                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                            Assigned on Briefs June 1, 2010

   PROVIDENCE CROSSINGS, LLC v. SC REALTY CAPITAL, L.P., SC
       CAPITAL, LLC AND SMITH REALTY INTERESTS, L.P.

                 Appeal from the Chancery Court for Davidson County
                     No. 06-364-II    Ellen H. Lyle, Chancellor


               No. M2009-01307-COA-R3-CV - Filed November 2, 2010




F RANK G. C LEMENT, J R., J., concurring.

        I write this concurring opinion because I find it very difficult to believe that the
contractual rights at issue were not foreclosed upon and, thus, passed to the bank as a result
of the foreclosure, in which event Defendants would be entitled to summary judgment as a
matter of law as the trial court found. However, as the majority correctly notes, there may be
a small crack in the evidentiary chain that pertains to material facts at issue. I am not fully
convinced there is a deficiency, but for purposes of summary judgment the court must be
convinced that material facts are not in dispute.

         The party seeking summary judgment bears the burden of demonstrating that no
genuine disputes of material fact exist and that the party is entitled to judgment as a matter
of law. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002). To be entitled to summary
judgment, the moving party must affirmatively negate an essential element of the nonmoving
party’s claim or show that the moving party cannot prove an essential element of the claim
at trial. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 83 (Tenn. 2008); Hannan v. Alltel
Publ’g Co., 270 S.W.3d 1, 8-9 (Tenn. 2008); McCarley v. W. Quality Food Serv., 960
S.W.2d 585, 588 (Tenn. 1998).
       Because there may or may not be a crack in the evidentiary chain as it pertains to a
material fact, I am unable to conclude that Providence, the plaintiff, cannot prove an essential
element of its claim at trial. Martin, 271 S.W.3d at 83; Hannan v. Alltel Publ’g Co., 270
S.W.3d 1, 8-9 (Tenn. 2008); McCarley v. W. Quality Food Serv., 960 S.W.2d 585, 588
(Tenn. 1998). Accordingly, I concur with the majority.




                                                        ______________________________
                                                        FRANK G. CLEMENT, JR., JUDGE




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