IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

March 29, 2001 Session

JACK HUTTER v. ROBERT M. COHEN, ET AL.

Appeal from the Circuit Court for Blount County

Nos. L-11686 and L-11709 James B. Scott, Jr., Judge

FILED AUGUST 5, 2002

Nos. E1999-01859-COA-R3-CV &

 E1999-01857-COA-R3-CV

CHARLES D. SUSANO, JR., J., dissenting.

I cannot concur in the majority’s affirmance of the trial court’s grant of summary judgment

in these two related legal malpractice actions. My unwillingness to join my colleagues is based upon

my belief that the affidavits of defendants/attorneys Robert M. Cohen and H. Allen Bray are legally

insufficient to require the plaintiff Jack Hutter to engage in what I refer to as litigation “on the

papers.”

The law imposes a threshold obligation upon a defendant seeking summary judgment; such

a defendant “must either affirmatively negate an essential element of the non-movant’s claim or

conclusively establish an affirmative defense.” McCarley v. West Quality Food Service, 960

S.W.2d 585, 588 (Tenn. 1998) (citing Byrd v. Hall, 847 S.W.2d 208, 215 n.5 (Tenn. 1993)). If the

defendant fails to satisfy this threshold obligation, “the non-movant’s burden to produce either

supporting affidavits or discovery material is not triggered and the motion for summary judgment

fails.” McCarley, 960 S.W.2d at 588 (citing Byrd, 847 S.W.2d at 215) (emphasis added).

Our Supreme Court has indicated that non-specific defense affidavits do not trigger an

obligation on the part of the plaintiff to present affidavits and discovery material demonstrating a

genuine issue of material fact. Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998). See also

Harris v. Chern, 33 S.W.3d 741, 743 n.1 (Tenn. 2000).
1

The affidavits are essentially identical. The one signed by Mr. Bray is attached as an appe ndix to th is opinion.

2

For example, Rule 56.06 provides that “[s]upporting...affidavits shall be made on persona l know ledge, sha ll

set forth such facts as would be admissible in evidence,...” (Emphasis added).

3

Rule 56.06 fu rther provides, in pe rtinent part, as follows:

When a motion for summ ary judgment is m ade and supported as pro vided in th is

rule, an adve rse party m ay not rest upon th e mere a llegations or denials of the

(continu ed...)

-2-

In each of the cases now before us, the defendant in his affidavit1 basically states the

following: I am a licensed attorney; I know the standards of professional practice applicable to

attorneys practicing in Blount County; I have “handle[d]” cases pertaining to, and am familiar with

the law applicable to, family law, landlord/tenant, and unlawful detainer cases; I was retained by the

plaintiff to represent him with respect to a custody matter and a matter pertaining to possession of

a house; I am familiar with the facts surrounding the aforementioned representation; and, finally, “I

did not deviate from or fall below the legally accepted standard of practice for attorneys practicing

law in Blount County, Tennessee, and the surrounding area, nor did I fail to exercise that degree of

care, skill, and diligence which is commonly possessed and exercised by attorneys in practice in this

jurisdiction, relative to my aforementioned representation of Jack Hutter.”

In reading the affidavits, I am struck by what both of them fail to do. In each case, the

affidavit does not state any facts pertaining to the advice given or the services performed by the

attorney. In other words, after reading the affidavits, one is left to ponder: What did the attorney do

or not do in connection with this representation as it pertains to the shortcomings alleged by the

plaintiff as the basis for his legal malpractice case? The affidavits are simply devoid of any

information on this subject. The attorney in each case says that he knows what he did; but he

doesn’t share this information with the reader.

I do not understand how a plaintiff can be expected to demonstrate a genuine issue of

material fact if he or she does not know the material facts upon which the defendant relies to support

his or her position that summary judgment is appropriate. As I understand the concept embodied

in Tenn. R. Civ. P. 56, a trial is not necessary when the facts are clear and undisputed and those facts

show conclusively that the defendant is entitled to a judgment; but this raises an obvious question:

How do we know that the facts are clear and undisputed if a defendant’s supporting material fails

to tell us what the material facts are?

If a defendant’s obligation under Rule 56 is to present facts showing that he or she is entitled

to judgment in summary fashion – and I believe it clearly is – the affidavits before us simply do not

satisfy this obligation. In my judgment, an affidavit that simply asserts that (a) I know the standard,

(b) I know the facts (without revealing them), and (c) I did not deviate from or fall below the

applicable standard, does not comport with my understanding of the letter2 or spirit of Rule 56. If

factual specificity is required in the material submitted by the non-movant,3

 why is it not also
3

(...continued)

adverse party’s pleading, b ut his or her respon se, by affidavits or as otherw ise

provide d in this rule, must set forth specific facts showing that there is a genuine

issue for trial.

(Emphasis added).

-3-

required with respect to the material submitted by the movant, who, after all, has the primary burden

to convince the court that he or she is entitled to summary judgment? If a generally-worded,

conclusory affidavit, such as the ones now before us, has the effect of triggering the non-movant’s

obligation to bring forth “specific facts,” see Rule 56.06, I believe that such a holding necessarily

means that the non-movant, rather than the movant, has the burden of persuasion on summary

judgment. Obviously, such a result is contrary to well-established summary judgment law. See, e.g.,

Byrd, 847 S.W.2d at 215.

I would hold that the defendants’ affidavits did not trigger an obligation on the part of the

plaintiff to show a disputed material fact, and, consequently, that the defendants are not entitled to

summary judgment. Accordingly, I respectfully dissent.

___________________________________ 

CHARLES D. SUSANO, JR., JUDGE