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Carlen v. Jackson9/19/2001
ocedure.
The defendant appeals, and presents for review the propriety of this judgment. Our review is de novo on the record, with no presumption of correctness since this issue is one of law. Foley v. St. Thomas Hospital, 906 S.W.2d 448 (Tenn. Ct. App. 1995).
II.
The defendant filed a response to the Requests for Admission on May 12, 2000, which generally denied the requests. He responded to the request for production by stating " his defendant will answer this Interrogatory after the inspection of the vehicle which is set for June 5, 2000." The trial judge aptly observed that a comparative fault defense required thoughtful consideration, since a plaintiff has a statutory window of ninety (90) days after revelation to "bring that party in." The trial judge further observed:
The fact that as of the end of that ninety (90) days you have not come up with any evidence and not even responded to the request for admissions, it puts them in a completely untenable position. They are in a position right now that they could not bring General Motors into this lawsuit.
Counsel for the defendant responded that the plaintiffs could have amended the complaint and brought General Motors into the case by alleging a defect "whether there was or was not a defect," and thereby would have eliminated the looming prejudice.
In the last analysis, the defendant had no competent evidence of a defect. He was attempting to show that the vehicle had been the subject of a recall, but the evidence revealed that the recall involved an entirely different vehicle. The defendant adduced statements from a witness about the handling characteristics of the vehicle, who later conceded that he was mistaken and found nothing wrong with the truck.
This witness, David Dyer, offered nothing of value to the defendant. It was apparently through a misunderstanding of a casual remark made by Mr. Dyer that prompted counsel to state to the court that "quite frankly we heard some rumors that someone had tested driven this vehicle a day or two days before and had serious problems with the driving mechanism." It developed that Mr. Dyer found nothing wrong with the driving mechanism.
The defendant attempted to establish a genuine issue of a material fact by the assertion of a claim for spoilation of evidence through the affidavit testimony of Tyler Kress. Suffice to say that Mr. Kress does not identify any defect in the vehicle, and the steering problems and the recall which he references, do not relate to the subject vehicle.
There is no evidence in the record that Carlen Motors conducted any destructive testing of the vehicle. The trial judge found " I don't see anything right now that would create the grounds that would allow me to hold that spoilation has taken place."
Rule 56.04 of the Tennessee Rules of Civil Procedure provides:
Subject to the moving party's compliance with Rule 56.03, the judgment sought shall be rendered forthwith 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 and that the moving party is entitled to a judgment as a matter of law.
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. Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993); see also, Anderson v. Standard Register Company, 857 S.W.2d 555, 559 (Tenn. 1993). Once the movant has properly supported its summary judgment motion, "the burden of production of evidence shifts to the non-moving par
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