                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                           Submitted on Briefs January 18, 2006

      LARRY GRIGSBY v. UNIVERSITY OF TENNESSEE MEDICAL
                        CENTER, ET AL.

                        Appeal from the Circuit Court for Knox County
                          No. 1-114-05    Dale C. Workman, Judge



                No. E2005-01099-COA-R3-CV - FILED FEBRUARY 22, 2006


In this pro se medical malpractice case, the issues on appeal are whether the Appellant, Larry
Grigsby, timely filed a notice of appeal as regards Defendants Dr. Paul A. Hatcher and Dr. E. Jay
Mounger, and whether the trial court correctly granted summary judgment to the University of
Tennessee Medical Center (“UTMC”). We dismiss the appeal as to the Defendant doctors because
we find that Mr. Grigsby did not comply with the jurisdictional requirement of Tenn. R. App. P. 4(a),
mandating the timely filing of a notice of appeal. We affirm summary judgment in UTMC’s favor
because Mr. Grigsby proceeded solely on the vicarious liability theory of respondeat superior,
pursuant to his allegations that Drs. Hatcher and Mounger were agents and/or employees of UTMC.
Because the alleged agents have been exonerated by an adjudication of non-liability, and therefore
the alleged principal, UTMC, may not be held vicariously liable, we affirm summary judgment in
favor of UTMC.

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

SHARON G. LEE, J., delivered the opinion of the court, in which HERSCHEL PICKENS FRANKS, P.J.,
and D. MICHAEL SWINEY , J., joined.

Larry Grigsby, pro se Appellant.

Stephen C. Daves and Jeffrey R. Thompson, Knoxville, Tennessee, for the Appellee, University of
Tennessee Medical Center.

James H. London and Jason H. Long, Knoxville, Tennessee, for the Appellees, Paul A. Hatcher and
E. Jay Mounger.
                                             OPINION

                              I. Factual and Procedural Background

         On February 24, 2005, Mr. Grigsby filed his complaint in this action, alleging that the
Defendants committed various acts of malpractice in the course of his medical treatment, resulting
in injuries that included the loss of one of his kidneys. On March 10, 2005, UTMC filed a motion
to dismiss, asserting that the complaint made no allegations of negligence specifically against
UTMC, nor did it allege a deviation from the recognized standard of acceptable medical care as
required by T.C.A. §29-26-115. UTMC further alleged that the complaint alleged facts “that cause
this claim to be barred by the one year statute of limitations as found at T.C.A. §29-26-118.” Mr.
Grigsby filed a response in opposition to the motion to dismiss, supported by his own affidavit.

       Drs. Hatcher and Mounger filed a motion for summary judgment, supported by the affidavit
of Dr. Hatcher and Mr. Grigsby’s medical records. On April 12, 2005, the trial court entered an
order granting UTMC’s motion to dismiss, holding that the complaint failed to state a claim upon
which relief can be granted and dismissing the complaint as to UTMC pursuant to Tenn. R. Civ. P.
12.02(6). The trial court decreed in its order that “[t]here being no just reason for delay, it is
expressly directed that final judgment be entered as to this defendant.”

        On May 6, 2005, Mr. Grisgby filed a notice of appeal with the trial court, stating in its
entirety as follows: “Notice is hereby given that Larry Grigsby[,] plaintiff above named, here appeals
to the Tennessee court of Appeals at Knoxville, Tennessee from the final judgment entered in this
action the 10th day of March 2005” [sic].

         Following a hearing on the matter, the trial court entered an order on June 28, 2005, granting
summary judgment to Drs. Hatcher and Mounger. Mr. Grigsby did not file a notice of appeal
regarding the summary judgment. However, Mr. Grigsby argues in his brief filed with this court that
“the doctor defendants here were not entitled to summary judgment[.]” Drs. Hatcher and Mounger
filed a motion to dismiss the appeal as to them, on grounds that Mr. Grigsby did not comply with
Tenn. R. App. P. 4(a) and 3(f) by failing to timely file a notice of appeal designating that he sought
relief from the summary judgment in their favor.

                                        II. Issues Presented

       The issues presented for our determination are as follows:

       1. Whether the appeal of summary judgment in favor of Drs. Hatcher and Mounger should
be dismissed for failure to timely file a notice of appeal of the judgment.

      2. Whether the trial court correctly granted UTMC’s motion to dismiss Mr. Grigsby’s
complaint as to UTMC for failure to state a claim upon which relief can be granted.



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                                        III. Notice of Appeal

       The question of whether Mr. Grigsby’s appeal of the summary judgment in favor of Drs.
Hatcher and Mounger must be dismissed is governed by Tenn. R. App. P. 3(f) and 4(a). In a similar
previous case, this court has noted that


               Tenn. R.App. P. 3(f) requires appellants to designate the "judgment
               from which relief is sought," and Tenn. R.App. P. 4(a) requires that
               notices of appeal must be "filed with and received by the clerk of the
               trial court within 30 days after the date of entry of the judgment
               appealed from." Tenn. R.App. P. 3(f) limits the scope of appellate
               review to the judgment or order designated by the notice; see Hall v.
               Hall, 772 S.W.2d 432, 435-36 (Tenn.Ct.App.1989); while, Tenn.
               R.App. P. 4(a) establishes a mandatory, jurisdictional time limit for
               filing a notice of appeal that cannot be waived or extended. See
               Jefferson v. Pneumo Servs. Corp., 699 S.W.2d 181, 184
               (Tenn.Ct.App.1985); John Barb, Inc. v. Underwriters at Lloyds of
               London, 653 S.W.2d 422, 424 (Tenn.Ct.App.1983).


Goad v. Pasipanodya, No. 01A01-9509-CV-00426, 1997 WL 749462 at *2 (Tenn. Ct. App., M.S.,
filed Dec. 5, 1997). In Goad, the court held that where an appellant’s notice of appeal identified only
the trial court’s June 19, 1995 order and not its March 17, 1995 order, Tenn. R. App. P. 3(f) limited
his appeal to the June 19, 1995 order. Id; see also Cox v. Shell, No. W2004-01777-COA-R3-CV,
2005 WL 2860249 at *12 (Tenn. Ct. App., W.S., filed Oct. 31, 2005)(“when a specific judgment or
order is designated in the notice of appeal, Tenn. R.App. P. 3(f) limits the scope of appellate review
to the judgment or order designated.”); Consolidated Waste Systems, LLC v. Metro Gov’t. of
Nashville and Davidson Co., M2002-02582-COA-R3-CV, 2005 WL 1541860 at *44 (Tenn. Ct.
App., M.S., filed June 30, 2005).


         In the present case, Mr. Grigsby filed his notice of appeal stating that he appeals “from the
final judgment entered in this action the 10th day of March 2005.” Although the date is obviously
incorrect, we believe it is fairly apparent that Mr. Grigsby meant to appeal the judgment of the trial
court entered April 12, 2005, disposing of UTMC’s motion filed on March 10, 2005. Mr. Grigsby
could not have included in this notice of appeal the trial court’s summary judgment entered on June
28, 2005, because his notice was filed May 6, 2005. It is thus clear that Mr. Grigsby filed no notice
of appeal of the trial court’s summary judgment in favor of Drs. Hatcher and Mounger. “The notice
of appeal requirement is jurisdictional and mandatory in all civil cases. If the notice of appeal is not
filed as required by Rule 4, an appellate court is without jurisdiction to hear the issues raised on the
defective appeal.” Hutcheson v. Barth, 178 S.W.3d 731, 733 (Tenn. Ct. App. 2005)(footnotes
omitted).



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       Under the foregoing authorities and analysis, we hold that we are without jurisdiction to hear
the appeal of the trial court’s summary judgment in favor of Drs. Hatcher and Mounger, and that
judgment has become final. We find the following comment by the Goad court apt and equally
pertinent to the present case:


               We do not favor dismissing pro se litigants' appeals on what might
               appear to be technicalities. However, while parties who choose to
               represent themselves are entitled to fair and equal treatment, they are
               not entitled to shift the burden of litigating their case to the courts, see
               Dozier v. Ford Motor Co., 702 F.2d 1189, 1194 (D.C.Cir.1983), or
               to be excused from complying with the same substantive and
               procedural requirements that other represented parties must adhere to.
               See Irvin v. City of Clarksville, 767 S.W.2d 649, 652
               (Tenn.Ct.App.1988). Accordingly, they must act within the time
               periods provided by the applicable statutes and rules in order to have
               their cases considered. See Williams-Guice v. Board of Educ., 45 F.3d
               161, 164 (7th Cir.1995); Kelley v. Secretary, United States Dep't of
               Labor, 812 F.2d 1378, 1380 (Fed.Cir.1987).


Goad, 1997 WL 749462 at *2.


                  IV. Vicarious Liability Under Respondeat Superior Doctrine

         As above noted, UTMC filed its motion to dismiss on the ground that the complaint failed
to state a claim upon which relief can be granted against it, pursuant to Tenn. R. Civ. P. 12.02(6).
Rule 12.02 provides as follows:


               If, on a motion asserting the defense numbered (6) to dismiss for
               failure to state a claim upon which relief can be granted, matters
               outside the pleading are presented to and not excluded by the court,
               the motion shall be treated as one for summary judgment and
               disposed of as provided in Rule 56, and all parties shall be given
               reasonable opportunity to present all material made pertinent to such
               a motion by Rule 56.

Because Mr. Grigsby filed his own affidavit in support of his response in opposition to UTMC’s
motion to dismiss and there is no indication that the trial court “excluded” the affidavit, the trial
court should have treated the motion as one for summary judgment under this rule.

       A motion for summary judgment should be granted when the movant demonstrates that there


                                                   -4-
are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter
of law. Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the burden of
demonstrating that no genuine issue of material fact exists. Bain v. Wells, 936 S.W.2d 618, 622
(Tenn. 1997). On a motion for summary judgment, the court must take the strongest legitimate view
of the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that
party, and discard all countervailing evidence. Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993).

        Our examination of the record under this standard leads to the conclusion that Mr. Grigsby
proceeded solely under the theory of respondeat superior, alleging that UTMC was vicariously liable
for the acts of its alleged agents, Drs. Hatcher and Mounger. Neither his complaint nor his affidavit
alleges negligence on UTMC’s part that is independent of the alleged actions of the Defendant
doctors. The only allegations in Mr. Grigsby’s complaint specifically pertaining to UTMC are stated
as follows:

               Plaintiffs condition continued to worsen under the care of defendants
               and U.T. Medical Center Staff but nothing was done by either the
               defendant Hospital or defendant doctors resulting in the lost of
               plaintiffs kidney [sic].
                               *              *                *
               [Plaintiff’s injuries] were directly and proximately caused by the
               following acts of negligence and torts of the defendants and defendant
               Hospital.
               Negligence, Gross negligence, deliberate indifference, wonton and
               willfull negligence, outrageous conduct and mal-practice [sic].

[Numbering in original omitted]. Mr. Grigsby did not file an affidavit of a medical expert in this
case. His own affidavit states as follows in its entirety:

               I Larry Grigsby, having first been duly sworn, hereby states [sic] as
               follows:
               1. I am eighteen (18) years of age and the facts contained in this
               affidavit are based [upon] my own personal knowledge.
               2. That at all times alleged in the complaint that the affiant was under
               the care of The University of Tennessee Medical Center and as a
               result of negligence of the Medical Center sustained injuries by the
               defendants named in this case and that U.T. Medical Center is the
               duly recognized administrators [sic] of all the defendants and its
               hospital operation.
               3. That on 3-24-04 the plaintiff was diagnosed by primary care
               doctors and it was concluded that his injuries was [sic] the result of
               improper care and negligence of the University of Tennessee Medical
               center and staff as defined in [the] complaint and that plaintiff[’]s



                                                 -5-
               claim accrued on that exact date, complaint was filed February 24th
               2005. Complaint complies with statute of limitation mandates.
               4. During and up until this date the defendant Hospital was under the
               following duties:
               a. To exercise that degree of care, skill and diligence used by
               hospitals generally in that community, and required by the express or
               implied contract of the undertaking.
               5. In breach of these duties defendant U.T. Medical Center was
               negligent and grossly negligent of [sic] the following acts or
               omissions:
               a. That accidents such as plaintiff sustained do not occur even when
               that treatment is properly administered however so as a result of the
               hospital failing to insure skill and the following of protocol for
               treatment the plaintiff was injured.
               b. The defendants allow its physicians to operate its equipment above
               and beyond medical mandates in a negligent manner that causes harm
               without care.
               c. Defendant hospital had a duty to diagnose plaintiff conditions [sic]
               when plaintiff complained and failed to give him supportive
               treatment.
               d. Plaintiff was a patient in defendant hospital when negligent acts
               and improper procedure and surgery sustained his injuries[sic].

        In his response to UTMC’s motion to dismiss, Mr. Grigsby argued to the trial court that
“Defendant U.T. Medical Center is liable under respondent [sic] superior because under this doctrine
master is responsible for wont [sic] of care on servants[’] part toward those to whom master owes
duty of care, provided failure of servant to use such care occurred in the course of his employment.”
Likewise, Mr. Grisgby’s appellate brief is directed entirely to his respondeat superior argument,
stating, among other things, that “in analyzing the Complaint, this Honorable Court will find that
such pleading does in fact allege negligence and malpractice against the Defendant University of
Tennessee Medical Center through vicarious liability under the doctrine of respondeat superior for
the actions of Defendants/physicians Paul A. Hatcher and E. Jay Mounger.”

        In Johnson v. LeBonheur Children’s Medical Center, 74 S.W.3d 338 (Tenn. 2002), the
Supreme Court was presented with the question of whether a physician resident’s personal immunity
from a lawsuit prohibited the hospital where the resident worked from being held vicariously liable
under the respondeat superior doctrine based upon the resident’s actions. The Court answered in
the negative and further stated as follows:

               a principal may not be held vicariously liable under the doctrine of
               respondeat superior based upon the acts of its agent in three
               instances: (1) when the agent has been exonerated by an adjudication
               of non-liability, (2) when the right of action against the agent is

                                                -6-
               extinguished by operation of law, or (3) when the injured party
               extinguishes the agent's liability by conferring an affirmative,
               substantive right upon the agent that precludes assessment of liability
               against the agent.


Johnson, 74 S.W.3d at 345 (emphasis added). The Supreme Court reiterated this principle a year
later in Shelburne v. Frontier Health, 126 S.W.3d 838, 844 (Tenn. 2003).

        As already noted, the trial court granted summary judgment in favor of Drs. Hatcher and
Mounger. “A motion for summary judgment goes directly to the merits of the litigation.” Byrd v.
Hall, 847 S.W.2d 208, 210 (Tenn. 1993); Fowler v. Happy Goodman Family, 575 S.W.2d 496, 498
(Tenn. 1978). This court has held that a summary judgment that has become final carries res
judicata effect. Hollins v. Covington Pike Chrysler-Plymouth, Inc., No. W2002-00492-COA-R3-CV,
2002 WL 31895720 at *2 (Tenn. Ct. App. W.S., filed Dec. 23, 2002); Anderson v. Rayner, No.
W2004-00485-COA-R3-CV, 2005 WL 3543682 at *5-6 (Tenn. Ct. App. W.S., filed Dec. 28, 2005).
Res judicata is a doctrine that “may be successfully pleaded when a judgment on the merits exhausts
or extinguishes the cause of action on which it is based[.]” National Cordova Corp. v. City of
Memphis, 380 S.W.2d 793, 796 (Tenn. 1964). We are of the opinion that a summary judgment that
has become final serves to “exonerate [the agent] by an adjudication of non-liability.” Johnson, 74
S.W.3d at 345. Consequently, under Johnson and Shelburne, the alleged principal, UTMC, cannot
be held vicariously liable under the respondeat superior doctrine because the alleged agents, Drs.
Hatcher and Mounger have been exonerated by an adjudication of non-liability.

        Our affirmance of the dismissal of Mr. Grigsby’s cause of action against UTMC is obviously
based upon different grounds than those upon which the trial court relied, because the Defendant
doctors had not yet been granted summary judgment when the trial court granted UTMC’s motion
to dismiss. But “[i]t is well settled that if there is any ground upon which a decree before the
appellate court on a broad appeal can be affirmed, it will be done, even though it be a different
ground from that upon which the chancellor bases his decree.” Barner v. Boggiano, 222 S.W.2d 672,
677 (Tenn. Ct. App. 1949). It is our opinion that the principle of agency law espoused by the
Supreme Court in Johnson and Shelburne and discussed herein renders all other issues moot, because
regardless of the outcome of any other issue, Mr. Grigsby cannot recover under respondeat superior
against UTMC, the alleged principal, when his cause of action against the alleged agents has been
extinguished. “If the trial court reached the correct result, the judgment below is entitled to
affirmance, irrespective of the reason stated.” Benson v. U. S. Steel Corp., 465 S.W.2d 124, 130
(Tenn. 1971).




                                                -7-
                                          V. Conclusion

       For the aforementioned reasons, the judgment of the trial court is affirmed in its entirety.
Costs on appeal are assessed to the Appellant, Larry Grigsby.



                                             ________________________________________
                                             SHARON G. LEE, JUDGE




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