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Pate v. State11/20/2003
ermore, 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 remand this case to the Commission to make this required determination. The remaining issues are pretermitted.
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.
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