Bandeian v. Wagner ( 1997 )

IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
JOHN J. BANDEIAN, JR., M.D., )
)
Plaintiff/Appellant, )
) Davidson Circuit
) No. 95C-3587
VS. )
) Appeal No.
) 01A01-9703-CV-00140
MARTIN H. WAGNER, M.D., )
Defendant/Appellee.
)
) FILED
October 29, 1997
CONCURRING OPINION Cecil W. Crowson
Appellate Court Clerk
I concur in the results of the court’s opinion for two reasons. First, the
affidavits submitted by Dr. Bandeian in response to Dr. Wagner’s motion for
summary judgment do not contain specific facts that would be admissible in evidence
demonstrating the existence of material factual disputes or that Dr. Wagner is not
entitled to a judgment as a matter of law.1 Second, Dr. Bandeian has not
demonstrated the existence of heightened concerns for Dr. Wagner’s credibility.2
_______________________________
WILLIAM C. KOCH, JR., JUDGE
1
A basic tenet of summary judgment practice is that a party faced with a properly supported
motion for summary judgment must come forward with specific facts that would be admissible in
evidence demonstrating that there are material factual disputes or that the moving party is not
entitled to a judgment as a matter of law. See Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993);
Wadlington v. Miles, Inc., 922 S.W.2d 520, 522 (Tenn. Ct. App. 1995); Tenn. R. Civ. P. 56.06.
2
Summary judgments should not be used to make credibility determinations. See Byrd v.
Hall, 847 S.W.2d at 216. However, the credibility concerns that warrant denying a motion for
summary judgment must rise to a level greater than the normal credibility questions that arise
whenever a witness testifies. See Hepp v. Joe B’s, Inc., App. No. 01A01-9604-CV-00183, 1997 WL
266839, at *2 (Tenn. Ct. App. May 21, 1997) (No Tenn. R. App. P. 11 application filed).