                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    July 12, 2005 Session

                RHONDA D. DUNCAN v. ROSE M. LLOYD, ET AL.

                 Direct Appeal from the Circuit Court for Davidson County
                          No. 01C-1459    Walter C. Kurtz, Judge



                   No. M2004-01054-COA-R3-CV - Filed August 18, 2005


The trial court awarded summary judgment to Defendants based on Plaintiff’s failure to respond to
Defendants’ statements of undisputed facts. We affirm.

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

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY M. KIRBY , J., joined.

Sam Wallace, Jr., Springfield, Tennessee, for the appellant, Rhonda D. Duncan.

Paul M. Buchanan and Julie Bhattacharya Peak, Nashville, Tennessee, for the appellee, Rose M.
Lloyd.

Marc O. Dedman, Nashville, Tennessee, for the appellee, The Tennessean Newspaper.

                                           OPINION

       This dispute arises from a 2000 automobile accident. At approximately 3:00 AM on
September 10, 2000, Defendant Rose M. Lloyd (Ms. Lloyd) was traveling southbound in the
northbound shoulder of Clarksville Highway while delivering newspapers for The Tennessean
Newspaper (“The Tennessean”). Plaintiff Rhonda D. Duncan was traveling north in the northbound
lane and saw the headlights of Ms. Lloyd’s vehicle coming toward her. Believing Ms. Lloyd was
coming toward her in her lane of traffic, Ms. Duncan swerved to the shoulder and struck Ms. Lloyd’s
vehicle.

        In May 2001, Ms. Duncan filed an action against Ms. Lloyd seeking damages for personal
injury and property damage. In her complaint, Ms. Duncan alleged damages including lost wages,
medical expenses, pain and suffering, and permanent disability. Ms. Duncan also named The
Tennessean as a Defendant under the doctrine of respondeat superior. Ms. Duncan sought damages
of $100,000.

        Ms. Lloyd and The Tennessean (collectively, Defendants) answered in June and August
2001, respectively. 1 In their answers, Defendants denied any negligence and alleged that Ms.
Lloyd’s vehicle was completely off the traveled portion of Clarksville Highway and stopped or
nearly stopped when it was struck by Ms. Duncan. They asserted Ms. Duncan slammed on her
brakes, skidded, lost control of her vehicle, left the roadway, and struck Ms. Lloyd’s vehicle.
Defendants asserted negligence and negligence per se on the part of Ms. Duncan as an affirmative
defense, and submitted that Ms. Duncan was operating under the influence of alcohol at the time of
the accident. They further submitted that the accident was not the proximate cause of Ms. Duncan’s
injuries and that Ms. Duncan was not less than 50% at fault and, therefore, could not recover. In the
alternative, Defendants pled comparative fault.

        On December 2, 2003, Ms. Lloyd served Ms. Duncan with a request for admissions. Ms.
Duncan failed to respond or to request an extension of time to respond within thirty days as required
by Tennessee Rule of Civil Procedure 36.01. On January 13, 2004, Ms. Lloyd filed a statement of
undisputed facts and moved for summary judgment. In her motion, Ms. Lloyd asserted that, because
Ms. Duncan had failed to respond to her December request for admissions, under Tennessee Rule
of Civil Procedure 36.01 the requests were deemed admitted. The Tennessean adopted Ms. Lloyd’s
statement of undisputed facts and moved for summary judgment on February 2, 2004.

        On January 16, 2004, Ms. Duncan filed a hand-written response to Ms. Lloyd’s request for
admissions. On February 17, 2004, Ms. Duncan filed a response to Defendants’ motions for
summary judgment, but did not include a statement of disputed facts. Ms. Duncan filed a portion
of her deposition, excerpted answers to Ms. Lloyd’s request for admissions, and a copy of the police
diagram of the accident with her response. In her response, Ms. Duncan asserted that the answers
to Ms. Lloyd’s request for admissions were delivered to Ms. Lloyd before Ms. Duncan was served
with Ms. Lloyd’s motion for summary judgment.

        A hearing on the matter was scheduled for March 19, 2004. On March 17, Ms. Duncan
submitted a brief pointing to a factual dispute regarding the direction in which Ms. Lloyd’s vehicle
was traveling at the time of the accident, and asserting that the plain language of Tennessee Rule of
Civil Procedure 36.01 permits the trial court to extend the time in which a party may respond to a
request for admissions. On the same day, Ms. Duncan moved the court to allow the filing of her
response to Ms. Lloyd’s request for admission. Also on March 17, Ms. Lloyd moved the court to
strike Ms. Duncan’s March 17 brief from the record as untimely under Davidson County Local Rule
26.04(d).


         1
          The Tennessean denied that it was a legal entity and noted that the proper legal description of this Defendant
is Gannett Satellite Information Network, Inc. W e will refer to the Defendant as The Tennessean for the purposes of
this appeal.



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       Following a March 19, 2004, hearing of the matter, the trial court awarded summary
judgment to Defendants on March 29, 2004. Ms. Duncan filed a timely notice of appeal to this
Court.

                                          Issue Presented

        The sole issue presented for our review is whether the trial court erred in granting
Defendants’ motions for summary judgment based upon Ms. Duncan’s failure to respond to
Defendants’ statement of undisputed facts in accordance with Rule 56 of the Tennessee Rules of
Civil Procedure.

                                        Standard of Review

        Summary judgment is appropriate when the moving party can demonstrate that there are no
disputed issues of material fact, and that it is entitled to judgment as a matter of law. Tenn. R. Civ.
P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993). The party moving for summary judgment
must affirmatively negate an essential element of the non-moving party's claim, or conclusively
establish an affirmative defense. McCarley v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn.
1998).

        When a party makes a properly supported motion for summary judgment, the burden shifts
to the non-moving party to establish the existence of disputed material facts. Id. A mere assertion
that the non-moving party has no evidence does not suffice to entitle the moving party to summary
judgment. Id. Further, the non-moving party cannot merely rely on the pleadings, but must
demonstrate that essential elements of a claim exist by: 1) pointing to evidence that creates a factual
dispute; 2) re-enforcing evidence challenged by the moving party; 3) offering additional evidence
which establishes a material dispute; 4) submitting a Tenn. R. Civ. P. 56.06 affidavit explaining the
need for additional time for discovery. McCarley, 960 S.W.2d at 588.

        When determining whether to award summary judgment, the trial court must view the
evidence in the light most favorable to the non-moving party and draw all reasonable inferences in
that party's favor. Staples v. CBL & Assocs., 15 S.W.3d 83, 89 (Tenn. 2000). The court should
award summary judgment only when a reasonable person could reach only one conclusion based on
the facts and the inferences drawn from those facts. Id. Summary judgment is not appropriate if
there is any doubt about whether a genuine issue of material fact exists. McCarley, 960 S.W.2d at
588. We review an award of summary judgment de novo, with no presumption of correctness
afforded to the trial court. Guy v. Mut. of Omaha Ins. Co., 79 S.W.3d 528, 534 (Tenn. 2002).

                                              Analysis

       In its order awarding summary judgment to Defendants, the trial court stated:




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                This Court specifically finds that the Plaintiff did not respond to the
        Defendant’s Statement of Undisputed Facts in accordance with Tennessee Rule of
        Civil Procedure 56.03. In light of the Tennessee Court of Appeals opinion in Owens
        v. Bristol Motor Speedway, Inc., 77 S.W.3d 771 (Tenn. Ct. App. 2001), this Court
        finds that the Defendants Statement of Undisputed Facts are deemed admitted and
        undisputed. The Court further notes that in granting the Defendants Motions it is not
        relying solely on the Plaintiff’s failure to respond to the Defendants request for
        admissions in accordance with Rule 36.01, but is instead deeming the Statement of
        Undisputed Facts admitted for the Plaintiff’s failure to respond to same. Where each
        of the Statement of Undisputed Facts are admitted, this Court finds that all
        reasonable juries would find the Plaintiff’s fault was fifty percent or more and,
        consequently, grants Defendants Motions.

              Further, where the only basis of liability against the Defendant The
        Tennessean Newspaper is premised upon respondeat superior, this Court grants The
        Tennessean Newspaper’s Motion for Summary Judgment as well.

The trial court’s order and the transcript of the hearing of this matter make it clear that the trial court
did not award summary judgment to Defendants based on Ms. Duncan’s failure to respond to Ms.
Lloyd’s request for admissions in accordance with Rule 36.01 of the Tennessee Rules of Civil
Procedure (Rule 36), but based on Ms. Duncan’s failure to respond to Ms. Lloyd’s motion for
summary judgment in a manner comporting with Tennessee Rule of Civil Procedure 56 (Rule 56).
In her brief to this Court, however, Ms. Duncan asserts she attached excerpted portions of her
deposition and responses to Ms. Lloyd’s requests for admissions to her response to the motion for
summary judgment, and that these attachments are sufficient to meet the requirements of Rule 56.

        Rule 56 provides, in pertinent part:

        Specifying Material Facts
                In order to assist the Court in ascertaining whether there are any material facts
        in dispute, any motion for summary judgment made pursuant to Rule 56 of the
        Tennessee Rules of Civil Procedure shall be accompanied by a separate concise
        statement of the material facts as to which the moving party contends there is no
        genuine issue for trial. Each fact shall be set forth in a separate, numbered paragraph.
        Each fact shall be supported by a specific citation to the record.
                Any party opposing the motion for summary judgment must, not later than
        five days before the hearing, serve and file a response to each fact set forth by the
        movant either (i) agreeing that the fact is undisputed, (ii) agreeing that the fact is
        undisputed for purposes of ruling on the motion for summary judgment only, or (iii)
        demonstrating that the fact is disputed. Each disputed fact must be supported by
        specific citation to the record. Such response shall be filed with the papers in
        opposition to the motion for summary judgment.



                                                   -4-
               In addition, the non-movant's response may contain a concise statement of
       any additional facts that the non-movant contends are material and as to which the
       non-movant contends there exists a genuine issue to be tried. Each such disputed fact
       shall be set forth in a separate, numbered paragraph with specific citations to the
       record supporting the contention that such fact is in dispute.
               If the non-moving party has asserted additional facts, the moving party shall
       be allowed to respond to these additional facts by filing a reply statement in the same
       manner and form as specified above.

Tenn. R. Civ. P. 56.03.

        The parties’ statements of material facts submitted on a motion for summary judgment are
“intended to alert the court to precisely what factual questions are in dispute and point the court to
specific evidence in the record that supports a party's position on each of these questions. They are,
in short, roadmaps, and without them the court should not have to proceed further, regardless of how
readily it might be able to distill the relevant information from the record on its own.” Owens v.
Bristol Motor Speedway, Inc., 77 S.W.3d 771, 774 (Tenn. Ct. App. 2001)(perm. app.
denied)(quoting with approval, Waldridge v. American Hoechst Corp., 24 F.3d 918, 923 (7th
Cir.1994)). Although the trial court may, at its discretion, waive the requirements of the rule where
appropriate, the court may also refuse to consider the factual contentions of a non-complying party
even where such facts are ascertainable by the record. Id. The material facts set forth in the
statement of the moving party may be deemed admitted in the absence of a statement controverting
them by the opposing party. Holland v. Memphis, 125 S.W.3d 425, 428 (Tenn. Ct. App. 2003)(perm.
app. denied). Accordingly, failure to file a response in opposition to a motion for summary judgment
generally will prove fatal in the trial court and upon appeal. Id.

         We begin our analysis by noting that this is not a case in which the non-moving party has
failed to respond to a motion for summary judgment altogether, or has simply attempted to rely on
the pleadings. Rather, this case raises the question of how specific a response must be in order to
fulfill the requirements of Rule 56.

        The only issue addressed by Ms. Duncan in her response to Ms. Lloyd’s motion for summary
judgment and statement of undisputed facts is that of the location of Ms. Lloyd’s vehicle at the time
of the accident. Ms. Duncan stated that she had answered twice under oath that Ms. Lloyd was not
in the southbound lane of traffic as asserted by Ms. Lloyd in her statement of undisputed facts. Ms.
Duncan referred the court to the “attached answer to interrogatories (excerpted) and the portion of
the deposition . . . which deal with causation . . . . together with the diagram, drawn by a Metro
Police Officer at the scene . . . .” Although Ms. Duncan did not file a separate statement of
undisputed facts, she submitted the referenced excerpted portions of her deposition and answers to
requests for admissions with her response. We believe that this response, together with the attached
excerpted portion of Ms. Duncan’s deposition and the police diagram, was sufficient to demonstrate
a genuine issue of material fact regarding the location of Ms. Lloyd’s vehicle at the time of the
accident.


                                                 -5-
         However, Ms. Duncan’s response is not sufficient to dispute the remaining facts asserted by
Ms. Lloyd in her statement of undisputed facts. These include that Ms. Duncan had consumed
alcohol prior to the collision; that Ms. Lloyd’s vehicle was entirely on the shoulder; that Ms. Lloyd’s
vehicle was at or near a complete stop at the time of the collision; that, according to Ms. Duncan’s
deposition, Ms. Duncan had no knowledge of where Ms. Lloyd’s vehicle was located when she first
saw it; that Ms. Duncan had advised a treating physician that she was traveling at 65 miles per hour
when the collision occurred; that the speed limit on Clarksville Pike in the area where the collision
occurred is 55 miles per hour; that Ms. Duncan told the investigating police office that she was not
injured in the accident and that Ms. Duncan refused an ambulance at the scene of the accident; that,
according to the records of a treating physician, any physical complaints from which Ms. Duncan
suffers have been worsened by depression; and that Ms. Duncan voluntarily terminated her
employment and her failure to return to employment is not related to any physical complaints from
the collision. These facts were not addressed by Ms. Duncan in her response to Ms. Lloyd’s Rule
56 motion. Accordingly, they are deemed admitted.

        Ms. Duncan argues here and in the trial court that her response to Ms. Lloyd’s Rule 36
request for admissions, which she contends was provided to Ms. Lloyd before Ms. Lloyd moved for
summary judgment, is sufficient to demonstrate disputed facts. This argument simply fails to
appreciate the requirements of Rule 56. As the trial court took pains to explain, regardless of
whether Ms. Duncan fulfilled the requirements of Rule 36 regarding the request for admissions, her
response to Ms. Lloyd’s motion for summary judgment is insufficient to satisfy Rule 56, which
governs motions for summary judgment. Merely informing the trial court that the record
demonstrates disputed facts, without specifically addressing those facts in the response and
specifically citing to portions of the record evidencing dispute, does not satisfy Rule 56. Any fact
not specifically disputed with citations to the record to support the alleged dispute may be deemed
admitted.

       Our analysis of whether summary judgment was appropriate in light of the insufficiency of
Ms. Duncan’s response to Ms. Lloyd’s motion for summary judgment does not end here, however.
As noted, Ms. Duncan successfully demonstrated a dispute regarding the location of Ms. Lloyd’s
vehicle at the time of the accident, which is clearly a genuine issue of material fact. Further, at the
hearing of the matter, Ms. Lloyd conceded that, contrary to the statement contained in her request
for admissions, Ms. Lloyd was traveling south on the northbound shoulder (as alleged by Ms.
Duncan) and not on the southbound shoulder.

      Thus, the facts which are admitted or deemed admitted for the purposes of the summary
judgment motion are:

       Ms. Lloyd was traveling south in the northbound shoulder of Clarksville Highway at
       approximately 3:00 AM on September 10, 2000.

       Ms. Lloyd’s vehicle was entirely on the shoulder.



                                                 -6-
       Ms. Lloyd’s vehicle was at or near a complete stop at the time of the collision.
       The speed limit on Clarksville Pike in the area where the collision occurred is 55 miles per
       hour.

       Ms. Duncan advised a treating physician that she was traveling at 65 miles per hour when
       the collision occurred.

       Ms. Duncan had consumed alcohol prior to the collision.

       According to Ms. Duncan’s deposition, Ms. Duncan had no knowledge of where Ms. Lloyd’s
       vehicle was located when she first saw it.

       Ms. Duncan told the investigating police office that she was not injured in the accident
       and she refused an ambulance at the scene of the accident.

       According to the records of a treating physician, any physical complaints from which Ms.
       Duncan suffers have been worsened by depression.

       Ms. Duncan voluntarily terminated her employment and her failure to return to employment
       is not related to any physical complaints from the collision.

        We next turn to the trial court’s determination that no reasonable jury would find that Ms.
Duncan was not at least fifty percent at fault in light of these facts and that, accordingly, Ms. Duncan
could not recover. We agree with the trial court. Additionally, The Tennessean cannot be found
liable under the doctrine of respondeat superior where no liability has attached to its employee.

                                               Holding

        In light of the foregoing, we affirm the judgment of the trial court awarding summary
judgment to Defendants. Costs of this appeal are taxed to the Appellant, Rhonda D. Duncan, and
her surety, for which execution may issue if necessary.



                                                        ___________________________________
                                                        DAVID R. FARMER, JUDGE




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