Rye v. Women's Care Ctr. of Memphis, W2013-00804-SC-R11-CV

MICHELLE RYE ET AL. v. WOMEN'S CARE CENTER OF MEMPHIS, MPLLC ET AL.

No. W2013-00804-SC-R11-CV

SUPREME COURT OF TENNESSEE AT JACKSON

March 4, 2015 Session

October 26, 2015

Appeal by Permission from the Court of Appeals, Western Section Circuit Court for Shelby County

No. CT00092009

Gina C. Higgins, Judge

GARY R. WADE, J., concurring in part and dissenting in part.

The majority opinion accurately recounts the development of this area of the law but ultimately concludes that the summary judgment standard first articulated in Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993), and later refined in Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008), and other decisions of this Court, must now be overruled. In my view, the principles articulated in Hannan, when interpreted in light of the history of summary judgment in Tennessee, set forth the preferable standard for shifting the burden of proof at summary judgment—one that is fully consistent with Tennessee Rule of Civil Procedure 56. By granting Rule 11 review in a case which pre-dated the passage of a statute purporting to set a new standard for summary judgment, by rejecting the well-established doctrine of stare decisis, and by acquiescing to the standard proposed by the General Assembly, my colleagues have preempted the future consideration of an important constitutional issue—whether the General Assembly, by its enactment of Tennessee Code Annotated section 20-16-101 (Supp. 2014), has violated the separation-of-powers doctrine.¹ In the interest of consistent, predictable procedural guidelines of adjudication, I would hold that Byrd, Hannan, and their progeny should be reaffirmed as the standard for summary judgment in Tennessee and should be applied to the facts before us. Moreover, in my assessment, even the federal standard, as adopted in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), does not warrant dismissal on all of the claims. I must, therefore, respectfully dissent.

I. Summary Judgment in Tennessee

The summary judgment standard articulated by this Court in Hannan has been accurately summarized as follows:

When a motion for summary judgment is made, the moving party has the burden of showing that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The moving party may accomplish this by either: (1) affirmatively negating an essential element of the non-moving party's claim; or (2) showing that the non-moving party will not be able to prove an essential element at trial. However, it is not enough for the moving party to challenge the non-moving party to "put up or shut up" or even to cast doubt on a party's ability to prove an element at trial. If the moving party's motion is properly supported, the burden of production then shifts to the non-moving party to show that a genuine issue of material fact exists. The non-moving party may accomplish this by: (1) pointing to evidence establishing material factual disputes that were overlooked or ignored by the moving party; (2) rehabilitating the evidence attacked by the moving party; (3) producing additional evidence establishing the existence of a genuine issue for the trial; or (4) submitting an affidavit explaining the necessity for further discovery. . . .

Rye v. Women's Care Ctr. of Memphis, MPLLC, No. W2013-00804-COA-R9-CV, 2014 WL 903142, at *5 (Tenn. Ct. App. Mar. 10, 2014) (emphasis added) (alterations, citations, and internal quotation marks omitted). These principles of summary judgment have a long-standing foundation in Tennessee jurisprudence, as confirmed in 1993 with this Court's ruling in Byrd, as reaffirmed in 1998 by McCarley v. West Quality Food Service, 960 S.W.2d 585 (Tenn. 1998), and as refined in 2008 by our decision in Hannan, as well as other more recent cases.² Today, less than seven years after the Hannan decision and more than twenty years since Byrd, my colleagues have reversed field, observing that our summary judgment standard is "incompatible with the history and text of Tennessee Rule [of Civil Procedure] 56" and "frustrate[s] the purposes for which summary judgment was intended." The majority opinion suggests that by adding the words "at trial" to the second prong of the Byrd/Hannan standard, the Court improperly moved the focus away from the evidence adduced at the summary judgment stage and onto "hypothetical evidence that theoretically could be adduced, despite the passage of discovery deadlines, at a future trial." (Emphasis added.) Ultimately, the majority has concluded that the Byrd/Hannan standard "has shifted the balance too far and imposed on parties seeking summary judgment an almost insurmountable burden of production." I disagree on all counts.

In my view, the majority opinion is based upon an erroneous premise—a faulty interpretation of Hannan that appears to have originated in an unpublished decision by our Court of Appeals, in which there was no application for permission to appeal to this Court. In White v. Target Corp., the Western Section of the Court of Appeals criticized by footnote the Hannan ruling, speculating that the standard requires trial courts to assume future hypothetical facts at the summary judgment stage. No. W2010-02372-COA-R3-CV, 2012 WL 6599814, at *7 n.3 (Tenn. Ct. App. Dec. 18, 2012). The footnote, which failed to include any authority supportive of its interpretation, provides as follows:

Under Hannan, as we perceive the ruling in that case, it is not enough to rely on the nonmoving party's lack of proof even where, as here, the trial court entered a scheduling order and ruled on the summary judgment motion after the deadline for discovery had passed. Under Hannan, we are required to assume that the nonmoving party may still, by the time of trial, somehow come up with evidence to support her claim.

Id. (emphasis added); see also Boals v. Murphy, No. W2013-00310-COA-R3-CV, 2013 WL 5872225, at *5 (Tenn. Ct. App. Oct. 30, 2013). Until now, this Court has never endorsed the correctness of the Target footnote.³ In my view, the better course would have been to simply reject the interpretation advanced by the Target footnote, reaffirm the Byrd/Hannan standard, and capitalize upon this opportunity to clarify the rationale for the differences between Tennessee and federal summary judgment jurisprudence.⁴

Even if it is true, as the majority concludes, that "nothing in the history or text of Tennessee Rule [of Civil Procedure] 56 . . . necessitates rejecting the [federal] standard[]" for summary judgment, neither does anything in the history or text of our Rule 56 require adopting the federal standard. (Emphasis added.)⁵ We have consistently rejected federal rules that are contrary to "the strong preference embodied in the Tennessee Rules of Civil Procedure that cases . . . be decided on their merits," and have afforded appropriate recognition to "the Tennessee constitutional mandate that 'the right of trial by jury shall remain inviolate.'" Webb v. Nashville Area Habitat for Humanity, Inc., 346 S.W.3d 422, 432 (Tenn. 2011) (quoting Tenn. Const. art. I, § 6) (citing Jones v. Prof'l Motorcycle Escort Serv., L.L.C., 193 S.W.3d 564, 572 (Tenn. 2006)); cf. State v. Bennett, No. 01C01-9607-CC-00139, 1998 WL 909487, at *11 (Tenn. Crim. App. Dec. 31, 1998) (Wade, J., concurring) ("Because the right to trial by jury is too precious to abridge, . . . I would tend to trust a well-informed jury, which has seen and heard firsthand of the quantity and quality of the evidence, rather than an impartial tribunal of judges exposed only to the written record of the trial. . . . I am unwilling to denigrate the importance of the right to a jury of peers[;] . . . [t]hat is too great a sacrifice . . . .").⁶ As stated, this Court first rejected the federal standard in Byrd and continued to do so in numerous cases thereafter. See Cornett, 77 Tenn. L. Rev. at 317 ("[I]n the almost fifteen years between Byrd and the trial court's decision in Hannan, the Tennessee Court of Appeals generally interpreted Byrd correctly as rejecting the [federal] 'put up or shut up' standard.").⁷ In Hannan, we confirmed that "we began our departure from the federal standard" in Byrd, explaining the distinction between the two interpretations as follows:

Th[e] second method of shifting the burden of production outlined in the Byrd opinion . . . differs significantly from [the federal standard's] second method of burden-shifting. The opinion in Byrd requires a moving party to demonstrate that the nonmoving party cannot establish an essential element of the claim at trial. [The federal standard], however, would give the moving party the easier burden of demonstrating that the nonmoving party's evidence—at the summary judgment stage—is insufficient to establish an essential element. Therefore, the standard we adopted in Byrd clearly differs from [the federal] standard and poses a heavier burden for the moving party.

Hannan, 270 S.W.3d at 7 (citations omitted). Importantly, the emphasis of the Court in Hannan was not on the difference between the phrases "at trial," as used in the Tennessee standard, and "at the summary judgment stage," as used in the federal standard. Instead, the Hannan Court embraced the concept of adjudication on the merits, pointing out that in Tennessee the moving party cannot shift the burden to the non-moving party by merely asserting that the non-moving party "lacks evidence to prove an essential element of its claim." See id. at 8 (emphasis added).

One law review article has offered the following explanation:

Clearly, in articulating th[e] [second method for] shifting the burden to the nonmovant, the Tennessee Supreme Court rejected the federal approach to summary judgment as a way of testing the sufficiency of the nonmovant's evidence pre-trial. In Tennessee, the movant has to produce negative evidence or has to somehow show that, at the time of trial, the nonmovant will be unable to prove an essential element of the

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