                                                                                         01/30/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                August 8, 2018 Session

SHERRY SMITH EX REL. LAUREN TAYLOR AGEE v. HANNAH NICOLE
                         PALMER

                  Appeal from the Circuit Court for DeKalb County
                   No. 2016-CV-59 Jonathan L. Young, Judge
                     ___________________________________

                           No. M2017-01822-COA-R3-CV
                       ___________________________________



W. NEAL MCBRAYER, J., concurring.

        I concur in the reversal of the grant of summary judgment. But, because the basis
of the reversal is Hannah Nicole Palmer’s failure to “satisfy her initial burden to produce
evidence showing there was not a genuine issue of fact for trial,” I conclude it is
unnecessary to reach the merits of the rulings on the motions in limine. I would vacate
those rulings without further comment as, in my view, they were premised on the
mistaken assumption that Ms. Palmer had shifted the burden to Sherry Smith.

       For similar reasons, I would not address Ms. Palmer’s invocation of her Fifth
Amendment privilege against self-incrimination. It does not appear from this record that
Ms. Smith ever challenged the sufficiency of Ms. Palmer’s answer to the complaint or
responses to discovery. If a party does not take issue with the propriety of claiming the
privilege, the trial court may assume that an answer or response cannot be compelled.
See Nat’l Acceptance Co. of Am. v. Bathalter, 705 F.2d 924, 927 (7th Cir. 1983).



                                                _________________________________
                                                W. NEAL MCBRAYER, JUDGE
