                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                  June 21, 2011 Session

                     LOUIS BONANNO, SR. v. WILLA FARIS

              Appeal from the Circuit Court for Washington County
                      No. 27972    Jean A. Stanley, Judge



             No. 2010-02326-COA-R3-CV-FILED-AUGUST 1, 2011


The plaintiff requested a transcript of a deposition from the defendant, a court reporter.
When the defendant notified the plaintiff that the transcript was ready and told him her fee,
he neither retrieved the transcript nor paid her. After the defendant made several telephone
calls to the plaintiff in an attempt to obtain payment, the plaintiff brought an action against
the defendant. The trial court granted the defendant’s motion for summary judgment. The
plaintiff appeals. We affirm.

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

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which H ERSCHEL P. F RANKS,
P.J., and D. M ICHAEL S WINEY, J., joined.

Louis Bonanno, Sr., Jonesborough, Tennessee, appellant, pro se.

Dan R. Smith, Johnson City, Tennessee, for the appellee, Willa Faris.

                                         OPINION

                                    I. BACKGROUND

       The plaintiff, Louis Bonanno, Sr., first encountered the defendant, Willa Faris, a court
reporter, during the course of a deposition taken in a federal court case Mr. Bonanno filed
against a prior employer. At the conclusion of the deposition, Mr. Bonanno requested that
Ms. Faris provide him a copy of the deposition transcript. When Ms. Faris made the
transcript available to Mr. Bonanno and advised him that the fee for the copy was $250, he
never retrieved the transcript and refused to pay the fee. Mr. Bonanno testified in a
deposition, inter alia, as follows:

       Q. Okay. Did you call [Ms. Faris] and tell her . . . that you didn’t need her
       deposition [transcript], to stop working on it?

       A. No, I did not.

       Q. Okay. And you admit that you told her to get you a deposition [transcript];
       isn’t that true?

       A. Yes.

                                           ***

       Q. And you don’t deny that she has a basis for believing that you owe her
       money?

       A. Everybody has a basis.

       Q. Which was she did the transcript for you, right?

       A. Yes, she had the – well, she says she has a transcript.

       Q. You just don’t think she did it in the right amount of time?

       A. True.


        When Mr. Bonanno would not pay for the transcript copy, Ms. Faris allegedly called
him on six occasions between May 14 and November 6, 2009, soliciting payment. She
admits that she called Mr. Bonanno one time at his place of employment and left a message
that she would sue him if he did not pay the fee for the transcript. Mr. Bonanno eventually
filed this action deemed by the trial court to be an emotional distress claim.

       Upon Ms. Faris filing a motion for summary judgment, a hearing was held on October
11, 2010. The trial court granted the dispositive motion and ruled as follows:

       1. Plaintiff’s claim is for damages arising from a claim of intentional or
       negligent infliction of emotional distress;

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      2. Plaintiff has failed to show any material evidence as to each of the five
      elements of general negligence – duty, breach of duty, injury or loss, causation
      in fact, and proximate or legal cause; and

      3. Plaintiff has failed to demonstrate through expert or scientific proof that he
      has suffered a serious or severe emotional injury occasioned by any action or
      inaction of the defendant.

                                             ***

      IT IS THEREFORE ORDERED, ADJUDGED and DECREED that
      Defendant’s Motion for Summary Judgment be and the same is hereby
      Granted;

      IT IS FURTHER ORDERED, ADJUDGED and DECREED that Judgment is
      enter[e]d in favor of Willa Faris, defendant, and the case is hereby dismissed
      against defendant with full prejudice . . . .

The trial court denied Mr. Bonanno’s motion for summary judgment and request for
reconsideration of the trial court’s ruling. This timely appeal was filed.


                                         II. ISSUE

     Mr. Bonanno’s sole issue presented is whether the trial court correctly granted
summary judgment.


                             III. STANDARD OF REVIEW

       Our review of this appeal is guided by the law applicable to summary judgments and
the scope of review as stated in Martin v. Norfolk Southern Ry. Co., 271 S.W.3d 76 (Tenn.
2008):

      The moving party is entitled to summary judgment only if the “pleadings,
      depositions, answers to interrogatories, and admissions on file, together with
      the affidavits . . . 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; accord Penley v. Honda Motor Co., 31 S.W.3d 181, 183 (Tenn.
      2000). The moving party has the ultimate burden of persuading the court that

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       there are no genuine issues of material fact and that the moving party is
       entitled to judgment as a matter of law. Byrd v. Hall, 847 S.W.2d 208, 215
       (Tenn. 1993). Accordingly, a properly supported motion for summary
       judgment must show that there are no genuine issues of material fact and that
       the moving party is entitled to judgment as a matter of law. See Staples v. CBL
       & Assocs., Inc., 15 S.W.3d 83, 88 (Tenn. 2000); McCarley v. W. Quality Food
       Serv., 960 S.W.2d 585, 588 (Tenn. 1998). If the moving party fails to make
       this showing, then “the non-movant’s burden to produce either supporting
       affidavits or discovery materials is not triggered and the motion for summary
       judgment fails .” McCarley, 960 S.W.2d at 588; accord Staples, 15 S.W.3d at
       88.

                                             ***
       If the moving party makes a properly supported motion, then the nonmoving
       party is required to produce evidence of specific facts establishing that genuine
       issues of material fact exist. McCarley, 960 S.W.2d at 588; Byrd, 847 S.W.2d
       at 215. . . . The nonmoving party’s evidence must be accepted as true, and any
       doubts concerning the existence of a genuine issue of material fact shall be
       resolved in favor of the nonmoving party. McCarley, 960 S.W.2d at 588. “A
       disputed fact is material if it must be decided in order to resolve the
       substantive claim or defense at which the motion is directed.” Byrd, 847
       S.W.2d at 215. A disputed fact presents a genuine issue if “a reasonable jury
       could legitimately resolve that fact in favor of one side or the other.” Id.

       Because the resolution of a motion for summary judgment is a matter of law,
       we review the trial court’s judgment de novo with no presumption of
       correctness. Blair [v. W. Town Mall], 130 S.W.3d [761, 763 (Tenn.2004) ].
       In addition, we are required to review the evidence in the light most favorable
       to the nonmoving party and to draw all reasonable inferences favoring the
       nonmoving party. Staples, 15 S.W.3d at 89.

Id., at 83–84.


                                     IV. DISCUSSION

        A successful claim for negligent infliction of emotional distress in Tennessee must
include all five elements of standard negligence, as well as expert proof establishing that the
plaintiff’s emotional distress is “serious” or “severe.” Eskin v. Bartee, 262 S.W.3d 727, 735
(Tenn. 2008) (emphasis added). “The five elements of negligence include (1) a duty of care

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owed [to] the plaintiff [by] the defendant, (2) conduct by the defendant that breaches this
duty, (3) an injury or loss, (4) a cause-in-fact connection between the plaintiff’s injury or loss
and the defendant’s conduct, and (5) the existence of proximate or legal cause.” Id. at 735
n. 19.

       The three essential elements to a cause of action for intentional infliction of emotional
distress are: (1) the conduct complained of must be intentional or reckless; (2) the conduct
must be so outrageous that it is not tolerated by civilized society; and (3) the conduct
complained of must result in serious mental injury. Bain v. Wells, 936 S.W.2d 618, 622
(Tenn. 1997) (citing Medlin v. Allied Inv. Co., 398 S.W.2d 270, 274 (Tenn. 1966); Johnson
v. Woman’s Hospital, 527 S.W.2d 133, 144 (Tenn. Ct. App. 1975)) (emphasis added).

       The Tennessee Supreme Court held in Camper v. Minor, 915 S.W.2d 437, 446 (Tenn.
1996), a negligent infliction of emotional distress claim, that to avoid against trivial and
fraudulent actions, the law ought to provide recovery only for “serious” or “severe”
emotional injury which occurs “where a reasonable person, normally constituted, would be
unable to adequately cope with the mental stress engendered by the circumstances of the
case.” Id. at 446. The Camper Court held that the plaintiff must support his claim of injury
or impairment by expert medical or scientific proof. Id.

        Mr. Bonanno can prove that Ms. Faris called him on the telephone in an effort to
collect a debt she believed Mr. Bonanno owed for services rendered by her. He can prove
that on one occasion Ms. Faris called him at his place of employment and left a message that
she would take him to court if he did not pay the bill. He alleges that these calls from Ms.
Faris caused him to suffer anxiety and stress. The record, however, contains no evidence that
Mr. Bonanno suffered any loss as a result of the calls. He did not lose any time from work.
He lost no money and had no medical expenses nor did he offer any evidence that he suffered
any incidental costs as a result of any action occasioned by Ms. Faris. Further, Mr. Bonanno
has no expert medical or scientific proof that he has suffered a “serious” or “severe”
emotional injury as the result of any action attributable to Ms. Faris such that a reasonable
person, normally constituted, would be unable to adequately cope with the mental stress
engendered by the circumstances.

        Ms. Faris, therefore, has shown that Mr. Bonanno cannot prove an essential element
of his claim. Based upon our review of the evidence in the record and the applicable legal
principles, we must affirm the ruling of the trial court that there are no genuine issues of
material fact and Ms. Faris is entitled to judgment as a matter of law.




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                                   V. CONCLUSION

      The judgment of the trial court is affirmed and the cause is remanded for such further
proceedings as necessary. Costs of the appeal are assessed to the appellant, Louis Bonanno,
Sr.




                                                  _________________________________
                                                  JOHN W. McCLARTY, JUDGE




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