                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE

             KARUNA T. SONI, ET AL. v. KENNETH P. TULLY, ET AL.

               Extraordinary Appeal from the Circuit Court for Davidson County
                          No. 97C2033    Marietta M. Shipley, Judge



                    No. M2000-00594-COA-R10-CV - Decided April 7, 2000


This extraordinary appeal involves an automobile collision. The driver of the automobile that was
struck from behind and her husband filed a negligence action in the Circuit Court for Davidson
County against the driver and record owner of the automobile that struck her. The trial court granted
the plaintiffs’ motion for partial summary judgment on the issue of the driver’s liability. The
defendants applied for an extraordinary appeal after the trial court declined to grant them an
interlocutory appeal. We have determined this is a proper case for an extraordinary appeal and that
the plaintiffs are not entitled to a partial summary judgment because of the existence of material
factual disputes regarding liability. Accordingly, pursuant to Tenn. Ct. App. R. 10(b),1 we reverse
the partial summary judgment and remand the case for further proceedings.

   Tenn. R. App. P. 10 Extraordinary Appeal; Judgment of the Circuit Court Reversed.

KOCH , J., delivered the opinion of the court, in which CANTRELL, P.J., M.S. and COTTRELL, J. joined.

Michael Parks Mills and William Bryan Smith, Nashville, Tennessee, for the appellants, Kenneth
P. Tully and Dorothy S. Tully.

Joseph Y. Longmire, Hendersonville, Tennessee, for the appellees Karuna T. Soni and Sushil K.
Soni.




       1
           Tenn. Ct. App. R. 10(b) provides:

       The Court, with the concurrence of all judges participating in the case, may affirm,
       reverse or modify the actions of the trial court by memorandum opinion when a
       formal opinion would have no precedential value. When a case is decided by
       memorandum opinion, it shall be designated “MEMORANDUM OPINION,” shall
       not be published, and shall not be cited or relied on for any reason in a subsequent
       unrelated case.
                                  MEMORANDUM OPINION

       On August 7, 1996, Karuna T. Soni was driving north in the middle lane of Interstate 65 in
Davidson County. Her Mercedes was directly in front of a 1991 Pontiac Grand Am being driven by
Kenneth P. Tully who was driving home from work. Mr. Tully’s attention was distracted
momentarily by “a loud noise . . . that sounded like a truck,” causing him to glance away from the
road in front of him. While his attention was diverted, the traffic in front of him “stopped . . .
suddenly and without warning.” Mr. Tully was unable to stop his automobile and struck the rear end
of Ms. Soni’s automobile.

        Ms. Soni and her husband filed suit against Mr. Tully and his mother in whose name the
Pontiac was titled.2 Following discovery, Ms. Soni and her husband moved for a partial summary
judgment on “all issues of liability.” Mr. Tully responded by asserting that summary judgment was
not warranted because he had not acted negligently by looking to his left to determine the cause of
the loud noise he had heard. On February 2, 2000, the trial court granted the motion for summary
judgment with regard to Mr. Tully’s liability but reserved deciding the “vicarious liability” of Mr.
Tully’s mother. Thereafter, the trial court set the case for trial on April 10, 2000 and denied Mr.
Tully’s application for an interlocutory appeal.

         On March 15, 2000, Mr. Tully filed an application for extraordinary appeal with this court
asserting that the trial court erred by granting the partial summary judgment on the issue of his
liability. We directed Ms. Soni to respond to Mr. Tully’s application and also directed the clerk of
the trial court to certify and forward copies of the motion for partial summary judgment and all
documents in support of or in opposition to the motion. Based upon the application, the response,
the supporting documents, and the portion of the record certified and filed by the trial court clerk,
we have determined that no further briefing or argument is necessary and that the interests of the
parties require us to proceed to the merits of the extraordinary appeal. Thus, in accordance with
Tenn. R. App. P. 2, we suspend the application of Tenn. R. App. P. 24-26, and 29, and find that oral
argument is unnecessary pursuant to Tenn. R. App. P. 35(c). See Hammock v. Sumner Co., No.
01A01-9710-CV-00600, 1997 WL 749461 (Tenn. Ct. App. Dec. 15, 1997) pet. reh’g denied (Tenn.
Ct. App. Dec. 30, 1997) (No Tenn. R. App. P. 11 application filed).

                                                 I.

       Summary judgments are not entitled to a presumption of correctness on appeal. See City of
Tullahoma v. Bedford County, 938 S.W.2d 408, 412 (Tenn.1997); McClung v. Delta Square Ltd.
Partnership, 937 S.W.2d 891, 894 (Tenn.1996). Thus, on appeal from a summary judgment, the
reviewing court must make a fresh determination concerning whether the requirements of Tenn. R.



       2
        Mr. Tully denied that his mother owned the automobile even though it was titled in her
name. He asserted that he is the primary driver and that he is personally responsible for paying the
note and insurance premiums and for maintaining the automobile.

                                                -2-
Civ. P. 56 have been met. See Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.1997); Mason v.
Seaton, 942 S.W.2d 470, 472 (Tenn.1997).

        A summary judgment is warranted only when there are no genuine, material factual disputes
with regard to the claim asserted and when the moving party is entitled to a judgment as a matter of
law. See Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997); McCall v. Wilder, 913 S.W.2d 150,
153 (Tenn.1995). Reviewing courts must view the evidence in the light most favorable to the
nonmoving party and must draw all reasonable inferences in the nonmoving party's favor. See
Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn.1997); Mike v. Po Group, Inc., 937 S.W.2d 790, 792
(Tenn.1996). We will not affirm a summary judgment if any doubt or uncertainty exists with regard
to the facts or the conclusions to be drawn from the facts. See Carvell v. Bottoms, 900 S.W.2d 23,
26 (Tenn.1995); Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn.1993). Accordingly, to survive a
summary judgment motion, the non moving party need only demonstrate that reasonable persons
might draw different conclusions from the facts. See McCall v. Wilder, 913 S.W.2d at 157.

        The Sonis’ motion for summary judgment asserts that they are entitled to a judgment as a
matter of law because Mr. Tully and his mother cannot attribute any fault to Ms. Soni. While it may
be undoubtedly true that Ms. Soni is without fault, her lack of negligence does not necessarily
prevent reasonable jurors from determining that Mr. Tully himself was not negligent in light of his
“distraction” and “sudden emergency” defenses.

       We would not second-guess the trial court’s action were we reviewing a decision following
a bench trial. However, we are reviewing a summary judgment. Accordingly, we must view the
evidence in the light most favorable to Mr. Tully, and we must draw all reasonable inferences in his
favor. From this vantage point, we have concluded that reasonable jurors could reach different
conclusions as to whether Mr. Tully was acting with reasonable prudence when the collision
occurred. Because conducting a trial on the issue of damages will most likely involve much of the
same proof that will be required for a full trial, trying the issue of liability should not greatly increase
the time and expense of the litigation.

                                                    II.

        We reverse the partial summary judgment regarding Mr. Tully’s liability and remand the case
for further proceedings. We tax the costs of this appeal to Karuna T. Soni and Sushil K. Soni for
which execution, if necessary, may issue.




                                                    -3-
