                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                    April 20, 2016 Session

                CHRISTOPHER DENTON V. EDNA TAYLOR ET AL.

                   Appeal from the Circuit Court for Hamilton County
                     No. 14C322    W. Jeffrey Hollingsworth, Judge


                  No. E2015-01726-COA-R3-CV-FILED-JULY 25, 2016


This case arises out of a head-on automobile accident that resulted in the death of
Howard Taylor, the driver of one of the cars, and serious injuries to Christopher Denton
(plaintiff), the other driver. Plaintiff brought this negligence action against the decedent’s
widow, Edna Taylor, and his estate.1 There were no witnesses to the accident, and
plaintiff has no memory of what happened. Some fifteen months after the complaint was
filed, the sole remaining defendant, Edna Taylor, moved for summary judgment, arguing
that plaintiff’s evidence was insufficient to establish causation. In support of the motion,
defendant filed the affidavit of the officer who investigated the accident, in which he
stated that he “wasn’t able to locate any roadway evidence that indicated the point of
impact.” After a hearing on defendant’s motion, plaintiff filed a motion asking the trial
court to grant him more time to obtain and file an accident reconstruction “report.” The
court denied the motion and granted summary judgment on the ground that plaintiff
provided no evidence establishing that the decedent’s negligence caused the accident.
We affirm.

           Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                               Affirmed; Case Remanded

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.

Valerie W. Epstein, Chattanooga, Tennessee, for appellant, Christopher Denton.

Douglas M. Campbell, Chattanooga, Tennessee, for appellee, Edna Taylor.
       1
          The plaintiff moved the trial court to enter a default judgment against the “Estate of
Howard Taylor.” Counsel for the defendant Edna Taylor objected to the plaintiff’s motion,
noting that “[a]t this time, no estate has ever been opened on behalf of Howard Taylor.” Because
of this deficiency, Ms. Taylor states that there was no valid service as to the “estate.” There is no
order in the record addressing this issue. The case proceeded only as to defendant Edna Taylor.
                                        OPINION

                                             I.

        The accident happened on March 5, 2013. The decedent was pronounced dead at
the scene. As previously noted, the plaintiff does not remember anything about the
accident. The complaint was filed on March 4, 2014. Following discovery, defendant
moved for summary judgment on June 12, 2015. Defendant filed the affidavit of
Hamilton County Sheriff’s Department deputy Robert Stockburger, in which he recited
that, to the best of his knowledge, there were no witnesses to the accident. The deputy
also stated that he had examined, photographed, and mapped the accident scene, but was
not able to determine the point of impact. The Plaintiff responded, arguing that summary
judgment was not appropriate. He pointed to the accident report in which the officer
stated that the Hamilton County Medical Examiner’s post-mortem toxicology test results
of the decedent indicated that there was hydrocodone and hydromorphone in his system.

       The hearing on the summary judgment motion took place on August 3, 2015.
According to plaintiff’s brief, “[a]t the hearing, Plaintiff’s counsel discussed obtaining a
professional accident reconstruction report as additional evidence for the summary
judgment stage and asked for the court’s permission to present the report to the court.”
There is no transcript of the motion hearing. After the hearing concluded, on the same
day, plaintiff filed a one-sentence motion, in which he stated the following: “[c]omes
now the Plaintiff, by and through counsel, pursuant to Tennessee Rule of Civil Procedure
6 and files this [m]otion for [e]nlargement of [t]ime to [f]ile an [a]ccident
[r]econstruction [r]eport as an exhibit to its [r]esponse to Defendant’s [m]otion for
[s]ummary [j]udgment.” On August 6, 2015, the trial court entered a memorandum
opinion and order granting summary judgment to defendant and dismissing plaintiff’s
claims with prejudice, stating:

              The Defendant has filed a motion for summary judgment,
              alleging there is no proof of how the accident happened and,
              therefore, no proof of negligence or causation of the
              Plaintiff’s injuries. In his motion, the Defendant asserts the
              following undisputed facts:

              1. At the Erlanger emergency room, the Plaintiff told the
              hospital personnel that he had no recollection of the accident.

              2. At the time the Plaintiff responded to the Defendant’s
              proposed statement of undisputed facts, he admitted he did
              not recall the impact.
                                             2
3. Howard Taylor, the driver of the other car, was killed in the
accident.

The Defendant also presented, in support of his motion, the
affidavit of Deputy Robert Stockburger of the Hamilton
County Sheriff’s Department. Deputy Stockburger stated he
was called to the scene of the accident when it happened. He
states in his affidavit that he examined, photographed and
mapped the scene and found no evidence indicating the point
of impact. There is no other evidence provided by either
party as to how the accident happened or where the impact
occurred.

The Plaintiff’s response centers on the fact that Mr. Taylor,
who died in the accident, had significant amounts of
prescription opiates in his system. The Plaintiff argues that
the existence of those opiates is prima faci[e] evidence or, at
least lead to a reasonable inference that Mr. Taylor was
intoxicated. Being intoxicated while operating a motor
vehicle is negligent. The Plaintiff also argues that it was
foreseeable that an accident could result from that
intoxication.

The Plaintiff’s argument is valid, as far it goes. The issue the
Plaintiff’s argument does not address is causation. Assuming,
for the sake of this motion, that Mr. Taylor was under the
influence, there is no evidence that his intoxication caused the
accident. There is no evidence that Mr. Taylor crossed over
into the Plaintiff’s lane of travel or did anything else to cause
the collision. As noted previously, the Plaintiff does not
remember the incident and Deputy Stockburger states that he
found nothing at the scene indicating on which side of the
road the collision occurred.

                        *      *       *

Based on the pleadings in this case, the Plaintiff has not
produced any evidence of causation. The motion for
summary judgment was filed on June 12, 2015. The Plaintiff
responded. He did not request additional time to conduct
                               3
              discovery or obtain additional affidavits. In argument of the
              motion, the Plaintiff’s lawyer mentioned the absence of
              accident reconstruction.     However, there has been no
              designation of any experts or a request for time to get one.

              Based upon the pleadings in this file, the Court finds there is
              no evidence that Mr. Taylor’s alleged intoxication caused the
              accident and the Plaintiffs injury. The causation is, of course,
              an essential element of this Plaintiff’s claim. Therefore, the
              Defendant has established that the Plaintiff does not have
              sufficient evidence to prove that essential element.

        On August 26, 2015, the trial court entered an order denying plaintiff’s motion for
additional time, finding it “not well taken or proper.” The order noted that a hearing on
plaintiff’s motion had taken place two days earlier. Thereafter, plaintiff timely filed a
notice of appeal.

                                             II.

       Plaintiff raises the following issues, as quoted from his brief:

              1. Whether the trial court erred when it did not give the
              plaintiff more time to obtain an accident reconstruction report
              before ruling on the defendant’s motion for summary
              judgment.

              2. Whether the trial court improperly granted summary
              judgment based on its perception of insufficient evidence to
              prove causation.

                                             III.

       A trial court’s decision as to whether it should grant or deny a request for more
time is a matter that falls squarely within the court’s discretion. This is true whether the
analysis is done under Tenn. R. Civ. P. 6.02, which provides that “[w]hen . . . an act is
required or allowed to be done at or within a specified time, the court for cause shown
may, at any time in its discretion, . . . upon motion made after the expiration of the
specified period permit the act to be done, where the failure to act was the result of
excusable neglect,” (emphasis added), or under Tenn. R. Civ. P. 56.07, which applies to a
court’s consideration of a motion for summary judgment. Rule 56.07 states:

                                              4
             Should it appear from the affidavits of a party opposing the
             motion [for summary judgment] that such party cannot for
             reasons stated present by affidavit facts essential to justify the
             opposition, the court may refuse the application for judgment
             or may order a continuance to permit affidavits to be obtained
             or depositions to be taken or discovery to be had or may make
             such other order as is just.

        “If the nonmoving party seeks to continue a motion for summary judgment by
submitting an affidavit requesting additional time for discovery in compliance with
Tennessee Rule of Civil Procedure 56.07, we review the trial court’s decision to deny
additional time for discovery for an abuse of discretion.” Fed. Nat’l Mortg. Assoc. v.
Daniels, No. W2015-00999-COA-R3-CV, 2015 WL 9304278, at *4 (Tenn. Ct. App.,
filed Dec. 21, 2015) (citing Regions Fin. Corp. v. Marsh USA, Inc., 310 S.W.3d 382,
401 (Tenn. Ct. App. 2009)); Gilchrist v. Aristorenas, No. W2007-01919-COA-R3-CV,
2008 WL 4981103, at *4 (Tenn. Ct. App., filed Nov. 24, 2008) (“We review a trial
court’s refusal to grant a continuance under Rule 56.07 for an abuse of discretion”)
(citations omitted).

      Regarding our standard of review under the “abuse of discretion” standard, the
Supreme Court has stated,

             The abuse of discretion standard of review envisions a less
             rigorous review of the lower court’s decision and a decreased
             likelihood that the decision will be reversed on appeal. Beard
             v. Bd. of Prof’l Responsibility, 288 S.W.3d 838, 860 (Tenn.
             2009); State ex rel. Jones v. Looper, 86 S.W.3d 189, 193
             (Tenn. Ct. App. 2000). It reflects an awareness that the
             decision being reviewed involved a choice among several
             acceptable alternatives. Overstreet v. Shoney’s, Inc., 4
             S.W.3d 694, 708 (Tenn. Ct. App. 1999). Thus, it does not
             permit reviewing courts to second-guess the court below,
             White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct.
             App. 1999), or to substitute their discretion for the lower
             court’s, Henry v. Goins, 104 S.W.3d 475, 479 (Tenn. 2003);
             Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn.
             1998). The abuse of discretion standard of review does not,
             however, immunize a lower court’s decision from any
             meaningful appellate scrutiny. Boyd v. Comdata Network,
             Inc., 88 S.W.3d 203, 211 (Tenn. Ct. App. 2002).

                                             5
             Discretionary decisions must take the applicable law and the
             relevant facts into account. Konvalinka v. Chattanooga–
             Hamilton County Hosp. Auth., 249 S.W.3d 346, 358 (Tenn.
             2008); Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996).
             An abuse of discretion occurs when a court strays beyond the
             applicable legal standards or when it fails to properly consider
             the factors customarily used to guide the particular
             discretionary decision. State v. Lewis, 235 S.W.3d 136, 141
             (Tenn. 2007). A court abuses its discretion when it causes an
             injustice to the party challenging the decision by (1) applying
             an incorrect legal standard, (2) reaching an illogical or
             unreasonable decision, or (3) basing its decision on a clearly
             erroneous assessment of the evidence.

Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010).

       Regarding our standard of review of a grant of summary judgment, the Supreme
Court has recently opined:

             Summary judgment is appropriate when “the pleadings,
             depositions, answers to interrogatories, and admissions on
             file, together with the affidavits, if any, show that there is no
             genuine issue as to any material fact and that the moving
             party is entitled to a judgment as a matter of law.” Tenn. R.
             Civ. P. 56.04. We review a trial court’s ruling on a motion
             for summary judgment de novo, without a presumption of
             correctness.

                                     *      *       *

             [I]n Tennessee, as in the federal system, when the moving
             party does not bear the burden of proof at trial, the moving
             party may satisfy its burden of production either (1) by
             affirmatively negating an essential element of the nonmoving
             party’s claim or (2) by demonstrating that the nonmoving
             party’s evidence at the summary judgment stage is
             insufficient to establish the nonmoving party’s claim or
             defense. . . . The nonmoving party must demonstrate the
             existence of specific facts in the record which could lead a
             rational trier of fact to find in favor of the nonmoving party.

                                            6
Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn.
2015) (italics in original).

       In determining whether summary judgment was correctly granted,

              [w]e must view all of the evidence in the light most favorable
              to the nonmoving party and resolve all factual inferences in
              the nonmoving party’s favor. Martin v. Norfolk S. Ry. Co.,
              271 S.W.3d 76, 84 (Tenn. 2008); Luther v. Compton, 5
              S.W.3d 635, 639 (Tenn. 1999); Muhlheim v. Knox Cnty. Bd.
              of Educ., 2 S.W.3d 927, 929 (Tenn. 1999). If the undisputed
              facts support only one conclusion, then the court’s summary
              judgment will be upheld because the moving party was
              entitled to judgment as a matter of law. See White v.
              Lawrence, 975 S.W.2d 525, 529 (Tenn. 1998); McCall v.
              Wilder, 913 S.W.2d 150, 153 (Tenn. 1995).

Wells Fargo Bank, N.A. v. Lockett, No. E2013-02186-COA-R3-CV, 2014 WL 1673745,
at *2 (Tenn. Ct. App., filed Apr. 24, 2014).

                                            IV.

       Summary judgment jurisprudence in this state is governed by Tenn. R. Civ. P. 56.
A party opposing a properly filed motion for summary judgment and its accompanying
statement of material facts as to which the moving party contends there is no genuine
issue for trial, see Tenn. R. Civ. P. 56.03, must serve and file a response to each fact set
forth by the movant not later than five days before the hearing. Id. Similarly, Rule 56.04
provides that the party opposing summary judgment “may serve and file opposing
affidavits not later than five days before the hearing.” “When a motion for summary
judgment is made and supported as provided in this rule, an adverse party may not rest
upon the mere allegations or denials of the adverse party’s pleading, but his or her
response, by affidavits or as otherwise provided in this rule, must set forth specific facts
showing that there is a genuine issue for trial.” Tenn. R. Civ. P. 56.06.

       As this Court has observed,

              one method of defeating a properly supported motion for
              summary judgment is through a request for more discovery:

                     [Nonmoving] parties may deflect a summary
                     judgment motion challenging their ability to
                                             7
                    prove an essential element of their case by (1)
                    pointing to evidence either overlooked or
                    ignored by the moving party that creates a
                    factual dispute, (2) rehabilitating evidence
                    challenged by the moving party, (3) producing
                    additional evidence that creates a material
                    factual dispute, or (4) submitting an affidavit in
                    accordance with Tenn. R. Civ. P. 56.07
                    requesting additional time for discovery. Rains
                    v. Bend of the River, 124 S.W.3d 580, 587–88
                    (Tenn. Ct. App. 2003) (citing Staples v. CBL &
                    Assoc., Inc., 15 S.W.3d 83, 88–89 (Tenn.
                    2000); McCarley v. West Quality Food Serv.,
                    960 S.W.2d 585, 588 (Tenn. 1998)).

             Regions Financial Corp. v. Marsh USA, Inc., 310 S.W.3d
             382, 401 (Tenn. Ct. App. 2009) (emphasis added). The
             interest in full discovery, however, must be balanced against
             the purpose of summary judgment: “[to] provide[ ] a quick,
             inexpensive way to conclude cases when there exists no
             dispute regarding the material facts.” Hannan v. Alltel
             Publishing Co., 270 S.W.3d 1, 13 (Tenn. 2008).

Cardiac Anesthesia Servs., PLLC v. Jones, 385 S.W.3d 530, 537 (Tenn. Ct. App. 2012)
(emphasis and bracketing in original).

       In Gilchrist, we reviewed the trial court’s denial of a plaintiff’s request for a
continuance for more discovery under Rule 56.07, and stated:

             If the plaintiff is faced with a motion for summary judgment
             and is not yet prepared to offer expert proof in response to the
             motion, he may, under appropriate circumstances, seek a
             continuance under Rule 56.07 of the Tennessee Rules of Civil
             Procedure. Rule 56.07 “is intended to serve as an additional
             safeguard against an improvident or premature grant of
             summary judgment.” Kenyon v. Handal, 122 S.W.3d 743,
             753 n. 7 (Tenn. Ct. App. 2003). A court considering a request
             for a continuance filed under Rule 56.07 must balance the
             Rule’s protective purpose against the potential for its use “to
             aid parties who have been lazy or dilatory.” Id.

                                            8
2008 WL 4981103, at *5 (footnote and internal citations omitted).

       Both the language of Rule 56.07, and the appellate opinions construing it, state
that an affidavit must be filed in support of a request for more time. For instance, in
Daniels, we recently said:

              an affidavit submitted by a party seeking further discovery
              pursuant to Rule 56.07 need not contain evidentiary facts
              related to the substantive merits of the case; rather, it must
              explain why the nonmoving party has not been able to obtain
              and present the evidentiary material needed to oppose the
              summary judgment motion. Kenyon, 122 S.W.3d at 753 n.7;
              see also 4 Nancy Fraas MacLean, Tennessee Practice Series–
              Rules of Civil Procedure Annotated § 56:9 (4th ed. 2006)
              (“The request for a continuance must be based upon affidavit
              stating the reasons why the party is unable to present by
              affidavit facts essential to justify opposition to the motion for
              summary judgment.”). . . . The statements in Mr. Daniels’s
              affidavit relate solely to the substantive merits of his position;
              it does not state the reasons why he is unable to present by
              affidavit the facts needed to oppose FNMA’s motion for
              summary judgment. Thus, because Mr. Daniels failed to
              comply with Rule 56.07, we conclude that the Circuit Court
              did not abuse its discretion in denying his request for further
              discovery.

2015 WL 9304278, at *7 (emphasis added); see also Cardiac Anesthesia Servs., 385
S.W.3d at 537.

       In the present case, plaintiff did not file an affidavit at all. There is no explanation
why he “was not able to obtain and present the evidentiary material needed to oppose the
summary judgment motion.” Id. Moreover, not only did he fail to request more time
five days or more prior to the summary judgment hearing, he did not request additional
time until after the hearing was over. The trial court did not abuse its discretion in
deciding this was too late. Under similar circumstances, this Court has held,

              the Trial Court did not abuse its discretion in refusing to
              allow further discovery. Defendant raised the learned
              intermediary defense in its answer. Over seventeen months
              passed before the defendant, relying on Dr. Jeffries’ affidavit,
              moved for summary judgment. The plaintiff waited until the
                                              9
              day argument was to be heard on the motion before giving
              formal notice that he wished to take Dr. Jeffries’ deposition.
              This was some seventy days after the summary judgment
              motion had been filed. Under these circumstances, we
              conclude the Trial Judge did not abuse his discretion in
              denying this motion.

Harden v. Danek Med., Inc., 985 S.W.2d 449, 453-454 (Tenn. Ct. App. 1998); see also
City of Chattanooga v. Hargreaves Assoc., Inc., No. E2011-01197-COA-R3-CV, 2012
WL 2353688, at *12, n.10 (Tenn. Ct. App., filed June 21, 2012) (Plaintiffs “did not file a
motion for discovery or a motion to continue the hearing. Instead, they waited until the
day of the agreed upon hearing date to argue the issue that consideration of the summary
judgment motion was premature. . . . [W]aiting until the day of the hearing on a motion
for summary judgment to seek additional time is usually too late.”).

       The purpose of Rule 56.07 is to allow all parties a “reasonable opportunity” to
proffer evidence in support of or opposition to a motion for summary judgment. Int’l
Merch. Servs., Inc. v. ATM Central, LLC, No. W2003-00849-COA-R3-CV, 2004 WL
170392, at *4-5 (Tenn. Ct. App., filed Jan. 27, 2004); In re Conservatorship of Starnes,
No. W2013-02614-COA-R3-CV, 2014 WL 6977831, at *8 (Tenn. Ct. App., filed Dec.
10, 2014). In this case, plaintiff had such a “reasonable opportunity” to obtain and
present evidence from an accident reconstruction expert. When the plaintiff filed his
complaint, he was aware that (1) he had no memory of the accident; (2) the other driver
had been killed; (3) there were no other witnesses; and (4) the investigating officer’s
report said that the location of impact could not be determined. Approximately fifteen
months elapsed between the filing of the complaint and defendant’s motion for summary
judgment.

        Plaintiff argues that the trial court erred by dismissing his claims without
consideration of his “motion for enlargement of time,” citing the trial court’s statement in
its order entered August 6, 2015, that “there has been no designation of any experts or a
request for time to get one.” This argument is belied by the trial court’s order entered
August 26, 2015, stating that the case “came to be heard on Monday, August 24, 2015 . . .
on the plaintiff’s motion for additional time, and it appearing to the court that said motion
is not well taken or proper and should be denied.” Although the trial court may not have
been aware of plaintiff’s pending motion at the time it entered its summary judgment
order, possibly because it was not filed until after the hearing and three days before entry
of the court’s order, the August 26 order shows that it gave full consideration to
plaintiff’s motion.



                                             10
      As the trial court correctly observed, there is unfortunately no evidence available
to prove the cause of the car accident. Plaintiff relies on the investigating officer’s
accident report stating that the toxicology report showed hydrocodone and
hydromorphone in the decedent’s system. Even assuming that decedent was intoxicated
or impaired, there is no proof showing a causal link between his condition and the
accident. Consequently, the trial court correctly granted summary judgment to defendant.

                                           V.

        The judgment of the trial court is affirmed. Costs on appeal are assessed to the
appellant, Christopher Denton. Case remanded for collection of costs assessed by the
trial court.


                                                _______________________________
                                                CHARLES D. SUSANO, JR., JUDGE




                                           11
