                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                               November 4, 2013 Session

 HEATHER WIDNER, ADMINISTRATRIX OF THE ESTATE OF GLENN
  EDWARD SMITH v. CHATTANOOGA ENTERTAINMENT, INC. d/b/a
                 ELECTRIC COWBOY, ET AL.

                Appeal from the Circuit Court for Washington County
                         No. 30002    Jean A. Stanley, Judge


             No. E2013-00192-COA-R3-CV-FILED-FEBRUARY 11, 2014


Heather Widner, Administratrix of the Estate of Glenn Edward Smith (“Plaintiff”) sued
Chattanooga Entertainment, Inc. d/b/a Electric Cowboy (“Electric Cowboy”) and Ashley
Langworthy with regard to the tragic death of Glenn Edward Smith (“Deceased”). Electric
Cowboy filed a motion for summary judgment. After a hearing, the Trial Court granted
Electric Cowboy summary judgment finding and holding, inter alia, that on the relevant night
there had been no sale of alcoholic beverages pursuant to Tenn. Code Ann. § 57-10-102 by
Electric Cowboy to Ashley Langworthy. Plaintiff appeals to this Court raising issues
regarding whether the Trial Court erred in granting Electric Cowboy summary judgment and
whether the Trial Court erred in refusing to allow Plaintiff additional time for discovery. We
find and hold, as did the Trial Court, that no sale of alcoholic beverages by Electric Cowboy
to Ashley Langworthy occurred on the relevant night, and that the Trial Court did not abuse
its discretion in refusing to allow further discovery. We, therefore, affirm.

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

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., P.J., and T HOMAS R. F RIERSON, II, J., joined.

Michael E. Large, Bristol, Tennessee, for the appellant, Heather Widner, Administratrix of
the Estate of Glenn Edward Smith.

Terrill L. Adkins, Knoxville, Tennessee, for the appellee, Chattanooga Entertainment, Inc.
d/b/a Electric Cowboy.
                                         OPINION

                                        Background

               In the early morning hours of March 20, 2011, 71 year old Deceased was killed
when a vehicle driven by Ashley Langworthy crashed into Deceased’s home. Ms.
Langworthy was intoxicated at the time of the crash, and had consumed alcohol earlier that
evening at Electric Cowboy. Plaintiff sued Ms. Langworthy and Electric Cowboy. Plaintiff
settled her claims against Ms. Langworthy, and the Trial Court entered an order of dismissal
of Plaintiff’s claims against Ms. Langworthy with prejudice on October 11, 2012. Ms.
Langworthy is not involved in this appeal.

               Electric Cowboy filed a motion for summary judgment supported by, among
other things, the affidavit of Ms. Langworthy, the affidavit of Emily Isaacs, and the testimony
of Ms. Langworthy and Officer David Smith taken during Ms. Langworthy’s criminal trial.
In her affidavit, Ms. Langworthy states, in pertinent part:

       2. On March 19, 2011, I drove to Chili’s Restaurant in Johnson City,
       Tennessee where I ate dinner and drank two margaritas. I then drove from
       Chili’s to a liquor store. However, I did not purchase anything at the liquor
       store. I then went into a Kroger’s grocery store in Johnson City, Tennessee
       and I purchased a container of wine coolers called “Smirnoff Ice Coolers”. I
       then drove to the parking lot of a strip shopping center where the Electric
       Cowboy nightclub is located.

       3. I waited in the parking lot with a friend of mine for three other friends to
       travel from Greeneville, Tennessee to meet us at the Electric Cowboy. While
       I sat in the parking lot with my friend, I drank two of the Smirnoff Ice Coolers.

       4. I then learned by a text message that the three people that we were waiting
       for to meet us at the Electric Cowboy had already arrived and were inside the
       Electric Cowboy.

       5. When my friend and I walked into the Electric Cowboy we found our three
       friends standing at a private table to the left of the bar. When my friend and
       I arrived at the private table one of the men in the group of three friends who
       had already arrived purchased a round of tequila shots for each of us to drink.
       I did not order the tequila shot and I did not pay for the tequila shot. I then
       drank the tequila shot.



                                              -2-
6. My friend and I socialized with the three other friends who met us at the
Electric Cowboy. At that time, one of the men went to the bar and ordered
another round of tequila shots. That friend also paid for the shots at the bar.
I did not ask for, I did not order and I did not pay for the second round of
tequila shots. When he returned to the private table with a second round of
tequila shots, I drank one of the shots.

7. My friends and I danced and socialized for awhile after the second round
of shots. At some point, a man I did not know went to the bar and ordered a
third shot of tequila. That man also paid for the shot at the bar. I did not ask
for, I did not order and I did not pay for the third round of tequila shots. When
he returned to the private table where I was, I drank the shot of tequila.

8. We stayed at the Electric Cowboy for a period of time and then my friend
and the three other friends that we had met at the Electric Cowboy left. We
left before closing time.

9. My friends and I decided to go to Perkins Restaurant. We each drove our
respective vehicles from the Electric Cowboy north on Roan Street to Perkins
Restaurant. The three male friends that had met us at the Electric Cowboy
followed me in their vehicle.

10. My friends and I decided to go to Perkins Restaurant. We each drove our
respective vehicles from the Electric Cowboy north on Roan Street to Perkins
Restaurant. The three male friends that had met us at the Electric Cowboy
followed me in their vehicle. [sic]

11. When we all arrived at the Perkins Restaurant on Roan Street we parked
in the parking lot. After some discussion in the parking lot, the three male
friends decided they needed to go ahead and drive back to Greeneville,
Tennessee. While my friend was talking to the male friends, I decided to
leave. I have no memory other than backing out of the parking space as to
what happened after that moment in time.

12. Although I ordered and consumed the two margaritas at Chili’s Restaurant,
and I selected, purchased and consumed the two Smirnoff Ice Coolers, I did
not place any alcohol order at the Electric Cowboy, nor was the alcohol that
I consumed at the Electric Cowboy delivered directly to me by anyone
employed at the Electric Cowboy.



                                       -3-
               In her affidavit, Ms. Isaacs states that she is the friend who accompanied Ms.
Langworthy on the night in question to Chili’s Restaurant, to a liquor store, to Kroger’s
grocery store, to Electric Cowboy, and to Perkins Restaurant. Ms. Isaacs’s affidavit confirms
the details provided in Ms. Langworthy’s affidavit and adds the following pertinent
information:

        2. On March 20, 20111 , I drove to Chili’s Restaurant in Johnson City,
        Tennessee where I met Ashley Langworthy for dinner. We both drank two
        margaritas. We purchased the first round, but some gentlemen from the bar
        purchased our second round. We then drove separately from Chili’s to a liquor
        store. I believe that I purchased a few miniature bottles of liquor from this
        store, but I have no memory of Ms. Langworthy purchasing liquor at this
        location. We then drove separately to Kroger’s grocery store in Johnson City,
        Tennessee and we each purchased a container of six wine coolers called
        “Smirnoff Ice Coolers”. We then drove separately to the parking lot of a strip
        shopping center where the Electric Cowboy nightclub is located.

        3. We waited in the parking lot in Ms. Langworthy’s vehicle for three other
        friends to travel from Greeneville, Tennessee to meet us at the Electric
        Cowboy. While we sat in the parking lot waiting on the rest of our group, we
        each drank two of the Smirnoff Ice Coolers from our respective six-packs.

                                                   ***

        5. When Ms. Langworthy and I walked into the Electric Cowboy we found
        our three friends standing at a private table to the left of the bar. Shortly after
        our arrival, one of the men in the group of three friends who had already
        arrived had purchased a round of tequila shots for each of us to drink. Ms.
        Langworthy did not order the tequila shot, she did not pay for the tequila shot,
        and no employee of the Electric Cowboy delivered the shot of tequila to her.
        The entire group then drank the tequila shots.

        6. Ms. Langworthy and I socialized with the three other men who met us at the
        Electric Cowboy for approximately one hour. At that time, one of the men
        went to the bar and ordered another round of tequila shots. That friend also


        1
         As best as we can tell from the record on appeal, Ms. Isaacs and Ms. Langworthy met at Chili’s on
March 19, 2011 and socialized at the locations described in their affidavits through the evening and into the
early morning hours of March 20, 2011. The date of March 20, 2011 contained in paragraph two of Ms.
Isaacs’s affidavit appears to be a typographical error.

                                                    -4-
ordered, paid for and received the shots at the bar. Ms. Langworthy did not
order the second tequila shot, she did not pay for the second tequila shot, and
no employee of the Electric Cowboy delivered the shot to her. The friend who
purchased the second round of shots brought them back to the group’s table.
The entire group then drank the tequila shots.

7. Ms. Langworthy and I then socialized with the three other men who met us
at the Electric Cowboy for approximately one hour. At that time, one of the
men went to the bar and ordered another round of tequila shots. That friend
also ordered, paid for and received the third round of shots at the bar. He then
brought the third round of shots back to our table. Ms. Langworthy did not
order the third tequila shot, she did not pay for the third tequila shot, and no
employee of the Electric Cowboy delivered the third shot to her. The entire
group then drank the tequila shots.

8. My friends and I then went to the dance floor and danced for some period
of time. At that point, another male that I did not know began dancing with
Ms. Langworthy. After dancing for a while we went back to the private table
and the male that had joined us on the dance floor followed us to the table.
After we talked for a while he then went to the bar by himself and ordered a
mixed drink for Ms. Langworthy. This man ordered, paid for and received the
drink at the bar. Ms. Langworthy did not order the drink, she did not pay for
the drink, and no employee of the Electric Cowboy delivered the drink to her.
Ms. Langworthy stayed at our table while this gentleman got her drink. I
observed Ms. Langworthy consume some of this drink, but I believe that it was
at least half full when we left shortly thereafter.

9. We stayed at the Electric Cowboy for a period of time and then our group
of five decided to leave. We left before closing time.

10. Throughout the course of the evening I had the opportunity to observe Ms.
Langworthy’s behavior. She did not appear intoxicated at any point while we
were at the Electric Cowboy. Additionally, I made it a point to watch her
walking to her vehicle. She did not weave or stumble in any manner as she
approached her vehicle.

11. Ms. Langworthy drove her vehicle from the Electric Cowboy north on
Roan Street to Perkins Restaurant. I drove my vehicle following her to the
Perkins Restaurant. The three male friends that had met us at the Electric
Cowboy followed me in their vehicle, with Mr. Burks driving.

                                      -5-
       12. When we all arrived at the Perkins Restaurant on Roan Street we parked
       in the parking lot side-by-side with our windows rolled down for conversation.
       After some discussion in the parking lot, the three male friends decided they
       needed to go ahead and drive back to Greeneville, Tennessee. At some point
       we observed Ms. Langworthy suddenly back her vehicle out of the parking lot
       and leave. I have no knowledge of why she decided to leave at that time.

       13. I was with Ms. Langworthy for the entire evening before the accident until
       she left Perkin’s parking lot. Ms. Langworthy did not place any alcohol order
       at the Electric Cowboy, nor was the alcohol that she consumed at the Electric
       Cowboy delivered directly to her by anyone employed at the Electric Cowboy.
       I am sure that she did not purchase anything while at the Electric Cowboy
       because she and I both left our wallets and money in our vehicles before
       entering the club.

               Ms. Langworthy incurred criminal charges arising out of the accident that
caused Deceased’s death. Officer David Smith testified during Ms. Langworthy’s criminal
trial that he was called to the scene of the accident around 3:20 a.m. Officer Smith arrived
at the scene within five to ten minutes of receiving the call. Ms. Langworthy’s vehicle had
been driven into Deceased’s apartment, and Deceased was pinned underneath the vehicle
when Officer Smith arrived on the scene. Ms. Langworthy had to be extricated from her
vehicle. Officer Smith testified that Ms. Langworthy’s blood was drawn at the hospital and
showed that her BAC was .18. Based upon skid marks at the scene, Officer Smith
determined that just prior to the crash Ms. Langworthy was traveling in the range of 83 to 94
miles per hour. He stated that Ms. Langworthy’s vehicle “left approximately about 185 feet
of skid marks, so the vehicle was at 100 percent braking.” Officer Smith explained that Ms.
Langworthy had struck a tree, gone airborne, and crashed into a corner of the brick apartment
building landing inside the apartment. Deceased was 71 years old at the time of his death and
had raised six children.

              Ms. Langworthy testified during her criminal trial that she was a twenty-five
year old college graduate. Ms. Langworthy testified that on the night in question, she drank
two margaritas, two Smirnoff Ice Coolers, and three shots of tequila. She testified that she
did not pay for the tequila shots. She stated: “That was the friends we had met there who
bought them for everybody.” Ms. Langworthy testified that she and her friend ate dinner at
Chili’s between 10:00 and 11:00 p.m. and left Electric Cowboy before it closed, around 2:30
or 2:45 a.m. Ms. Langworthy testified that she does not remember leaving Perkins and stated
that her next memory is:




                                             -6-
      waking up in my truck with bricks, and everything after that is very in and out.
      I don’t have, it’s very patchy. I don’t remember being in the hospital. I don’t
      remember being pulled out of my truck. I don’t remember being taken to jail.
      I didn’t even know what had happened.

             The Trial Court held a hearing on Electric Cowboy’s motion for summary
judgment, and then entered an order on December 19, 2012, which stated, in pertinent part:

      It appearing to this Court that the plaintiff did not file a response to the
      defendant’s Motion for Summary Judgment in compliance with Rule 56 of the
      Tennessee Rules of Civil Procedure, but it appearing to this Court that the
      plaintiff filed a Motion to Quash a Notice of Hearing concerning the Motion
      for Summary Judgment indicating that the plaintiff wished to conduct further
      discovery in the case, but did not state with adequate or reasonable specificity
      what discovery was needed in order to respond to the defendant’s Motion for
      Summary Judgment and further considering that the liability alleged against
      Chattanooga Entertainment, Inc. d/b/a Electric Cowboy is limited to all [sic]
      alleged violation of the Tennessee Dram Shop Act, and considering the
      statements of counsel, it is hereby

              ORDERED, ADJUDGED and DECREED that the plaintiff shall file
      a response complying with the provisions of Rule 56 of the Tennessee Rules
      of Civil Procedure defining with particularity the discovery needed in order to
      determine where the plaintiff can establish a genuine issue of material fact in
      response to this defendant’s Motion for Summary Judgment on or before
      December 17, 2012.


              On December 18, 2012 Plaintiff filed a response to the motion for summary
judgment and a motion seeking additional time to depose Ms. Langworthy and a
representative of Top Shelf. In this motion, Plaintiff stated:


      2. That since the date of the aforesaid hearing, attorney for Plaintiff has
      interviewed former Defendant, Ashley Langworthy, at Ms. Langworthy’s
      present location, the Johnson City, Tennessee jail. During this interview Ms.
      Langworthy gave details of her state of intoxication and her blacking out while
      at Electric Cowboy on the evening in question. She also spoke of her belief
      that she exhibited intoxication while at Electric Cowboy on the evening in
      question, as well information [sic] that at least nine shots of tequila were

                                            -7-
      purchased by a male companion (the first sale being five shots and the second
      sale being four shots) and how this sale took place at the bar, just a few feet
      from where she sat.

      3. That Ms. Langworthy further provided information that she had never
      drunk as much alcohol in her whole life as she did on the evening in question
      and was concerned about how she walked and acted while in the Defendant’s
      establishment.

             The Trial Court held another hearing on Electric Cowboy’s Motion for
Summary Judgment and on Plaintiff’s motion to permit further discovery, and entered its
order on December 21, 2012 finding and holding, inter alia:

             Defendant’s previously filed Statement of Undisputed Material Facts
      included the following:

      1. Ashley Langworthy did not order an alcoholic beverages from the wait staff
      at the defendant bar.

      2. The wait staff did not directly serve alcoholic beverages to Ashley
      Langworthy.

      3. Ashley Langworthy did consume alcoholic beverages on defendant’s
      premises.

      4. Ashley Langworthy did not pay for any of those alcoholic beverages.

              The issue before the Court is whether, under T.C.A. § 57-10-102,
      defendant “sold” alcoholic beverages to Ashley Langworthy. Both parties
      have cited the Court to the case of Temlock v. McGinnis 2006 Tenn. App.
      Lexus [sic] 481, July 20, 2006. This appears to be the most recent and
      definitive case on the issue before the Court. The Temlock court found that
      monetary payment alone is not dispositive of whether a sale took place. The
      Court indicated that “all relevant circumstances must be considered.” Thus,
      this Court’s inquiry to the plaintiff was whether discovery would reveal any
      such relevant circumstances.

             In its December 18, 2012 response, there is no indication that the
      discovery requested by the plaintiff would alter the fact that Ms. Langworthy
      did not order from the wait staff, was not served by the wait staff, and did not

                                            -8-
       pay for the beverages consumed by her. The requested deposition of a trainer
       from Top Shelf would appear to have no bearing on any elements of whether
       a sale took place.

              Upon the undisputed facts before the Court and there being no
       indication that further discovery would uncover relevant circumstances or
       material disputed facts for the Court to consider, this Court finds as a matter
       of law that a sale cannot be proven. Defendant’s Motion for Summary
       Judgment is granted.

               Plaintiff filed an appeal to this Court. A Statement of the Evidence was filed
and approved by the Trial Court. The Statement of the Evidence provides, in pertinent part,
that during the hearing on the motion for summary judgment and the motion to permit further
discovery:

              The trial court then questioned the plaintiff’s counsel concerning the
       defendant’s position. The plaintiff’s counsel agreed that the facts contained
       in the Defendant’s Statement of Undisputed Material Facts were, indeed,
       undisputed due to the fact that counsel for the plaintiff had met with Ashley
       Langworthy in her jail cell prior to the hearing on December 19, 2012. During
       that meeting, Ashley Landworthy [sic] confirmed to the plaintiff’s counsel the
       accuracy of the facts contained in the Defendant’s Statement of Undisputed
       Material Facts.

              Although the plaintiff’s counsel agreed that the facts were undisputed
       and agreed that Timlock v. McGinnis, 2006 Tenn. App. LEXIS 481, July 26,
       2006, [sic] represented the case law applicable to the issue raised by the
       defendant’s Motion for Summary Judgment, the plaintiff should be entitled to
       take the deposition of Ashley Langworthy and a representative from Top Shelf
       in order to create “new law” that if a patron comes to a bar and orders two or
       more drinks, pays for the drinks, and then disperses those drinks to other
       patrons, then the bar should be liable if a patron who receives a dispersed drink
       from another patron becomes intoxicated and is involved in a motor vehicle
       accident.

                                         Discussion

              We restate the issues on appeal as: 1) whether the Trial Court erred in granting
summary judgment to Electric Cowboy; and, 2) whether the Trial Court erred in refusing to
allow Plaintiff to depose Ms. Langworthy and a representative of Top Shelf prior to ruling

                                              -9-
on the motion for summary judgment. Electric Cowboy raises an issue regarding whether
Plaintiff’s motion to amend the complaint, which was never heard by the Trial Court, would
have been futile.

              We first consider whether the Trial Court erred in granting summary judgment
to Electric Cowboy. With regard to summary judgments, this Court explained in Estate of
Boote v. Roberts:

                  The trial court’s resolution of a motion for summary judgment is a
          conclusion of law, which we review de novo on appeal, according no
          deference to the trial court’s decision. Martin v. Norfolk S. Ry. Co., 271
          S.W.3d 76, 84 (Tenn. 2008). Summary judgment is appropriate only when
          the moving party can demonstrate that there is no genuine issue of material
          fact, and that it is entitled to judgment as a matter of law. Tenn. R. Civ. P.
          56.04; see Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 5 (Tenn. 2008); Byrd
          v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993).

                 This action was filed [after July 1, 2011]. Therefore, the trial court
          was required to apply the summary-judgment standard set forth in Tennessee
          Code Annotated § 20-16-101.2 That statute provides:

                         In motions for summary judgment in any civil action in
                  Tennessee, the moving party who does not bear the burden of
                  proof at trial shall prevail on its motion for summary judgment
                  if it:

                                  (1) Submits affirmative evidence that
                           negates an essential element of the nonmoving
                           party’s claim; or
                                  (2) Demonstrates to the court that the
                           nonmoving party’s evidence is insufficient to
                           establish an essential element of the nonmoving
                           party’s claim.

          Tenn. Code Ann. § 20-16-101 (Supp. 2012).3


      2
          Section 20-16-101 is applicable to all cases filed on or after July 1, 2011.
      3
          Section 20-16-101 was enacted to abrogate the summary-judgment standard set forth in Hannan,
                                                                                          (continued...)

                                                     -10-
Estate of Boote v. Roberts, No. M2012-00865- COA-R3-CV, 2013 Tenn. App. LEXIS 222,
at **24-25 (Tenn. Ct. App. March 28, 2013), no appl. perm. appeal filed (footnotes in
original but renumbered).

             The issue of whether summary judgment was proper revolves around the
question of whether, under Tenn. Code Ann. § 57-10-102, Electric Cowboy sold alcoholic
beverages to Ms. Langworthy on the night of the accident.

             Two statutes pertaining to alcohol-related injuries are relevant to this appeal,
Tenn. Code Ann. § 57-10-101 and Tenn. Code Ann. § 57-10-102. Tenn. Code Ann. § 57-
10-101 provides:

         57-10-101. Proximate cause.

         The general assembly hereby finds and declares that the consumption of any
         alcoholic beverage or beer rather than the furnishing of any alcoholic
         beverage or beer is the proximate cause of injuries inflicted upon another by
         an intoxicated person.

Tenn. Code Ann. § 57-10-101 (2013). In pertinent part, Tenn. Code Ann. § 57-10-102
provides:

         57-10-102. Standard of proof.

         Notwithstanding § 57-10-101, no judge or jury may pronounce a judgment
         awarding damages to or on behalf of any party who has suffered personal
         injury or death against any person who has sold any alcoholic beverage or
         beer, unless such jury of twelve (12) persons has first ascertained beyond a
         reasonable doubt that the sale by such person of the alcoholic beverage or
         beer was the proximate cause of the personal injury or death sustained and
         that such person:

                                                  ***

         3
          (...continued)
which permitted a trial court to grant summary judgment only if the moving party could either (1)
affirmatively negate an essential element of the nonmoving party’s claim or (2) show that the nonmoving
party cannot prove an essential element of the claim at trial. Hannan, 270 S.W.3d at 5. The statute is
intended “to return the summary judgment burden-shifting analytical framework to that which existed prior
to Hannan, reinstating the ‘put up or shut up’ standard.” Coleman v. S. Tenn. Oil Inc., No. M2011-01329-
COA-R3-CV, 2012 Tenn. App. LEXIS 453, 2012 WL 2628617, at *5 n.3 (Tenn. Ct. App. July 5, 2012).

                                                  -11-
             (2) Sold the alcoholic beverage or beer to a visibly intoxicated person
      and such person caused the personal injury or death as the direct result of the
      consumption of the alcoholic beverage or beer so sold.

Tenn. Code Ann. § 57-10-102 (2013).

              Our Supreme Court discussed Tenn. Code Ann. §§ 57-10-101 and 57-10-102
in Biscan v. Brown, 160 S.W.3d 462 (Tenn. 2005). The Biscan Opinion stated:

      The effect of [Tenn. Code Ann. § 57-10-101] is to make it impossible for one
      who has been injured by an intoxicated person to state a claim for negligence
      against the person or entity who furnished the alcoholic beverage or beer
      because the statute removes, as a matter of law, the required element of legal
      causation. See, e.g., Turner v. Jordan, 957 S.W.2d 815, 818 (Tenn. 1997) (a
      claim for negligence requires a duty of care owed by the defendant to the
      plaintiff; a breach of that duty; an injury or loss; causation in fact; and legal,
      or proximate, causation.) In other words, there can be no cause of action
      resting on the allegation that one person “furnished” alcohol to another
      because it is impossible to prove proximate cause. The statute does not
      merely provide immunity from suit where one has furnished alcohol to
      another; rather, the statute constitutes the legislative determination that
      persons who furnish alcohol are not at fault for injuries inflicted by an
      intoxicated person.

              The second part of the statute carves out an exception to the first part.
      It provides that a seller of alcohol may be liable to a third party for injuries if
      the seller sold alcohol to a minor or if the seller sold alcohol to an obviously
      intoxicated person and the sale was a proximate cause of the injuries suffered
      by the third party:

                                            ***

      The clear language of the statute admits of only one conclusion: that the
      legislature intended to shield persons . . . who “furnish” alcohol in a social
      setting.

                                            ***




                                             -12-
               Moreover, as the Court of Appeals discussed, the legislative history of
       sections 101 and 102 reveals that the statute was intended to codify the
       common-law rule that an individual who furnishes alcohol to another is not
       liable for any damages resulting from the other’s intoxication, even if those
       damages are foreseeable. See, e.g., Cecil, 575 S.W.2d at 271. Thus, although
       the legislative history reflects much debate and concern over the extent to
       which sellers of alcoholic beverages and beers should be covered, the starting
       point was that the mere furnishing of alcohol, whether gratuitously or for
       commercial gain, is not a basis for liability. See Worley v. Weigels, 919
       S.W.2d at 593-94.

Biscan, 160 S.W.3d at 472-73 (footnote omitted).

              In Temlock v. McGinnis, this Court interpreted and applied Tenn. Code Ann.
§§ 57-10-101 and 57-10-102, and stated that “all relevant circumstances must be
considered,” when making a determination regarding whether a sale of alcoholic beverages
had occurred. Temlock v. McGinnis, E2005-02646-COA-R3-CV, 2006 Tenn. App. LEXIS
481, at *13 (Tenn. Ct. App. July 20, 2006). In Temlock, we held that

       when a customer enters an establishment that sells alcoholic beverages such
       as beer, places his own alcohol order, has the alcohol he ordered delivered
       directly to him by the seller with the seller’s expectation of payment in return,
       and the customer who ordered the alcohol consumes that alcohol on the
       seller’s premises, there is a sale to that customer under Tenn. Code Ann. § 57-
       10-102.

Id. at **14-15. In Temlock we held that a sale of alcoholic beverages did occur because Mr.
McGinnis ordered the beer he consumed from Barley’s wait staff, Barley’s wait staff
delivered the beer directly to Mr. McGinnis with the expectation of payment in return, and
Mr. McGinnis consumed the beer on Barley’s premises. Id. at *14.

               The facts in the case now before us are distinguishable from the facts in
Temlock. Electric Cowboy filed a properly supported motion for summary judgment
showing that there were no genuine disputed issues of material fact that Ms. Langworthy
did not order any alcoholic beverages from the wait staff at Electric Cowboy, that Ms.
Langworthy was not served any alcoholic beverages by any wait staff at Electric Cowboy,
and that Ms. Langworthy did not pay for any alcoholic beverages at Electric Cowboy.
Given all of the relevant undisputed circumstances in this case, the fact that Ms. Langworthy
consumed alcoholic beverages while at Electric Cowboy is insufficient by itself to show that



                                             -13-
a sale of alcoholic beverages by Electric Cowboy to Ms. Langworthy occurred on the night
of the accident.

              As found by the Trial Court, there are no genuine disputed issues of material
fact and Electric Cowboy was entitled to judgment as a matter of law as there was no sale
of alcoholic beverages by Electric Cowboy to Ms. Langworthy. As such, we find no error
in the Trial Court’s grant of summary judgment to Electric Cowboy.

              We next consider whether the Trial Court erred in refusing to allow Plaintiff
to depose Ms. Langworthy and a representative of Top Shelf before ruling on the motion
for summary judgment. We review a trial court’s decisions regarding discovery under an
abuse of discretion standard. Eg., Frye v. St. Thomas Health Servs., 227 S.W.3d 595, 600
(Tenn. Ct. App. 2007). “A court abuses its discretion when it causes an injustice to the party
challenging the decision by (1) applying an incorrect legal standard, (2) reaching an illogical
or unreasonable decision, or (3) basing its decision on a clearly erroneous assessment of the
evidence.” Lee Medical, Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010).

                As best as we can tell from the record on appeal, Top Shelf is involved in
training bar tenders or wait staff who serve alcohol. What is clear from the record on appeal
is that no representative of Top Shelf would have personal knowledge of the events that
occurred during the time Ms. Langworthy spent at Electric Cowboy on the night in question.
As such, the representative of Top Shelf would have no relevant evidence regarding whether
or not a sale of alcoholic beverages by Electric Cowboy to Ms. Langworthy occurred on that
night. Given that the dispositive issue was whether such a sale occurred, and the
representative of Top Shelf would have no relevant evidence to offer on this subject, we
cannot say that the Trial Court erred in refusing to allow Plaintiff time to take the deposition
of the representative of Top Shelf.

              As for taking the deposition of Ms. Langworthy, Plaintiff argues in his brief
on appeal:

                Whether such a deposition would definitely set forth additional
       material facts to defeat the Defendant’s Motion for Summary Judgment is not
       a certainty, however Plaintiff should have been given the opportunity to do
       so, at least within the realm of a reasonable scheduling order that would have
       allowed Plaintiff to obtain more sworn testimony about her state of
       intoxication and other particulars that evening while at Electric Cowboy. This
       would not prejudice the Defendant but instead allow Plaintiff to obtain a
       “play by play” presentation of how she became intoxicated at Defendant’s



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       place of establishment and soon thereafter killed Plaintiff’s father, Glenn
       Edward Smith.

                Again, we point out that the dispositive issue is whether a sale of alcoholic
beverages from Electric Cowboy to Ms. Langworthy pursuant to Tenn. Code Ann. § 57-10-
102 occurred on the night in question. Our General Assembly has made the public policy
decision as to when a seller of alcoholic beverages may be liable for such a sale. It is not
the role of the courts to modify the General Assembly’s public policy decision by creating
“new law” as is sought by the Plaintiff. The dispositive issue is not how Ms. Langworthy
became intoxicated. Furthermore, the affidavits of Ms. Langworthy and Ms. Isaacs together
with the testimony given by Ms. Langworthy in her criminal trial clearly show that Ms.
Langworthy did not order any alcoholic beverages from the wait staff at Electric Cowboy,
that the wait staff at Electric Cowboy delivered no alcoholic beverages to Ms. Langworthy,
and that Ms. Langworthy did not pay for any alcoholic beverages at Electric Cowboy on the
night in question. While the evidence produced by Electric Cowboy does give a play-by-
play account of how Ms. Langworthy became intoxicated on the night in question, how Ms.
Langworthy became intoxicated is not the dispositive issue. Furthermore, Plaintiff
interviewed Ms. Langworthy in jail and this interview confirmed the accuracy of the
undisputed material facts. We fail to see, as did the Trial Court, how deposing Ms.
Langworthy would have garnered any more relevant information. The undisputed evidence
clearly showed that a sale of alcoholic beverages from Electric Cowboy to Ms. Langworthy
did not occur on the night in question. Given all this, we find no abuse of discretion in the
Trial Court’s refusal to allow Plaintiff additional time to take the deposition of Ms.
Langworthy.

              Finally, we turn to Electric Cowboy’s issue regarding whether Plaintiff’s
motion to amend the complaint, which was never heard by the Trial Court, would have been
futile. Our disposition of Plaintiff’s issues renders this issue moot.

            We find no error by the Trial Court. We, therefore, affirm the Trial Court’s
December 21, 2012 order granting summary judgment to Electric Cowboy.

                                        Conclusion

              The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
appellant, Heather Widner, Administratrix of the Estate of Glenn Edward Smith, and her
surety.
                                                  _________________________________
                                                  D. MICHAEL SWINEY, JUDGE

                                            -15-
