IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

February 2, 2010 Session

EDWARD P. LANDRY, et al., v. SOUTH CUMBERLAND AMOCO, et al.

Appeal from the Circuit Court for Hamblen County

No. 07CV034 Hon. Kindall Lawson, Judge

No. E2009-01354-COA-R3-CV - FILED MARCH 10, 2010

Plaintiffs brought this wrongful death action against defendants for the wrongful death of

Brandi Coyle, who died as a result of a motor vehicle accident allegedly caused by an

underage intoxicated driver who had purchased intoxicating beverages from South

Cumberland Amoco. Defendants moved for summary judgment on the grounds that

plaintiffs would be unable to prove essential elements of their claim. The Trial Court held

that the alleged underage driver had stated initially that he was over the age of 21, but later,

in another statement, represented that he was a minor at the time of the accident. The Trial

Judge held that his statements cancelled each other and there was no evidence to establish

that he was a minor at the time of the accident. The Court also held that plaintiffs could not

prove that the South Cumberland Amoco cashier had "knowingly sold intoxicating beverages

to a minor". On appeal, we vacate the summary judgment and remand for further

proceedings.

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

HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the Court, in which D. MICHAEL

SWINEY, J., and JOHN W. MCCLARTY, J. , joined.

Douglas R. Beier, Morristown, Tennessee, for the appellants, Alanna Edward P. Landry, and

Juanita Coyle.

William A. Reeves, and Robin M. Cleavenger, Knoxville, Tennessee, for the appellees,

South Cumberland Amoco, Amoco-South Cumberland, Pramukh Swami Maharaj, Inc., Shree

Akshar, Inc., Savita Patel, Meena Patel, Kipak Patel, and Jatinkumar Patel.
OPINION

Edward Landry and Juanita Coyle, as mother and next of kin of Brandi Coyle,

deceased, and the estate of Brandi Coyle, brought this action against South Cumberland

Amoco, Amoco-South Cumberland Pramukh Swami Maharaj, Inc., and several other parties

regarding the sale of alcohol to an underage purchaser, Samuel Martinez.

Plaintiffs alleged that the South Cumberland Amoco in Morristown sold beer to

Martinez, who was obviously under 21, and that it asked for no identification. Plaintiffs

alleged that Martinez had purchased beer from this store in the past, and that Martinez drove

his car under the influence of the alcohol purchased at the store and collided with a

motorcycle being ridden by Edward Landry and Brandi Coyle. Plaintiffs further alleged that

Coyle died as a result of her injuries in the accident, and that Martinez had a blood alcohol

rating of .16 at the time of the accident, and that he had consumed no other alcohol that day

except what he purchased from defendants.

Additionally, plaintiffs alleged that defendants engaged in a civil conspiracy to sell

alcohol to Hispanics without proper evidence of age, and would sell to any Hispanic

individual regardless of age.

Defendants answered, denying that Martinez purchased alcohol from their store on

the date in question or any other time, and also denied that Martinez was under the age of

qualification to purchase alcohol. Defendants denied all other allegations that they were

negligent in any way, and as affirmative defense, asserted that Tenn. Code Ann. §57-10-101

barred recovery against defendants.

Defendants then filed a Motion for Summary Judgment, asserting that plaintiffs could

not prove that Martinez was underage at the time of the accident, nor that the cashier who

allegedly sold him beer at defendant’s store knew that he was underage, which was an

essential element of plaintiffs' claim. Defendants asserted that, pursuant to Tenn. Code Ann.

§57-10-102, defendants could only be held liable if the sale of the alcoholic beverage was

determined to be the proximate cause of the injury, and if the alcohol was sold to a person

known to be underage.

The record contains an Affidavit from Soyber Ernesto Morales Roblero, a.k.a. Samuel

Martinez. He states that he was born November 27, 1989, and that the document attached

to the affidavit is a true copy of his birth certificate from Mexico.

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Plaintiffs filed discovery motions, including a Motion to Compel and then filed a

Motion for Partial Summary Judgment, seeking judgment on certain undisputed issues.

Plaintiffs also filed a Statement of Undisputed Facts, and further filed a Rule 56.07 Affidavit

of David Day, plaintiffs’ counsel, who stated that further discovery (including disclosure of

the identity of the store clerks) was necessary before plaintiffs could respond to defendants’

Motion for Summary Judgment. Defendants filed a Motion to Strike, stating that none of the

issues upon which plaintiffs sought summary judgment would dispose of or resolve a claim,

and then filed a Statement of Undisputed Material Facts in Support of Defendants’ Motion

for Summary Judgment.

The deposition of Samuel Martinez was filed, which was taken with the aid of a

Spanish interpreter. Martinez testified he did not speak English, and that he had previously

met with defense counsel, and that defense counsel asked him about the accident, and about

how many beers he had drunk and where he bought them. Martinez further testified that

defense counsel also asked him about his age, and whether his date of birth was 1983.

Martinez testified that he could not read English, and would need the interpreter to read him

a document written in English.

The interpreter read a statement to Martinez that he gave on February 7, 2007, and he

identified it as accurate and testified that he remembered giving it. Martinez testified that

in that statement he said he was born in 1989, because that was true and he was born in 1989.

Martinez testified that he told defense counsel he was born in 1983 because he didn’t want

to “have any more problems with that.” Martinez testified that he was afraid because “here

sometimes they do put us in trouble because of that”, but he affirmed that his true birthday

was 1989.

Martinez testified that he was in Whiteville Correctional Facility because of the

accident, and that his attorney, William Wheatley, had a copy of his birth certificate.

Martinez testified that he was currently “about 21" and had been in jail for two years. He

conceded that when the accident occurred, he was illegally in the US and had come from

Mexico, and that his real name was Soyber Ernesto Morales Roblero, and that he used the

name Samuel Martinez so he wouldn’t get into trouble with immigration. He then testified

that he was 17 at the time of the accident.

Martinez identified a picture of the store where he bought the beer on the day of the

accident, and stated that he had been to the Mexican store and bought a sabrita, and then he

went to the gas station, saw the beer, and took it to the counter. Martinez testified that he

asked how much the beer was, and they told him it was $6. He testified that he had heard

that the store would sell beer, and that the cashier was a man, and did not ask him for any ID.

He testified that he did not have a fake ID.

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Martinez testified that he spoke to the cashier in Spanish, but the cashier did not speak

to him in Spanish. He testified that the cashier never asked how old he was, and that he did

not shave, because he was young, and his face was smooth. Martinez testified that he went

home, drank 2 1⁄2 beers, and then went back out and that was when the accident happened.

Martinez testified that he did not have a drivers license and could not buy beer anywhere else

because they would ask for an ID. He testified that he had never bought beer nor drunk beer

before this day. Martinez testified that he never saw the motorcycle coming when he pulled

out, and that he was intoxicated.

Martinez testified that the police first asked him about his birth date about a week

after the accident, and that was when he told them 1983. He testified that he later changed

his story because he wanted to tell the truth. The record also contains a sworn statement from

Martinez given in February 2007, where he stated his true birth date was 1989. He testified

regarding the events of the day in question, and his testimony was the same as that in his

deposition.

The Court entered an Order on May 5, 2009, granting summary judgment to

defendants, finding that the plaintiffs could not establish beyond a reasonable doubt that

Martinez was under 21, nor that the clerk at the store knew that he was under 21. The Court

said that since plaintiffs could not establish these essential elements of their claim, summary

judgment was appropriate.

Plaintiffs raise one issue on appeal:

Whether the Trial Court erred in granting summary judgment?

To prevail on their claim, plaintiffs must prove that the sale of the alcoholic beverage

was the proximate cause of the injury or death, and that the seller sold the alcohol to a person

known to be under the age of 21. Tenn. Code Ann. §57-10-102. The Trial Court granted

summary judgment based on the Court’s ruling that plaintiffs could not establish two

essential elements of their claim, i.e. that Martinez was underage when he purchased the

alcohol from defendants, and that the clerk who sold the alcohol knew that Martinez was

underage. Summary judgment is proper when the moving party presents evidence that

negates an essential element of the non-moving party’s claim. Blair v. West Town Mall, 130

S.W.3d 761 (Tenn. 2004).

A motion for summary judgment should be granted when the movant demonstrates

that there are no genuine issues of material fact and that the moving party is entitled to a

judgment as a matter of law. Tenn. R. Civ. P. 56. The moving party bears the burden of

demonstrating that no genuine issue of material fact exists, and that it is entitled to judgment

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as a matter of law. Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993). On a motion for summary

judgment, the court must take the strongest legitimate view of the evidence in favor of the

nonmoving party, allow all reasonable inferences in favor of that party, and discard all

countervailing evidence. Id. at 210-11. Summary judgment is only appropriate when the

facts and the legal conclusions drawn from the facts reasonably permit only one conclusion.

Carvell v. Bottoms, 900 S.W.2d 23 (Tenn. 1995). Since only questions of law are involved,

there is no presumption of correctness regarding a trial court's grant of summary judgment.

Id. Therefore, our review of the trial court's grant of summary judgment is de novo on the

record before this Court. Id.

Plaintiffs argue that the Trial Court erred in ruling that they could not prove that

Martinez was underage when he purchased the alcohol on the day of the accident. They

argue that, viewing the evidence in the light most favorable to them, they showed that

Martinez was 16 on the day he purchased the beer. Defendants argue that Martinez gave

conflicting sworn statements/testimony regarding histrue birth date, and that these statements

cancel each other out such that there is no competent evidence regarding his age.

Tennessee courts have held that mutually contradictory statements by the same

witness are “no evidence” of the fact sought to be proved. Church v. Perales, 39 S.W.3d

149 (Tenn. Ct. App. 2000). Such contradictory statements of a witness in connection with

the same fact have the effect of cancelling each other out. Tibbals Flooring Company v.

Stanfill, 410 S.W.2d 892, 896 (Tenn. 1967). However, this “cancellation rule” applies only

if the contradictory statements are unexplained or if neither statement can be corroborated

by other competent evidence. Church v. Perales, at 170.

In this case, Martinez did give contradictory statements regarding his age, but

Martinez explained that he stated that his age was older because he was afraid of getting into

trouble, but then later decided to tell the truth about his age. He also testified that his real

name was Soyber Ernesto Morales Roblero, and that he used the name Samuel Martinez so

he wouldn’t get into trouble with immigration. His Mexican birth certificate was attached

to an affidavit he executed, and it confirms his true name (Roblero) and his birth year of

1989.

Since Martinez explained his contradictory statements regarding his age, and further

since his birth year of 1989 is corroborated by his birth certificate, the cancellation rule does

not apply. Instead, “the meaning of relevant oral statements made by or to a party ... is a fact

question for a jury to consider in weighing the possible contradictions in and credibility of

the testimony of the witness, rather than a law question for determination by the Trial Judge

on motion for summary judgment or directed verdict.” Gambill v. Middle Tenn. Med. Ctr.,

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Inc., 751 S.W.2d 145, 151 (Tenn. Ct. App.1988).

The Trial Court erred in holding that plaintiffs could not prove this element of their

claim.

The Trial Court also held that plaintiffs could not show that the seller knew that

Martinez was underage when he purchased the alcohol. As the Supreme Court explained in

Worley v. Weigels, Inc., 919 S.W.2d 589 (Tenn. 1996):

The trial court found that Section 57-10-102(1) does not require actual knowledge,

and that, where reasonable inquiry is not made as to the age of the buyer, the seller

will be deemed to have constructive knowledge that the buyer is a minor. The Court

of Appeals agreed. Nevertheless, that construction is not permitted by the plain

language of the statute. Under the statute, an action will not lie against a seller of

intoxicating beverages unless it is proved beyond a reasonable doubt that the seller

knew that the purchaser was a minor and sold intoxicating beverages to him or her

anyway.

The Court discussed that statutes such as this one which were in derogation of the common

law had to be strictly construed. The Court further discussed that the legislative history made

clear that the legislature intended that sellers who sold alcohol to minors would be subject

to sanctions, but not necessarily civil liability unless they knowingly sold alcohol to a minor

and intended that a minor have the alcohol. Id. Thus, the Court was correct in granting

summary judgment to defendants if defendants presented evidence to negate this element of

plaintiffs’ claim.

Defendants’ only evidence on this issue was the testimony of Martinez that he had no

discussion with the store clerk other than to ask how much the beer was, that the clerk did

not ask for any identification, and that he had no identification, fake or otherwise, to establish

his age. Plaintiffs point out, however, that this does not necessarily negate this element, as

it could be otherwise shown that the seller knew Martinez was underage, and that the biggest

problem with establishing what the seller knew or didn’t know is that defendants never

responded to their discovery requests and refused to give them the names of the store clerks

or to allow them to be deposed.

Plaintiffs further argued at the Trial Court level that they were prevented from

providing any evidence to counter defendants’ summary judgment motion by defendants’

own actions in failing to comply with discovery, and filed a motion to compel and a Rule

56.07 affidavit of counsel to bring this problem to the court’s attention. The issue was again

raised at the hearing on the summary judgment motion, but the Court did not address it, and

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simply granted the defendants’ motion.

As we have previously recognized, while efficient disposition of cases is desired,

courts may act too hastily in granting summary judgment motions when there has not been

a reasonable opportunity for discovery. See Calsonic Yorozu Corp. v. Forklifts Unlimited,

L.L.C., 2002 WL 121612 (Tenn. Ct. App. Jan. 30, 2002). In some circumstances, the parties

must be afforded the opportunity to conduct discovery prior to the determination of a

summary judgment motion. See Griffin v. Traughber, 1996 WL 355069 (Tenn. Ct. App.June

28, 1996). This proposition is especially true when such discovery is necessary to properly

oppose the motion.

In this case, plaintiffs were denied the opportunity to meet their burden, and the Trial

Court erred in refusing to provide plaintiffs with the opportunity for discovery of the desired

information. As stated, the Trial Court did not rule on plaintiffs' Motion for Discovery, but

simply found defendants had negated an essential element of plaintiffs' claim. The Trial

Court erred in not allowing the requested discovery to take place, and granting summary

judgment was premature.

We vacate the Judgment of the Trial Court and remand for further proceedings in

accordance with this opinion.

The cost of the cause is assessed to South Cumberland Amoco.

_________________________________

HERSCHEL PICKENS FRANKS, P.J.

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