                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                  October 17, 2003 Session

                      MYRA PATE v. STATE OF TENNESSEE

                Appeal from the Claims Commission of the State of Tennessee
                   No. 20101368     Vance W. Cheek, Jr., Commissioner

                                 FILED NOVEMBER 20, 2003

                                 No. E2003-00297-COA-R3-CV



Myra Pate (“Plaintiff”) filed a claim with the Tennessee Division of Claims Administration after she
slipped and fell on her way to class at Pellissippi State Technical Community College (“PSTCC”).
When her claim was denied, Plaintiff filed a complaint in the Tennessee Claims Commission
(“Commission”) against the State of Tennessee (“the State”). The State filed a motion for summary
judgment claiming Plaintiff had filed for Chapter 13 bankruptcy and failed to disclose the existence
of her claim against the State. The State argued Plaintiff was judicially estopped from pursuing this
lawsuit and also that she lacked standing. When Plaintiff failed to file a timely response to the
motion for summary judgment, the Commission granted the motion solely because no response had
been filed. Plaintiff appeals. We vacate the grant of summary judgment and remand for further
proceedings.


                   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the
                      Claims Commission Vacated; Case Remanded.


D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS , J., and
CHARLES D. SUSANO, JR., J., joined.


M.J. Hoover, III, Knoxville, Tennessee, for the Appellant Myra Pate.


Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Heather
C. Ross, Senior Counsel, Nashville, Tennessee, for the Appellee State of Tennessee.
                                              OPINION

                                             Background

                 This is a slip and fall case brought by Plaintiff who alleges that on April 4, 2000, she
was on her way to class at PSTCC when she tripped and fell on the pavement. According to
Plaintiff, there was a gap in the pavement measuring 1 to 1 ½ inches as well as a metal bar “which
stuck out above the pavement” causing her to fall, resulting in a three part proximal humerus fracture
to her left shoulder. Plaintiff claims the State was negligent by not correcting the defective pavement
and in allowing such a hazardous condition to exist. Plaintiff sought $300,000 in damages for her
physical injuries and lost wages.

                In its answer to the complaint, the State generally denied any liability to Plaintiff and
further denied any hazardous condition existed. The State also denied the existence of any act or
omission on the part of a State employee which resulted in Plaintiff’s injuries. The State also alleged
Plaintiff’s claim was barred under comparative fault principles because Plaintiff’s negligence in not
watching where she was walking was greater than any claimed negligence by the State.

                On October 31, 2002, the State filed a motion for summary judgment claiming
Plaintiff was judicially estopped from maintaining this lawsuit because she failed to disclose the
existence of this claim in her petition for Chapter 13 bankruptcy. The State also claimed that
Plaintiff was no longer the real party in interest and lacked standing to proceed with the present case
because she had filed for Chapter 13 bankruptcy. In support of its motion, the State attached
portions of Plaintiff’s deposition wherein she admitted contemplating legal action against the State
within one week of the accident. Plaintiff filled out a “Claim for Damages” on December 6, 2000,
and filed this claim with the Division of Claims Administration on March 13, 2001. Plaintiff also
acknowledged in her deposition that she made a demand upon the State to settle the claim in March
of 2001. On May 3, 2001, Plaintiff filed for Chapter 13 bankruptcy. When her personal injury claim
was denied by the Division of Claims Administration, Plaintiff filed the present complaint with the
Claims Commission on November 19, 2001. Plaintiff admitted in her deposition that she did not
disclose the present lawsuit or claim as an asset in her bankruptcy petition and she did not inform
her bankruptcy attorney or the United States Bankruptcy Court about this lawsuit. Plaintiff claimed
she did not disclose the present lawsuit because the complaint was not filed until after she had
already filed for bankruptcy. She did not consider the present claim an “asset” because she had not
yet received any money. According to Plaintiff, “[i]t doesn’t become an asset to me until you get
some money. Money is an asset and nothing is nothing.”

                On December 16, 2002, the Commission entered an Order of Dismissal. In pertinent
part, the Order of Dismissal provides:

                      This claim was appealed to the Tennessee Claims
                Commission from denial of the Division of Claims Administration on
                September 10, 2001. By letter dated September 21, 2001, the


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                Commission advised counsel for the Claimant that the Rules of Civil
                Procedure and the Rules of Evidence of the State of Tennessee were
                applicable to Claims Commission procedure and that the Tennessee
                Claims Commission Rules complemented the Rules of Civil
                Procedure. Counsel for the Claimant filed a formal Complaint on
                November 19, 2001. The State filed its Answer on February 14,
                2002, following an extension of time granted by the Commission
                within which to do so.

                       On October 31, 2002, the State filed a Motion for Summary
                Judgment, Memorandum in Support of Motion, and Statement of
                Undisputed Facts on Behalf of the State of Tennessee. A response to
                the State’s Motion was due no later than December 2, 2002. A
                response to the State’s Motion has not been filed as of the date of this
                Order.

                                                ****

                        The issue before the Commission is whether the Defendant is
                entitled to dismissal of this claim for failure to respond to the State’s
                Motion for Summary Judgment?


The Commission concluded that the State was entitled to dismissal of the claim because no response
to the motion for summary judgment had been filed. In reaching its conclusion, the Commission
relied on Tennessee Claims Commission Rule No. 0310-1-1-.05(5)(c) which provides, among other
things, that the failure to file a response to a motion shall indicate that there is no opposition to the
motion.

                After her claim was dismissed, Plaintiff filed a motion to reconsider and later
informed the Commission that she would be filing a response to the motion for summary judgment
by January 10, 2003. The Commission denied the motion to reconsider and entered an Order
reaffirming its dismissal of the claim. The Commission noted in this Order that Plaintiff stated she
would be filing a response to the State’s motion for summary judgment no later than January 10,
2003. The Commission then observed that as of January 22, 2003, the date on which the
Commission reaffirmed its dismissal, Plaintiff still had filed no response.

                Plaintiff appeals raising several issues. First, Plaintiff claims the State’s motion for
summary judgment did not meet the “stringent standards” of Tenn. R. Civ. P. 56 and, therefore,
should not have been granted. Plaintiff also claims she is not judicially estopped from pursuing the
present claim even though she did not disclose the claim in her Chapter 13 bankruptcy. In her third
issue, Plaintiff claims she is the “real party in interest” and has standing to pursue this claim.
Finally, Plaintiff claims the Commission erred in denying her motion to reconsider. The State,


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obviously, contends the grant of summary judgment was appropriate, as was the denial of Plaintiff’s
motion to reconsider.

                                            Discussion

               Initially, we will discuss whether the Commission erred when it granted the State’s
motion for summary judgment solely because Plaintiff failed to file a timely response. The standard
for review of a motion for summary judgment is set forth in Staples v. CBL & Associates, Inc., 15
S.W.3d 83 (Tenn. 2000):

                       The standards governing an appellate court’s review of a
               motion for summary judgment are well settled. Since our inquiry
               involves purely a question of law, no presumption of correctness
               attaches to the lower court’s judgment, and our task is confined to
               reviewing the record to determine whether the requirements of Tenn.
               R. Civ. P. 56 have been met. See Hunter v. Brown, 955 S.W.2d 49,
               50-51 (Tenn. 1997); Cowden v. Sovran Bank/Central South, 816
               S.W.2d 741, 744 (Tenn. 1991). Tennessee Rule of Civil Procedure
               56.04 provides that 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, see Byrd v. Hall, 847
               S.W.2d 208, 210 (Tenn. 1993); and (2) the moving party is entitled
               to a judgment as a matter of law on the undisputed facts. See
               Anderson v. Standard Register Co., 857 S.W.2d 555, 559 (Tenn.
               1993). The moving party has the burden of proving that its motion
               satisfies these requirements. See Downen v. Allstate Ins. Co., 811
               S.W.2d 523, 524 (Tenn. 1991). When the party seeking summary
               judgment makes a properly supported motion, the burden shifts to the
               nonmoving party to set forth specific facts establishing the existence
               of disputed, material facts which must be resolved by the trier of fact.
               See Byrd v. Hall, 847 S.W.2d at 215.

                       To properly support its motion, the moving party must either
               affirmatively negate an essential element of the non-moving party’s
               claim or conclusively establish an affirmative defense. See McCarley
               v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998);
               Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997). If the moving
               party fails to negate a claimed basis for the suit, the non-moving
               party’s burden to produce evidence establishing the existence of a
               genuine issue for trial is not triggered and the motion for summary
               judgment must fail. See McCarley v. West Quality Food Serv., 960
               S.W.2d at 588; Robinson v. Omer, 952 S.W.2d at 426. If the moving
               party successfully negates a claimed basis for the action, the non-


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               moving party may not simply rest upon the pleadings, but must offer
               proof to establish the existence of the essential elements of the claim.

                       The standards governing the assessment of evidence in the
               summary judgment context are also well established. Courts must
               view the evidence in the light most favorable to the nonmoving party
               and must also draw all reasonable inferences in the nonmoving
               party’s favor. See Robinson v. Omer, 952 S.W.2d at 426; Byrd v.
               Hall, 847 S.W.2d at 210-11. Courts should grant a summary
               judgment only when both the facts and the inferences to be drawn
               from the facts permit a reasonable person to reach only one
               conclusion. See McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.
               1995); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).

Staples, 15 S.W.3d at 88-89. A fact is “material” for summary judgment purposes, if it “must be
decided in order to resolve the substantive claim or defense at which the motion is directed.” Luther
v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999)(quoting Byrd v. Hall, 847 S.W.2d at 211).

               As relevant to this appeal, Tenn. Code. Ann. § 9-8-403(a)(1) provides that
proceedings in the Commission “shall be conducted pursuant to rules of the Tennessee Rules of Civil
Procedure where applicable and otherwise pursuant to rules and regulations promulgated by the
commission.” In accordance with this statutory provision, the Commission has developed Rules of
Procedure found at Tenn. Comp. R. & Regs. 0310-1-1. The Commission’s Rules of Procedure
(hereafter “Commission Rules”) begin as follows:

               0310-1-1-.01 APPLICABILITY OF TENNESSEE RULES OF
               CIVIL PROCEDURE AND CORRELATION WITH T.C.A.
               § 9-8-403(a)(1). Proceedings before the Tennessee Claims
               Commission shall be conducted pursuant to the Tennessee Rules of
               Civil Procedure (TRCP) and subsequent amendments and
               interpretations where applicable except where specifically modified
               by these rules.…

The Commission Rules then modify several of the Tennessee Rules of Civil Procedure, although the
majority of the Tennessee Rules of Civil Procedure remain intact. It is important that the
Commission Rules do not modify Tenn. R. Civ. P. 56 and, therefore, Rule 56 applies to claims
before the Commission in the same manner as it would to a claim brought in a chancery or circuit
court.

                In the present case, the language relied upon by the Commission when granting the
State’s motion for summary judgment solely because Plaintiff did not file a response is found in
Commission Rule 0310-1-1-.01(5)(c). In relevant part, this Commission Rule modifies Tenn. R.
Civ. P. 7.02 as follows:


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               TRCP Rule 7.02 is followed in its entirety and the following language
               is also added:

                                               ****

               (c)     Each party opposing a motion shall serve and file a response
                       no later than fifteen (15) days after service of the motion,
                       except that in case of motions for summary judgment the time
                       shall be thirty (30) days after service of the motion. Failure
                       to file a response shall indicate that there is no opposition to
                       the motion. Provided, however, the Commission may act on
                       the motion prior to the times set forth.…

                 The State argues that the Commission acted properly by granting the motion for
summary judgment solely because Plaintiff failed to respond. The State relies heavily on Cavnar
v. State, No. M2002-00609-COA-R3-CV, 2003 Tenn. App. LEXIS 151 (Tenn. Ct. App. Feb. 26,
2003), no appl. perm appeal filed. In Cavnar, the plaintiff filed his claim against the State alleging
he was misdiagnosed at Middle Tennessee Mental Health Institute and the staff at that facility had
subjected him to mental abuse and torture. The State filed a motion to dismiss claiming the
Commission lacked subject matter jurisdiction and that the plaintiff failed to state a claim upon
which relief could be granted. Id. at * 3. The Commission dismissed the complaint because the
plaintiff failed to file a timely response to the motion to dismiss and because it lacked jurisdiction
over some of the claims. Id. at ** 4-6. As pertinent to this appeal, the Cavnar Court stated:

                        Tenn. Code Ann. § 9-8-403(a)(1)(Supp. 2002) provides that
               matters such as Mr. Cavnar's suit shall be conducted under the
               Tennessee Rules of Civil Procedure where applicable, and otherwise
               they shall be conducted in accordance with the Commission's rules
               and regulations. Tenn. Comp. R. & Regs. 0310-1-1-.01(5)(c) (2001)
               requires parties opposing a motion before the Commission, other than
               a summary judgment motion, to file and serve a response to the
               motion no later than fifteen days from service of the motion. Under
               the Commission's rule, "failure to file a response shall indicate that
               there is no opposition to the motion." Where an opponent to a motion
               fails to respond, the Commission may permissibly grant the motion
               on its merits, if to do so appears otherwise appropriate. This court
               reviews the Commission's decision to dismiss a claim using the abuse
               of discretion standard. Tuck v. State, 1996 Tenn. App. LEXIS 354,
               No. 03 A01-9510-BC-00355, 1996 WL 310012 at *3-4 (Tenn. Ct.
               App. June 11, 1996) (No Tenn. R. App. P. 11 application filed).

                      The Commission dismissed Mr. Cavnar's claim, in part,
               because he did not file a timely response to the State's motion to


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               dismiss. While pro se litigants are entitled to fair and equal treatment
               as they pursue litigation, they are not excused from complying with
               applicable substantive and procedural law. Whitaker v. Whirlpool
               Corp., 32 S.W.3d 222, 227 (Tenn. Ct. App. 2000); Irvin v. City of
               Clarksville, 767 S.W.2d 649, 652 (Tenn. Ct. App. 1988). The
               Commission allowed Mr. Cavnar thirty days to respond to the State's
               motion - fifteen days more than its rule required. To the extent that
               the Commission took Mr. Cavnar's silence as indicating that he did
               not oppose the State's motion for dismissal, it was simply applying
               Tenn. Comp. R. & Regs. 0310-1-1-.01(5)(c) according to its express
               language. We find no abuse of discretion in the Commission's
               enforcement of its own rule.

Cavnar, 2003 Tenn. App. LEXIS 151, at ** 4-6. The Court in Cavnar then specifically noted that
the plaintiff’s failure to file a response was not the sole basis upon which the complaint was
dismissed. Id. at * 6. The Court then discussed each of the plaintiff’s various claims and concluded
dismissal was proper either because the Commission lacked subject matter jurisdiction or because
the plaintiff failed to state a claim upon which relief could be granted. In other words, the motion
to dismiss would have been proper even if the plaintiff had filed a timely response, and, therefore,
it was “otherwise appropriate” to grant the motion on its merits. Id at *5.

                Pursuant to Tenn. R. Civ. P. 56, the non-moving party’s burden to produce evidence
establishing the existence of a genuine issue for trial is not triggered unless and until the moving
party either affirmatively negates an essential element of the non-moving party’s claim or
conclusively establishes an affirmative defense. Staples, 15 S.W.3d at 88. In other words, until the
moving party affirmatively negates an essential element of the non-moving party’s claim or
conclusively establishes an affirmative defense, the non-moving party has no duty to respond. It
necessarily follows that a motion for summary judgment should not be granted solely because the
non-moving party failed to respond. This is so because there first must be a determination that the
moving party met her burden either by affirmatively negating an essential element of the non-moving
party’s claim or conclusively establishing an affirmative defense before the motion can be granted.
If the moving party has met her burden, and assuming no timely response has been filed by the non-
moving party, then the proper manner for the Commission to dispose of the motion for summary
judgment would be to grant the motion because the non-moving party failed to respond and it is
otherwise appropriate under Rule 56 to grant the motion.

               To the extent Commission Rule 0310-1-1-.01(5)(c) authorizes the Commission to
grant a motion simply because the other side has not responded and is deemed to have “no
opposition to the motion,” this Rule is not dispositive or the sole consideration as to a motion for
summary judgment under Tenn. R. Civ. P. 56. As noted earlier, the Commission Rules do not
modify Tenn. R. Civ. P. 56, and, therefore, all the elements of Rule 56 are just as applicable before
the Commission as before a trial court. A rule that a motion for summary judgment can be granted
solely because the non-moving party failed to respond would eviscerate the standards set forth in


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Staples, supra. For example, assume the State, due to a glaring mathematical error, filed a motion
for summary judgment believing the statute of limitations had expired when it clearly had not.
Further assume the non-moving party, relying on the holding of Staples, did not respond to the
motion because her burden to produce evidence establishing the existence of a genuine issue for trial
had not been triggered because the State had failed either to negate an essential element of her claim
or to conclusively establish an affirmative defense. Under the State’s interpretation of Rule 0310-1-
1-.01(5)(c), the claimant’s lawsuit would be dismissed even though a cursory examination of the
motion by the Commission would show the State was not “entitled to a judgment as a matter of law
on the undisputed facts.” Staples, 15 S.W.3d at 88. This does not mean that failing to respond to
a motion for summary judgment has no consequences. To be sure, failing to respond to a motion
for summary judgment is risky. If the moving party is successful in affirmatively negating an
essential element of the non-moving party’s claim or conclusively establishing an affirmative
defense, the non-moving party by not responding misses her only opportunity to establish the
existence of a genuine issue for trial.

               The result we reach today is not inconsistent with Cavnar. In Cavnar, because the
defendant filed a motion to dismiss and not a motion for summary judgment, the requirements of
Tenn. R. Civ. P. 56 never came into play. Furthermore, the Commission in that case did not dismiss
the complaint solely because the plaintiff failed to respond to the motion to dismiss. It also is
important that the Cavnar Court held that when “an opponent to a motion fails to respond, the
Commission may permissibly grant the motion on its merits, if to do so appears otherwise
appropriate.” Cavnar, 2003 Tenn. App. LEXIS 151, at * 5 (emphasis added). In our opinion, under
Tenn. R. Civ. P. 56, “otherwise appropriate” requires more than just that the non-moving party failed
to respond. The Commission still must determine whether or not it is “otherwise appropriate” by
deciding whether the moving party met the necessary elements of Rule 56 before granting summary
judgment. Put simply, here the Commission ignored the holding of Cavnar and failed to consider
whether it was or was not “otherwise appropriate” to grant this Rule 56 motion. Therefore, we hold
the Commission erred by granting the State summary judgment solely because Plaintiff failed to file
a timely response to the motion for summary judgment.

                 In the present case, the basis for the State’s motion for summary judgment is twofold.
First, the State claims that because Plaintiff failed to inform the Bankruptcy Court of the existence
of the present claim, she is judicially estopped from pursuing same. Second, the State claims that
because Plaintiff has filed for Chapter 13 bankruptcy, she no longer is the real party in interest and
lacks standing. According to the State, the Chapter 13 Trustee alone has standing to prosecute this
case for the benefit of the bankruptcy estate. Prior to granting the State’s motion for summary
judgment, the Commission never made the necessary determination as to whether there is any
genuine issue of material fact and whether the State is entitled to judgment as a matter of law on the
undisputed facts. The Commission never addressed whether the State was entitled to summary
judgment on either or both of these grounds. This is a determination best made initially by the
Commission rather than this Court. We, therefore, vacate the grant of summary judgment and




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remand this case to the Commission to make this required determination. The remaining issues are
pretermitted.1

                                                     Conclusion

               The judgment of the Claims Commission is vacated, and this cause is remanded to
the Commission for further proceedings as are necessary consistent with this Opinion. The costs on
appeal are assessed against the Appellee State of Tennessee.




                                                                 ___________________________________
                                                                 D. MICHAEL SWINEY, JUDGE




         1
            While this case was on appeal, Plaintiff filed a Motion for Consideration of Post-Judgment Facts. In light of
our re solution of this ap peal, Plaintiff’s mo tion is denied as moot.

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