                                                                                      02/22/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                        Assigned on Briefs February 2, 2018

               APRIL ELASTER v. GARY MASSEY JR., ET AL.

                Appeal from the Circuit Court for Hamilton County
                      No. 15C877 Don R. Ash, Senior Judge
                    ___________________________________

                          No. E2017-00020-COA-R3-CV
                      ___________________________________


In this legal malpractice case, defendant-attorneys filed a motion for summary judgment
alleging that they complied with the applicable standard of care. In response to the
summary judgment motion, Appellant failed to offer any expert proof that defendant-
attorneys breached the applicable standard of care. Accordingly, the trial court granted
summary judgment on this basis. Discerning no error, we affirm.

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

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and JOHN W. MCCLARTY, J., joined.

April Elaster, Chattanooga, Tennessee, Pro Se.

William S. Walton, Nashville, Tennessee, for the appellees, Gary Massey, Jr., Massey &
Associates, PC, and Danny Ellis.

                                      OPINION

                                    BACKGROUND
       Plaintiff/Appellant April Elaster suffered a work-place injury in 2005. With the
help of counsel, Ms. Elaster filed a workers’ compensation claim against her employer.
Following the withdrawal of her initial attorney, Ms. Elaster retained the services of
Defendants/Appellees Gary Massey Jr., d/b/a Massey and Associates, and Danny Ellis
(together, “Appellees”). Appellees represented Ms. Elaster from 2009 until 2014. Since
2014, Ms. Elaster represented herself in the workers’ compensation proceeding.

       On July 20, 2015, Ms. Elaster filed a pro se complaint for legal malpractice
against Appellees. Therein, Ms. Elaster alleged that Appellees failed to adequately
represent her in the workers’ compensation case. Specifically, Ms. Elaster alleged that
Appellees “settled” the workers’ compensation case without informing her. Ms. Elaster
further alleged that she had no knowledge that a “monetary settlement had been taken on
her claim” until she performed her own investigation in July 2014. Appellees filed an
answer denying the material allegations in the complaint. The parties thereafter entered
into a period of discovery.

        After encountering alleged problems obtaining discovery from Ms. Elaster,
Appellees filed a motion to compel on November 3, 2015, which motion was eventually
granted by the trial court. Additional disputes occurred regarding Ms. Elaster’s
deposition; the deposition eventually took place on February 22, 2016. Ms. Elaster also
submitted written discovery to Appellees on March 9, 2016. Appellees responded on
March 25, 2016. Ms. Elaster, however, was unsatisfied with certain responses submitted
by Appellees, particularly where Appellees refused to supply certain information on
grounds that the information was privileged or irrelevant and unlikely to lead to the
discovery of admissible evidence. As such, Ms. Elaster filed several pleadings with the
trial court concerning what she alleged were discovery violations by Appellees.

       In the meantime, on April 20, 2016, Appellees filed a motion for summary
judgment, arguing, inter alia, that they had complied with all relevant standards of care in
their representation of Ms. Elaster and that Ms. Elaster’s claim in her complaint that
Appellees had obtained a settlement of Ms. Elaster’s workers’ compensation claim was
patently false. Appellees’ motion was accompanied by a statement of undisputed material
facts. Therein, Appellees alleged that Ms. Elaster had been twice examined by
physicians, neither of whom supported her claim for impairments in the underlying
workers’ compensation proceeding.1 Further, Appellees alleged that despite negotiating a
settlement for Ms. Elaster’s “disputed and doubtful” claim, she later repudiated the
agreement and no settlement had ever been entered into by Appellees on behalf of Ms.
Elaster with regard to her workers’ compensation claim. Finally, Appellees alleged they
had never received any “monetary settlement” in connection with their representation of
Ms. Elaster and that the representation was terminated in July 2014. Importantly, the
statement of undisputed material facts also alleged that both Mr. Massey and Mr. Ellis
were familiar with the recognized standard of care with regard to the legal representation
at issue and that neither attorney had breached the applicable standard of care. In support


        1
          With regard to the medical issues, the statement of undisputed facts cited two letters by separate
physicians. In one letter, Barry R. Vaughn, M.D. stated that Ms. Elaster’s conduct “suggest[s] the
possibility of symptom magnification,” and opined that she had reached “the maximum medical
improvement that I can provide for her.” In the second letter, Timothy A. Strait, M.D. stated the
following: “The patient has had more than sufficient time to have reached medical improvement. There is
no compelling evidence to indicate a permanent anatomic impairment. Furthermore, there are no
objective findings to mandate any physical restrictions.” Dr. Strait’s letter, though on office stationary,
was unsigned.
                                                   -2-
of their assertions regarding the standard of care, Appellees relied on the affidavits of
both Mr. Massey and Mr. Ellis.

        On May 17, 2016, Ms. Elaster filed a motion to compel discovery, arguing that
Appellees had refused to provide requested documents and that Appellees’ objections
regarding privilege and relevance were not well-founded. Appellees responded in
opposition. On May 26, 2016, Ms. Elaster also filed a motion seeking to delay the
hearing on the summary judgment motion, noting that she had issued a subpoena to the
Tennessee Department of Labor and Workforce Development (“Department of Labor”)
and that she needed time to review the documents. Again, Appellees opposed Ms.
Elaster’s request, arguing that the documents at issue were easily obtainable simply by
signing a release and that evidence showed that the Department of Labor had already
released the relevant documents to Ms. Elaster but that Ms. Elaster had not retrieved the
released documents. In a later filing, Ms. Elaster admitted that she was able to obtain her
file from the Department of Labor in June of 2016.

       On May 31, 2016, Ms. Elaster filed an affidavit in opposition to the motion for
summary judgment. Therein, Ms. Elaster asserted that despite Appellees’ assertion
otherwise, she had never claimed that Appellees received a money settlement and
retained the funds without remitting those funds to Ms. Elaster. Ms. Elaster also included
certain alleged portions of Mr. Massey’s response to a Tennessee Board of Professional
Responsibility complaint filed by Ms. Elaster.

       The parties appeared as scheduled for the summary judgment hearing on June 6,
2016. At the hearing, the trial court granted Ms. Elaster’s request for a continuance. Ms.
Elaster thereafter requested that the trial court recuse itself. The trial court later entered
an order granting the motion to recuse; the matter was delayed while a new judge was
assigned.

       On July 11, 2016, Ms. Elaster filed a response to Appellees’ statement of
undisputed material facts. Therein, Ms. Elaster admitted that no settlement agreement
was ever finalized, that she never entered into any settlement agreement with her former
employer, that no settlement funds were ever paid, and that both Mr. Massey and Mr.
Ellis were familiar with the standard of care required in the underlying workers’
compensation case. Ms. Elaster “challenge[d] the validity of” certain allegations that
multiple physicians had examined her and opined that she had reached maximum medical
improvement and/or that she did not qualify for the assignment of anatomical impairment
rating; Ms. Elaster did not cite any specific documents to undermine the alleged
conclusions cited by Appellees regarding the medical examinations performed during the
pendency of her workers’ compensation action. Ms. Elaster also did not dispute that
Appellees encouraged her to settle her workers compensation “on a disputed and doubtful
basis” or that the attorney-client relationship terminated in July 2014. Ms. Elaster
disputed, however, that either Mr. Massey or Mr. Ellis complied with the applicable
                                           -3-
standard of care. In support for this dispute, Ms. Elaster cited only to her complaint. On
July 22, 2016, Ms. Elaster filed a second motion to compel, arguing that her former
employer had failed to supply requested information.

       Eventually, on October 4, 2016, Senior Judge Don Ash conducted a hearing on
Appellees’ motion for summary judgment. Following the hearing, the trial court entered
an order granting the motion for summary judgment on the ground that Ms. Elaster failed
to provide any qualified expert proof to support her claim. In the order, the trial court
ruled that Ms. Elaster’s pending motion to compel was rendered moot by the decision.
Following the trial court’s ruling, Ms. Elaster filed a pleading essentially asking the trial
court to reconsider its ruling. Appellees responded in opposition, and Ms. Elaster
thereafter filed a reply noting that the trial court had not specifically ruled on her motions
to compel discovery. The trial court thereafter conducted a hearing on the pending
motions. Ultimately, the trial court entered three orders on December 28, 2016: (1)
denying Ms. Elaster’s July 2016 motion to compel against her former employer; (2)
denying Ms. Elaster’s May 2016 motion to compel against Appellees regarding
documents that were alleged to have been privileged, subject to the work product
exception, or irrelevant and unlikely to lead to the discovery of admissible evidence; and
(3) denying Ms. Elaster’s motion to alter or amend the judgment. Ms. Elaster thereafter
appealed to this Court.2

                                          ISSUES PRESENTED

      Ms. Elaster raises three issues in this case, which are taken, and slightly restated,
from her brief:

            1. Whether the trial court allowed Ms. Elaster adequate discovery
               pursuant to the Tennessee Rules of Civil Procedure when Appellees
               were allowed to plead privilege without (1) a privilege log
               describing which documents were being withheld and/or (2) an
               explanation of how the documents were privileged.
            2. Whether expert testimony is required in a legal malpractice case to
               establish the standard of care where evidence exists of obvious
               common sense errors that were made with such frequency and in
               violation of state regulatory agency rules that meet the exception
               articulated in Blocker v. Dearborn, 851 S.W.2d 825, 827 (Tenn.
               1990).


        2
           During the pendency of this appeal, Ms. Elaster filed a motion to remand to the trial court so
that she could file a motion under Rule 60.02 of the Tennessee Rules of Civil Procedure for relief from
the trial court’s final judgment. We granted Ms. Elaster’s request, but the trial court eventually denied Ms.
Elaster’s motion.
                                                   -4-
            3. Whether the trial court erred when it failed to consider issues
               articulated in Ms. Elaster’s pleadings identified as elements of legal
               malpractice and instead narrowly focused on the one issue of the
               settlement from which she based her decision stating that the other
               issues were of no consequence.

As we perceive it, however, this appeal involves a single issue: Whether the trial court
erred in granting summary judgment in favor of Appellees, resulting in the dismissal of
Ms. Elaster’s legal malpractice complaint.

                                       STANDARD OF REVIEW

        The trial court in this case granted summary judgment in favor of Appellees.
Summary judgment is appropriate where: (1) there is no genuine issue with regard to the
material facts relevant to the claim or defense contained in the motion; and (2) the
moving party is entitled to judgment as a matter of law on the undisputed facts. Tenn. R.
Civ. P. 56.04. On appeal, this Court reviews a trial court’s grant of summary judgment de
novo with no presumption of correctness. Rye v. Women’s Care Ctr. of Memphis,
MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015) (citing Bain v. Wells, 936 S.W.2d 618, 622
(Tenn. 1997)), cert. denied, 136 S. Ct. 2452, 195 L.Ed. 2d 265 (2016). In reviewing the
trial court’s decision, we 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.
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). When a moving
party has filed a properly supported motion for summary judgment, the nonmoving party
must respond by pointing to evidence that shows summary judgment is inappropriate.
Rye, 477 S.W.3d at 264–65.

                                             DISCUSSION3

        3
            We note that Ms. Elaster is self-represented in this appeal, as she was in the trial court. We
recognize and appreciate Ms. Elaster’s right to appear before this Court self-represented. The law is well-
settled in Tennessee, however, that pro se litigants must comply with the same standards to which lawyers
must adhere. Watson v. City of Jackson, 448 S.W.3d 919, 926 (Tenn. Ct. App. 2014). As explained by
this Court:
         Parties who decide to represent themselves are entitled to fair and equal treatment by the
         courts. The courts should take into account that many pro se litigants have no legal
         training and little familiarity with the judicial system. However, the courts must also be
         mindful of the boundary between fairness to a pro se litigant and unfairness to the pro se
         litigant’s adversary. Thus, the courts must not excuse pro se litigants from complying
         with the same substantive and procedural rules that represented parties are expected to
                                                   -5-
       This case involves allegations of legal malpractice. As our supreme court has
explained:

       In order to make out a prima facie legal malpractice claim, the plaintiff
       must show (1) that the accused attorney owed a duty to the plaintiff, (2) that
       the attorney breached that duty, (3) that the plaintiff suffered damages, (4)
       that the breach was the cause in fact of the plaintiff's damages, and (5) that
       the attorney’s negligence was the proximate, or legal, cause of the
       plaintiff's damages. See Lazy Seven Coal Sales, Inc. v. Stone & Hinds, 813
       S.W.2d 400, 403 (Tenn. 1991); Horton v. Hughes, 971 S.W.2d 957, 959
       (Tenn. Ct. App. 1998). As with any tort claim, the plaintiff has the burden
       of proving each of these elements.

Gibson v. Trant, 58 S.W.3d 103, 108 (Tenn. 2001). Moreover,

       Whether a lawyer’s conduct meets the applicable professional standards is
       generally believed to be beyond the common knowledge of laypersons.
       Thus, except in cases involving clear and palpable negligence, most courts
       considering the issue have held that cases of legal malpractice cannot be
       decided without expert proof regarding the applicable standard of care and
       whether the lawyer's conduct complies with this standard.

Lazy Seven Coal, 813 S.W.2d at 406 (quoting Cleckner v. Dale, 719 S.W.2d 535, 540
(Tenn. Ct. App. 1986), abrogated on other grounds by Chapman v. Bearfield, 207
S.W.3d 736 (Tenn. 2006)); see also Blocker v. Dearborn & Ewing, 851 S.W.2d 825, 827
(Tenn. Ct. App. 1992) (“[E]xcept in cases of palpable negligence, expert proof is required
to establish the standard and to determine whether the attorney's conduct comports with
it.”) (citing Cleckner, 719 S.W.2d at 540).

       Here, Appellees submitted the affidavits of Mr. Massey and Mr. Ellis to support
their contention that neither attorney had violated the applicable standard of care.
Generally, where “a defendant-attorney presents expert proof that he or she did not
breach the duty of care, the plaintiff-client must present rebuttal expert proof that a
breach of care did occur in order to create a genuine issue of material fact.” Strong v.
Baker, No. M2007-00339-COA-R3-CV, 2008 WL 859086, at *7 (Tenn. Ct. App. Mar.
31, 2008) (citing Bursack v. Wilson, 982 S.W.2d 341, 343-45 (Tenn. Ct. App. 1998)).
Ms. Elaster agreed that the attorneys were knowledgeable regarding the standard of care
but denied that they had complied with the applicable standard in this case. To rebut the

       observe.

Jackson v. Lanphere, No. M2010-01401-COA-R3-CV, 2011 WL 3566978, at *3 (Tenn. Ct. App. Aug.
12, 2011) (quoting Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003) (internal citations
omitted)).
                                               -6-
affidavits of the attorneys, however, Ms. Elaster only cited her complaint. Where a
properly supported motion for summary judgment has been filed, the Tennessee Supreme
Court has described the non-movant party’s burden as follows:

       [A]ny party opposing summary judgment must file a response to each fact
       set forth by the movant in the manner provided in Tennessee Rule 56.03.
       “[W]hen a motion for summary judgment is made [and] . . . supported as
       provided in [Tennessee Rule 56],” to survive summary judgment, the
       nonmoving party “may not rest upon the mere allegations or denials of [its]
       pleading,” but must respond, and by affidavits or one of the other means
       provided in Tennessee Rule 56, “set forth specific facts” at the summary
       judgment stage “showing that there is a genuine issue for trial.” Tenn. R.
       Civ. P. 56.06. The nonmoving party “must do more than simply show that
       there is some metaphysical doubt as to the material facts.” Matsushita
       Elec. Indus. Co., 475 U.S. at 586, 106 S.Ct. 1348. 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. If a
       summary judgment motion is filed before adequate time for discovery has
       been provided, the nonmoving party may seek a continuance to engage in
       additional discovery as provided in Tennessee Rule 56.07. However, after
       adequate time for discovery has been provided, summary judgment should
       be granted if the nonmoving party’s evidence at the summary judgment
       stage is insufficient to establish the existence of a genuine issue of material
       fact for trial. Tenn. R. Civ. P. 56.04, 56.06. The focus is on the evidence the
       nonmoving party comes forward with at the summary judgment stage, not
       on hypothetical evidence that theoretically could be adduced, despite the
       passage of discovery deadlines, at a future trial.

Rye, 477 S.W.3d at 265. Thus, a party opposing summary judgment cannot simply rely
on the allegations made in his or her complaint but must present specific evidence
showing a material issue of fact. Id. (citing Tenn. R. Civ. P. 56.06). Here, in the face of
Appellees’ properly supported motion for summary judgment, Ms. Elaster failed to
present any expert proof to support her allegation that the standard of care was violated
by Appellees in this case. Instead, Ms. Elaster chose to rely solely on the allegations in
her pleading to support her claim. Except in unusual circumstances, discussed infra,
without competent expert proof regarding the standard of care, a legal malpractice claim
must fail. See Lazy Seven Coal Sales, 813 S.W.2d at 406.

        Ms. Elaster argues, however, that expert proof to establish the standard of care was
not necessary in this case because this case involves obvious and palpable errors for
which no expert proof is required, citing Blocker v. Dearborn & Ewing, 851 S.W.2d at
827. See also Strong, 2008 WL 859086, at *7 (noting that expert proof may be excused
in the “extreme case[]” where there are “allegations of obvious negligence”). To support
                                            -7-
this assertion in her brief, Ms. Elaster cites a letter sent by the attorney for her former
employer to the Department of Labor on March 3, 2017, opposing Ms. Elaster’s request
for mediation in the workers’ compensation administrative action. According to Ms.
Elaster, the statements contained in the letter show “a lack of diligence” by Appellees.4
We note that this letter was first presented to the trial court in Ms. Elaster’s motion under
Rule 60.02 following remand from this Court. The trial court denied the Rule 60.02
motion, however, and Ms. Elaster has not designated the denial of her Rule 60.02 motion
as an issue in this appeal. As such, any issues concerning the trial court’s failure to revise
its judgment based upon Ms. Elaster’s purported newly discovered evidence is waived.
See generally Childress v. Union Realty Co., 97 S.W.3d 573, 578 (Tenn. Ct. App. 2002)
(holding that issues may not be raised where they are not designated as issues on appeal).

        Even considering these statements, we cannot conclude that they establish such
palpable or common sense errors that would negate the requirement of expert proof in
this case. Importantly, Ms. Elaster cites no law to suggest that delays or similar errors as
alleged in this case constitute the type of palpable errors for which expert proof would be
excused. Indeed, other cases have come to opposite conclusions. For example, in Moffitt
v. Smith, No. 02A01-9705-CV-00095, 1998 WL 70648 (Tenn. Ct. App. Feb. 23, 1998),
the plaintiff alleged that his former attorney “was inadequate in every stage of the matter-
pre-trial, trial, and appellate.” Id. at *4. The Court of Appeals held, however, that
“[u]ndoubtedly, these are not matters within the common knowledge of a layperson.” Id.
Similarly, in Strong v. Baker, No. M2007-00339-COA-R3-CV, 2008 WL 859086 (Tenn.
Ct. App. Mar. 31, 2008), the plaintiff alleged “numerous allegations concerning supposed
improprieties on the part of [the former attorney].” Id. at *7. We concluded, however,
that these “allegations relate[d] to matters of substantive and procedural law as well as
litigation tactics and strategy.” Id. “The appropriateness or legality of these actions” was
therefore “not within the knowledge of most nonlawyers.” Id.; see also Rose v. Welch,
115 S.W.3d 478, 480, 485 (Tenn. Ct. App. 2003) (holding that allegations of “failure to
investigate and develop [the] case” were not the type of allegations that are within the
common knowledge of laymen).

       The same is true of this case. Here, in addition to the lack of diligence asserted by
Ms. Elaster in her brief, Ms. Elaster’s complaint alleges various allegations of
professional negligence against Appellees, including “failing to disclose” the alleged

        4
         Ms. Elaster appears to assert that the statements by her former employer’s attorney “should be
recognized by this Court” as the necessary expert proof in this case. Setting aside the fact that this
evidence was not presented during the summary judgment stage of litigation, see Rye, 477 S.W.3d at 265,
we note that nowhere in the statement presented by Ms. Elaster does the attorney state that Appellees
breached the applicable professional standard of care in their representation of Ms. Elaster. As such, even
if we were inclined to consider a late-filed, unsworn statement from an attorney who does not appear to
have consented to provide expert proof in this case, the statement from Ms. Elaster’s former employer’s
counsel does not rebut Appellees’ affidavits indicating that they complied with the applicable standard of
care.
                                                   -8-
settlement, “failure[] to investigate[,]” failing to provide “full and accurate
communications[,]” and failure to provide “competent legal advice[.]” In her brief, Ms.
Elaster asserts that these actions violated various Rules of Professional Conduct
applicable to Tennessee attorneys regarding competence, informed consent, and
communication. Notwithstanding the alleged settlement of the workers’ compensation
claim, which Ms. Elaster now admits did not occur, none of these allegations or the other
allegations made against Appellees in this case involve the type of palpable negligence
necessary to fall into the exception to the expert proof requirement. See Garner’s
Dictionary of Legal Usage 335 (3d ed. 2011) (describing “palpable” as a near synonym
of “evident” meaning “what is easily noticed or readily comprehended”). Indeed, other
courts have held that allegations of professional negligence resting on rules of
professional conduct did not fall within the knowledge of lay jurors. See Ball ex rel.
Hedstrom v. Kotter, 746 F. Supp. 2d 940 (N.D. Ill. 2010) (holding that jurors’ lay
knowledge would not necessarily have extended to professional conduct rules governing
conflicts of interest and controlling case law); see also Carlson v. Morton, 229 Mont.
234, 236, 745 P.2d 1133, 1135 (Mont. 1987) (holding that reference to rules of
professional conduct are not sufficient to show a violation of the standard of care in the
absence of expert proof). Indeed, the Tennessee Supreme Court has stated that while the
Rules of Professional Conduct are not irrelevant in determining the standard of care, “in a
civil action charging malpractice, the standard of care is the particular duty owed the
client under the circumstances of the representation, which may or may not be the
standard contemplated by the [Rules of Professional Conduct].” Lazy Seven, 813 S.W.2d
at 405. Thus, the need for expert proof arises from the fact that “‘[t]he standard of care
applicable to a particular case will vary depending upon the type of legal activity
involved.’” Id. at 406 (quoting Cleckner, 719 S.W.2d at 540 n.4).

       Here, Ms. Elaster alleges that she suffered harm as a result of Appellees’ lack of
diligence and delay throughout the workers’ compensation representation. The
undisputed facts show, however, that despite a “disputed and doubtful” claim, Appellees
obtained a settlement of Ms. Elaster’s workers’ compensation claim, that she, as was her
right as the client, refused to accept that settlement, and that the attorney-client
relationship was thereafter severed. Whether Appellees’ alleged lack of diligence, delay,
and failure to investigate constitutes a breach of the standard of care based upon these
particular facts is not within the common knowledge of laymen. The allegations at issue,
even if taken as true, are simply not of the “extreme” or obvious type necessary to
warrant an exception to the expert proof requirement.5 See Strong, 2008 WL 859086, at
*7. As such, expert proof was required. The trial court’s decision to grant summary
judgment on this basis is therefore affirmed.


       5
           We express no opinion as to whether these allegations, if proven, constitute professional
negligence. Rather, we simply conclude that expert proof was required to show that these allegations
constitute a breach of the standard of care applicable to the legal representation in this case.
                                               -9-
       Finally, Ms. Elaster argues that the trial court erred in granting summary judgment
where she was not afforded appropriate discovery, specifically with regard to her
contention that Appellees should not be allowed to rely on the claimed privilege of
certain documents in the absence of a privilege log and/or an explanation of how the
documents were privileged. Here, Ms. Elaster filed two motions to compel prior to the
grant of summary judgment in favor of Appellees, as well as essentially a renewal of
those motions post-judgment. The trial court ruled that the pre-judgment motions to
compel were rendered moot by the grant of summary judgment, but later considered the
substantive merits of the motions after Ms. Elaster’s post-judgment motion. The trial
court, however, again denied the motions.

       A request for additional discovery is an appropriate way to respond to a motion for
summary judgment. According to the Tennessee Supreme Court, a non-moving party
may thwart summary judgment by “submitting an affidavit explaining the necessity for
further discovery pursuant to Tenn. R. Civ. P. 56.06.” Martin v. Norfolk S. Ry. Co., 271
S.W.3d 76, 84 (Tenn. 2008) (citations omitted). As we have explained:

      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)
      [overruled on other grounds by Rye v. Women’s Care Ctr. of Memphis,
      MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015)]. Indeed, “[t]he philosophy of
      summary judgment is to avoid a needless trial in a case where, although the
      pleadings may indicate disputes over factual issues, facts outside the
      pleadings if known would clearly show that there is ‘no genuine issue as to
      any material fact.’” Id. at 12 (quoting Donald F. Paine, Recent
      Developments in Tennessee Procedure: The New Tennessee Rules of Civil
      Procedure, 37 Tenn. L.Rev. 501, 516 (1970)).

Cardiac Anesthesia Servs., PLLC v. Jones, 385 S.W.3d 530, 537 (Tenn. Ct. App. 2012).
As such, we have held that the trial court did not err in granting summary judgment
where the party failed to file an affidavit requesting additional time for discovery or
failed to put forth an argument as to how the discovery responses would assist the non-
moving party in arguing the summary judgment motion. Id. Thus, “a trial court’s decision
to deny additional time for discovery, in order for the non-moving party to meet summary
judgment, ‘must be viewed in the context of the issues being tried and the posture of the
case at the time the request for discovery is made.’” Id. at 537–38 (quoting Regions
Financial Corp. v. Marsh USA, Inc., 310 S.W.3d 382, 401 (Tenn. Ct. App. 2009)).
Consequently, “a trial court only errs in refusing to grant additional time for discovery
prior to the hearing on a motion for summary judgment when the non-moving party can
show that ‘the requested discovery would have assisted [the non-moving party] in

                                          - 10 -
responding to [the moving party’s] motion for summary judgment.’” Cardiac Anesthesia,
385 S.W.3d at 538 (quoting Regions, 310 S.W.3d at 401).

        Although Ms. Elaster filed an affidavit in response to the summary judgment
motion on May 31, 2016, the affidavit does not request additional discovery, nor does it
describe how additional discovery is necessary to respond to the pending summary
judgment motion.6 Likewise, Ms. Elaster fails to state in her brief to this Court how the
lack of a privilege log and explanation of how the documents were privileged would have
assisted her in responding to the motion for summary judgment. Indeed, from our review
of the contentions on this issue in Ms. Elaster’s appellate brief, we fail to discern how
Ms. Elaster’s inability to obtain details regarding certain allegedly privileged documents
had any effect on Ms. Elaster’s failure to provide expert proof in this matter. Given that
Ms. Elaster has failed to illuminate to this Court how these documents would have
assisted her in responding to the summary judgment motion, which was ultimately
granted on the basis of Ms. Elaster’s lack of expert proof, we cannot conclude that the
trial court erred in granting summary judgment in these circumstances. See Tenn. R. App.
P. 36(b) (“A final judgment from which relief is available and otherwise appropriate shall
not be set aside unless, considering the whole record, error involving a substantial right
more probably than not affected the judgment or would result in prejudice to the judicial
process.”).

                                              CONCLUSION

       The judgment of the Circuit Court of Hamilton County is affirmed and this cause
is remanded to the trial court for further proceedings as are necessary and consistent with
this Opinion. Costs of this appeal are taxed to Appellant April Elaster, for which
execution may issue if necessary.



                                                            _________________________________
                                                            J. STEVEN STAFFORD, JUDGE




        6
          Ms. Elaster also filed a motion asking for an extension of time to obtain discovery on May 26,
2016. The motion asked for an additional sixty days to obtain discovery. The summary judgment motion
eventually granted by the trial court was not heard until October 4, 2016, more than sixty days following
this request. Additionally, this motion was not filed in the nature of an affidavit, nor does it specifically
describe why the requested documents were necessary to respond to Appellees’ motion for summary
judgment. Finally, we note that one basis for the motion was that Ms. Elaster was awaiting documents
subpoenaed from the Department of Labor. Ms. Elaster admitted in the trial court, however, that she
obtained her Department of Labor file shortly following the filing of this motion, in June 2016.
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