author: DROWOTA, J.,

text:
    NORTHLAND INSURANCE CO. v. STATE of Tennessee.
    Supreme Court of Tennessee, at Nashville.
    Dec. 8, 2000.

      James G. O’Kane, Knoxville, TN, for the appellant, Northland Insurance Company.
    Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Anthony D. Miller, Assistant Attorney General; Laura T. Kidwell, Assistant Attorney General, Nashville, TN, for the appellee, State of Tennessee.
   OPINION

DROWOTA, J.,

delivered the opinion of the court,

in which ANDERSON, C.J., and BIRCH, HOLDER, and BARKER, JJ., joined.

The issue in this case is whether the Tennessee Claims Commission has subject matter jurisdiction over a claim against the State of Tennessee for contribution and indemnity. The jurisdiction of the Claims Commission is set forth in Tennessee Code Annotated' section 9-8-307. That statute allows for suits against the State in the Claims Commission alleging that state employees have maintained a dangerous condition on a state maintained highway. The statute, however, does not mention contribution and indemnity suits as part of the Commission’s jurisdiction. Because of the principle that a waiver of sovereign immunity must be clear and unmistakable, we conclude that the State has not consented to hear contribution and indemnity claims. We therefore affirm the Court of Appeals’ decision dismissing the appellant’s claim.

On March 14, 1998, Dion Deskovie became involved in an accident while driving his tractor-trailer on Interstate 40 in Putnam County. The accident caused the fuel tank of the tractor-trailer to spill diesel fuel onto the highway. Employees of the Tennessee Department of Transportation arrived and spread sand over the spilled fuel. Thereafter, Kenneth B. McDonald, while working for Tennessee Walnut, Inc. and Grundy County Lumber Co., Inc. (“Walnut, Inc.”), drove his truck and flatbed trailer up to the accident scene. Mr. McDonald attempted to avoid a collision with Mr. Deskovic’s disabled tractor-trailer, which partially obstructed the highway, but he could not do so. Mr. McDonald’s truck struck and killed Mr. Deskovie, who was standing outside his vehicle, and injured two wrecker operators, Robert L. Sheppard and Emmet McGuire, who were at the scene attending the disabled tractor-trailer.

Mr. Sheppard and his wife, Mr. McGuire and his wife, and the estate of Mr. Desko-vie filed suit against Mr. McDonald and Walnut, Inc. Northland Insurance Co., the liability insurer of these defendants and the appellant before this Court, settled the cases by paying $150,000.00 to the estate of Mr. Deskovie, $845,000.00 to Mr. and Mrs. Sheppard, and $5,000.00 to Mr. and Mrs. McGuire.

After this settlement, Mr. McDonald and Walnut, Inc., filed a claim with the Tennessee Claims Commission seeking indemnity or contribution for the $1,000,000.00 paid by Northland, alleging that the State’s negligence in failing to stop traffic caused the accident. In May 1992, Northland filed a motion in the Claims Commission to be substituted as plaintiff and real party in interest. The State did not oppose the motion and the Commission granted it.

For reasons that are not clear from the record, no further action was taken on this litigation for four years. Then, in March 1996, the State moved to dismiss the suit for lack of subject matter jurisdiction. The Claims Commission denied the motion. After trial, which occurred in October 1998, Commissioner W.R. Baker entered a final order. The total damages recoverable against the State were in excess of the $300,000.00 limit under Tennessee Code Annotated section 9 — 8—307(e), therefore, judgment was entered against the State of Tennessee in the amount of $300,000.00.

STANDARD OF REVIEW

A motion to dismiss for lack of subject matter jurisdiction falls under Tennessee Rule of Civil Procedure 12.02(1). The concept of subject matter jurisdiction involves a court’s lawful authority to adjudicate a controversy brought before it. See Meighan v. U.S. Sprint Communications Co., 924 S.W.2d 632, 639 (Tenn.1996); Standard Sur. & Casualty Co. v. Sloan, 180 Tenn. 220, 230, 173 S.W.2d 436, 440 (1943). Subject matter jurisdiction involves the nature of the cause of action and the relief sought, see Landers v. Jones, 872 S.W.2d 674, 675 (Tenn.1994), and can only be conferred on a court by constitutional or legislative act. See Kane v. Kane, 547 S.W.2d 559, 560 (Tenn.1977); Computer Shoppe, Inc. v. State, 780 S.W.2d 729, 734 (Tenn.Ct.App.1989). Since a determination of whether subject matter jurisdiction exists is a question of law, our standard of review is de novo, without a presumption of correctness. See Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn.1999).

ANALYSIS

Article I, section 17 of the Tennessee Constitution provides that “[s]uits may be brought against the State in such manner and in such courts as the Legislature may by law direct.” This constitutional provision reflects sovereign immunity, the notion that a sovereign governmental entity cannot be sued in its own courts without its consent. See State v. Cook, 171 Tenn. 605, 609, 106 S.W.2d 858, 860 (1937); Tenn.Code Ann. § 20-13-102 (“No court in the state shall have any power, jurisdiction, or authority to entertain any suit against the state ... with a view to reach the state, its treasury, funds, or property ... ”). As a general interpretive matter, this Court has held that the principle of sovereign immunity requires that legislation authorizing suits against the state must provide for the state’s consent in “plain, clear, and unmistakable” terms. Cook, 171 Tenn. at 611, 106 S.W.2d at 861; see also Beare Company v. Olsen, 711 S.W.2d 603, 605 (Tenn.1986). We must therefore carefully analyze the statute granting jurisdiction to the Tennessee Claims Commission, which this Court has previously held creates a “sweeping procedure for filing monetary claims against the state.” Hembree v. State, 925 S.W.2d 513, 516 (Tenn.1996).

That statute, Tennessee Code Annotated section 9-8-307, begins by stating that the Commission has “exclusive jurisdiction to determine all monetary claims against the state based on the acts or omissions of [state employees] falling within one (1) or more of the following categories ...” Tenn.Code Ann. § 9-8-307(a)(l). One such category, which applies here, is “[d]angerous conditions on state maintained highways.” Tenn.Code Ann. § 9-8-307(a)(l)(J). To maintain a suit based on this category, the claimant “must establish the foreseeability of the risk and notice given to the proper state officials at a time sufficiently prior to the injury for the state to have taken appropriate measures.” Tenn.Code Ann. § 9-8-307(a)(l)(J). Also of relevance to this dispute is the following directive: “It is the intent of the general assembly that the jurisdiction of the claims commission be liberally construed to implement the remedial purposes of this legislation.” Tenn.Code Ann. § 9-8-307(a)(3).

Reading these provisions together, Northland argues that subject matter jurisdiction is clear. This case involves state employees’ negligent conduct regarding a dangerous condition on a state maintained highway; thus, it fits within one of the jurisdictional categories. Northland is seeking recovery from the state, based on its share of fault, which is a “monetary claim against the state.” Northland avers that while contribution and indemnity claims are not specifically mentioned in the statute, they are nonetheless “monetary claims” which are directly connected to the underlying tort suit — and the statute refers to “all” monetary claims. Moreover, in case there is any doubt, the scope of jurisdiction should be “liberally construed.”

Given the interpretive principle governing sovereign immunity stated above, and the statutory construction argument on which Northland relies, resolution of this dispute turns on the inference to be drawn from statutory silence. Northland argues that since the statute refers to “all” monetary claims there was no need — indeed it would be redundant — to mention contribution and indemnity. The State responds that since this is a question of sovereign immunity this Court should presume that the legislature must not have intended to consent to contribution and indemnity suits; if the legislature had consented it would have said so in the text of section 9-8-807.

We find that the Commission does not have subject matter jurisdiction to hear contribution and indemnity claims. The statute’s liberal construction mandate allows a court to more broadly and expansively interpret the concepts and provisions within its text. For instance, in Hembree v. State this Court was presented with the question of how to interpret one of the jurisdictional categories listed in section 9-8-307, specifically, the category allowing suits against the state involving “negligent care, custody and control of persons.” Hembree, 925 S.W.2d at 516 (interpreting the provision that is now codified at 9-8-307(a)(l)(E)). The state contended that a claim for “negligent release” of a patient from a state controlled mental health institute did not fall into this category. Id. The Court disagreed, holding that “care, custody and control” jurisdiction should be read to cover the state’s decision to release a patient from custody. Id. at 517-18. Hembree illustrates that the jurisdictional categories in section 9-8-307 should not be interpreted narrowly. A liberal construction of an existing category, however, is a different proposition than a construction creating a new category.

Northland argues that contribution and indemnity claims are intimately related to the underlying tort suit which, in this case, the Commission would have had subject matter jurisdiction to hear. Thus, the category of “dangerous highway condition” may be read to include North-land’s claim against the State; no new jurisdictional category need be created. While contribution and indemnity claims are, of course, linked to the underlying tort, they are separate and independent remedies under Tennessee law. See Butler v. Trentham, 224 Tenn. 528, 534, 458 S.W.2d 13, 15 (1970) (“[Wlhere [contribution] is allowed between joint tortfeasors, it does not sound in and is not based on tort. It rests rather on principles of equity and natural justice.”); Uniform Contribution Among Tort-Feasors Act, Tenn. Code Ann. § 29-11-101, et seq. (providing a contribution remedy that is distinct from the underlying tort remedy). A plaintiffs suit against an alleged tortfeasor seeks redress for harm caused by that tortfea-sor, in this case because of the tortfeasor’s negligence. Contribution and indemnity, however, are remedies a party seeks after having been found hable for tortious conduct, designed to recover all or part of the loss from another responsible party. See Owens v. Truckstops of America, 915 S.W.2d 420, 433 (Tenn.1996) (“[Contribution shifts part of the loss from one party to another [and] traditional implied indemnity shifts the entire loss from the party found liable to a party who should bear the entire loss.”). Thus, although Northland’s desired contribution suit against the State is related to Mr. Sheppard’s, Mr. McGuire’s and the estate of Mr. Deskovic’s suit against Mr. McDonald and Walnut, Inc., the two suits are nonetheless distinct.

Recognition that contribution and indemnity claims are not merely expansions of the underlying tort suit on which they are based, but rather different remedies which exist for different purposes, resolves this dispute. As noted, legislation authorizing suits against the state must provide for the state’s consent in “plain, clear, and unmistakable” terms. Cook, 171 Tenn. at 611, 106 S.W.2d at 861. No such clarity is present in section 9-8-307. A decision from this Court interpreting this statute to include Northland’s claim within the Commission’s subject matter jurisdiction would be tantamount to judicially creating a waiver of sovereign immunity to which the State has not actually consented. We decline to adopt this interpretation and therefore affirm the Court of Appeals.

CONCLUSION

Based on our interpretation of Tennessee Code Annotated section 9-8-307, we hold that the Tennessee Claims Commission does not have subject matter jurisdiction to hear contribution and indemnity claims. The decision of the Court of Appeals dismissing Northland’s claim against the State is affirmed.

      . To avoid confusion, we note that the contribution and indemnity claims at issue in this case were initiated prior to our decision in McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992). However, because of our resolution of the jurisdictional issue presented here, it is unnecessary for us to determine how comparative fault principles affect the availability of contribution and indemnity in this case.


source: Caselaw Access Project

license: Public Domain

text:
    Harold W. FERRELL, Sr. CIGNA PROPERTY & CASUALTY INSURANCE CO., et al.
    Supreme Court of Tennessee, at Nashville.
    Dec. 8, 2000.

      William J. Butler and Frank D. Farrar, Lafayette, TN, for the appellant, Harold W. Ferrell, Sr.
    Tyree B. Harris, IV and Alan D. Johnson, Nashville, TN, for the appellees, Cig-na Property & Casualty Insurance Co. and APAC-Tennessee, Inc.
   OPINION

DROWOTA, J.,

delivered the opinion of the court,

in which ANDERSON, C.J., BIRCH, HOLDER, and BARKER, JJ., joined.

This workers’ compensation case presents two issues for review concerning the merits of the employee’s claim for benefits. The first is whether this action is barred by the statute of limitations. The second is whether the preponderance of the evidence establishes that the employee’s injury was-work-related. The trial court ruled that the statute of limitations had expired, and it also addressed the merits and found that the employee failed to prove that his injury was work-related. We hold that the statute of limitations had not expired, and we further hold that the trial court’s dismissal of the employee’s claim should be affirmed on the merits because the evidence does not preponderate against the trial court’s finding that the employee’s injury was not work-related. In addition to the merits of this suit, we also granted review to determine the legality of the trial court’s practice of referring workers’ compensation cases to a clerk and master for trial. We hold that the proper procedure for appointing a special/substitute judge was not followed; however, reversal is not required because the Clerk and Master was acting as a de facto judge.

The employee, Harold W. Ferrell, Sr. (“Ferrell”), began working for APAC-Ten-nessee, Inc. (“APAC”), a construction company, in 1970. APAC, an appellee, obtains workers’ compensation insurance through Cigna Property & Casualty Insurance Co., also an appellee. During his twenty-eight years with APAC, Ferrell worked as a bulldozer operator on construction sites and then as a foreman. While on the job he was exposed to loud noise from machinery and explosives.

Ferrell had hearing problems since he was a child, but he testified that his hearing loss became more serious when he started working for APAC, and that at work he experienced ringing in his ears, headaches, and «dizziness. He first sought treatment in 1974 with Dr. Richard Bryan Bell (“Dr.Bell”), an ear, nose, and throat specialist, who became his sole treating physician for the next twenty-four years. As part of his treatment, Dr. Bell performed surgery on Ferrell’s ears in 1974, in 1983, and again in 1994. Following the first operation, Ferrell began wearing hearing aids. Dr. Bell determined that he had a 34% combined hearing loss to both ears in 1974. By 1998, according to Dr. Bell, he had sustained a 100% hearing loss in the right ear, an 81% hearing loss in the left ear, and a combined hearing loss of 84% to both ears. The cause of this deterioration is the centerpiece of this case: Ferrell claims his hearing declined because of exposure to loud noise at work; APAC claims that his hearing problem is structural in nature, resulting from a congenital condition.

Ferrell testified at trial that he did not seek to determine whether his hearing loss was work-related until he stopped working for APAC in April 1998. At that point he went to his attorney, who, according to Ferrell, counseled him to file suit on the theory that his hearing loss might be work-related. Ferrell testified that he first thought his hearing loss was in fact work-related on August 25, 1999, the day before trial, when he saw a Standard Form Medical Report for Industrial Injuries (“C-32 Form”) which Dr. Bell filled out in March 1999.

Ferrell stated that during his long doe-tor-patient relationship, although he had talked to Dr. Bell about his work, the two never discussed the possibility that loud noise caused his hearing loss, and Dr. Bell never cautioned him to limit his exposure to loud noise. He also testified that he never asked Dr. Bell if his work environment contributed to his hearing loss. As proof of Ferrell’s credibility (which the trial court acknowledged), Ferrell notes that he never filled out workers’ compensation forms when he had his three surgeries — and he would likely have done so if he believed his injury was work-related. He notes that his son, who also works at APAC and has a hearing problem, received notice from a doctor that his condition was probably inherited rather than work-related. Aware of this notice, Ferrell had further reason to rely on his long-held belief regarding the cause of his hearing loss. Finally, Ferrell only had an eighth grade education.

The only medical evidence presented at trial was the C-32 Form. This Form, and the medical records attached to it, indicate that Dr. Bell made two separate diagnoses: (1) conductive hearing loss and (2) permanent sensorineural loss. Dr. Bell’s records indicate that the second diagnosis is based on the harm caused to the nerves by exposure to loud noise. The first diagnosis of conductive loss, however, is not correlated to loud noise but rather appears to be caused by physical damage to the inner ear; as noted, Ferrell has had problems with his ears since childhood.

These records also show that Dr. Bell appeared to consistently diagnose Ferrell as suffering from conductive hearing loss, from 1974 through 1994, for during this time no mention is made of sensorineural loss or exposure to loud noise. Then, after the 1994 surgery, Dr. Bell briefly mentions in his post-operative report that in addition to conductive loss Ferrell had sustained sensorineural loss. The only other mention of sensorineural loss is when he treated Ferrell on two occasions in 1998. After these appointments, Dr. Bell wrote in a letter and then in a report that forms the basis of the C-32 Form that Ferrell suffers from sensorineural loss because of his exposure to loud noise at work. Since Dr. Bell did not testify at trial or in a deposition there is no explanation for this apparent inconsistency in the record.

Ferrell testified that Dr. Bell never told him that his exposure to noise had anything to do with his hearing problem; he testified that they never discussed the possible causal relation between his work environment and hearing loss in their twenty-four-year relationship. Again, Dr. Bell’s medical reports, without his testimony, do not explain or clarify this unusual fact. As noted, Ferrell testified that he had no knowledge of the sensorineural diagnosis until the day before trial.

At trial, the court considered Dr. Bell’s medical reports and Ferrell’s testimony. The court found that Ferrell failed to meet the statute of limitations period. The court addressed the merits of his suit and concluded that his injury was not work-related: Dr. Bell’s twenty-year conductive loss diagnosis outweighed his more recent finding of sensorineural loss. Ferrell appealed the trial court’s decision. The case was referred to the Special Workers’ Compensation Appeals Panel but was withdrawn from the Panel prior to its issuance of a memorandum opinion so this Court could review several issues. The first issue is whether Ferrell’s suit is barred by the statute of limitations. The second is whether the preponderance of the evidence establishes that Ferrell’s hearing loss is work-related. We also consider the procedure used by the trial court in referring workers’ compensation cases to the Clerk and Master.

Standard Of Review

The Workers’ Compensation Law directs that “[r]eview of findings of fact by the trial court shall be de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise.” Tenn. Code Ann. § 50 — 6—225(e)(2). Where the trial judge has seen and heard the witnesses, especially where issues of credibility are involved, a reviewing court must give considerable deference to the trial court’s findings. See Wells v. Tennessee Board of Regents, 9 S.W.3d 779, 783 (Tenn. 1999). No such deference is warranted in reviewing documentary proof. See id. at 783-84. Questions of law are reviewed de novo, without a presumption of correctness. See Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn.1999). The burden of proof on the issue of causation, as with every essential element of a claim, lies with the employee. See White v. Wer-than Indus., 824 S.W.2d 158, 159 (Tenn. 1992).

ANALYSIS

A. The Statute of Limitations

An employee must commence a workers’ compensation action within one year after the accident resulting in injury occurred. Tenn.Code Ann. § 50-6-203(a). This statute of limitations period begins to run when a party knew, or in the exercise of reasonable diligence should have known, that he sustained a compensable injury. See Livingston v. Shelby Williams Indus., Inc., 811 S.W.2d 511, 515 (Tenn.1991); Hawkins v. Consolidated Aluminum Corp., 742 S.W.2d 253, 255 (Tenn.1987).

The trial court found that Ferrell failed to comply with the one-year time limit. When pressed by Ferrell’s attorney to specify the date when the limitations period had expired, the court stated that the period would never have expired because Ferrell’s injury was not work-related; Ferrell would not have been put on notice that he sustained a compensable injury because the evidence shows that his injury was not compensable. As Ferrell emphasizes, this reasoning somewhat confuses the issue. Nevertheless, we think that the trial judge’s ruling is also based on his belief that Ferrell had no reasonable justification for waiting until 1998 to file suit.

Ferrell testified that he first became aware that his hearing loss was work-related when he saw Dr. Bell’s C-32 Form on August 25, 1999, the day before trial. Dr. Bell, who issued this report in March 1999, found that Ferrell’s condition was “more probably than not” work-related. Since there is no evidence to the contrary, we conclude that Ferrell had no actual knowledge that his condition was work-related until after he filed his complaint, which obviously satisfies the statute of limitations.

We also conclude that Ferrell exercised reasonable diligence in determining the cause of his hearing loss. Unlike an accident caused by a machine or a slippery surface, no particular event or series of events would have made it obvious to Ferrell that he had sustained a compensable injury. He first encountered problems with his ears as a child. After starting work for APAC, his hearing condition began to decline and then gradually deteriorated over the course of twenty years. Ferrell, unable to determine the cause of his hearing loss, sought out Dr. Bell for advice and treatment. He told Dr. Bell about his working conditions, but, according to Ferrell’s testimony, Dr. Bell never discussed with him the possibility that his work caused or aggravated his hearing loss, nor did he caution him to limit his exposure to loud noise. Instead, Dr. Bell consistently diagnosed Ferrell for over twenty years as having conductive hearing loss.

Because of his doctor’s consistent advice and the absence of any warnings to avoid exposure to loud noise, Ferrell reasonably believed that he had not sustained a com-pensable injury. Normally, an employee ought to be able to rely on his doctor’s advice. This is especially true in the case of a gradual injury whose cause cannot be determined by a layperson. We find that Ferrell neither knew nor should have known that he had sustained a compensa-ble injury until literally the day before trial. We therefore hold that the statute of limitations had not expired.

B. Causation

Despite its ruling on the statute of limitations issue, the trial court reached the merits of Ferrell’s claim and found Dr. Bell’s conclusion that his hearing problem was “more probably than not” work-related difficult to believe. As noted, we review the trial court’s finding “de novo ... accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise.” Tenn.Code Ann. § 50-6-225(e)(2).

Ferrell argues that the trial court erred because the only medical proof offered at trial was the C-32 Form in which Dr. Bell states that he suffers from senso-rineural loss, caused by exposure to loud noise. While it is true that he suffered from a hearing condition as a child, Ferrell argues, his condition deteriorated considerably because of his exposure to noise at work. Ferrell correctly states the applicable rule of law: exacerbation of a preexisting injury is compensable if it causes actual progression of the preexisting condition. See Sweat v. Superior Indus. Inc., 966 S.W.2d 31, 33 (Tenn.Sp.Workers Comp.1998).

There is no question that Ferrell was exposed to loud noise for many years while doing construction work for APAC. If Dr. Bell’s medical testimony consisted entirely of his 1998 diagnosis, which formed the basis of the C-32 Form, as well as the reference to sensorineural loss in the 1994 post-operative report, Ferrell would have a solid case. But the record shows many years of what appears to be the contrary diagnosis of conductive loss. We say “appears” because we cannot be certain that the diagnosis records from 1974 to 1999 are irrefutably inconsistent. The absence of any testimony from Dr. Bell leaves too many questions unanswered. For instance, is diagnosis in this area so difficult that a doctor could be mistaken for twenty years in thinking that Ferrell suffered from conductive loss? If so, why does Dr. Bell now believe that Ferrell’s condition is “more probably than not” work-related? Perhaps most important — assuming Ferrell’s testimony is accurate — why did Dr. Bell never caution Ferrell to stay away from loud noise at work?

Without answers to these questions, and a more thorough explanation of the medical records, we, like the trial court, find the presence of a long-standing diagnosis of one condition and a very recent diagnosis of a different condition puzzling. Under the circumstances, we cannot say that the evidence preponderates against the findings of the trial court.

C. The Procedure for Appointing Special/Substitute Judges

In the exercise of our supervisory authority over the judicial system of this State, we also deem it necessary to address the alleged standing order by which the Clerk and Master was designated as substitute judge (Circuit Judge Pro Tem) to hear this and all other workers’ compensation cases arising in the thirty-first judicial district.

Article VI, § 11 of the Tennessee Constitution provides that

The Legislature may by general laws make provision that special Judges may be appointed, to hold any Courts the Judge of which shall be unable or fail to attend or sit; or to hear any cause in which the Judge may be incompetent.

Under the authority of this constitutional provision, the General Assembly has enacted several statutes relating to the appointment of special/substitute judges including two statutes that are pertinent to the issue in this appeal. Tennessee Code Annotated section 17-2-118 provides that:

(a) If, for good cause, including, but not limited to, by reason of illness, physical incapacitation, vacation or absence from the city or judicial district on a matter related to the judge’s judicial office, the judge of a state or county trial court of record is unable to hold court,
such judge shall appoint a substitute judge to hold court, preside and adjudicate.
(b) A substitute judge shall possess all of the qualifications of a judge of the court in which the substitute is appointed.
(c) No substitute judge may be appointed for a period of more than three (3) days; provided, that any such judge appointed pursuant to this section may finish any trial that is commenced during the period of appointment.
(d) A substitute judge appointed pursuant to this section shall have no authority to award fees except those that are statutory.
(e) A substitute judge shall not preside over a cause without a consent form signed by all litigants who are present at the beginning of the proceeding. Such consent form shall plainly state that the substitute judge has not been duly elected by the citizens of the judicial district or appointed by the governor but has been appointed pursuant to this section. Further, the consent form shall include the name of the lawyer appointed as substitute judge, the judge of the court in which such substitute judge is sitting, the date for which the substitute judge was appointed, and the reason for the regular judge’s absence. The consent form shall be transmitted and maintained on file for public inspection at the administrative office of the courts in Nashville.
(f) The provisions of subsections (a)(e) shall not apply where a judge finds it necessary to be absent from holding court, and appoints as a substitute judge:
(1) A duly elected or appointed judge of any inferior court; or
(2) A full-time officer of the judicial system under the judge’s supervision whose duty it is to perform judicial functions, such as a juvenile referee, a child support referee or clerk and master, who is a licensed attorney in good standing with the Tennessee supreme court. Such judicial officer shall only serve as special judge in matters related to that officer’s duties as a judicial officer.
Notwithstanding the provisions of subsections (a)-(e), a judge shall have the authority to appoint a substitute judge as provided in this subsection.

(Emphasis added.) A very similar statutory provision is codified at Tenn. Code Ann. § 17-2-122 and provides:

(a) Notwithstanding the provisions of § 16-15-209 or § 17-2-109 or any other relevant provision to the contrary, a judge shall have the authority to appoint a special judge as provided in this section.
(b) The provisions of § 16-15-209 and § 17-2-109 and any other relevant provision, shall not apply where a judge finds it necessary to be absent from holding court, and appoints as a substitute judge an officer of the judicial system under the judge’s supervision whose duty it is to perform judicial functions, such as a juvenile referee, a child support referee or clerk and master, who is a licensed attorney in good standing with the Tennessee supreme court. Such judicial officer shall only serve os special judge in matters related to their duties as judicial officer.

(Emphasis added.) Where a judge finds it necessary to be absent from holding court, these statutes authorize the judge to appoint a clerk and master to act as special judge so long as the clerk and master is both a licensed attorney in good standing with this Court and is serving as special judge only in matters related to his or her duties as judicial officer.

We emphasize that the statute directs that the absence be necessary. A judge may not use mere convenience as a basis for being “absent from holding court.” We agree with the Attorney General that “necessary” as used in this context should be understood in a restrictive sense, “i.e. indispensable as opposed to a more liberal construction, i.e. convenient.” Tenn.Op.Atty.Gen. No. 96-003. See also State v. Black, 897 S.W.2d 680, 683 (Tenn. 1995) (“Although opinions of the Attorney General are not binding on courts, government officials rely upon them for guidance; therefore, [such] opinion[s][are] entitled to considerable deference .”)

These statutes permitting a trial judge to appoint a clerk and master as a special judge, like all statutes, should not be read in isolation. Another statute imposes upon state trial court judges an affirmative duty to interchange under certain circumstances. Tennessee Code Annotated section 17-2-202 provides that a judge has an affirmative duty to interchange if:

(1) A judge has died or is unable to hold court; (2) Two (2) or more judges have agreed to a mutually convenient interchange; (3) The judge is incompetent under the provisions of § 17-2-101; or (4) The chief justice of the supreme court has assigned by order a judge to another court pursuant to Supreme Court Rule 11.

In addition, Tenn.Code Ann. § 16-2-509(e) directs that

[i]f a presiding judge is unable to correct a caseload imbalance or reduce docket delays utilizing the available judges within the district over which the judge presides, it is the affirmative duty of such presiding judge to contact other presiding judges and request assistance or contact the supreme court and request assistance pursuant to § 16-3-502.

(Emphasis added.)

Judges have an obligation to discharge the affirmative duties imposed by these statutes. Supreme Court Rule 10,'Canon 3A declares that “[t]he judicial duties of a judge take precedence over all the judge’s other activities” and that a judge’s judicial duties include “all the duties of the judge’s office prescribed by law.” The term “law” is defined by Rule 10 to include “court rules as well as statutes, constitutional provisions, and decisional law.” (Emphasis added.) Accordingly, reading these statutes and rules together, we conclude that a trial judge should appoint a clerk and master to act as a special/substitute judge in his or her absence only if the trial judge determines it is not possible either to interchange pursuant to Tenn.Code Ann. § 17-2-202 or to obtain assistance from another presiding judge or from this Court pursuant to section 16-2-509(e). Consistent with these statutes, Tennessee Supreme Court Rule 11 VII(c)(3) explains the procedures that must be followed before appointing a special judge as follows:

Where a judge of a trial court of record is ... unable to hold court, as provided in Tenn.Code Ann. § 17-2-118, the following procedure shall be followed, in the sequence designated, for the selection of a substitute judge.
(1) The judge shall seek interchange in accordance with TenmCode Ann. § 17-2-201 et seq.;
(2) The judge shall apply to the presiding judge of the judicial district to effect an interchange with a judge of that judicial district in accordance with Tenn. Code Ann. § 16-2-509(d);
(3) The presiding judge of the judicial district shall effect an interchange with a judge from another judicial district in accordance with Tenn.Code Ann. § 16-2-509(e);
(4) The presiding judge shall request from the director of the Administrative Office of the Courts the designation of a judge by the chief justice, in accordance with Tenn.Code Ann. §§ 16-3-502(3)(A) and 17-2-110.

If a trial judge is unable to interchange or obtain assistance from another presiding judge or this Court and therefore appoints the clerk and master or another judicial officer, the order of appointment should be either for a definite period of time or for a specific case. A standing order appointing a clerk and master as speeial/substitute judge to hear an entire class of cases is not appropriate.

Applying these principles to this case, it appears that the proper procedure was not followed when the clerk and master was appointed “Circuit Judge Pro Tem.” Nonetheless, this procedural error does not require reversal. This Court has explained that

[a] judge de jure is one who is exercising the office of a judge as a matter of right: that is, one legally appointed and qualified to exercise the office. A judge de facto is one acting with color of right and who is regarded as, and has the reputation of, exercising the judicial function he assumes. An unconstitutional statute is sufficient to give color of right or authority to elect or appoint a judicial officer, and a person elected or appointed by authority of such a statute is a de facto judge. A judge who actively assumes the duties of his office after he has been appointed by the governor
of the state, or has been elected by the people, is at least a de facto judge even though facts aliunde might disclose irregularities in the appointment or the election. A judge de facto is a judge de jure as to all parties except the state, and his official acts are binding on third persons and the public.
The judicial acts of one in possession of a judicial office created and in existence by law, under color of right, assuming and exercising the functions of such office with a good faith belief in his right to exercise such authority, involved and acquiesced in by the parties, the bar, court officials and the public, are- those of a defacto officer.

State ex rel. Newsom v. Biggers, 911 5.W.2d 715, 718 (Tenn.1995) (internal citations and quotations omitted). Although it appears that the proper procedure was not followed in this case, the Clerk and Master unquestionably was acting under color of right. Two statutes specifically authorize the appointment of clerks and masters as special judges. Moreover, the parties consented to the appointment and have not objected on appeal. Under these circumstances, we hold that the Clerk and Master is a defacto judge and therefore affirm the judgment of the trial court that Ferrell has not sustained a loss compensable under the Workers’ Compensation Law. The costs of this appeal are taxed to the appellant.

APPENDIX (1)

Where a judge of a trial court is incompetent to try a case, or fails to attend, or is unable to hold court, the following procedure shall be followed, in the sequence

designated, for the selection of a substitute judge.

A. INTERCHANGE PROCEDURE (PURSUANT TO SUPREME COURT RULE 11 AND APPLICABLE STATUTES.) FOLLOW IN THE SEQUENCE DESIGNATED.

1) The judge shall seek to interchange with another trial court judge.
2) The judge shall apply to the presiding judge of the judicial district to effect an interchange with an active judge of that judicial district.
3) The presiding judge of the judicial district shall effect an interchange with the presiding judge from another judicial district.
4) The presiding judge of the judicial district shall request from the Administrative Office of the Courts the designation of a judge by the Chief Justice.
Only if the procedures set forth above fail to provide a judge to preside over the docket or case will a judge appoint a lawyer to preside as a substitute judge. Such appointments must conform to the following requirements:

B. ALTERNATE PROCEDURE-LAWYER AS SUBSTITUTE JUDGE

1) The attorney appointed as a substitute judge must possess all the qualifications of a judge, including age and residency requirements, and must be in good standing. The substitute judge shall be subject to the Code of Judicial Conduct.
2) The substitute judge shall take an oath of office as provided in Tenn. Code Ann. § 17-2-120, and the substitute judge shall certify compliance by affixing his or her signature to the consent form.
3) The authority of a substitute judge to fix fees pursuant to Tenn.Code Ann.
§ 17-2-118 is limited to cases in which the exact amount of the fees is set by statute.
4) The substitute judge must ensure that all litigants who are present at the beginning of each proceeding give their consent to the use of a substitute judge in their case. All litigants who are present at the beginning of the proceedings in a case and the attorneys of record for all parties who consent tot he service of a substitute judge must complete Part B of the substitute judge consent form. Without such consent, the substitute judge shall not preside on that case. Part C of the substitute judge consent form must be completed by the substitute judge in each case in which that judge presides.
5) The incompetent or absent judge must complete Part A of the substitute judge consent form. The judge must specify the reason for his or her incompetence or absence. If the judge cites absence for a cause other than a reason listed in Tenn.Code Ann. § 17-2-118(a), the specific reason for the absence must be set forth on the form.
6) The clerk of the court shall certify that the appointment was made and that the substitute judge took the statutory oath of office and that the oath of office was filed in the clerk’s office. The certification shall be made on Part D of the substitute judge consent form.
7) At the end of each month, all substitute judge consent forms will be transmitted by the presiding judge of the judicial district to the Administrative Office of the Courts, Suite 600, Nashville City Center, 511 Union Street, Nashville, Tennessee 37219, where they will be available for public inspection during regular business hours. Such forms shall be maintained on file at the Administrative Office of the Courts for at least eight (8) years after they are received.
The substitute judge provisions listed above shall not apply where a judge appoints as a substitute judge:
a) a duly elected or appointed judge of any inferior court; or
b) a full-time officer under the judge’s supervision whose duty it is to perform judicial functions, such as a juvenile referee, a child support referee, or clerk and master, who is a licensed attorney in good standing with the Tennessee Supreme Court.

(See Supreme Court Rule 11 and Tenn. Code Ann. § 17-2-118.)

      . Ferrell also argues that the trial court improperly referred to his own knowledge of the difference between conductive and sensorin-eural loss, based in part on what the judge had learned in high school. While the judge did make such comments, it is clear from the record that the court’s ruling is based on a reading of the medical records, which led the judge to question Dr. Bell’s final diagnosis. We therefore need not address the issue of judicial notice, which Ferrell argues in his brief, but instead confine our analysis to whether the evidence in the record preponderates against the trial court's dismissal of Ferrell's claim.

      . Tenn. Const, art. I, § 1; Tenn.Code Ann. §§ 16-3-501-503; see also Petition of Burson, 909 S.W.2d 768, 773 (Tenn.1995).

      . See, e.g., State v. Turner, 913 S.W.2d 158, 160 (Tenn.1995) (“In interpreting statutes, we are required to construe them as a whole, read them in conjunction with their surrounding parts, and view them consistently with the legislative purpose."); State ex rel. McGhee v. St. John, 837 S.W.2d 596, 604 (Tenn. 1992) ("A statute must be construed as a whole and a particular section should not be read in isolation of the remainder of the statute.”); In re Adoption of Hatcher, 16 S.W.3d 792, 795 (Tenn.Ct.App.1999) ("We think however that the statute should be read as a whole, because statutes similar in subject matter must be construed so as to make the legislative scheme operate in a consistent manner.”).

      . Interestingly enough, the thirty-first judicial district is the only judicial district in Tennessee that has only one judge who therefore will always be the presiding judge. Therefore, this portion of Rule 11 has no application in the thirty-first judicial district.

      . We also note that orders referring cases to the clerk and master pursuant to Tenn. R.Civ.P. 53 should be on a case-by-case basis rather than a standing order of reference. See, e.g., Tenn .R.Civ.P. 53.01 ("The court in which any action is pending may appoint a Special Master therein.”).

      . The proper procedure is set out in a "Handbook for Presiding Judges,” Supreme Court of Tennessee, Administrative Office of the Courts, 2000 Edition, Chapter 3, "Interchange and Designation of Judges,” attached hereto as Appendix (1).


author: HOLDER, J.,

text:
    Regina HARRIS, et al. v. Dr. Andrew CHERN, et al.
    Supreme Court of Tennessee, at Nashville.
    Dec. 8, 2000.

      David L. Johnson, Gayle I. Malone, and Jeffrey Zager, Nashville, TN, for the appellant, Baptist Hospital, Inc.
    C. Bennett Harrison and Gayle I. Malone, Nashville, TN, for the defendant, Dr. Andrew L. Chern.
    Trida Dennis, Chattanooga, TN, for the appellees, Regina Harris and Ronnie Dale Netherton, Jr.
   OPINION

HOLDER, J.,

delivered the opinion of the court,

in which ANDERSON, C.J., and DROWOTA, BIRCH, and BARKER, J.J., joined.

We granted this appeal to determine the standard to be applied in ruling upon a Tenn.R.Civ.P. 54.02 motion to revise a grant of partial summary judgment based upon evidence beyond that which was before the court when the motion was initially granted. For the reasons stated below, we reject the newly discovered evidence rule applied by the trial court and set forth in Bradley v. McLeod, 984 S.W.2d 929 (Tenn.Ct.App.1998). We adopt a test requiring the trial court to consider, when applicable: 1) the movant’s efforts to obtain evidence to respond to the motion for summary judgment; 2) the importance of the newly submitted evidence to the mov-ant’s case; 3) the explanation offered by the movant for its failure to offer the newly submitted evidence in its initial response to the motion for summary judgment; 4) the likelihood that the nonmoving party will suffer unfair prejudice; and 5) any other relevant factor. Accordingly, we reverse the judgment of the Court of Appeals and remand to the trial court for application of this standard.

BACKGROUND

Plaintiff, Regina Harris, was an obstetrical patient of Defendant, Dr. Andrew Chern. Upon going into labor, Harris was admitted to Baptist Hospital (“Baptist”) under Dr. Chern’s care. Ronnie Dale Netherton, Jr. was born to Harris at Baptist. Shortly after his birth, it was discovered that the child suffered brain injury.

Harris filed suit on her own behalf and as next friend of Ronnie Netherton, Jr. against both Dr. Chern and Baptist. Harris’s amended complaint alleged multiple claims of negligent medical care both before and after the child’s delivery. On March 3, 1997, Baptist submitted a brief, nonspecific motion for summary judgment alleging “that there are no genuine issues of material fact in this case.” Baptist’s motion relied on the affidavit of Dr. Henry Boehm. Dr. Boehm’s affidavit stated generally that Baptist complied with the applicable standard of care and that none of Baptist’s acts were a proximate cause of injury to Harris or her son.

On April 7, 1997, Harris submitted the affidavit of Dr. John Ferguson in response to Baptist’s motion for summary judgment. Dr. Ferguson alleged in his affidavit that Baptist’s acts fell below the reasonable standard of care in one respect: the failure to terminate the pregnancy by emergency delivery.

The trial court granted partial summary judgment to Baptist. It found, based upon the affidavits, that there was no genuine issue of material fact as to Baptist’s negligence except as to Harris’s allegation that Baptist should have terminated her labor by emergency delivery after recognizing symptoms of progressive fetal distress. Accordingly, all of Harris’s allegations against Baptist, save one, were summarily adjudicated. Baptist remained a party to the suit as to that single issue.

Nearly six months later, Harris filed a “motion to reconsider” the trial court’s grant of summary judgment. Harris’s motion was submitted with the affidavit of Dr. Stacey Fink. Dr. Fink’s affidavit states that Baptist’s and its employees’ actions fell below the applicable standard of care for taking and analyzing blood samples within the first 24 hours of birth. Baptist responded that the motion to reconsider made no showing why this information was unavailable at the time the trial court initially ruled on the motion for summary judgment.

Discovery continued while Harris’s motion to reconsider was pending. Harris eventually submitted additional physician’s affidavits in support of the motion to reconsider. The trial court, however, denied Harris’s motion on April 3, 1998. The trial court then made that judgment final, and therefore appealable, pursuant to Tenn. R.Civ.P. 54.02. Harris, however, submitted more evidence in opposition to the grant of summary judgment even after the denial of the motion to reconsider.

On appeal, the Court of Appeals reversed the trial court’s denial of the motion to reconsider. It held that reconsideration of a grant of summary judgment should not turn on whether the evidence supporting reconsideration could have been discovered before the grant. Instead, the court adopted the rationale of Schaefer v. Larsen, 688 S.W.2d 430 (Tenn.Ct.App. 1984), in which the court rejected the “newly discovered evidence” test and held that such motions should be looked upon favorably where the litigants had not yet been afforded a trial. We granted review.

ANALYSIS

As a preliminary matter, the Tennessee Rules of Civil Procedure do not authorize motions “to reconsider” a grant of summary judgment. See McCracken v. Brent-wood United Methodist Church, 958 S.W.2d 792, 794 n. 3 (Tenn.Ct.App.1997). Instead, the rules allow for motions “to alter or amend a judgment,” Tenn.R.Civ.P. 59.04, or motions “to revise” a non-final partial judgment, see Tenn.R.Civ.P. 54.02.

Rule 54.02 applies to cases, such as this one, in which judgment was not entered as to all of the defendants or claims. That rule provides that in the absence of a final judgment:

any order or other form of decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

Tenn.R.Civ.P. 54.02.-

Rule 54.02 requires that a judgment disposing of fewer than all of the claims or fewer than all of the parties is final only when the trial court makes “an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” Tenn. R.Civ.P. 54.02. This determination is an “absolute prerequisite” to a final judgment in such a case. Fox v. Fox, 657 S.W.2d 747, 749 (Tenn.1983); Stidham v. Fickle Heirs, 643 S.W.2d 324, 325 (Tenn.1982) (addressing Rule 54.02 in its previous form at Tenn.Code Ann. § 27-305). The record reveals no express determination of finality by the trial court in the initial grant of summary judgment. Accordingly, the initial grant of summary judgment in this case was non-final and was subject to revision until it was expressly made final in accordance with Rule 54.02.

Our research reveals no Tennessee case law regarding the standard a trial court should apply in ruling on a Rule 54.02 motion to revise. Cases analyzing Rule 59.04 motions to alter or amend, however, offer some guidance in determining the standard for revising non-final orders. See Thomas v. Swindle, 676 So.2d 333, 335 (Ala.Civ.App.1996) (finding “caselaw concerning Rule 59 motions to be persuasive authority” in interpreting Rule 54 motions). While the rules are not synonymous, they are similar in intent and operation. They differ in that Rule 59.04 addresses final judgments and requires a motion to alter or amend to be made within 30 days of the entry of judgment. In contrast, Rule 54.02 addresses interlocutory orders. Rule 54.02 confers upon the trial court “the privilege of reversing itself up to and including the date of entry of a final judgment.” Louis Dreyfus Corp. v. Austin Co., 868 S.W.2d 649, 653 (Tenn.Ct. App.1993). Both rules, however, afford litigants a limited opportunity to readdress previously determined issues and afford trial courts an opportunity to revisit and reverse their own decisions.

The parties rely on two cases that have applied Rule 59.04 with differing results. Harris argues that her motion falls under the dicta contained in Schaefer v. Larsen, 688 S.W.2d 430 (Tenn.Ct.App. 1984). In Schaefer, the Court of Appeals, Western Section, rejected application of the stringent “newly discovered evidence” rule to motions to alter or amend. That rule requires a movant to show that the evidence submitted with the motion to alter or amend was unavailable at the time of its initial response to the motion for summary judgment or that the evidence could not have been found in the exercise of due diligence. See Braswell v. Carothers, 863 S.W.2d 722, 730 (Tenn.Ct.App. 1993). The newly discovered evidence standard, the court observed, was primarily applied in cases where the litigants have already had a trial. In such cases, courts should be cautious in altering their judgments. In contrast, a litigant seeking to alter or amend a grant of summary judgment “is only seeking that which he is basically entitled to — a first trial.” Schae-fer, 688 S.W.2d at 433.

Schaefer's lenient standard for reviewing grants of summary judgment was rejected by the Court of Appeals, Middle Section, in Bradley v. McLeod, 984 S.W.2d 929 (Tenn. Ct.App.1998). The court held that a Rule 59.04 motion “should not be used to alter or amend a summary judgment if it seeks to raise new, previously untried legal theories, to present new, previously unasserted legal arguments, or to introduce new evidence that could have been adduced and presented while the summary judgment motion was pending.” Id. at 933.

The opposing outcomes in Schaefer and Bradley illustrate that in deciding whether to alter, amend, or revise a summary judgment, “two important judicial imperatives clash: the need to bring litigation to an end and the need to render just decisions on the basis of all the facts.” Lavespere v. Niagara Machine & Tool Works, Inc., 910 F.2d 167, 174 (5th Cir. 1990), abrogated by Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir.1994). We find that neither Schaefer nor Bradley adequately addresses both imperatives as regards Rule 54.02 motions to revise when additional evidence is submitted to overcome a grant of partial summary judgment. Adoption of the strict Bradley rule would restrict Tennessee trial judges from exercising then broad discretion, while adoption of the Schaefer rationale would provide them too little guidance. Accordingly, we find it appropriate to adopt, as has been done by some federal courts in interpreting Fed.R.Civ.P. 59(e), a non-exclusive balancing test to be applied on a case-by-case basis.

When additional evidence is submitted in support of a Rule 54.02 motion to revise a grant of summary judgment, a trial court should consider, when applicable: 1) the movant’s efforts to obtain evidence to respond to the motion for summary judgment; 2) the importance of the newly submitted evidence to the movant’s case; 3) the explanation offered by the movant for its failure to offer the newly submitted evidence in its initial response to the motion for summary judgment; 4) the likelihood that the nonmoving party will suffer unfair prejudice; and 5) any other relevant factor. Cf. Lavespere v. Niagara Machine & Tool Works, Inc., 910 F.2d 167 (5th Cir.1990) (adopting a similar multi-factor test in regard to Fed.R.Civ.P. 59(e)), abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir.1994); GenCorp, Inc. v. American Inti Underwriters, 178 F.3d 804 (6th Cir.1999) (citing Lavespere as properly identifying factors that should be weighed in ruling on a Rule 59(e) motion); Hanson v. City of Oklahoma City, 37 F.3d 1509, 1994 WL 551336 (10th Cir.1994) (unpublished) (citing with approval the Lavespere test); W.G. Pettigrew Dist. Co. v. Borden, Inc., 976 F.Supp. 1043 (S.D.Tex.1996) (adopting balancing test); Snavely v. Nordskog Elec. Vehicles, 947 F.Supp. 999 (S.D.Miss.1995) (same); Buell v. Security Gen. Life Ins. Co., 784 F.Supp. 1533 (D.Colo.1992) (discussing various approaches and adopting Lavespere ); Estate of Keeney, 121 N.M. 58, 908 P.2d 751 (App.1995) (adopting rationale of Lavespere ); Trembly v. Mrs. Fields Cookies, 884 P.2d 1306, 1311 (Utah Ct.App.1994) (adopting multi-factor test).

Accordingly, we hold that the “newly discovered evidence” standard need not be satisfied before a trial court revises a partial summary judgment under Rule 54.02 on the basis of additional evidence. When additional evidence is offered by a litigant to overcome a grant of summary judgment pursuant to Rule 54.02, trial courts must undertake the above-stated balancing analysis and should make adequate findings of fact and conclusions of law on the record to support their rulings. We find this approach strikes the appropriate balance between Schaefer and Bradley. It permits our courts the discretion to dispose of those cases for which summary judgment is appropriate and to ensure that meritorious claims go to trial.

A trial court’s ruling on a motion to revise pursuant to Rule 54.02 will be overturned only when the trial court has abused its discretion. See Donnelly v. Walter, 959 S.W.2d 166, 168 (Tenn.Ct.App. 1997). We cannot determine from the record whether the trial court’s denial constituted an abuse of discretion under the standard adopted herein. The parties have not yet had an opportunity to argue their positions, and the trial court has not had an opportunity to rule under the newly announced law. Accordingly, we remand to the trial court for application of the newly announced standard.

CONCLUSION

We hold that when additional evidence is offered by a litigant to revise a grant of summary judgment pursuant to Rule 54.02, trial courts must undertake the above-stated multi-factor balancing analysis and should make adequate findings of fact and conclusions of law on the record to support their rulings. Accordingly, we reverse the judgment of the Court of Appeals and remand to the trial court for application of the newly announced standard. Costs of this appeal are taxed to Defendant/Appellant, Baptist Hospital, Inc., for which execution may issue if necessary.

      . Plaintiffs allege in their brief that Baptist's motion for summary judgment was so general that it gave them no notice of the extent to which they would be required by the trial •court to respond. As we choose to remand this case on other grounds, we are not required to decide the extent to which Baptist’s general motion for summary judgment and nonspecific accompanying affidavit required a response from plaintiffs, if it did so at all. See Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn.1998) (holding expert physician’s affidavit insufficient because it "merely contained] a conclusory statement”); McCarley v. West Quality Food Serv., 960 S.W.2d 585 (Tenn. 1998) (describing burden shifting in summary judgment). Similarly, we are not required to rule on the propriety of what the plaintiffs describe as the trial court’s "sua sponte” conversion of Baptist’s general motion for summary judgment into a motion for partial summary judgment.

      . Federal case law interpreting rules similar to our own are persuasive authority for purposes of construing the Tennessee rule. See Henderson v. Bush Bros. & Co., 868 S.W.2d 236 (Tenn. 1993); Continental Cas. Co. v. Smith, 720 S.W.2d 48 (Tenn. 1986). Those decisions, of course, are non-binding even when the state and federal rules are identical. See Bowman v. Henard, 547 S.W.2d 527, 530 (Tenn. 1977).

      . Our decision today should not be read as encouraging trial courts to certify interlocutory judgments as final under Rule 54.02, thereby requiring a litigant to file an appeal while the remainder of the litigation is ongoing. Piecemeal appellate review is not favored. See, e.g., Breakstone v. Home Fed. Sav. & Loan Ass’n, 539 S.W.2d 45, 45 (Tenn.Ct. App.1976) (noting "the inconvenience and costs of piecemeal review”). Orders certifying interlocutory judgments as final "should not be entered routinely" and "cannot be routinely entered as a courtesy to counsel.” Huntington Nat’l Bank v. Hooker, 840 S.W.2d 916, 921 (Tenn.Ct.App.1991). Such orders must be supported by a record indicating why there is "no just reason for delay,” and will preferably include specific findings of fact to that effect. Id. at 922.

      . The question of what standard to apply in ruling on a Rule 59.04 motion to alter or amend, presented in Schaefer and Bradley, is not directly at issue in this case and is thus beyond our reach. We note, however, that many of the same considerations discussed herein would be applicable when a litigant submits additional evidence as part of a Rule 59.04 motion to alter or amend a summary judgment.