                                                                                            09/20/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                August 8, 2018 Session

 TAYLOR SHERRER EX REL LILLY S. ET AL. v. JOHN B. CLEGHORN
                         ET AL.

                  Appeal from the Circuit Court for Lincoln County
                   No. 2015-CV-102 Franklin L. Russell, Judge
                     ___________________________________

                           No. M2018-00023-COA-R3-CV
                       ___________________________________

This is a wrongful death case. Decedent was operating his motor vehicle in the early
morning when he struck a bull in the middle of the road. As a result of the collision,
Decedent’s vehicle careened off the road and flipped upside down into a nearby creek,
where Decedent drowned. Plaintiffs, Decedent’s surviving spouse and children, sued
Defendant, alleging that he was negligent in his ownership and control of the bull.
Defendant denied ownership, possession, or control of the bull and moved for summary
judgment, which the trial court granted. On appeal, Plaintiffs argue that the trial court
erred at the summary judgment stage by weighing the evidence and making
determinations as to the credibility of witnesses. We agree and reverse.

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

ARNOLD B. GOLDIN, J., delivered the opinion of the Court, in which RICHARD H.
DINKINS and W. NEAL MCBRAYER, JJ., joined.

Ben Boston, Charles W. Holt, Jr., Ryan P. Durham and Cameron Hoffmeyer,
Lawrenceburg, Tennessee, for the appellant, Taylor Sherrer.

John H. Richardson, Jr., Fayetteville, Tennessee, for the appellee, John B. Cleghorn, Jr.

                                        OPINION

                      BACKGROUND AND PROCEDURAL HISTORY

      In the early morning on September 3, 2014, Ryan Wesley Sherrer (“Decedent”)
was driving eastbound on State Highway 275 (“Vanntown Road”) in Lincoln County,
Tennessee. Decedent struck a bull that was wandering in the road, causing his vehicle to
careen off the road and flip upside down into a creek, where he subsequently drowned.
Decedent is survived by his spouse, Taylor Sherrer, and their two minor children
(together, “Plaintiffs”).

       On August 27, 2015, Plaintiffs filed a wrongful death action against John B.
Cleghorn, Sr., John B. Cleghorn, Jr. (“Defendant”), and Lula Belle Cleghorn (together,
“the Cleghorns”), alleging that they owned the bull struck by Decedent and that they
were negligent, careless, and reckless in their control of the bull. Plaintiffs sought
economic and noneconomic damages and loss of consortium against the Cleghorns. In
their answer, filed on October 28, 2015, the Cleghorns denied ownership and control of
the bull struck by Decedent, and they gave notice that John B. Cleghorn, Sr., had died in
October of 1981. In December of 2016, Plaintiffs filed and the trial court approved a
voluntary dismissal of John B. Cleghorn, Sr., and Lula Belle Cleghorn, leaving only
Defendant.

        After several depositions were taken by both parties, Defendant moved for
summary judgment on March 24, 2017. In support of his motion, Defendant argued that,
because Plaintiffs could not prove Defendant’s ownership, possession, or control of the
bull, there was insufficient evidence for Plaintiffs to establish their claim. In response,
Plaintiffs argued that Defendant failed to carry his initial burden in shifting the burden to
Plaintiffs and that, even if he had, material issues of disputed fact existed, rendering an
award of summary judgment improper.

        The trial court, however, agreed with Defendant and granted his motion for
summary judgment on December 4, 2017, finding that Plaintiffs had not produced
sufficient evidence to create an issue of material fact as to whether Defendant owned the
bull. Plaintiffs timely appealed.

                                    ISSUE PRESENTED

        Plaintiffs raise only one issue on appeal, which we restate as follows: Whether the
trial court erred in granting summary judgment to Defendant, despite the existence of
genuine issues of material fact and the reasonable inferences drawn therefrom tending to
establish that Defendant negligently failed to prevent the harm caused by the bull.

                                  STANDARD OF REVIEW

        “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.’” Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477
S.W.3d 235, 250 (Tenn. 2015) (quoting 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
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correctness.” Id. “In doing so, we make a fresh determination of whether the
requirements of Rule 56 of the Tennessee Rules of Civil Procedure have been satisfied.”
Id. “Summary judgments should not be used to find facts, to resolve factual disputes, or
to choose among various permissible factual inferences. Thus, courts should not weigh
the evidence in summary judgment proceedings, and likewise, they should not make
credibility determinations.” Burgess v. Harley, 934 S.W.2d 58, 66 (Tenn. Ct. App. 1996)
(internal citations omitted). “The courts must deny a motion for summary judgment if
any doubt exists with regard to the facts or the conclusions to be drawn from the facts.”
Id. (citing Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn. 1993)).

                                          DISCUSSION

       In its order, the trial court stated that “there [was] no direct evidence that the bull
involved in the accident belonged to [Defendant] or that on the day or night of the
accident that any animal escaped from [Defendant’s] property onto the road.”1 The trial
court also stated that, as a matter of law, “there ha[d] not been enough evidence of
contradictions or falsehoods on the part of [Defendant] to make his credibility a major
issue in the case and thereby to negate his denial of ownership of the bull.” Plaintiffs
contend, however, that in making such determinations, the trial court “blanketly
accepted” and “essentially took as true the defendant’s denial of ownership of the bull—
relying on and quoting exclusively from defense counsel’s direct examination of the
witnesses in its memorandum—while downplaying and even disregarding all conflicting
evidence” favorable to Plaintiffs. After our review of the record on appeal, we agree.

       In its order granting Defendant’s motion for summary judgment, the trial court
cited to the deposition testimony of Defendant and of Terri Ellen—Defendant’s
daughter—who each testified that the bull involved in the accident did not belong to
Defendant. It also cited to Defendant’s deposition testimony in which he stated that he
knew the bull involved in the accident was not his because it “look[ed] like an Angus
bull” and that “my cattle and bulls are what you call a Brangus bull.” However, omitted
from the trial court’s order was any reference to Veterinarian Mark Short’s affidavit in
which he swore that the bull in the photographs of the accident did not appear to be an
Angus bull—as Terri Ellen had also testified—but rather a Limousin bull. Although
there was conflicting evidence as to what types of bulls Defendant owned, there was
some evidence suggesting that he owned a Limousin bull. For example, although in one
portion of his deposition testimony Defendant remarked that he owned “two Brangus
bulls and two red and white bulls,” elsewhere he testified that he owned two red and
white Hereford bulls, one black Brangus bull, and one black Limousin bull. Moreover, in
contrast to Terri Ellen’s testimony that Defendant owns two Hereford bulls and two
Brangus bulls, we observe that Defendant’s son-in-law, Mike Ellen, testified that

       1
         This issue was further complicated by the fact that the Defendant did not brand or tag its
livestock to evidence ownership.
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Defendant owns Brangus, Hereford, and Limousin bulls. The discrepancies between
these portions of the witnesses’ testimonies clearly indicate that there is a genuine issue
of material fact as to the type of bull involved in the accident as well as the type of bulls
owned by Defendant. Although the resolution of these inconsistencies may be favorable
to either Plaintiffs or Defendant at trial, such a resolution was inappropriate at the
summary judgment stage.

       In addition to the evidence discussed above, the deposition testimony of Beau
Tarryn Mitchell also created a genuine issue of material fact regarding the issue of
ownership of the bull. The trial court, however, labeled Mr. Mitchell’s testimony as
“contradictory,” pointing to alleged differences between his two affidavits and his
deposition testimony. In one affidavit, dated May 8, 2017, offered in opposition to
Defendant’s motion for summary judgment, Mr. Mitchell swore “[t]he farm and pasture
that the black bull went into is the [Defendant’s] farm.” In the second affidavit, dated
May 14, 2017, offered in support of Defendant’s motion for summary judgment, Mr.
Mitchell swore he “did not see where [the bull] came from” and that he “did not see the
bull go onto [Defendant’s] property or through any portion of [Defendant’s] fence.”
Regarding these statements, the trial court cited to this Court’s summary of Tennessee
law on contradictory statements by a single witness:

       Tennessee follows the rule that contradictory statements by the same
       witness regarding a single fact cancel each other out. The Tennessee
       Supreme Court has characterized mutually contradictory statements by the
       same witness as “no evidence” of the fact sought to be proved. However,
       in order to be disregarded under the so-called cancellation rule, the
       allegedly contradictory statements must be unexplained and neither
       statement can be corroborated by other competent evidence.

Church v. Perales, 39 S.W.3d 149, 169 (Tenn. Ct. App. 2000) (internal citations omitted)
Applying the so-called cancellation rule, the trial court concluded that “the weight to be
given to [Mr. Mitchell’s] evidence is slight at best,” that neither version of Mr. Mitchell’s
versions of the events were corroborated or could be reconciled by any explanation, and
that the “watered-down version of Mr. Mitchell’s testimony” made such proof “virtually
useless” in the determination of the ownership of the bull. The trial court, however,
failed to consider certain, relevant portions of Mr. Mitchell’s deposition testimony. For
instance, although he admitted he could not prove that the bull went back through the
fence and onto Defendant’s property, Mr. Mitchell, on numerous occasions throughout
his testimony, stated that the bull had nowhere else to go but through the fence onto
Defendant’s property:

       Q:    Based on the width of the thicket and the length of the bull, did the
       bull have to go through the fence the way that you’re watching and
       observing?
                                         -4-
      A:        Yes.
      [. . . .]
      Q:        Based on your knowledge of this thicket, the fence that’s on the
      other side of the thicket, this area of [Defendant’s] property, and what you
      observed this night of September 2nd, is there any place this bull could
      have gone other than back onto [Defendant’s] property from where you
      were standing and where the bull was?
      A:        No . . . .
      [. . . .]
      Q: [I]f he wasn’t in the yard with you, where did the bull have to be based
      on your knowledge of the area and that fencerow?
      A:        Through the fence.
      [. . . .]
      Q:        Is there any place this bull could have gone other than in that field
      from what you observed?
      A:        No.
      Q:        Did it have to go in that field?
      A:        Yes. I was behind it. It had nowhere else to go.

We believe these additional statements do explain and do clarify the allegedly
contradictory statements previously given by Mr. Mitchell in his two affidavits. Such an
explanation, as noted by our Perales decision, bars application of the cancellation rule.
Although they do not prove whether he saw the bull enter through the fence and onto
Defendant’s property, such a determination is unnecessary, given that such evidence is
purely circumstantial. Accordingly, the trial court improperly excluded this evidence
from its summary judgment consideration.

       Plaintiffs also contend that they presented sufficient circumstantial evidence from
which a reasonable person could conclude that the bull had escaped from Defendant’s
farm. According to Plaintiffs, the trial court “minimized and glossed over” the facts that
Defendant’s fence bordered Vanntown Road and that it was “rampant with defects,”
including holes, broken wires, and fallen trees across the fence line. The trial court
admitted the record contained “sworn evidence” to support these facts, but it stated that
there was “no direct evidence” that the bull involved in the accident belonged to
Defendant or that such bull had escaped from Defendant’s farm. However, as discussed
by this Court in State v. Phillips:

      Litigants may prove any material fact by direct or circumstantial evidence
      or a combination of both. Accordingly, in civil cases, litigants may carry
      their burden of proof using either direct or circumstantial evidence. In fact,
      litigants may prove their claim or defense entirely with circumstantial
      evidence because there are situations in which circumstantial evidence may
      be more convincing than direct evidence.
                                           -5-
State v. Phillips, 138 S.W.3d 224, 230-31 (Tenn. Ct. App. 2003). The “sworn evidence
in the record” alluded to in the trial court’s order refers to portions of the deposition
testimonies of Defendant, Mr. Ellen, and Mr. Mitchell, which are briefly summarized as
follows: Defendant testified that his cattle had escaped in the past due to defects in his
fence, such as holes, broken wires, and fallen trees, Mr. Ellen testified that he had offered
to get somebody to come out and give Defendant an estimate on a new fence, but
Defendant refused, and Mr. Mitchell testified that Defendant’s fence had been in “bad
shape” for the entire 14 years Mr. Mitchell had lived in the area and that, on the night
before the accident, he saw a black bull outside and along Defendant’s property line.
Because it is immaterial whether the evidence offered by litigants is direct or
circumstantial, we believe Plaintiffs presented a sufficient amount of evidence—as
discussed above—from which reasonable minds could differ as to whether the bull
belonged to Defendant and whether it escaped from his property.

                                       CONCLUSION

        As stated by Plaintiffs in their appellate brief, there was sufficient evidence
presented below favorable to Plaintiffs. Defendant may or may not have owned a black
Limousin bull, which may or may not have been the same bull struck by Decedent in his
vehicle; Decedent struck the bull on Vanntown Road, in close proximity to Defendant’s
farm; the fence bordering Defendant’s farm and Vanntown Road was rampant with
defects, and Defendant’s cattle had escaped his farm in the past; and Mr. Mitchell
witnessed a black bull on Vanntown Road the night before the accident and followed it
back toward Defendant’s property. Viewing this evidence in the light most favorable to
the nonmoving party—Plaintiffs—and drawing all reasonable inferences therefrom in
their favor, a genuine issue of material fact existed. As such, the trial court’s order
granting Defendant’s motion for summary judgment was improper. For the foregoing
reasons, the trial court’s summary judgment order is reversed, and the case is remanded
for further proceedings as may be necessary and are consistent with this Opinion.



                                                  _________________________________
                                                  ARNOLD B. GOLDIN, JUDGE




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