                 IN THE SUPREME COURT OF TENNESSEE
                             AT JACKSON
                                 March 4, 2015 Session

                  MICHELLE RYE ET AL. v. WOMEN’S CARE
                   CENTER OF MEMPHIS, MPLLC ET AL.

         Appeal by Permission from the Court of Appeals, Western Section
                        Circuit Court for Shelby County
                  No. CT00092009        Gina C. Higgins, Judge

                              ________________________

                No. W2013-00804-SC-R11-CV- Filed October 26, 2015
                           ________________________

SHARON G. LEE, C.J., concurring.

        I was not serving on the Supreme Court in 2008 when Hannan v. Alltel Publishing
Co., 270 S.W.3d 1 (Tenn. 2008) was argued. Had I participated in the Hannan decision,
I would have joined in the majority opinion. However, after observing the application of
the unique Hannan standard over the past seven years, I conclude that the Hannan
standard is unworkable and should be replaced. Although it is often easier to maintain
the status quo rather than admit that a mistake was made, we do not have this option. We
must change course when we realize we are headed in the wrong direction.

        The dissent recognizes that Hannan “did not clearly articulate with precision just
how the second prong was intended to work in practice” and suggests that it be clarified.
This is an implicit acknowledgement that the Hannan standard is unworkable. As a
proposed “clarification” of Hannan, the dissent suggests that trial courts should rely more
extensively on scheduling orders. The dissent does not explain how a grant of summary
judgment based on the passage of a discovery cutoff date would square with a core
holding in Hannan—that it is “not enough for the moving party to challenge the
nonmoving party to „put up or shut up‟ or even to cast doubt on a party‟s ability to prove
an element at trial” and that it will not suffice for the moving party to “simply show that
the nonmoving party „lacks evidence to prove an essential element of its claim.‟”
Hannan, 270 S.W.3d at 8. The problem is, under Hannan, absent an affirmative defense
such as a statute of limitations, the moving party may not obtain summary judgment
before trial, even if the nonmoving party has no evidence whatsoever to support the
claims in the complaint. This problem cannot be “clarified” away. The only fix is to
scrap it and replace it with a workable standard.
        The dissent suggests that we should keep the Hannan standard so that we can, in a
future case, “confront head-on the separation of powers issue” presented by the
enactment of Tennessee Code Annotated section 20-16-101. I am unwilling to saddle
litigants with a summary judgment standard that is unworkable simply to set the stage for
a showdown with the Legislature over its authority to enact a summary judgment
standard. The dissent references this as a “game of chicken” between the General
Assembly and the Tennessee Supreme Court. I call it fulfilling my oath of office and
maintaining the independence and integrity of the judiciary.



                                                _________________________________
                                                SHARON G. LEE, CHIEF JUSTICE




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