IN THE SUPREME COURT OF TENNESSEE AT JACKSON March 4, 2015 Session

MICHELLE RYE ET AL. v. WOMEN’S CARE CENTER OF MEMPHIS, MPLLC ET AL.

Appeal by Permission from the Court of Appeals, Western Section Circuit Court for Shelby County No. CT00092009 Gina C. Higgins, Judge

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No. W2013-00804-SC-R11-CV- Filed October 26, 2015 ________________________

SHARON G. LEE, C.J., concurring.

I was not serving on the Supreme Court in 2008 when Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008) was argued. Had I participated in the Hannan decision, I would have joined in the majority opinion. However, after observing the application of the unique Hannan standard over the past seven years, I conclude that the Hannan standard is unworkable and should be replaced. Although it is often easier to maintain the status quo rather than admit that a mistake was made, we do not have this option. We must change course when we realize we are headed in the wrong direction.

The dissent recognizes that Hannan “did not clearly articulate with precision just how the second prong was intended to work in practice” and suggests that it be clarified. This is an implicit acknowledgement that the Hannan standard is unworkable. As a proposed “clarification” of Hannan, the dissent suggests that trial courts should rely more extensively on scheduling orders. The dissent does not explain how a grant of summary judgment based on the passage of a discovery cutoff date would square with a core holding in Hannan—that it is “not enough for the moving party to challenge the nonmoving party to „put up or shut up‟ or even to cast doubt on a party‟s ability to prove an element at trial” and that it will not suffice for the moving party to “simply show that the nonmoving party „lacks evidence to prove an essential element of its claim.‟” Hannan, 270 S.W.3d at 8. The problem is, under Hannan, absent an affirmative defense such as a statute of limitations, the moving party may not obtain summary judgment before trial, even if the nonmoving party has no evidence whatsoever to support the claims in the complaint. This problem cannot be “clarified” away. The only fix is to scrap it and replace it with a workable standard. The dissent suggests that we should keep the Hannan standard so that we can, in a future case, “confront head-on the separation of powers issue” presented by the enactment of Tennessee Code Annotated section 20-16-101. I am unwilling to saddle litigants with a summary judgment standard that is unworkable simply to set the stage for a showdown with the Legislature over its authority to enact a summary judgment standard. The dissent references this as a “game of chicken” between the General Assembly and the Tennessee Supreme Court. I call it fulfilling my oath of office and maintaining the independence and integrity of the judiciary.

_________________________________ SHARON G. LEE, CHIEF JUSTICE

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