Cobble v. Shewmake ( 1999 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
JAMES E. COBBLE, )
Plaintiff/Appellant )
VS.
)
)
FILED
Appeal No. 01-A-01-9803-CV-00169
) Rutherford Circuit No. 34585
IVAN E. SHEWMAKE and ) May 13, 1999
RICHARD SMITH, JR., )
Defendants/Appellees ) Cecil Crowson, Jr.
) Appellate Court Clerk
) (CONSOLIDATED APPEALS)
CHARLES F. JOHNSON, )
Plaintiff/Appellant )
)
VS. ) Appeal No. 01-A-01-9803-CV-00170
) Rutherford Circuit No. 34561
IVAN E. SHEWMAKE and )
RICHARD SMITH, JR., )
Defendants/Appellees )
)
WM. KENNERLY BURGER, BPR #3731
Attorney for Plaintiffs/Appellants
SunTrust Bank Building, Suite 306
201 E. Main Street, P.O. Box 1969
Murfreesboro, TN 37133-1969
615-893-8933
DAVID L. GOAD
Attorney for Plaintiffs/Appellants
P.O. Box 206
Murfreesboro, TN 37133-0206
615-233-5585
JOHN KNOX WALKUP
For Defendants/Appellees
JOHN KNOX WALKUP
Attorney General & Reporter
MICHAEL E. MOORE
Solicitor General
For Defendants/Appellees
MERIDITH DEVAULT, BPR #9157
Senior Counsel
425 Fifth Avenue North
Nashville, TN 37243
615-741-6819
OPINION
It appearing to this Court from the Judgement of the Trial Court pursuant to Rule 10A1 of
the Court of Appeals, that the Plaintiffs/Appellants appealed from the Judgement of the Trial Court
granting the Defendant/Appellees Motion for Summary Judgement after finding that there was an
absence of disputed material facts and therefore, no genuine issues for the Trial Court to decide, 847
S.W.2d 208, 214 (Tenn 1993). The parties entitled to Summary Judgement when both the facts and
the conclusion to be drawn from the facts are so certain that a reasonable in the exercise of a free and
impartial judgment can reach only one conclusion. Haga vs. Blanc and West Lumber Company,
666 S.W.2d 61, 65 (Tenn 1984).
Following the Trial Court’s granting the Motion for Summary Judgement, the Plaintiffs
sought to supplement their responses to Defendants’ Motion for Summary Judgement by relying on
the depositions of Connie Qualls and Bill Reynolds, however these depositions were never before
the Trial Court and were not submitted in response to Defendants’ Motion for Summary Judgement.
These depositions were not filed until after the Trial Court found Summary Judgement for
Defendants and Dismissed the Complaint. Plaintiffs also rely on the deposition of Ivan Shewmake,
which was taken before Mr. Shewmake was a Defendant in this case. The deposition they seek to
rely on was taken in another case brought by a separate Plaintiff against a separate Defendant.
However, Plaintiffs did not submit this deposition in response to Defendants’ Motion for Summary
Judgement. The deposition they seek to rely on is absent from the record and absent from Plaintiffs’
response, including Motion for Summary Judgement. However, even if considered, there is nothing
in this deposition to establish that either of the Plaintiffs suffered serious or emotional distress as
required under Tennessee law in intentional infliction of emotional distress matters or that their
damages should be presumed under these circumstances. This Court is prohibited from considering
facts outside the record. We find no citations to any page numbers in the record as required by the
Tennessee Rules of Civil Procedure #27(g) in any of the facts in Plaintiffs’ Brief. The depositions
relied upon by the Plaintiffs are outside the record. Plaintiffs failed to produce any evidence of any
serious severe emotional distress, which was an essential element of the tort of intentional infliction
of emotional distress, absent proof of this element of the claim precludes the claim going forward
as a matter of law, Camper v. Miner, 915 S.W.2nd 437 (Tenn 1996).
We have completed a review of this record, and have concluded that the Trial Court correctly
found the facts in this case and that there was no error of law.
We therefore affirm pursuant to Rule 10A1 of the Court of Appeals.
Samuel L. Lewis J.
Houston Goddard, P.J.
Don McMurry, Judge
Did not participate
1
Rule 10(a) of the Rules of the Court of Appeals provides:
The Court, with the concurrence of all judges participating in the case, may affirm the action
of the trial court by order without rendering a formal opinion when an opinion would have
no precedential value and one or more of the following circumstances exist and are
dispositive of the appeal:
1) The Court concurs in the facts as found or as found by necessary
implication by the trial court.
2) there is material evidence to support the verdict of the jury.
3) no reversible error of law appears.
Such cases may be affirmed as follows: Affirmed in accordance with the Court of Appeals
Rule 10(a).