lakeside’s counsel were extremely

detailed and, for the most part, included all of the arguments, even alternative arguments, that

Lakeside had made in its papers supporting its summary judgment motions. Ms. Smith’s

counsel insisted that the trial court had not made detailed findings and conclusions during the

March 17, 2010 hearing and that Lakeside’s draft orders were little more than a regurgitation

of the contents of Lakeside’s briefs.

Responding to Ms. Smith’s arguments, the trial court recalled,

I wrote [the causes of action] down, and I said which ones

would fly and which ones wouldn’t for each one of you. . . .

And then on the foundation for the ruling of the Court I ordered

you all to prepare the Orders. I recall that.

However, the trial court also readily admitted, “But I didn’t state the foundation for my

ruling.” Lakeside’s counsel agreed that “the record [of the March 17, 2010 hearing] . . . is

not going to reflect the basis for [the trial court’s] ruling because you envisioned that we do

that through the Orders.” Accordingly, the trial court requested Ms. Smith’s counsel to

prepare detailed objections to the proposed orders.

Counsel for Ms. Smith prepared her specific objections to Lakeside’s draft orders,

12

and the parties returned to the trial court on April 8, 2010. The court was not receptive to

these objections, even though the court again acknowledged that “I gave you a ruling [on

March 17, 2010]. I did not give you . . . anything but the most superficial ruling as to what

would go forward and what would not.” Accordingly, the trial court signed the draft orders

prepared by Lakeside’s counsel, stating “I tell you what . . . [counsel for Ms. Smith] is saying

she would like to protect the integrity and reputation of the Court, but I’m going to risk it and

The trial against Methodist Healthcare was eventually continued when the trial court granted 11

Methodist Healthcare additional time to replace one of its experts.

These objections are not included in the record. 12

-8-
sign [Lakeside’s] order and let you all argue the way you want to when you get up [to the

appellate court].”

13

Lakeside filed yet another motion for summary judgment on November 4, 2010,

articulating new grounds for the summary dismissal of all of Ms. Smith’s remaining claims

and relying on the orders the trial court had signed on April 8, 2010. Ms. Smith filed a

response on January 4, 2011, vigorously contesting the motion.

The trial court held a hearing on January 5, 2011, focusing primarily on the

admissibility of the testimony of one of Ms. Smith’s experts. At the conclusion of the

parties’ arguments, the trial court reserved ruling on Lakeside’s motion for summary

judgment in order to enable Ms. Smith to obtain a supplemental affidavit from the witness

and to give Lakeside an opportunity to depose the witness again.

Apparently, Ms. Smith requested permission to file a fourth amended complaint. On

14

June 10, 2011, the trial court entered an order permitting Ms. Smith to amend her complaint

to assert claims of ordinary negligence and negligence per se but denying her request to seek

punitive damages. However, the trial court also decided that Ms. Smith “shall not be

permitted to include any allegations of ‘institutional’ or ‘corporate’ negligence.”

Ms. Smith filed her fourth amended complaint on July 22, 2011. This complaint

sought damages for personal injuries and wrongful death based on negligence, health care

liability, intentional infliction of emotional distress, negligent infliction of emotional distress,

false imprisonment, and EMTALA violations. It was substantially similar to the third

amended complaint, with the addition of claims for ordinary negligence and negligence per

se. As for damages, the fourth amended complaint asserted that Mr. Smith suffered extreme

pain and suffering as a result of the health care liability, intentional infliction of emotional

distress, negligent infliction of emotional distress, and EMTALA violations, and that this

pain and suffering was “in addition to and exacerbated the pain and suffering he would have

endured from his viral encephalitis had it been diagnosed and treated within the standard of

care.” Ms. Smith also alleged that Mr. Smith would have recovered had his condition been

properly identified and treated within the standard of care, and it was unlikely he would have

suffered profound, irreversible brain damage, months of conscious pain and suffering, and

ultimately death.

The trial court granted Ms. Smith’s motion to pursue an interlocutory appeal, but the appeal was 13

denied by the Court of Appeals and this Court.

The record does not contain Ms. Smith’s motion to amend her complaint.

14

-9-
On July 14, 2011, Lakeside filed a supplemental memorandum in support of its

renewed motion for summary judgment. Ms. Smith filed a supplemental response on August

3, 2011. The parties returned to court on August 5, 2011. The trial court vacillated regarding

its decision during this hearing. Initially, the court stated that it would deny Lakeside’s

motion; however, shortly thereafter, the trial court stated that it was granting Lakeside’s

motion with regard to the EMTALA claims. Later, changing course again, the trial court

stated that it was going to deny Lakeside’s motion. Finally, however, the trial court

announced that it needed more time to consider the motion.

The parties were back in court on September 6, 2011. The trial court asked whether

Ms. Smith would be entitled to an appeal of right if it granted Lakeside a summary judgment.

The court commented that the possibility of a plaintiff prevailing at trial and receiving a

recovery “which is then taken away by the [a]ppellate [c]ourts” was “the worst of all

possibles.”

Toward the end of the hearing, the trial court, addressing Ms. Smith’s counsel, said,

“I understand you disagree with the [c]ourt’s position on this.” When Ms. Smith’s counsel

asked if “the [c]ourt already ruled,” the trial court responded,

I’m ruling now. I think I’ve heard ample discussion on this.

And I’m directing the [d]efendant to prepare the order and to

establish the rationale for the [c]ourt’s ruling in quite specific

detail, and let this go forward as quickly as possible to the

[a]ppellate [c]ourt.

Perplexed, Ms. Smith’s counsel inquired whether the trial court was ruling in Lakeside’s

favor on the ordinary negligence and negligence per se claims. The trial court responded that

it was granting Lakeside summary judgment on all claims.

The parties returned to court on September 15, 2011, to discuss Ms. Smith’s

objections to the order prepared by Lakeside’s counsel. These objections were similar to Ms.

Smith’s objections to the April 8, 2010 order that had also been prepared by Lakeside’s

counsel. Ms. Smith’s counsel asserted that “the problem with the [o]rder is that [counsel for

Lakeside] has asserted things in the [o]rder that the [c]ourt did not rule. Just things that he

wants, wishes the [c]ourt had ruled on, but the [c]ourt was silent on those things.” The trial

court conceded that “[i]t may be that things are part of . . . opposing counsel’s order that may

have been a part of my thought processes, although I didn’t specifically articulate them.”

The language of the order, which was filed on October 3, 2011, is essentially drawn from the

text of the papers Lakeside had filed in support of its motion for summary judgment.

-10-
Ms. Smith appealed the orders granting Lakeside’s motions for summary judgment.

On January 18, 2013, the Court of Appeals vacated the orders granting summary judgment

and remanded the case to the trial court for the entry of orders that complied with Tenn. R.

Civ. P. 56.04. Smith v. UHS of Lakeside, Inc., 2013 WL 210250, at *1. The appellate court

concluded that “the trial court’s oral statements provide absolutely no basis for the trial

court’s ruling.” Smith v. UHS of Lakeside, Inc., 2013 WL 210250, at *10. It also decided

that “[b]y requiring counsel for Lakeside to establish the rationale for the decision, the trial

court abrogated its duty pursuant to Rule 56.04.” Smith v. UHS of Lakeside, Inc., 2013 WL

210250, at *10. The Court of Appeals observed that “[t]his practice is in clear violation of

the letter and the spirit of Rule 56.04.” Smith v. UHS of Lakeside, Inc., 2013 WL 210250,

at *11.

III.

This appeal requires us to address the relationship between three important

procedural principles. The first principle, reflected in Tenn. R. Civ. P. 56.04, is that “[t]he

trial court shall state the legal grounds upon which the court denies or grants the motion [for

summary judgment], which shall be included in the order reflecting the court’s ruling.” The

second principle is that, after the trial court has decided a summary judgment motion, it is

permissible for the trial court to authorize counsel to prepare and to submit a proposed order

for the court’s consideration. The third principle is that courts speak through their orders,

15

judgments, and minute entries.

16

The trial court did not state the legal grounds for its decisions to grant Lakeside’s

motions for summary judgment when it announced its rulings from the bench on March 17,

2010, and on September 6, 2011. However, the orders filed by the trial court on April 8,

2010, and October 3, 2011, contain detailed statements of the factual and legal grounds upon

which the order was based. The question we must answer is whether these grounds were

Lakeside’s or the trial court’s. Lakeside insists that grounds stated in the orders prepared by

its counsel must be attributed to the trial court because these orders constitute the court’s last

official word on the matter. Ms. Smith insists that Tenn. R. Civ. P. 56.04 requires trial courts

to state their grounds for granting or denying a summary judgment before a draft order is

submitted to the court. We have determined that Ms. Smith has the better argument. We

have also determined that this record does not demonstrate that the detailed grounds in the

Cf. Delevan-Delta Corp. v. Roberts, 611 S.W.2d 51, 53 (Tenn. 1981). 15

Morgan Keegan & Co. v. Smythe, 401 S.W.3d 595, 608 (Tenn. 2013); see also State v. Woodall,

16

729 S.W.2d 91, 93 (Tenn. 1987).

-11-
April 8, 2010 and October 3, 2011 orders were the product of the trial court’s own

independent judgment.

A.

The courts in Tennessee that comprise the Judicial Branch of state government are the

sole constitutional repositories of judicial power. Tenn. Const. art. VI, § 1; Mengel Box Co.

v. Fowlkes, 135 Tenn. 202, 206, 186 S.W. 91, 92 (1916); Jones’ Heirs v. Perry, 18 Tenn. (10

Yer.) 59, 69 (1836). They are the places where justice is judicially administered. In re

Cumberland Power Co., 147 Tenn. 504, 508, 249 S.W. 818, 819 (1922). Because these

courts have the power to fully and finally adjudicate cases and controversies, Jackson v.

Smith, 387 S.W.3d 486, 494 (Tenn. 2012), their effective functioning is indispensable to

democracy, Anderson Cnty. Quarterly Court v. Judges of the Twenty-Eighth Judicial Circuit,

579 S.W.2d 875, 881 (Tenn. Ct. App. 1978).

The essential purposes of courts and judges are to afford litigants a public forum to

air their disputes, Childress v. Bennett, 816 S.W.2d 314, 315 (Tenn. 1991), and to adjudicate

and resolve the disputes between the contending parties, State ex rel. Stall v. City of

Knoxville, 211 Tenn. 428, 434, 365 S.W.2d 433, 435 (1963). To carry out these purposes,

judges must arrive at their decisions by applying the relevant law to the facts of the case.

Summers v. Thompson, 764 S.W.2d 182, 190 (Tenn. 1988) (Drowota,J., concurring) (quoting

Scott v. Marley, 124 Tenn. 388, 395, 137 S.W. 492, 493 (1911)). Because making these

decisions is a “high judicial function,” see Nashville, Chattanooga & St. Louis Ry. Co. v.

Price, 125 Tenn. 646, 649, 148 S.W. 219, 220 (1911), a court’s decisions must be, and must

appear to be, the result of the exercise of the trial court’s own judgment, Summers v.

Thompson, 764 S.W.2d at 190 (Drowota, J., concurring) (quoting Perkins v. Scales, 2 Tenn.

Cas. (Shannon) 235, 237 (1877)). See also Delevan-Delta Corp. v. Roberts, 611 S.W.2d at

53 (stating that trial judges should carefully examine findings and conclusions prepared by

counsel to “establish that they accurately reflect his [or her] views and conclusions, and not

those of counsel”).

The manner in which judges arrive at their decisions “gives formal and institutional

expression to the influence of reasoned argument in human affairs.” Lon L. Fuller, The

Forms and Limits of Adjudication, 92 Harv. L. Rev. 353, 366 (1978). In addition to

expecting judgesto be “fair, impartial, and engaged,” Douglas R. Richmond, Unoriginal Sin:

The Problem of Judicial Plagiarism, 45 Ariz. St. L.J. 1077, 1105 (2013) (“Richmond”), the

litigants, the bench and bar, and the public expect them to explain why a particular result is

correct based on the applicable legal principles, Chad M. Oldfather, Writing, Cognition, and

the Nature of the Judicial Function, 96 Geo. L.J. 1283, 1334 (2008).

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Providing reasons for a decision reinforces the legitimacy of the legal process which,

in turn, promotes respect for the judicial system. John J. Brunetti, Searching for Methods of

Trial Court Fact-Finding and Decision-Making, 49 Hastings L.J. 1491, 1495 (1998)

(“Brunetti”). As Judge Richard Nygaard has noted with regard to judicial opinions:

Judicial opinions are the core work-product of judges. They are

much more than findings of fact and conclusions of law; they

constitute the logical and analytical explanations of why a judge

arrived at a specific decision. They are tangible proof to the

litigants that the judge actively wrestled with their claims and

arguments and made a scholarly decision based on his or her

own reason and logic.

Bright v. Westmoreland Cnty., 380 F.3d 729, 732 (3d Cir. 2004).

B.

Prior to July 1, 2002, Tenn. R. Civ. P. 56.04 was silent with regard to explanations

regarding decisions to grant or deny summary judgments. However, following an

amendment to the rule that became effective on July 1, 2002, trial courts were required “upon

request . . . [to] state the legal grounds upon which the court grants the motion, which shall

be included in the order reflecting the trial court’s ruling.” The rule was amended again

17

effective on July 1, 2007. The amended rule made the statement of grounds mandatory rather

than optional and expanded the application of the rule to circumstances in which the trial

court denies a motion for summary judgment. Accordingly, Tenn. R. Civ. P. 56.04 currently

states that “[t]he trial court shall state the legal grounds upon which the court denies or grants

the motion, which shall be included in the order reflecting the court’s ruling.”

The changes to Tenn. R. Civ. P. 56.04 were intended to address two concerns. First,

they reflect the growing awareness of both the Advisory Commission and this Court that

explanations of the basis for judicial decisions promote respect for and acceptance of not

only the particular decision but also for the legal system. Second, skeletal orders containing

no explanation of the reasons for granting the summary judgment were complicating the

ability of the appellate courts to review the trial court’s decision. See, e.g., Church v.

Perales, 39 S.W.3d 149, 157 (Tenn. Ct. App. 2000) (noting that skeletal orders lacking a

In a comment to this amendment, the Advisory Commission on theRules of Practice and Procedure 17

distinguished Tenn. R. Civ. P. 56.04 from Tenn. R. Civ. P. 52.01 by noting that the statement of grounds

required by Tenn. R. Civ. P. 56.04 need not be as elaborate as findings of fact and conclusions of law

required by Tenn. R. Civ. P. 52.01.

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statement of grounds required appellate courts to “perform the equivalent of an archeological

dig [to] endeavor to reconstruct the probable basis for the [trial] court’s decision” (quoting

Camilo-Robles v. Hoyos, 151 F.3d 1, 8 (1st Cir. 1998)).

Despite the amendments to Tenn. R. Civ. P. 56.04 making the statement of grounds

mandatory, the Court of Appeals has been reticent to vacate summary judgment orders that

plainly do not comply with Tenn. R. Civ. P. 56.04 and to remand them to the trial court for

further consideration. The court continues to conduct archeological digs and to review

summary judgment orders when the basis for the trial court’s decision can be readily gleaned

from the record and to remand the case only when their practiced eyes cannot discern the

18

grounds for the trial court’s decision.

19

We readily agree that judicial economy supports the Court of Appeals’ approach to

the enforcement of Tenn. R. Civ. P. 56.04 in proper circumstances when the absence of

stated grounds in the trial court’s order does not significantly hamper the review of the trial

court’s decision. However, in the future, the resolution of issues relating to a trial court’s

compliance or lack of compliance with Tenn. R. Civ. P. 56.04 should also take into

consideration the fundamental importance of assuring that a trial court’s decision either to

grant or deny a summary judgment is adequately explained and is the product of the trial

court’s independent judgment.

C.

The current acceptance of the practice of trial courts requesting or permitting counsel

for prevailing parties to prepare draft findings of fact, conclusions of law, and orders differs

significantly from the categorical disapproval of this practice a century ago. In 1981, this

20

Court stated explicitly that “it is permissible and indeed sometimes desirable for the trial

court to permit counsel for any party to submit proposed findings and conclusions.”

See e.g., Burse v. Hicks, No. W2007-02848-COA-R3-CV, 2008WL 4414718, at *2(Tenn. Ct. App. 18

Sept. 30, 2008) (No Tenn. R. App. P. 11 application filed); White v. Pulaski Elec. Sys., No. M2007-01835-

COA-R3-CV, 2008 WL 3850525, at *3 (Tenn. Ct. App. Aug. 18, 2008) (No Tenn. R. App. P. 11 application

filed); Burgess v. KONE, Inc., No. M2007-02529-COA-R3-CV, 2008 WL 2796409, at *2 (Tenn. Ct. App.

July 18, 2008) (No Tenn. R. App. P. 11 application filed).

See, e.g., Winn v. Welch Farm, LLC, No. M2009-01595-COA-R3-CV, 2010 WL 2265451, at *4-6

19

(Tenn. Ct. App. June 4, 2010) (No Tenn. R. App. P. 11 application filed).

In 1911, for example, this Court held that trial courts committed reversible error when they

20

delegated the responsibility to prepare findings of fact to counsel. Nashville, Chattanooga & St. Louis Ry.

Co. v. Price, 125 Tenn. at 649-50, 148 S.W. at 220. 

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Delevan-Delta Corp. v. Roberts, 611 S.W.2d at 53. Our approval of this practice over thirty

years ago was not rhapsodically unequivocal. We noted at that time that “[f]indings prepared

by the trial judge which represent his [or her] independent labor are preferable.” DelevanDelta Corp. v. Roberts, 611 S.W.2d at 53.

Like many federal courts and other state courts, we continue to adhere to the view that

findings of fact, conclusions of law, opinions, and orders prepared by trial judges themselves

are preferable to those prepared by counsel. We likewise share the concern expressed by

federal courts and other state courts about the practice of courts adopting verbatim findings

of fact, conclusions of law, opinions, and orders prepared by counsel for the prevailing party.

For example, the United States Supreme Court has criticized federal trial courts for their

“verbatim adoption of findings of fact prepared by prevailing parties, particularly when those

findings have taken the form of conclusory statements unsupported by citation to the record.”

Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 572 (1985). Expressing concerns

similar to those expressed by this Court over seventy years earlier, the Court noted “the

21

potential for overreaching and exaggeration on the part of attorneys preparing findings of fact

when they have already been informed that the judge has decided in their favor.” Anderson

v. City of Bessemer City, N.C., 470 U.S. at 572.

However, despite its concern regarding a court’s verbatim adoption and approval of

findings of fact and conclusions of law prepared by counsel for the prevailing party, the

Court declined to hold that the trial court’s request that counsel for the prevailing party

prepare the findings and conclusions was reversible error for two reasons. First, the Court

noted that the trial court had filed a memorandum opinion setting forth its decision and its

rationale for the decision before requesting counsel to prepare proposed findings of fact and

conclusions of law. Second, the Court noted that the trial court reworked the findings and

conclusions submitted by counsel and that the findings and conclusions that the trial court

ultimately adopted varied considerably in organization and content from those counsel had

submitted. Based on these two facts, the Court found that the record readily demonstrated

that the trial court’s findings and conclusions “represent[ed] the judge’s own considered

conclusions.” Anderson v. City of Bessemer City, N.C., 470 U.S. at 573.

The United States Supreme Court’s reliance on the fact that the trial court had

considerably altered the findings and conclusions prepared by counsel for the prevailing party

underscores a point we made earlier. A trial court’s verbatim adoption of verbiage submitted

In 1911, this Court prohibited trial courts from ordering counsel to prepare draft findings of fact 21

and conclusions of law, noting that “[c]ounsel have a natural bias with respect to cases in which they are

engaged that makes it well-nigh impossible for them to fairly and fully present all the facts as the judge

would do.” Nashville, Chattanooga & St. Louis Ry. Co. v. Price, 125 Tenn. at 649, 148 S.W. at 220. 

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by the prevailing party detractsfrom the appearance of a hardworking, independent judge and

does little to enhance the reputation of the judiciary. At the very least, it gives rise to the

22

impression that the trial judge either has not considered the losing party’s arguments, or has

23

done little more than choose between two provided options rather than fashioning a

considered, independent ruling based on the evidence, the filings,

argument of counsel, and applicable legal principles. At worst, it risks creating an

24

appearance of bias or the impression that the trial court ceded its decision-making

responsibility to one of the parties.

25

In the almost thirty years since Anderson was decided, most courts have approved, but

not recommended, the practice of trial courts receiving and using party-prepared findings of

fact, conclusions of law, and orders as long as two conditions are satisfied. First, the findings

and conclusions must accurately reflect the decision of the trial court. Second, the record

must not create doubt that the decision represents the trial court’s own deliberations and

decision. Aiken Cnty. v. BSP Div. of Envirotech Corp., 866 F.2d 661, 677 (4th Cir. 1989);

Clady v. County of Los Angeles, 770 F.2d 1421, 1427 (9th Cir. 1985); Madden Phillips

Constr., Inc. v. GGAT Dev. Corp., 315 S.W.3d 800, 809-11 (Tenn. Ct. App. 2009); Airline

Constr., Inc. v. Barr, 807 S.W.2d 247, 253-54 (Tenn. Ct. App. 1990). Accordingly,

reviewing courts have declined to accept findings, conclusions, or orders when the record

provides no insight into the trial court’s decision-making process, Trieschmann v.

Trieschmann, 504 N.W.2d 433, 435 (Wis. Ct. App. 1993), or when the record “casts doubt”

on whether the trial court “conducted its own independent review, or that the opinion is the

product of its own judgment,” Bright v. Westmoreland Cnty., 380 F.3d at 732.

There are, to be sure, acceptable reasons for permitting trial courts to request the

preparation of proposed findings of fact, conclusions of law, and orders. They can promote

the expeditious disposition of cases, and they may, when used properly, assist the trial court

in placing the litigants’ factual and legal disputes in sharper focus. In the final analysis, the

ultimate concern is the fairness and independence of the trial court’s judgment.

26

Brunetti, 49 Hastings L.J. at 1502-03; Richmond, 45 Ariz. St. L.J. at 1079. 22

Carol M. Bast & Linda D. Samuels, Plagiarism and Legal Scholarship in the Age of Information 23

Sharing: The Need for Intellectual Honesty, 57 Cath. U. L. Rev. 777, 801 (2008).

Brunetti, 49 Hastings L.J. at 1502. 24

Richmond, 45 Ariz. St. L.J. at 1079-80, 1086. 

25

Richmond, 45 Ariz. St. L.J. at 1098. 26

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D.

We now turn to the appropriate application of Tenn. R. Civ. P. 56.04 to the

circumstances of this case. At the outset, we do not find that Tenn. R. Civ. P. 56.04 is in any

way inconsistent with the custom of permitting trial courts to request and consider proposed

orders prepared by the prevailing party. However, as we emphasized in the context of the

27

findings of fact and conclusions of law required by Tenn. R. Civ. P. 52.01, Tenn. R. Civ. P.

56.04 must be interpreted in a way that assures that a trial court’s decision whether to grant

or deny a motion for summary judgment is its own. Delevan-Delta Corp. v. Roberts, 611

S.W.2d at 53.

Thus, for the reasons we have already discussed, we conclude that Tenn. R. Civ. P.

56.04 requires the trial court, upon granting or denying a motion for summary judgment, to

state the grounds for its decision before it invites or requests the prevailing party to draft a

proposed order. Not only will this requirement assure that the decision is the trial court’s,

28

it will also (1) assure the parties that the trial court independently considered their arguments,

(2) enable the reviewing courts to ascertain the basis for the trial court’s decision, and (3)

promote independent, logical decision-making. See DiLeo v. Ernst & Young, 901 F.2d 624,

626 (7th Cir. 1990); State v. King, ___ S.W.3d ___, ___, 2014 WL 1622210, at *4 (Tenn.

2014).

Using these standards, we first consider the April 8, 2010 orders granting Lakeside

a summary judgment dismissing Ms. Smith’s false imprisonment claim and those claims

based on Lakeside’s vicarious liability for the conduct of the physicians at the Triage Center.

These extremely detailed orders are essentially a restatement of the arguments contained in

Lakeside’s filings in support of its motions for summary judgment.

Nor do we find it inconsistent with local rules of court that call upon counsel for the prevailing 27

party to submit an order reflecting the trial court’s ruling. See, e.g., Tenn. 30th J. Dist. Cir. Ct. R. 10(A)

(“Orders or decrees shall be prepared by counsel for the prevailing party and submitted to adversary counsel

for approval.”). If, however, the local rules were inconsistent with Tenn. R. Civ. P. 56.04, that rule would

prevail. See Tenn. Sup. Ct. R. 18(c) (“[A]ny local rule that is inconsistent with a statute or a procedural rule

promulgated by the Supreme Court shall be invalid.”).

A trial court may comply with this requirement in a number of ways. First, the trial court may state

28

the grounds for its decision at the same time it announces its decision on the record. Second, the trial court

may announce its decision and inform counsel that it will provide the grounds in a subsequently filed

memorandum or memorandum opinion. Third, after announcing its decision, the trial court may notify the

parties of the grounds for its decision by letter, as long as the letter has been provided to all parties and has

been made part of the record.

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While the trial court made comments and asked questions during the March 17, 2010

hearing, we do not construe any of these comments as an articulation of the grounds upon

which the trial court had decided to grant the motions. To the contrary, after the court

announced that “I’m going to rule in favor of [Lakeside]” with respect to both false

imprisonment and vicarious liability, the court stated that it was leaving the “basis for the

ruling” or the “rationale for the [c]ourt’s ruling” to counsel for Lakeside.

Lakeside does not dispute this sequence of events. However, it insists that even

though the trial court did not articulate any grounds for its decision prior to the preparation

of the draft order, the grounds contained in the order drafted by its counsel should be imputed

to the trial court because the court eventually signed the order. We decline to accredit this

reverse-engineered circumvention of Tenn. R. Civ. P. 56.04. While, as a general matter,

courts speak through their orders, Morgan Keegan & Co. v. Smythe, 401 S.W.3d at 608; In

re Adoption of E.N.R., 42 S.W.3d 26, 31 (Tenn. 2001), this principle presupposes the

performance of the judicial act reflected in the order. In this case, the judicial act should

have consisted not only of announcing a decision to grant part of Lakeside’s motions for

summary judgment but also stating the grounds for that decision. Because the record

demonstrates that the trial court did not provide the basis for its decision prior to the

preparation of the draft orders, the grounds stated in the order cannot be attributed to the trial

court.

The trial court’s October 3, 2011 order granting Lakeside a summary judgment on all

of Ms. Smith’s remaining claims suffers from the same shortcomings as its April 8, 2010

orders. During the three hearings conducted before the trial court announced its decision

from the bench, the trial court openly acknowledged that the motion presented difficulties

and that it needed additional time to consider the motion.

At the conclusion of the third hearing held on September 6, 2011, the trial court

expressed its desire to avoid what it perceived to be the “worst of all possibles” – a trial

resulting in a plaintiff’s verdict that is overturned on appeal. Thus, after announcing that it

had decided to grant a summary judgment dismissing all the remaining claims against

Lakeside, the trial court directed counsel for Lakeside “to prepare the order and to establish

the rationale for the [c]ourt’s ruling in quite specific detail.” This statement can only be

construed as the trial court’s decision to leave to Lakeside’s counsel the task of stating the

grounds for its decision.

Considering the context surrounding both the April 8, 2010 and the October 3, 2011

orders, no conclusion can be drawn other than that the trial court failed to comply with Tenn.

R. Civ. P. 56.04. The trial court failed to state its grounds when it decided to grant

Lakeside’s motions forsummary judgment, and the record provides no basis for imputing the

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reasons included in the orders prepared by Lakeside’s counsel to the trial court. In this case,

we find that the trial court failed to perform the “high judicial function” required by Tenn.

R. Civ. P. 56.04. It did not provide the parties with the grounds for its decision, which would

have demonstrated that it had exercised its own independent judgment in reaching the

decision ultimately reflected in the summary judgment orders.

IV.

We affirm the judgment of the Court of Appeals vacating the orders granting

Lakeside’s motions for summary judgment and remand the case to the trial court for further

proceedings consistent with this opinion. Because we have not addressed the merits of

Lakeside’s motions, Lakeside is free to renew its motions after the case returns to the trial

court. We tax the costs of this appeal to UHS of Lakeside, Inc. and its surety for which

execution, if necessary, may issue.

______________________________

WILLIAM C. KOCH, JR., JUSTICE

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