### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE March 29, 2001 Sessi

on 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

C HARLES D. S USANO , J R ., 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 i nsuffic ient

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 nega te an essential element of the non-movant’s claim or concl usively

establish an affirmative defense.” McCarley v. West Quality Food Service , 96 0 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 obligatio

n, “th e no n-movant’s burden to produce either supporting affidavits or discoverymaterial 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-spec ific de fense affidavits do not trigger an obligation on the part of the plaintiff t o presen t 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 essentia

lly identic al. The one signed by Mr. Bray is at tached as an appe ndix to th is opinion.
2 For example, Rule 56.06 provides that “[s]upporting. ..affi davits s hall be made on

persona l know ledge, sha ll set fort h 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 judg ment is m ade and suppor ted as pro vided in th is rule, an adve rse party m ay not res t upon th e mere a llegati ons or denials of the (continu ed...) -2- In each of the cases now before us, the defendant in h is affidavit 1 basically states the following: I am a licensed attorney; I know the standards of p rofessional practice applic able to attorneys practicing in

Blount County; I have

“handle[d]” c

ases pertaining t

o, and am familiar

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

esent him with resp

ect toa custody matter and a matter pertaining to possession of a house; I am familiar with the facts surrounding the aforementioned representation; and, finally, “I didnot 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,th e affidavit does not state any factspertaining to the advice given or the service s per formed 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 wi t h this representation as it pertains to the shortcomings alleged by the plaintiff as the basis for hi

s legal malpracti

c e case? The affidavits are simply devoid of any informatio

n on this s ubject. The attorney in each case says that he knows what he did; but he doesn’t share this i

nformation with the re

ader.
I do not u nderstand how a p laintiff can be e

xpected to demons

trate a genuine i

ssu e o f material fact if he or she does not knowthe material facts upon which the defendant relies to support his or her p osition that summary judgment is appropriate. As I understand the concept embodied in Tenn. R. Civ. P. 56, atrial 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 u

ndisputed if a def

endant’s supporti

ng material fails to tell us what the material facts are?
If a defendant’s obligation under Rule 56 is to presen

t factsshowing thathe or she is entitled to judgment in summary f ashion – and I belie

ve it clearly

is – the affidavits before us simply do not satisfy this obligation. In my jud gment, an affidavit that simply asserts that (a) I know the standard, (b) I know the facts (without revealing t hem), and (c) I did not deviate from or fall below the applicable standard, does not comport with my understanding of the letter 2 or spirit of Rule 56. If factual specificity is required in themateria l submitted by the non

-movant, 3 why is it not also3 (...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 fort h 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 c ourt 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 nec

essarily means that the non-movan t, rather than the

movant, has t

he 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 t hat the defendants’ affidavits did not trigger an obligation on the part of the plaintiff to show a

disputed material

fact, and, conse

quently, that the de

fendants are not entitled to summary judgment. A

ccordingly, I re

spectfully dissen

t.

___________________________________ CHARLES D. SUSANO, JR., JUDGE