Alpha Financial Services, Inc. v. Karl Kindervater

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
December 5, 2000 Session
ALPHA FINANCIAL SERVICES, INC. v. KARL KINDERVATER
Direct Appeal from the Circuit Court for Hamilton County
No. E2000-01425-COA-R3-CV W. Neil Thomas, III, Judge
FILED JANUARY 22, 2001
No. E2000-01425-COA-R3-CV
CHARLES D. SUSANO, JR., J., concurring.
I concur in so much of Judge Franks’ majority opinion as finds that the trial court erred in
granting the plaintiff summary judgment. I do so, not because I believe, as the majority does, that
the affidavits submitted by the defendant, Karl Kindervater, make out a genuine issue of material
fact as to the amount of the defendant’s debt; but rather because I believe the material submitted by
the plaintiff does not clearly show the amount of the indebtedness due under the continuing guaranty.
In my opinion, the meaning and import of some of the documents submitted by the plaintiff in
support of its affidavits are not discernible. I am unable to look at these documents and find in them
support for some of the figures asserted in the plaintiff’s affidavits. It may be that one
knowledgeable with respect to these documents can explain them in a way that will clearly show that
the figures stated by the plaintiff’s witness are accurate; but I am unable, with my untrained (in this
field) eye, to make this determination.
I would hold that the material submitted by the plaintiff, without further illuminating
testimony, is not sufficient to trigger the defendant’s obligation to show a genuine issue of material
fact. See McCarley v. West Quality Food Service, 960 S.W.2d 585, 588 (Tenn. 1998). By way of
dictum, I would state that I do not agree with the majority’s observations with respect to the legal
import of the defendant’s “I dispute” language in his affidavits.
I concur.
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CHARLES D. SUSANO, JR., JUDGE