                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                            Assigned on Brief October 31, 2002

                     JERRY HUNTER v. MTD PRODUCTS, INC.

                  Direct Appeal from the Circuit Court for Haywood County
                           No. 3527    Clayburn L. Peeples, Judge



                  No. W2002-00005-COA-R3-CV - Filed December 20, 2002


Plaintiff sued Defendant alleging a conspiracy. The Defendant filed a motion for summary judgment
which the trial court granted. Plaintiff appeals and we affirm.

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

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY K. LILLARD, J., joined.

Marcus M. Reaves, Jackson, Tennessee, for the appellant, Jerry Hunter.

C. Thomas Hooper, III, Brownsville, Tennessee, for the appellee, MTD Products, Inc.

                                             OPINION

       The plaintiff, Jerry Hunter, sued his former employer, MTD Products, Inc. following his
unsuccessful suit to recover workers’ compensation benefits from the Defendant. The gist of the
complaint is that the Defendant was involved in a conspiracy with its physicians to deny that Plaintiff
was injured on the job and, because of the conspiracy, Plaintiff’s workers’ compensation action was
dismissed.

        Mr. Hunter sued MTD Products, Inc. (MTD) on July 6, 1999, alleging that he was injured
on or about November 18, 1993, and November 8, 1994 while in the course and scope of his
employment with MTD. This action was filed in the Chancery Court of Fayette County, Tennessee.
On October 29, 1999, an order of dismissal with prejudice was entered in that cause on the basis that
the claim was barred by the applicable statute of limitations. See Tenn. Code Ann. § 50-6-203.
        Subsequent to the filing of the complaint in the present case,1 MTD filed a motion for
summary judgment on the basis that the complaint failed to state a cause of action for conspiracy and
that the case was barred by the statute of limitations and the doctrine of res judicata. Mr. Hunter
filed an unsworn response to the motion. The motion for summary judgment came to be heard
before the trial court on December 10, 2001. The morning of that hearing, Mr. Hunter filed a motion
to amend his response to the summary judgment motion.

         The trial court granted MTD’s motion for summary judgment and denied Mr. Hunter’s
motion to amend his response to the summary judgment motion on the basis that he had failed to
comply with rule 56.04 of the Tennessee Rules of Civil Procedure which provides that “[t]he adverse
party may serve and file opposing affidavits not later than five days before the hearing.” The
advisory comment notes that this sentence was amended to require opposing affidavits to be served
five (5) days, not one (1) day, before motion day, thus enabling counsel to be better prepared for oral
argument.

       We perceive the issue to be whether the trial court erred in granting the defendant MTD’s
motion for summary judgment.2

        This Court’s review of a motion for summary judgment is a question of law with no
presumption of correctness attached to the lower court’s judgment. We are to review the record to
determine whether the requirements of Tenn. R. Civ. P. 56 have been met. Summary judgment is
appropriate when there is no genuine issue of material facts and the moving party is entitled to
judgment as a matter of law on the undisputed facts. See Staples v. CBL & Assocs., Inc., 15 S.W.3d
83, 88 (Tenn. 2000).

         The present action was begun by the filing of a complaint on October 1, 2001, alleging that
the Defendant was involved in a conspiracy with “its physicians” which resulted in a dismissal of
the Plaintiff’s workers’ compensation action which was dismissed on October 29, 1999, on the basis
that it was barred by the applicable statute of limitations. Subsequent to the filing of the complaint,
the Defendant filed a motion for dismissal under Rule 10.03 Tenn. R. Civ. P. alleging that the
complaint made reference to documents which were not attached to the complaint. The plaintiff then
filed a motion to supplement the complaint by adding the attachments which consisted of two
affidavits, presumably co-workers of Mr. Hunter, and apparently given to support the fact that Mr.
Hunter had suffered an on-the-job injury. Mr. Hunter’s workers’ compensation action was dismissed
because of the bar of the statute of limitations. The other attachment was an unsworn handwritten
statement of Mr. David L. Smith dated April 15, 2000, wherein he states that he had knowledge that
Mr. Hunter reported a work injury, that some time after that Mr. Hunter asked Mr. Smith if he could
obtain a copy of the accident report. The statement further states that Mr. Smith was informed that

         1
           Mr. Hunter filed the complaint in the present action, as well as the workers’ co mpe nsation action, pro se. A
notice of appearance by his attorney was filed in this cause November 13, 2001.

         2
           The issue as p resented by the Ap pellant is “whether the trial co urt erred in granting D efendant’s mo tion to
supp ress.”

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Mr. Hunter would not get a copy of the report unless his lawyer requested it. Upon explaining this
to Mr. Hunter, Mr. Smith states that he later learned that Mr. Hunter’s lawyer had requested the
report and told that there was not one. The record before us does not indicate that the trial court
acted on this motion. However, a party may amend pleadings once as a matter of course at any time
before a responsive pleading is served, otherwise only by written consent of the adverse party or by
leave of court. Tenn. R. Civ. P. 15.01. Our Supreme Court has held that a motion is not a
responsive pleading. See Adams v. Carter County Mem. Hosp., 548 S.W.2d 307, 309 (1977).
However, “[w]hen a party seeks leave to amend, he waives the absolute right, granted by Tenn. R.
Civ. P. 15, to amend.” Gribble v. Buckner, 730 S.W.2d 630, 633 (Tenn. Ct. App. 1986).


        Defendant asserts that summary judgment was proper because the Plaintiff’s case was barred
by the doctrine of res judicata and that the present action is merely an attempt to resurrect the failed
suit to recover workers’ compensation benefits. We disagree. While the suit for workers’
compensation benefits gave rise to the present case, the Plaintiff has presented an entirely different
issue in the case before us.

        We next address whether or not the Plaintiff has stated a claim against the Defendant upon
which relief can be granted. See Rule 12.02 Tenn. R. Civ. P. Assuming these allegations to be true,
the Plaintiff has failed to demonstrate how such action on the part of Defendant caused the Plaintiff
to wait until 1999 to file his claim for workers’ compensation benefits to compensate him for injuries
alleged to have occurred in 1993 and 1994. We have determined from the record before us that the
complaint, even if we consider the attempted amendment, fails to state a claim upon which relief can
be granted and affirm the judgment of the trial court dismissing the Plaintiff’s cause of action.
Having so determined, we do not find it necessary to address the question of the statute of
limitations. The costs of this appeal are taxed to the appellant, Jerry Hunter, and his surety.



                                                        ___________________________________
                                                        DAVID R. FARMER, JUDGE




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