                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                     July 13, 2001 Session

                        KIMBERLY J. SVACHA, ET AL. v.
                     WALDENS CREEK SADDLE CLUB, ET AL.

                       Appeal from the Circuit Court for Sevier County
                         No. 96-1309-III    Rex Henry Ogle, Judge

                                   FILED AUGUST 13, 2001

                                 No. E2000-03121-COA-R3-CV



The Trial Court granted Defendants’ motion for summary judgment relying, at least in part, on oral
testimony from one of the Plaintiffs. This testimony was not transcribed, filed with the Trial Court,
and provided to this Court as part of the record on appeal. Due to the somewhat peculiar procedural
aspects of this case, we conclude that Defendants had the responsibility to file a transcript of this
testimony. Because we cannot evaluate the propriety of the grant of summary judgment without
having before us this evidence relied on by the Trial Court, we vacate the grant of summary
judgment.



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


D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HOUSTON M. GODDARD , P.J.,
and CHARLES D. SUSANO, JR., J., joined.


Robert L. Ogle, Jr., Sevierville, Tennessee for the Appellants Kimberly and William Svacha.


David H. Parton, Gatlinburg, Tennessee, for the Appellees Benjamin and Mary Darnell, and Waldens
Creek Saddle Club.
                                             OPINION

                                            Background

                This lawsuit arises out of an incident which occurred in May of 1996 when Kimberly
and William Svacha (“Plaintiffs”) went horseback riding. Plaintiffs rented horses from Benjamin
and Mary Darnell, who operate Waldens Creek Saddle Club (“Defendants”) in Pigeon Forge. Ms.
Svacha was injured after falling off the horse she was riding allegedly because the saddle slipped.
After amending the complaint, Plaintiffs claimed that Defendants and their agents were negligent
in supplying faulty equipment and were grossly negligent in not properly supervising, applying and
adjusting the saddle and/or tack on the horse Ms. Svacha was riding which caused the saddle to slip
and Ms. Svacha to fall. Plaintiffs further allege that Defendants and their agents knew or should
have known that the horse was not properly saddled.

               Prior to riding the horses, Plaintiffs signed a release which provides, in relevant part,
as follows:

                       I hereby acknowledge that I am willing to participate in the
               activities at the Waldens Creek Saddle Club’s Horse Riding Stables
               at my own risk. I fully realize that horse riding is a potentially
               dangerous activity with its own unique hazards as horses are
               spontaneous individual animals not subject to any set pattern of
               activity and they pose a risk at all times. I feel confident that I have
               asked all necessary questions of Waldens Creek Saddle Club to
               prepare myself for horse riding and Waldens Creek Saddle Club has
               made no warranties either expressed or implied, no guarranty (sic),
               and no statement of any kind as to the particular condition of any
               horse or of the horse I am to ride. I, THEREFORE, HEREBY
               RELEASE WALDENS CREEK SADDLE CLUB, any related
               companies, any owner of equipment or property used in the activities,
               and any and all employees, officers, and/or directors of any of the
               above organizations and/or individuals, from ANY AND ALL
               LIABILITY, RESPONSIBILITY, AND/OR OBLIGATION they may
               or may not have with regard to any accident, incident, occurance (sic),
               and/or injury that may result from my participation in the services and
               activities available from Waldens Creek Saddle Club .… AGAIN, I
               AGREE THAT I AM RIDING AT MY OWN RISK.

               Defendants filed a motion for summary judgment asserting: 1) Plaintiffs’ claims had
been released with the execution of the above waiver; 2) Plaintiffs’ claims were barred by Tenn.
Code Ann. § 44-20-101, the Equine Activities statute; and 3) there were no facts to support a claim
that Defendants knowingly provided faulty equipment or that they were grossly negligent. In support
of the motion, Defendants filed the Affidavit of Dr. William R. Backus, an Associate Professor in


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the Department of Animal Science at the University of Tennessee Institute of Agriculture. Dr.
Backus stated that a saddle slipping was an inherent risk of horseback riding. Plaintiffs countered
with the affidavit of Frank Lackey (“Lackey”). Lackey had over 50 years of experience in training,
showing, and judging horses. He also stated that he was familiar with the riding stables in East
Tennessee and particularly Waldens Creek Saddle Club. Lackey essentially concluded that “the
person and/or employee of the Defendants was grossly negligent in saddling the horse in manner
(sic) in which it was saddled.”

                 The Trial Court denied Defendants’ motion for summary judgment, although the
specific reason(s) for the denial were not set forth in the order. On May 8, 2000, the trial began. The
prospective jurors were sworn in, voir dire was undertaken, and a panel of jurors was selected.
Thereafter, Plaintiff Kimberly Svacha was questioned outside the presence of the jury concerning
a Motion in Limine regarding the validity of the release. The testimony of Ms. Svacha was not filed
with the Trial Court or provided to this Court on appeal. The record does, however, contain the
dialogue between counsel and the Trial Court immediately following this testimony. During this
discussion, the Trial Court indicated that the release was valid and the only issue for trial was
whether there was any gross negligence because the release would bar an action for ordinary
negligence. The Trial Court also stated that “from the statements … of counsel and the witness, the
Court would think that the failure to properly tie a girt strap or a saddle is just a matter of degree as
it relates to ordinary negligence.…”(emphasis added). Counsel for Plaintiffs then argued that the
degree of negligence (i.e., ordinary versus gross) was a factual question in light of the affidavit of
their expert. Plaintiffs’ counsel also pointed out that the Trial Court had already ruled on whether
there was any material factual dispute when Defendants’ motion for summary judgment was
previously denied. The Trial Court responded by stating: “Yeah, but I hadn’t heard her testimony
….” The Trial Court excused the jury and continued the trial date.

                 Defendants filed a renewed motion for summary judgment, which was granted by the
Trial Court. In granting the motion, the Trial Court stated: (1) that the release was binding; (2)
Plaintiffs would have to prove gross negligence in order to overcome the effect of the release; (3)
that Plaintiffs had not shown any gross negligence; and (4) slippage of saddles is an inherent risk in
horseback riding. Plaintiffs appeal the granting of Defendants’ renewed motion for summary
judgment.

                                              Discussion

                Plaintiffs state the issue as whether the Trial Court erred in granting Defendants’
renewed motion for summary judgment. Plaintiffs make several arguments in support of their
position that the Trial Court erred in granting summary judgment to Defendants. Our resolution of
this appeal on a procedural ground makes it unnecessary to address the additional arguments put
forth by Plaintiffs.

             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):


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        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-
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


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               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).

              For some unknown reason, the testimony of Plaintiff Kimberly Svacha heard by the
Trial Court on May 8, 2000, was not transcribed and filed with the Trial Court. On appeal,
Defendants admit the importance of this testimony with regard to the success of their motion for
summary judgment, but claim that Plaintiffs had the responsibility to make sure that this evidence
was included in the record. In their brief on appeal, Defendants make the following statement:

               On May 8, 2000, the case came on for trial …. A jury was selected
               and excused while the Judge conducted a hearing on the Motions in
               Limine. The Plaintiffs’ attorney called Mrs. Svacha as a witness in
               support of his motion to exclude the release of liability. During Mrs.
               Svacha’s testimony, it became apparent to the Court that the Motion
               for Summary Judgment filed by the Defendants should have been
               granted and that the case should be dismissed. The Plaintiffs have not
               filed a transcript of this hearing or any summary of the proceedings
               as required by Rule 24 of the Tennessee Rules of Appellate
               Procedure.

                While Rule 24(a) of the Tenn. R. App. P. does place the primary burden on the
appellant to prepare a proper record on appeal, the appellee shares some of the responsibility to make
sure the record is complete. See McDonald v. Onoh, 772 S.W.2d 913, 914 (Tenn. Ct. App. 1989),
cert. denied, 493 U.S. 859, 100 S. Ct. 168 (1989)(“The Tennessee Rules of Appellate Procedure
place the responsibility for the preparation of the transcript or a statement of evidence squarely on
the shoulders of the parties. The appellant has the primary burden to see that a proper record is
prepared on appeal and filed in this Court.”). Rule 24(a) provides, in relevant part, as follows:

               If less than the full record on appeal as defined in this subdivision is
               deemed sufficient to convey a fair, accurate and complete account of
               what transpired with respect to those issues that are the bases of
               appeal or if a party wishes to include any papers specifically excluded
               in this subdivision, the party shall, within 15 days after filing the
               notice of appeal, file with the clerk of the trial court and serve on the
               appellee a description of the parts of the record the appellant intends
               to include on appeal, accompanied by a short and plain declaration of
               the issues the appellant intends to present on appeal. If the appellee
               deems any other parts of the record to be necessary, the appellee shall,


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                within 15 days after service of the description and declaration, file
                with the clerk of the trial court and serve on the appellant a
                designation of additional parts to be included.

                Given the somewhat peculiar procedural posture of this case, we believe it was
incumbent on Defendants to file with the Trial Court and furnish to this Court Kimberly Svacha’s
testimony since this testimony was relied on by the Trial Court to grant their motion for summary
judgment. Rule 56 of the Tenn. R. Civ. P. certainly contemplates that the proof in support of a
motion for summary judgment will be filed with the Trial Court rather than received orally. For
example, Rule 56.03 requires the filing of a statement of material facts as to which there is no
genuine issue. Rule 56.04 permits the granting of summary judgment if “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact ….” Defendants had more than ample time to have this
testimony transcribed and filed with the Trial Court in support of their “renewed” motion for
summary judgment.

                Rule 4 of the Rules of the Court of Appeals of Tennessee also supports our holding.
The clear intent of Rule 4 is that we have furnished to us in the record everything the trial court
“considered in reaching a decision on the motion for summary judgment ….” Under the procedural
facts of this case, this requirement could not be satisfied without a transcript of Ms. Svacha’s
testimony being filed with the Trial Court so that it could be included in the record furnished to this
Court. This was not done.

                If this were an appeal after trial, we would be inclined to agree with Defendants that
the burden was upon Plaintiffs to furnish the transcript of Ms. Svacha’s testimony. This appeal,
however, concerns the granting of summary judgment to Defendants. We accept Defendants’
position that the Trial Court apparently considered Ms. Svacha’s testimony in arriving at its decision
to grant to Defendants summary judgment. It is a Rule 56 movant’s burden to see that all proof
considered by a trial court in arriving at its determination to grant a motion for summary judgment
is “on file.” See Tenn. R. Civ. P. 56.04. If, as in this case, a trial court relies upon oral testimony
of a witness, the Rule 56 movant bears the responsibility of seeing that a transcript of that oral
testimony is “on file.”

               We conclude that Defendants had the responsibility to make sure that the testimony
upon which the Trial Court relied (at least in part) in granting their motion for summary judgment
was “on file” and in the record on appeal. Without this potentially crucial evidence in the record,
we cannot determine if the Trial Court properly granted Defendants’ motion. We vacate the granting
of Defendants’ motion for summary judgment. This case is remanded to the Trial Court for further
proceedings as necessary.




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                                           Conclusion

                The judgment of the Trial Court is vacated. This case is remanded to the Trial Court
for further proceedings as necessary consistent with this Opinion. Exercising our discretion, costs
on appeal are taxed one-half to Benjamin and Mary Darnell, and Waldens Creek Saddle Club, and
one-half to Kimberly J. Svacha and William Svacha.




                                                      ___________________________________
                                                      D. MICHAEL SWINEY, JUDGE




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