author: ANDERSON, C.J.,

text:
    STATE of Tennessee v. Gerald Leander HENRY.
    Supreme Court of Tennessee, at Nashville.
    Dec. 21, 2000.

      Jeffrey A. DeVasher, David M. Siegel, and Hollis I. Moore, Jr., Assistant Public Defenders, Nashville, TN, for appellant, Gerald Leander Henry.
    Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Daryl J. Brand, Associate Solicitor General; Victor S. Johnson III, District Attorney General; and Kymberly Haas, Assistant District Attorney General, for the appellee, State of Tennessee.
   OPINION

ANDERSON, C.J.,

delivered the opinion of the court,

in which DROWOTA, BIRCH, and HOLDER, JJ., joined.

We granted this appeal to determine whether the trial court erred in admitting statements made by the co-defendant following the arrest of the defendant and the co-defendant for first-degree murder, attempted first-degree murder and related offenses. The Court of Criminal Appeals concluded that although the conspiracy to commit the offenses had ended, the co-defendant’s statements were made during the course of and in furtherance of a separate conspiracy to conceal the offenses and were admissible pursuant to the co-conspirator exception to the hearsay rule set out in TenmR.Evid. 803(1.2)(E). After reviewing the record, we conclude that the co-defendant’s statements were made after the conspiracy had ended and, therefore, were not admissible under TenmR.Evid. 803(1.2)(E). We further conclude, however, that the error was harmless, and we affirm the judgment of the Court of Criminal Appeals.

BACKGROUND

On July 16, 1992, the victims, William Weaver and Larry Harrington, were installing alarms in a church dormitory while working for a security firm in Nashville, Tennessee. Weaver was eating lunch inside a van in the church parking lot when the van was approached by the defendant, Gerald Leander Henry, and a co-defendant, Sean O’Brien. O’Brien removed a pistol from a duffel bag and ordered Weaver from the van and into the dormitory where they encountered Harrington.

Once inside the dormitory, Weaver and Harrington were ordered to lie on the floor face down. Henry bound Harrington’s hands and feet with wire. Harrington heard a crash, followed by Weaver moaning. Henry then tied Weaver’s hands and feet. O’Brien fired three shots, striking each victim once in the back of the head. Weaver was killed. Harrington miraculously survived, managed to free himself, and called 911 for help. Harrington was hospitalized for 13 days and was treated for serious, life-threatening injuries. Harrington had “no doubt” that Henry and O’Brien were the men who had committed the crimes and later testified as to the foregoing facts at trial and identified Henry.

After the shootings, O’Brien and Henry fled from the scene in the victims’ van. When spotted by law enforcement officers near Jackson, Tennessee, O’Brien, who was driving the van, attempted to outrun the officers. Driving at speeds of up to 100 miles per hour, he ran a red light, forced vehicles off the road, and evaded a police road block. When the van was finally stopped, Henry got out of the vehicle and complied with officers’ commands. O’Brien refused to surrender and had to be pulled from the van by officers.

Following his arrest, Henry was advised of his Miranda rights and made a voluntary confession. He told officers that he met O’Brien only a day or two before the shootings and that they intended to go to California together but did not have a vehicle. When they approached the white van in the church parking lot, O’Brien used a .45 caliber pistol to force the victim out of the van. Henry told officers that he did not know O’Brien had a pistol. Henry admitted that once inside the dormitory, he tied and bound the victims before O’Brien shot them. Henry further stated that he did not know that O’Brien was going to shoot the victims. He admitted, however, that once he and O’Brien fled from the scene in the victims’ van and were being pursued by police, he threw the .45 caliber pistol out of the van. Henry later accompanied officers to the location where the gun had been discarded.

After Henry and O’Brien were both arrested and after Henry had made his statement to police, they were placed together in the same interview room. A hidden camera and recording device had been installed in the room in order to videotape and record their conversation. Henry and O’Brien had a 27-minute conversation, a large portion of which was whispered or was otherwise unintelligible on the videotape. At several points, both O’Brien and Henry looked around the room and under the table and chairs, as if looking for a hidden microphone.

The audible portions of the videotape are summarized as follows: Early in the conversation, O’Brien stated that he did not intend to shoot anyone; that the gun went off because he was nervous and scared; and that he was “sticking with his story” that the van, which he stole, already had the keys in it. O’Brien told Henry, “Don’t worry; I’m not going to say you did it.... I don’t want you to do it to me.” After asking what Henry had told the police, O’Brien said, “Don’t say any-more_ [Y]ou didn’t see what happened.” Henry appeared to say that he would be quiet. O’Brien reiterated that Henry had heard shots but did not see what happened. Henry replied that he “wished he had dreamed it” but that the police had found the gun.

The discussion then turned to the evidence and other matters. O’Brien said that Henry’s fingerprints were on the gun, and Henry agreed. O’Brien mentioned the death penalty and indicated his belief that only a few states, including Tennessee, used the death penalty. O’Brien recounted that he had a history of mental illness and asked if Henry did as well. Henry appeared to respond in the affirmative. O’Brien speculated that his mental illness might prevent a charge of first-degree murder. O’Brien said that he had been charged with first-degree murder, attempted first-degree murder, and assault with a vehicle, but he denied that he intended to run over any police officers when evading the roadblock.

At this point in the conversation, O’Brien told Henry, “Don’t tell ’em anything I did; just tell ’em stuff that you did, okay?” O’Brien added,

I’m not going to say anything you did. Only the stuff I did, ‘cause that’s all they’re worried about. They’re not worried about what you did. You can tell 'em your story.... You don’t have to say ‘Sean did this.’

Henry appeared to nod in response but did not respond audibly. O’Brien concluded, “This way we don’t get ourselves in trouble. Or we get ourselves in trouble, and I give it to you, you give it to me. I’m already looking at twenty to forty years....”

After several inaudible or unintelligible moments, the conversation returned to the offenses. O’Brien said that the surviving victim untied himself and called the police. He then said that he should have tried to evade the police at the last roadblock. O’Brien told Henry, “All we wanted was the car ..., you know that.” Then he added, “I don’t even know why I did that.” O’Brien discussed the number of shots that had been fired and said that he “didn’t even look” and “didn’t want to look.” He then demonstrated that he looked away as he fired shots at the victims. O’Brien wondered aloud what the victim’s family was doing and then referred to himself as a “cold-blooded killer.” He reiterated that the “gun went off’ because he was “scared.” When Henry indicated that they “could have left [the gun] there,” O’Brien responded that the police would have found it. Near the conclusion of the conversation, Henry stated, “We got our story together.” O’Brien once again said that Henry did not have to mention his name. The videotape concludes with O’Brien stating, ‘You know they’re listening.”

The videotaped conversation was to be offered as evidence by the State against defendant Henry at trial. Henry’s counsel moved to exclude the videotaped statement prior to trial, arguing, among other grounds, that O’Brien’s statements were inadmissible hearsay. The prosecution argued that the videotape, including the statements made by O’Brien, were admissible under Tennessee Rule of Evidence 803(1.2)(E), the “co-conspirator” exception to the rule excluding hearsay statements. The trial court admitted the entire videotape after concluding that “the conspiracy had not ended at that point in time.”

The jury convicted Henry of first-degree felony murder, attempted first-degree premeditated murder, especially aggravated kidnapping, especially aggravated robbery, and two counts of especially aggravated burglary. Henry received a life sentence for first-degree felony murder, 20 years for attempted first-degree premeditated murder, 20 years for especially aggravated kidnapping, 20 years for especially aggravated robbery, and 10 years for each especially aggravated burglary. The sentences were to be served concurrently to one another but consecutively to the life sentence, for an effective sentence of life plus 20 years.

On appeal, the Court of Criminal Appeals reduced one of the convictions for especially aggravated burglary to aggravated burglary, but affirmed the remaining convictions and sentences. The court held that although the original conspiracy between Henry and O’Brien ended upon their arrest, O’Brien’s statements were made during a separate conspiracy to conceal the crimes they had already committed and were, therefore, admissible pursuant to Tenn.R.Evid. 8030L.2XE).

We granted this appeal to address the application of Tenn.R.Evid. 803(1.2)(E), the co-conspirator exception to the hearsay rule, and to determine whether the trial court abused its discretion in admitting the statements made by O’Brien during the videotaped conversation between Henry and O’Brien.

ANALYSIS

Hearsay is a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Tenn. R. Evid. 801(c). A hearsay statement is not admissible except as provided by the rules of evidence or otherwise by law. TenmR.Evid. 802.

There are numerous exceptions to the hearsay rule, however, where statements that constitute hearsay bear sufficient indicia of reliability and trustworthiness to warrant admission. See Neil P. Cohen et al., Tennessee Law of Evidence, § 801.1, at 490-91 (3rd ed.1995). The exception at issue in this case is that of “a statement by a co-conspirator of a party during the course of and in furtherance of the conspiracy.” See TenmR.Evid. 803(1.2)(E). The rationale for this exception is the principle of agency, under which each conspirator is bound to the actions and statements made by other conspirators during the course of and in furtherance of a common purpose. See Tennessee Law of Evidence, § 803(1.2).6, at 521.

Accordingly, for a statement to be admissible under this exception, the prosecution must establish: 1) that there is evidence of the existence of a conspiracy and the connection of the declarant and the defendant to that conspiracy; 2) that the declaration was made during the pen-dency of the conspiracy; and 3) that the declaration was made in furtherance of the conspiracy. See Tennessee Law of Evidence, § 803(1.2).6, at 521-22. These requirements must be established by a preponderance of evidence. See State v. Stamper, 863 S.W.2d 404, 406 (Tenn.1993).

The dispositive issue in this case concerns the second requirement: whether O’Brien’s statements were made during the course of the conspiracy with Henry. On appeal, Henry contends that O’Brien’s statements were made after the conspiracy had ended, inasmuch as he and O’Brien had been arrested for the offenses and he (Henry) already had confessed his involvement in the crimes. The State maintains that O’Brien’s statements were admissible because a conspiracy under Rule 803(1.2)(E) includes declarations made by conspirators regarding concealment of the offenses.

This Court discussed the “co-conspirator” exception in State v. Walker, 910 S.W.2d 381 (Tenn.1995). In that casé, the defendant was convicted of murder and robbery and argued on appeal that the trial court had erred in admitting statements made by co-conspirators after the offenses had occurred. We said that “a conspiracy is, in general terms, a combination of two (2) or more persons, by concerted action, to accomplish some criminal or unlawful purpose.” Id. at 384. In discussing the scope of Rule 803(1.2)(E), this Court said:

For a statement of the co-conspirator to be admissible it must have been made “during the course of’ the conspiracy which means that the conspiracy must have been ongoing at the time the statement was made. If the conspiracy had not yet begun or had ended ivhen the statement was made, the declaration is not admissible under this hearsay exception, although it may still be admissible under some other exception....

State v. Walker, 910 S.W.2d at 385 (emphasis added).

Our analysis in Walker was predicated upon several early decisions of the Tennessee Supreme Court. In Owens v. State, the Court stated the general rule that “[a]ll acts or declarations of conspirators, or of any of them, may be given in evidence against all, from the time the conspiracy had its origin until its design has been consummated, or until it is abandoned.” 84 Tenn. 1 (1885). Similarly, in Sweat v. Rogers, the Court stated:

Care must be taken that the Acts and Declarations thus admitted be those only which were made and done during the pendency of the criminal enterprise and in furtherance of its objects. If they took place at a subsequent period, and are therefore merely narrative of past occurrences, they are, as we have just seen, to be rejected.

53 Tenn. 117, 120 (1871) (emphasis added) (citation omitted); see Snowden v. State, 66 Tenn. 482 (1874) (“[WJhen the common purpose is at an end, whether by accomplishment or abandonment, no one of the conspirators is permitted by the subsequent act or declaration of his own to affect the others.”).

Applying these rules to the facts in Walker, we carefully reviewed the facts and circumstances of three statements that had been admitted by the trial court on the basis that they pertained to concealment. We concluded that the statements had been made after the commission of the offenses and were not made in the course of or in furtherance of the conspiracy. See State v. Walker, 910 S.W.2d at 385-86. We also observed that one of the statements was merely a “narrative” statement of past conduct that was not made in the course of and in furtherance of the conspiracy. Id. at 386. We held, however, that the error in admitting these statements was harmless in light of the overwhelming evidence of the defendant’s guilt. Id. at 387-88.

In our view, Walker clearly stands for the proposition that there is no bright-line test or precise definition for determining whether a statement has been made during the course of the conspiracy. The commission of the offense that was the goal of the conspiracy does not necessarily end the conspiracy, nor does it preclude the possibility that the conspiracy encompassed later statements regarding concealment of the offense. See State v. Walker, 910 S.W.2d at 385. At the same time, the commission of the offense also does not imply that the conspiracy automatically included all later statements pertaining to the concealment of the offense. See State v. Walker, 910 S.W.2d at 386.

The United States Supreme Court has also concluded that there are limits in determining whether a statement has been made during the course of a conspiracy. In Krulewitch v. United States, the Court rejected the argument that accomplishment of the initial criminal objectives of a conspiracy implicitly resulted in a “subsidiary phase” of the conspiracy for the purpose of concealment. 336 U.S. 440, 443, 69 S.Ct. 716, 718, 93 L.Ed. 790 (1949); see also Lutwak v. United States, 344 U.S. 604, 618, 73 S.Ct. 481, 489, 97 L.Ed. 593 (1953) (“[T]he declarations of a conspirator do not bind the co-conspirator if made after the conspiracy has ended.”). In short, the commission of the offense does not imply an agreement to conceal the offense, given the risk that after the commission of the crimes, each co-conspirator may act in his or her self-interest. In such circumstances, where there is no longer a common purpose, statements may lack the reliability that serves as the basis for the “co-conspirator” exception.

Accordingly, in the absence of a bright-line test, we conclude that Tenn. R.Evid. 803(1.2)(E) requires that a court examine all of the factors and circumstances of the case. The Supreme Court of Minnesota stated:

Generally, a conspiracy to conceal the commission of the charged crime may not be automatically implied to permit the use of hearsay statements made by co-conspirators.... [T]he court should analyze the facts of the case to determine if in fact there was an agreement to conceal, to determine the closeness in time of the concealment to the commission of the principal crime, and to determine the reliability of these statements.

State v. Buschkopf, 373 N.W.2d 756, 764 (Minn.1985). A court must keep in mind that the purpose of the rule is to ensure the reliability and trustworthiness of the statements sought to be admitted.

In this case, after the victims had been shot, Henry and O’Brien fled from the scene in the victims’ van. They traveled west from Nashville to Jackson, Tennessee, which was consistent with Henry’s statement that they had stolen the van to go to California. When the van was spotted by law enforcement officers, O’Brien drove the van at high speeds and evaded a roadblock in an effort to avoid apprehension. In the midst of the chase, Henry threw the murder weapon out of the van. It is obvious that Henry and O’Brien at this point were still acting in furtherance of a common purpose and that statements made by either of them at that time likely would have been during the course of the conspiracy.

The videotaped conversation between O’Brien and Henry, however, occurred approximately seven hours after they were arrested and nine hours after the offenses were committed. The State maintains that the conspiracy was ongoing because O’Brien and Henry discussed the offenses, the versions they could tell police, and ways to minimize their culpability. By that time, however, both Henry and O’Brien had been arrested and charged with the offenses. Moreover, Henry already had given a confession to officers in which he admitted his involvement in the shooting of the victims; in the robbery of the van; in the flight from the scene; and also his disposal of the weapon. Henry had also led police officers to recover the weapon that he had thrown from the van when attempting to elude police.

The State nonetheless asserts that the statements were reliable because both Henry and O’Brien were the participants in the conversation. Our review reveals, however, that the videotaped conversation was dominated by O’Brien and consisted almost entirely of his statements and his concern that Henry not tell the police what he, O’Brien, had done. O’Brien repeatedly remarked on his participation in the crimes and the potential punishment he faced as the shooter of the victims. O’Brien said several times that Henry did not have to use O’Brien’s name and did not have to tell officers what O’Brien had done. Although O’Brien stated that he, in turn, would not tell the police what Henry had done, it is significant that Henry had already confessed. Moreover, although Henry appeared to respond to O’Brien in the affirmative a few times, the vast majority of Henry’s responses are inaudible or unintelligible.

We do not. disagree with the State’s contention that a conspiracy may extend to statements concerning the concealment of the offenses. None of the cases cited by the State, however, involve facts similar to the present case. At the time of the videotaped conversation Henry and O’Brien had already committed the offenses, fled the scene, and eluded the police. Both had been arrested and charged for the offenses. Finally, Henry had already confessed to his involvement and had assisted the police in recovering the weapon. Indeed, several of the cases cited by the State stress these very types of distinctions in determining whether statements regarding concealment were made during the course of the conspiracy. See State v. Flores, 595 N.W.2d 860, 866 (Minn.1999) (statements were made after the offense but before discovery of the crime or arrests); People v. Thomas, 178 Ill.2d 215, 227 Ill.Dec. 410, 687 N.E.2d 892, 902 (1997) (statements were made after the offense but before disposal of the murder weapon).

Accordingly, we hold that O’Brien’s statements were made after the conspiracy had ended and, therefore, were not made during the course of the conspiracy as required for admissibility under Tenn. R.Evid. 803(1.2)(E).- In our view, a finding that a conspiracy still existed and that the statements were made during the course of the conspiracy under the facts of this case would stretch Rule 803(1.2)(E) beyond its intended scope and would not ensure that statements admitted under this hearsay exception bear sufficient indi-cia of reliability. In simply concluding that the conspiracy was ongoing without considering the scope and purpose of the rule, the trial court abused its discretion in admitting O’Brien’s statements.

Having concluded that the trial court erred, we, however, agree with the Court of Criminal Appeals’ conclusion that the error was harmless under the facts of this case. The substance of O’Brien’s statements regarding the offense was established at trial through other means. Moreover, Henry’s own confession detailed his association with O’Brien; his involvement in the robbery and the shootings; his flight from the scene with O’Brien after the shootings; and his disposal of the murder weapon while fleeing from the police. Finally, the surviving victim identified Henry and described his role in the offenses.

Henry nonetheless argues that the videotaped statements were used to link him to O’Brien, the “cold-blooded” killer, and that this prejudiced his defense that he lacked the intent to commit the crimes and was merely a facilitator of the offenses. There was no question, however, regarding Henry’s role in the offenses. Henry fully participated in the robbery and the shootings. He tied and bound both victims before they were shot. He fled the scene with O’Brien in the stolen van, and he disposed of the weapon as they tried to elude police. The videotape reflects that O’Brien did nearly all of the talking, repeatedly incriminating himself as the shooter and suggestmg ways m which Henry could minimize O’Brien’s role. In contrast, Henry’s responses were often inaudible or unintelligible. The videotape gives support to Henry’s defense, inasmuch as O’Brien appeared to be the leader in the offenses. When viewed against the evidence of Henry’s guilt, we conclude that the error was harmless and does not constitute reversible error.

CONCLUSION

We conclude that under the circumstances of this case, the co-defendant’s statements were not made during the course of the conspiracy and that the prosecutor failed to establish a foundation for the admission of the statements pursuant to the co-conspirator exception in Tenn. R.Evid. 803(1.2)(E). We further conclude that the error was harmless. Accordingly, we affirm the judgment of the Court of Criminal Appeals. It appearing that the appellant is indigent, costs of the appeal shall be taxed to the State.

BARKER, J., not participating.

      . The Court of Criminal Appeals also correctly held that Henry’s statements on the videotape were properly admitted as a party’s own admissions. See Tenn.R.Evid. 803(1.2)(A). Henry does not contest this ruling on appeal.

      . The State maintains that this is a general rule followed by numerous jurisdictions. See, e.g., State v. Flores, 595 N.W.2d 860, 866 (Minn.1999); People v. Thomas, 178 Ill.2d 215, 227 Ill.Dec. 410, 687 N.E.2d 892, 902 (1997); State v. Cornell, 314 Or. 673, 842 P.2d 394, 398 (1992); Duffy v. State, 262 Ga. 249, 416 S.E.2d 734, 735-36 (1992); State v. Pizzella, 723 S.W.2d 384, 388 (Mo.1987); Spears v. State, 280 Ark. 577, 660 S.W.2d 913, 918 (1983).

      . Given our discussion of these principles in Walker as they relate to the application of the evidentiary rule, we agree with the Court of Criminal Appeals’ conclusion, as do both the defendant and the State, that the statutory offense of conspiracy does not control the application of the evidentiary rule. Indeed, the statute provides that “[njothing in this provision is intended to modify the evidentia-ry rules allowing statements of co-conspirators in furtherance of a conspiracy.” Tenn. Code Ann. § 39 — 12—103(g).

      . As the parties observe, we stated in Walker that Tenn.Code Ann. § 39-12-103 "totally abrogated" the statement in State v. Crabtree, 655 S.W.2d 173 (Tenn.Crim.App.1983), that “a conspiracy may continue after the crime has been completed for, among other things, the concealment of the crime or to prevent wilnesses from testifying.” State v. Walker, 910 S.W.2d at 385. We clarify this statement to mean only that the definition alone does not control the evidentiary issue of whether a statement has been made during the course of the conspiracy.

      . In fact, neither the defendant nor the State in this case argued in favor of the "second-conspiracy” approach used by the Court of Criminal Appeals. We agree that such a distinction is artificial and not helpful as it begs the issue of whether statements made during an alleged “second conspiracy” may be used to prove the charged offenses. Moreover, our analysis in Walker indicated that even if a separate conspiracy to conceal was said to exist, the statements made during the course of such a conspiracy are not admissible for that purpose. See State v. Walker, 910 S.W.2d at 386.

      . The State does not argue that a foundation for admissibility was established through some other exception.


source: Caselaw Access Project

author: HOLDER, J.,

license: Public Domain

text:
    Anthony MAESTAS, et al. v. SOFAMOR DANEK GROUP, INC., et al.
    Supreme Court of Tennessee, at Jackson.
    Dec. 21, 2000.

      Andrea S. Lestelle and Roy F. Amedee, Jr., Metairie, Louisiana, John A. Day, Nashville, TN, and Lisa June Cox, Jackson, TN, for appellants, Anthony Maestas, Eugenio Camara, Paul Hill, and William Shook.
    George Lehner, Washington, DC, Murray Levin, Philadelphia, PA, and Sam B. Blair, Jr., Memphis, TN, for appellees, Da-nek Medical, Inc. and Warsaw Orthopedics, Inc.
    George Lehner, Washington, DC, Glen G. Reid, Jr., John Barry Burgess, and Sam B. Blair, Jr., Memphis, TN, and Murray Levin, Philadelphia, PA, for appellee, Sofa-mor Danek Group, Inc.
    Buckner Potts Wellford, Memphis, TN, Carl R. Schenker, Jr., Washington, DC, and Hugh F. Young, Jr., Reston, VA, for amicus curiae, Product Liability Advisory Council, Inc.
    J. Mark Rogers, Murfreesboro, TN, for amicus curiae, Tennessee Trial Lawyers Association.
   OPINION

HOLDER, J.,

delivered the opinion of the court,

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

The plaintiffs alleged that defendants’ products, surgically implanted in then-backs, were defective. The trial court granted summary judgment for defendants on grounds that the statute of limitations had expired. The plaintiffs appealed, contending that: 1) genuine issues of material fact existed as to whether the statute of limitations was tolled by the “discovery rule”; and 2) under the doctrine of “cross-jurisdictional tolling,” the statute of limitations was tolled during the period in which the plaintiffs sought class certification in a class action filed in federal court. We decline to adopt the doctrine of cross-jurisdictional tolling. As the plaintiffs have conceded a “universal date of discovery” that is outside the applicable statute of limitations, our rejection of cross-jurisdictional tolling renders the plaintiffs’ claims time-barred. Accordingly, we need not address the “discovery rule” issue raised by plaintiffs. The judgment of the Court of Appeals, affirming the trial court’s grant of summary judgment, is hereby affirmed.

The plaintiffs in this case each underwent back surgery in which implants were affixed to their spines using pedicle screws. These devices were manufactured by Sofamor Danek Group, Inc. (“SDG”) and other named defendants. The plaintiffs claim that the pedicle screws and implants used in the surgical procedure caused them injury or exacerbated preexisting medical conditions.

Plaintiff Maestas’ implant surgery was performed on December 17, 1990. Plaintiff Camara had two such surgeries, the first on December 2, 1991, and the second on May 21, 1993. Plaintiff Hill also had two surgeries, the first on March 22, 1992, and the second on February 21, 1994. Plaintiff Shook’s surgery was performed on June 19,1991.

In December 1993, 20/20, a television news program, aired an installment in which pedicle screws and related hardware were characterized as defective. Apparently in response to the 20/20 program, a class action was filed in federal court that same month in regard to the allegedly defective products. Class action certification was denied on February 24, 1995. Following denial of the class action, plaintiffs, along with hundreds of others, filed suit against SDG in Shelby County, Tennessee. Maestas filed suit on October 23, 1995; Camara, Hill, and Shook filed suit on October 12,1995.

SDG moved for summary judgment. Its motion was granted by the trial court on grounds that the statute of limitations had expired. The Court of Appeals affirmed. We granted review to address the following issues: 1) whether genuine issues of material fact exist as to when the plaintiffs discovered or reasonably should have discovered their injuries; and 2) whether the doctrine of cross-jurisdictional tolling tolled the statute of limitations in this case.

DISCOVERY RULE

The plaintiffs concede a universal date of discovery applicable to each of them even if SDG’s motion for summary judgment had been denied. They allege in their brief that “the airing of the 20/20 television show is the date that begins the running of the statute of limitation regarding all claims against Appellees.” SDG does not dispute this contention. It is therefore undisputed that the statute of limitations began to run no later than that date. The 20/20 program aired on December 17,1993. Assuming that the statute of limitations began to run on that date, plaintiffs’ suits would still be time-barred. In order to overcome this bar, plaintiffs urge this Court to adopt the doctrine of cross-jurisdictional tolling.

CROSS-JURISDICTIONAL TOLLING

In the federal courts, “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 353-54, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983); American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974). These cases describe a tolling doctrine applicable within the same jurisdiction; that is, statutes of limitations in federal cases will be tolled pending the outcome of class certifications sought in federal court.

By contrast, cross-jurisdictional tolling implicates tolling one jurisdiction’s statute of limitations pending a judicial outcome in a foreign jurisdiction. In the context of the case at bar, cross-jurisdictional tolling would involve the tolling of the applicable Tennessee statute of limitations during the period in which the plaintiffs sought class certification as part of the unsuccessful class-action filed in the United States District Court for the Eastern District of Pennsylvania.

Under the facts of this case, cross-jurisdictional tolling would toll the commencement of the statute of limitations until February 24, 1995, the date class certification was denied. Accordingly, each of plaintiffs’ claims would be timely filed if we were to adopt the doctrine and would be untimely filed were we to reject it.

Cross-jurisdictional tolling is yet unexplored in Tennessee law. In fact, few states have addressed the issue. Some have accepted the doctrine. See Staub v. Eastman Kodak Co., 320 N.J.Super. 34, 726 A.2d 955 (N.J.Super.Ct.App.Div.1999); Lee v. Grand Rapids Bd. of Educ., 148 Mich.App. 364, 384 N.W.2d 165 (1986); Hyatt Corp. v. Occidental Fire & Cas. Co., 801 S.W.2d 382 (Mo.Ct.App.1990). Others have rejected it. See Portwood v. Ford Motor Co., 183 Ill.2d 459, 233 Ill.Dec. 828, 701 N.E.2d 1102 (1998); Ohio Hosp. Ass’n v. Armstrong World Indus., Inc., No. 76067, 2000 WL 354742 (Ohio Ct.App. Apr. 6, 2000); Bell v. Showa Denko K.K., 899 S.W.2d 749 (Tex.Ct.App.1995). Some federal courts have also rejected the doctrine, based upon interpretation of state law. See Wade v. Danek Medical, Inc., 182 F.3d 281 (4th Cir.1999) (interpreting Virginia law); In re "Agent Orange” Prod. Liab. Litig., 818 F.2d 210 (2d Cir.1987) (interpreting Hawaii law); Thelen v. Massachusetts Mut. Life Ins. Co., 111 F.Supp.2d 688 (D.Md.2000).

Considering all of the above authority and arguments of counsel, we decline to adopt the doctrine of cross-jurisdictional tolling in Tennessee. We recognize that several jurisdictions have adopted intraju-risdictional tolling. See Wade, 182 F.3d at 286-87 (citing multiple authorities); Staub, 726 A.2d at 963-64 (same). “Tolling the statute of limitations for individual actions filed after the dismissal of a class action is sound policy when both actions are brought in the same court system.” Portwood, 701 N.E.2d at 1104. The rationale for that rule is that if the statute of limitations were not tolled, that single system would be burdened both by the class action litigation and by numerous protective filings from the members of the class seeking to preserve their lights to bring suit individually should class certification be denied. See id.; see also Wade, 182 F.3d at 286.

We can find no comparable benefit from cross-jurisdictional tolling, however. Our adoption of cross-jurisdictional tolling could, in a general sense, benefit the federal court system in its disposition of class actions. Nevertheless, Tennessee “simply has no interest, except perhaps out of comity, in furthering the efficiency and economy of the class action procedures of another jurisdiction, whether those of the federal courts or those of another state.” Wade, 182 F.3d at 287.

Adoption of the doctrine would run the risk that Tennessee courts would become a clearinghouse for cases that are barred in the jurisdictions in which they otherwise would have been brought. Litigants who ordinarily would have filed in other states’ courts would file in Tennessee solely because our cross-jurisdictional tolling doctrine would have effectively created an overly generous statute of limitations. See Wade, 182 F.3d at 287; Portwood, 701 N.E.2d at 1104. We cannot sanction such forum shopping.

We understand that our ruling may promote “protective” filings by plaintiffs who wish to preserve their right to file suit in Tennessee while they seek class certification elsewhere. Any administrative burdens Tennessee courts will suffer from those protective filings are greatly outweighed by the burdens presented by the mass exodus of rejected putative class members from federal court to Tennessee. Any risk of duplicative litigation resulting from the protective filings may be avoided by grant of a stay by the state court until the federal ruling on class certification is made. See Wade, 182 F.8d at 287 n. 8.

Finally, the practical effect of our adoption of cross-jurisdictional tolling would be to make the commencement of the Tennessee statute of limitations contingent on the outcome of class certification as to any litigant who is part of a putative class action filed in any federal court in the United States. Cf. Wade, 182 F.3d at 288. It would essentially grant to federal courts the power to decide when Tennessee’s statute of limitations begins to ran. Such an outcome is contrary to our legislature’s power to adopt statutes of limitations and the exceptions to those statutes, see, e.g., Phillips v. Memphis Furniture Mfg. Co., 168 Tenn. 481, 79 S.W.2d 576, 578 (1935); Doe v. Coffee County Bd. of Educ., 852 S.W.2d 899, 905 (Tenn.Ct.App.1992); L.H. Poppenheimer v. Bluff City Motor Homes, 658 S.W.2d 106, 111-12 (Tenn.Ct.App.1983), and would arguably offend the doctrines of federalism and dual sovereignty. If the sovereign state of Tennessee is to cede such power to the federal courts, we shall leave it to the legislature to do so.

CONCLUSION

We decline to adopt the doctrine of cross-jurisdictional tolling in Tennessee. As the plaintiffs claim a “universal date of discovery” that is outside the statute of limitations, our rejection of cross-jurisdictional tolling renders plaintiffs’ claims time-barred. Accordingly, the judgment of the Court of Appeals affirming the trial court’s grant of summary judgment is hereby affirmed.

Costs of this appeal are taxed to plaintiffs, Anthony Maestas, Eugenio Camara, Paul Hill, and William Shook, for which execution may issue if necessary.

DROWOTA, J., not participating.

      . At least two jurisdictions have specifically considered the benefits of one doctrine and the detriments of the other. Both Texas and Illinois have adopted intrajurisdictional tolling, see Grant v. Austin Bridge Constr. Co., 725 S.W.2d 366 (Tex.Ct.App.1987); Steinberg v. Chicago Med. Sch., 69 Ill.2d 320, 13 Ill.Dec. 699, 371 N.E.2d 634 (1977), but have rejected cross-jurisdictional tolling, see Bell v. Showa Denko K.K., 899 S.W.2d 749 (Tex.Ct.App.1995); Portwood v. Ford Motor Co., 183 Ill.2d 459, 233 Ill.Dec. 828, 701 N.E.2d 1102 (1998).


author: SWINEY, J.

text:
    John CONSTANTINE, III, et al., Plaintiffs/Appellants, v. MILLER INDUSTRIES, INC., et al., Defendants/Appellees.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    March 31, 2000.
    Certiorari Denied by Supreme Court Nov. 20, 2000.

      Ward Crutchfield and J. William Pope, Chattanooga, TN, William S. Lerach, Jan M. Adler, William S. Dato, and Randall J. Baron, San Diego, CA, George Barrett and Douglas Johnston, Nashville, TN, Gordon Ball, Knoxville, TN, and H.Sullivan Bunch, Signal Mountain, TN, for the appellants, John Constantine, III, Harvey Frank, and Thomas J. Johnson.
    John C. Harrison, Chattanooga, TN, Oscar N. Persons, Rebecca M. Lamberth, and John H. Goselin, II, Atlanta, GA, for the appellees, Miller Industries, Inc., William G. Miller, and Adam L. Dunayer.
   OPINION

SWINEY, J.

This is an appeal of the dismissal of a securities fraud suit seeking class action certification against Defendants Miller Industries, Inc. (“Miller Industries”), William G. Miller (“Miller”), and Adam L. Dunayer (“Dunayer”). Plaintiffs, individuals who purchased stock in Miller Industries, sought relief for alleged misrepresentations made by Defendants in the course of a public stock offering. Although unable to show common law reliance on the statements asserted as the basis for their damages, Plaintiffs argued to the Trial Court that reliance is not required to state a cause of action under T.C.A. § 48-2-122(c), the statute which establishes a private cause of action for violation of T.C.A. § 48-2-121, the securities fraud statute. Citing a previous decision of this Court construing the predecessor statute requiring plaintiffs to show common law reliance for a private cause of action for securities fraud, the Trial Court dismissed the suit for failure to state a claim for which relief could be granted. On appeal, Plaintiffs asserted, among other things, error by the Trial Court in requiring reliance for a private cause of action under T.C.A. § 48-2-121 and § 48-2-122(c), and argue in the alternative that Tennessee should adopt the federal “fraud on the market” theory, which does not require direct reliance to maintain a cause of action for certain securities law claims. For the reasons set forth below, we affirm the Trial Court’s dismissal of Plaintiffs’ cause of action.

BACKGROUND

Defendant Miller Industries, a Tennessee corporation with its principal place of business in Ooltewah, Tennessee, was formed in 1990 through the consolidation of two towing equipment manufacturers, Holmes International and Challenger Wrecker. Defendant Miller was named in Plaintiffs’ suit as the Chairman and CEO of Miller Industries. Defendant Dunayer was initially an outside accountant for Miller Industries, and became Vice President, Treasurer, and CFO of Miller Industries in 1996. Plaintiffs, who purchased stock in Miller Industries between December 12, 1996 and September 5, 1997, brought suit alleging violation of the Tennessee Securities Act of 1980, seeking class action certification for persons who acquired common stock in Miller Industries between October 15,1996 and September 11,1997.

This suit was originally brought by Plaintiff John Constantine III on October 2, 1997, seeking class action certification. On December 22, 1997, an Amended Complaint was filed, adding Plaintiffs Harvey Frank and Thomas J. Johnson, and substituting typographical corrections for certain wording in the original Complaint. On January 2,1998, Defendants filed a Motion to Dismiss the First Amended Complaint, asserting that Plaintiffs failed to state a claim upon which relief can be granted under T.R.C.P. Rule 12.02, with an alternative Motion to stay proceedings pending resolution of a companion case then pending in the Federal District Court in Georgia. On May 11, 1998, Chancellor R. Vann Owens granted Defendants’ Motion to Dismiss in a detailed, articulate fourteen-page Memorandum Opinion and Order, holding that Plaintiffs failed to allege fraud with sufficient particularity under T.R.C.P. Rule 9.02, and denied Plaintiffs’ claims for relief under the federal securities law “fraud on the market” theory. On September 28, 1998, Plaintiffs filed their Second Amended Complaint by leave of Chancellor Owens under T.R.C.P. Rule 15.01, asserting claims under the Tennessee Securities Act of 1980. Plaintiffs alleged that statements made in conjunction with a public offering of common stock, in SEC filings and related materials, created a cause of action under T.C.A. § 48-2-122(c), the statute which establishes a private cause of action for violation of T.C.A. § 48-2-121, the securities fraud statute. Plaintiffs also sought in the Second Amended Complaint to add Bear, Stearns <& Company, Inc. as an additional party defendant, which the Trial Court denied.

Defendants filed their second Motion to Dismiss on November 9, 1998, again asserting that Plaintiffs failed to plead fraud with particularity under T.R.C.P. Rule 9.02 and failed to state a claim for which relief could be granted under T.R.C.P. Rule 12.02. Defendants argued in their Memorandum of Law in support of the Motion to Dismiss that Plaintiffs’ “fraud on the market” theory was inapplicable to the Tennessee Securities Act of 1980, that Plaintiffs failed to allege the requisite scienter under common law fraud on the part of Defendants, and that Plaintiffs failed to aver fraudulent acts on the part of Defendants with sufficient particularity. After additional briefs were filed and argument of counsel for the parties was heard, the Trial Court, with Chancellor W. Frank Brown III presiding, dismissed the suit by Memorandum Opinion and Order filed March 11, 1999. After examining and applying relevant case law, the Trial Court found that Plaintiffs failed to allege fraud with sufficient particularity, failed to establish the common law fraud elements of reliance and scienter, and found that Tennessee has not adopted the federal securities law “fraud on the market” theory through either legislative enactment or case law. In declining to adopt the “fraud on the market” theory, the Trial Court noted that Dismissal of this suit does not mean that Plaintiffs are left without a potential remedy.

In equity, there is no wrong without a remedy. But here, if there is a wrong, there is not only a remedy but another lawsuit involving Miller Industries, Inc. There is a class action pending in the United States District Court in Georgia wherein this same theory is being argued. This trial court does not believe that it should be the one to make such a distinct change in Tennessee law by the adoption of a fraud-on-the-market theory as a substitute for reliance. Such a change should be made by the Supreme Court of Tennessee or the Court of Appeals if our Legislature does not make the change.

It is from this Order of the Trial Court dismissing the cause of action with prejudice that Plaintiffs have appealed.

DISCUSSION

Plaintiffs have posed two issues for review in the form of four questions:

1. a. In addition to alleging that the price paid for a security was affected by the defendants’ false or misleading statements, does the express private right of action created by T.C.A. § 48-2-122(c) require that the plaintiff plead actual reliance on the misstatements?
b. If actual reliance is required, is reb-anee presumed under the “fraud on the market” theory if the plaintiff abeges that the defendants’ material misstatements were communicated to the market and affected the market price paid by plaintiff?
2. a. To state a cause of action under T.C.A. § 48-2-122, is a plaintiff required to allege that defendants made knowingly false or misleading statements despite the express statutory requirement that defendants prove they “did not know, and in the exercise of reasonable care could not have known” that their statements were false or misleading?
b. If allegations of knowing falsity are required, must facts supporting defendant’s knowledge be pleaded with particularity despite the statement in Tenn. R.Civ.P. 9.02 that “knowledge ... may be averred generally”?

Defendants argue that Plaintiffs have misstated the issues for review, and assert that the proper issues center upon whether Plaintiffs’ Second Amended Complaint fails to state a claim upon which relief can be granted. After extensive review of the record of the Trial Court, the parties’ briefs, oral arguments, and supporting materials submitted on appeal by the parties, the dispositive issue at the core of this appeal is whether reliance by Plaintiffs upon the alleged acts or conduct attributed to Defendants as being violative of T.C.A. § 48-2-121 is required for a suit brought pursuant to T.C.A. § 48-2-122(c).

The issues on review pose questions of statutory construction, which are subject to de novo review.

Construction of a statute is a question of law which we review de novo, with no presumption of correctness. The role of the Court in construing statutes is to ascertain and give effect to legislative intent. Legislative intent is to be ascertained whenever possible from the natural and ordinary meaning of the language used, without forced or subtle construction that would limit or extend the meaning of the language.

Myint v. Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn.1998).

The statutes at issue were originally adopted as part of the Tennessee Securities Act of 1980. T.C.A. § 48-2-121 creates the cause of action for security fraud or misrepresentation.

(a) It is unlawful for any person, in connection with the offer, sale or purchase of any security in this state, directly or indirectly, to:
(1) Employ any device, scheme, or artifice to defraud;
(2) Make any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading; or
(3) Engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person.
(c) It is unlawful for any person to make or cause to be made, in any document filed with the commissioner or in any proceeding under this part, any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading.
T.C.A. § 48-2-121.

The private right of action asserted by Plaintiffs is created by T.C.A. § 48-2122(c).

Any person who willfully engages in any act or conduct which violates § 48-2-121 shall be liable to any other person (not knowing that any such conduct constituted a violation of § 48-2-121) who purchases or sells any security at a price which was affected by the act or conduct for the damages sustained as a result of such act or conduct unless the person sued shall prove that the person sued acted in good faith and did not know, and in the exercise of reasonable care could not have known, that such act or conduct violated § 48-2-121.

T.C.A. § 48-2-122(c)(1).

T.C.A. § 48-2-122(c) does not create a new and independent cause of action, but instead merely establishes standing to bring a private cause of action for violation of T.C.A. § 48-2-121. Without a violation of T.C.A. § 48-2-121, there is no cause of action to be brought under T.C.A. § 48-2-122(c). The ten-page Memorandum Opinion and Order of the Trial Court addressing the Motion to Dismiss Plaintiffs’ Second Amended Complaint is particularly thorough and erudite in addressing the issues argued by Plaintiffs as forming their foundation for reversal on appeal. The Trial Court found that Plaintiffs failed to state a claim under which relief could be granted for failing to aver reliance upon the representations of Defendants, in that common law rebanee is required to bring a civil cause of action under T.C.A. § 48-2-122 for violation of T.C.A. § 48-2-121. To support this finding, the Trial Court cites Diversified Equities, Inc. v. Warren, 567 S.W.2d 171 (Tenn.Ct.App.1976), overruled on other grounds by V.L. Nicholson Co. v. Transcon Inv. & Fin. Ltd., Inc., 595 S.W.2d 474 (Tenn.1980).

This Court in Diversified Equities examined T.C.A. § 48-1644, the predecessor statute to T.C.A. §§ 48-2-121 and 48-2-122. Drawing analogy to federal securities law, this Court held that common law reb-anee must be proved to maintain a civil cause of action under that statute.

In plaintiffs’ first assignment of error, they contend that ... common law reb-anee is not an element of a fraudulent practice under T.C.A. § 48-1644. We have found no reported cases construing § 48-1644.
The language of T.C.A. § 48-1644 is similar to the language of Rule 10b-5, promulgated by the S.E.C. under s 10(b) of the Securities and Exchange Act of 1934. We have reviewed the federal case law interpreting Rule 10b-5 and conclude that when a material misrepresentation is made, rebanee upon that misrepresentation must be proven to recover under Rule 10b-5. Reliance is established when one proves that the misrepresentation is a substantial factor in determining the plaintiffs course of conduct.
The substantial factor test adopted by the federal courts is the same reliance test used in the common law misrepresentation action.

Diversified Equities, 567 S.W.2d at 173-174.

Plaintiffs’ attempt to find a path around this Court’s holding in Diversified Equities by relying upon State v. Brewer, 932 S.W.2d 1 (Tenn.Crim.App.1996). This reb-anee is misplaced. The burdens are different for a private cause of action using T.C.A. § 48-2-122, and for a criminal enforcement action under T.C.A. § 48-2-121 by law enforcement authorities.

Cases from other jurisdictions have uniformly ihustrated that the requirements of proof in private actions and criminal cases are not identical. For example, in Kramas v. Security Gas & Oil, Inc.[, 672 F.2d 766 (1082)] which involved a private action concerning violations of federal securities laws, the United States Court of Appeals for the Ninth Circuit stated: “Prosecutions and enforcement actions involve interests and procedures different from those involved in private damage suits. The Government is not ‘required to prove that anyone was defrauded or that any investor sustained loss,’ ... but such proof is essential to recovery by a private investor.”

State v. Brewer, 932 S.W.2d at 16-17 (emphasis added).

As noted by the Trial Court, we are cited to, and find from our own research, no other cases construing the revised version of the statutes at issue. However, the language of the Tennessee Securities Act of 1980 continues to closely follow federal securities law Rule 10b-5. See Ockerman v. May Zima & Co., 27 F.3d 1151, 1155 (6th Cir.1994). Therefore, the analysis and holding in Diversified Equities remains vabd. Reliance must be established by the plaintiff to maintain a Rule 10b-5 action under federal law. Ockerman, 27 F.3d at 1158. Had the Tennessee Legislature chosen to do so, reliance could have been addressed in the enactment of the Tennessee Securities Act of 1980, or in the subsequent revisions to the statutes at issue. The holding in Diversified Equities that common law reliance is a requirement to bringing a private cause of action for securities fraud or misrepresentation had been the law in Tennessee for four years at the time of the enactment of the 1980 Act. “[T]he Legislature is presumed to have knowledge of its prior enactments and to know the state of the law at the time it passes legislation.” Wilson v. Johnson County, 879 S.W.2d 807, 810 (Tenn.1994).

A few days before oral argument, Plaintiffs submitted a copy of Wakefield v. Crawley, 6 S.W.3d 442 (Tenn.1999), with a letter declaring that the case is relevant to the issues on appeal as to the “revised interpretation of a statute following a legislative amendment....” However, our reading of the Wakefield opinion does not support Plaintiffs’ position that reliance is no longer a requirement to bringing a private cause of action under T.C.A. § 48-2-122 for a violation of T.C.A. § 48-2-121. In Wakefield, the Supreme Court noted the language contained in the Official Comments to the UCC, and discussed the appropriate context for looking to the Official Comments to a statutory enactment in determining legislative intent in the enactment. “While not controlling authority, the Official Comments to the UCC provide guidance in construing statutory language and offer assistance in discerning the intent of the legislature in adopting the statutory scheme.” Wakefield, 6 S.W.3d at 447. The Wakefield decision is not on point with the issues on appeal for multiple reasons, with the most obvious reason being there are no official comments to the statutes at issue. Additionally, the citations and discussion in Wakefield are quite specific to the UCC, and do not readily apply in a more general fashion outside the scope of the issues addressed by the Supreme Court. Also, the Official Comments quoted in Wakefield are exceedingly specific to the issue of legislative intent.

In enacting the 1995 amendments, the General Assembly stated that:

[t]he provisions of this act are intended to be a clarification of existing law with respect to the definition of a ‘security’ under Article 8 of the Tennessee Uniform Commercial Code, particularly in the context of perfection of a security interest in stock or other investment instruments by possession of the instrument. The intent is to remove any uncertainty created by language of the Tennessee Supreme Court in the case Blasingame v. American Materials, Inc., 654 S.W.2d 659 (Tenn.1983).
The General Assembly apparently sought to put an end to the “uncertainty” created by the Blasingame decision by expressly including the stock of closely-held corporations in the definition of a security.

Wakefield, 6 S.W.3d at 448.

Rather than supporting Plaintiffs’ argument, the Wakefield opinion serves to corroborate the previously-discussed appellate rule that the legislature is presumed to have had knowledge of the statutory enactments prior to the Tennessee Securities Act of 1980, and to have known the state of the law as to this Court’s holding in Diversified Equities that common law reliance is a prerequisite to bringing a private cause of action under the prior statute. See Wilson, 879 S.W.2d at 810. This observation provides additional support for our holding that actual reliance continues to be a requirement for maintaining a private cause of action under T.C.A. § 48-2-122(c) for a violation of T.C.A. § 48-2-121, and that the Legislature has declined to adopt a “fraud on the market” theory in the enactment of and subsequent revisions to the Tennessee Securities Act of 1980. The creation of a new cause of action as requested by Plaintiffs, “fraud on the market,” is a step best left to the Legislature or Tennessee Supreme Court rather than with this Court.

The Trial Court, in both Orders dismissing Plaintiffs’ Complaints below, found the Plaintiffs failed to plead actual reliance by Plaintiffs on the representations of Defendants. We find no error in this finding by the Trial Court. Therefore, our holding that common law reliance by Plaintiffs remains a prerequisite to bringing a private cause of action under T.C.A. § 48-2-122(c) for a violation of T.C.A. § 48-2-121 is dis-positive of this appeal. We affirm the Order of the Trial Court on appeal dismissing this suit with prejudice. The questions posed by Plaintiffs relating to the issue of scienter under T.C.A. § 48-2-122 are therefore rendered moot, and not addressed in this Opinion.

CONCLUSION

The Judgment of the Trial Court is affirmed, and this matter remanded for further proceedings, if any, as may be required, consistent with this Opinion, and for collection of the costs below. Costs of this appeal are taxed to the Appellants, John Constantine, III, Harvey Frank, and Thomas J. Johnson.

FRANKS and SUSANO, JJ., concur.


author: CAIN, J.,

text:
    Carson MADISON, et al., v. PICKETT COUNTY BANK AND TRUST CO., et al.
    Court of Appeals of Tennessee, Middle Section, at Nashville.
    May 25, 2000.
    Permission to Appeal Denied by Supreme Court Dec. 18, 2000.

      Phillips M. Smalling, Byrdstown, TN, for appellants, Carson Madison and Carolyn Madison.
    Daniel H. Rader, III, Cookeville, TN, for appellees, Pickett County Bank and Trust Co. and Union Planters Bank of The Cumberlands.
   OPINION

CAIN, J.,

delivered the opinion of the court,

in which KOCH, and COTTRELL, JJ., joined.

This is an appeal by Plaintiffs from summary judgment dismissing their complaint against a commercial bank in a premises liability case predicated on allegations of violation of a duty to maintain the premises in a safe condition. We affirm the trial court.

This appeal results from the trial court’s grant of Defendant’s motion for summary judgment in a premises liability case. The plaintiff Mr. Madison was injured while exiting Defendant’s place of business. The Madisons filed suit in Pickett County Circuit Court at Byrdstown on March 29, 1996. In their complaint they alleged in pertinent part:

5. That the configuration of the entrance/exit and the designation of parking spaces created a defective and unreasonably dangerous condition on the premises of the Defendant. The Defendants were aware of the condition through their agents, officers and employees prior to Plaintiffs injury and could have corrected the condition or given warning of the condition. That the Defendant owed a duty to the Plaintiff to maintain the premises in a reasonably safe condition exercising ordinary care and a duty to give warnings when appropriate.

According to the Madisons, Defendant Pickett County Bank breached its duties by faffing to correct the allegedly unreasonably dangerous condition or to warn Mr. Madison of that dangerous condition.

On June 30, 1997, Pickett County Bank filed its Motion For Summary Judgment, alleging inter alia that any defect in the premises was open and obvious. This motion was initially denied by the trial court’s order entered September 17, 1998, “in light of the Coln v. The City of Savannah [case] and that a jury question is presented.” Upon Defendant’s motion the court reconsidered it’s previous denial, granting summary judgment and finding that the injuries to the plaintiffs were not foreseeable under the circumstances engendered by the facts of the case. The sole issue presented for review is the propriety of the summary judgment grant.

The standard of review is clear in cases concerning a grant of summary judgment. We review the decision of the trial court de novo with no presumption of correctness on appeal. We view the evidence in the light most favorable to the non-movant, allowing all necessary inferences in its favor and discarding all countervailing evidence, to determine whether a genuine dispute exists as to any of the material facts. See Byrd v. Hall, 847 S.W.2d 208, 210-11 (Tenn.1993). If, upon review, a genuine issue exists or if there is doubt as to whether such issue exists, the summary judgment is improper and should be reversed. See Evco Corp. v. Ross, 528 S.W.2d 20, 24 (Tenn.1975). In premises liability cases like the one at bar, our supreme court has said, “A summary judgment remains appropriate, for example, where the plaintiff has not produced sufficient evidence to meet the ‘duty’ component, or any other component of a negligence claim, as a matter of law.” Coln v. City of Savannah, 966 S.W.2d 34, 44 (Tenn.1998) (citing Byrd v. Hall, 847 S.W.2d 208 (Tenn.1993). See also Tenn.R.Civ.P. 56.04.

The following facts are not disputed. Mr. Madison normally visited the Pickett County Bank at another time of day on another day of the week. On the day in question Mr. Madison was exiting the bank in the afternoon when he became blinded and disoriented by the glare of direct and reflected afternoon sunlight. The reflected sunlight came from the chrome and finish of a car which was legally parallel-parked directly in front of the bank’s entrance. The combination of direct and reflected sunlight drastically reduced Mr. Madison’s ability to visually distinguish objects in his path thereby disorienting him in his trajectory from the inner vestibule doors to the outer exit doors. While in this blinded and disoriented state, Mr. Madison did not stop walking. He did not request assistance. He did not attempt to shade his eyes. He did not return to the lobby, slow his present course or wait until such time as his eyes could adjust to the glare. He proceeded in what he thought was a forward direction and, instead of exiting through the outer doors, crashed headlong into the plate of glass that ran the height of the vestibule between the rightmost door and the vestibule wall. The inner vestibule doors were open at an obtuse angle allowing free movement throughout the vestibule, rather than funneling exiting customers toward the outer doors. Plants which from time to time had occupied a position in front of the plate glass windows to either side of the outer doors were moved toward the center of the vestibule. There were no decals or placards on those plate glass windows distinguishing them from the glass of the doors. The doors had pushbars on them. The inner doors were similarly flanked by glass, however these windows were concealed by drape. Mr. Madison entered the inner vestibule doors under his own power in his normal brisk pace, a pace which apparently never abated until the ultimate collision. Appellants would urge the application of Coln v. City of Savannah, 966 S.W.2d 34 (Tenn.1998), to the case at bar. They argue that the glare in the Defendant’s vestibule constituted an unreasonably dangerous and defective condition in the premises, albeit “open and obvious.” They assert that summary judgment would be improper inasmuch as the “the foreseeability and gravity of harm posed from [Pickett County Bankj’s conduct, even if ‘open and obvious,’ outweighed the burden on [the Bank] to engage in alternative conduct to avoid the harm, there is a duty to act with reasonable care.” See Coln v. City of Savannah, 966 S.W.2d 34, 43 (Tenn.1998). Since we find that harm to Mr. Madison was not foreseeable under the circumstances, we must disagree. Despite Appellant’s argument to the contrary, the case at bar is more similar in fact to Eaton v. McLain, 891 S.W.2d 587 (Tenn.1994). The Court in Coin recognized the very difference which characterizes the instant appeal. Said the Court:

Although we concluded that, under the specific facts of the Eaton case, no duty should be imposed, our holding recognized that the result could easily have been different and a duty could have been imposed:
In order for the [defendants] to be charged with the duty to leave on the light in the hall and to lock the basement door, they must have been able to reasonably foresee that [the plaintiff] would get out of bed in total darkness, walk across the hall, and step into the basement stairwell, all without turning on any lighting whatsoever. While our holding would likely be different if no lighting had been provided or if it had been inoperative, [the plaintiffs] failure to turn on any lights, coupled with her willingness to open the door and step into an unfamiliar area is such a radical departure from reasonable conduct under the circumstances that the [defendants] could not have reasonably foreseen that conduct and its consequences.
Id. at 594. Accordingly, although we cited the “open and obvious” rule, we did not label the dark stairwell an open and obvious danger and then hold that no duty should be imposed; instead, the duty question was analyzed with respect to the traditional components of foreseeability and risk of harm as applied to the facts of the case. Id. at 594.

Coln v. City of Savannah, 966 S.W.2d 34, 43 (Tenn.1998). We might hold differently were Mr. Madison to have intentionally walked into what he believed was open space. From time to time genuine issues of material fact have been created where, a plaintiff, perceiving what could be seen as open space, collides with plate glass doors or panels. See Mattox v. Motel Invest. Co., 62 Tenn.App. 250, 461 S.W.2d 46, 48-49 (Tenn.Ct.App.1970) (reasonable minds could differ as to whether one might walk into a closed glass door.) See also National Bank of Alaska v. McHugh, 416 P.2d 239, 242 (Alaska 1966) (“Illusion of Space”). Under the circumstances engendered in the instant controversy, neither Pickett County Bank, nor its employees could reasonably foresee Mr. Madison’s choice to proceed through the vestibule without being able to perceive a clear exit from the building. Despite Mr. Madison’s familiarity with the Pickett County Bank, the sudden onset of blindness resulting from the sun’s glare would make the most familiar foyer inhospitable to normal egress. The proximate cause of Mr. Madison’s injury was his own inattention, and as in Eaton v. McLain, his actions were such a radical departure from reasonable conduct under the circumstances that Defendant could not have reasonably foreseen it or its consequences.

For the reasons and under the authorities cited above, the summary judgment entered below is affirmed in all respects. The cause is remanded for further proceedings as may be necessary. The costs on appeal are taxed against the appellants, Carson and Carolyn Madison.

      . Defendant Union Planters Bank of the Cum-berlands is the successor in interest to Defendant Picket County Bank. For the sake of clarity. All subsequent references to Defendant by name will be to Pickett County Bank.

      . Mr. Madison’s affidavit submitted in response to Pickett County Bank’s motion to reconsider reveals that he did not realize that the glare from the automobile interfered with his ability to perceive until after a retrospective examination of the scene. This is the very inattention which Pickett County could not have foreseen.


text:
    Jimmy RICHARDSON v. THE TENNESSEE DEPARTMENT OF CORRECTION.
    Court of Appeals of Tennessee, Middle Section, at Nashville.
    May 31, 2000.
    Permission to Appeal Denied by Supreme Court, Dec. 18, 2000.

      Jimmy Richardson, Nashville, TN, pro se.
    Paul G. Summers, Michael E. Moore and Abigail Turner, Nashville, TN, for ap-pellee, Tennessee Department of Correction.
   OPINION

CAIN, J.,

delivered the opinion of the court,

in which CANTRELL, P.J., M.S., and COTTRELL, J., joined.

Appellant, Jimmy Riehardsbn, appeals a final order of the Chancery Court of Davidson County wherein the Chancellor sustained a summary judgment motion in his suit for a declaratory order.

Jimmy Richardson was arrested on January 11, 1976 on charges of rape, armed robbery with a deadly weapon, kidnaping, assault with intent to commit murder and grand larceny. He was convicted of all offenses on June 18,1976 and sentenced to 99 years in prison for rape, a consecutive life sentence for armed robbery, a consecutive 6 to 21 year sentence for assault with intent to commit murder and a consecutive 6 to 10 year sentence for grand larceny. Because of his 99 year sentence and his life sentence, he is not eligible for consideration for parole until he serves 30 full years in prison, less any sentence credits received under former Tennessee Code Annotated section 40-3613. Slagle v. Reynolds, 845 S.W.2d 167 (Tenn.1992).

Mr. Richardson, Appellant, asserts in his suit for a declaratory order that he has been erroneously denied various sentence credits which, if properly allowed, would make him presently eligible for parole. He further asserts that he is eligible for mandatory parole under former Tennessee Code Annotated section 40-3614.

In sustaining the Department of Correction’s petition for summary judgment, the trial court held:

Petitioner erroneously believes that he was entitled to accumulate sentence credits pursuant to Tenn.Code Ann. §§ 41-332 and 41-334 to reduce the statutory minimum of thirty (30) years that he must serve of his ninety-nine (99) year sentence pursuant to Tenn. Code Ann. § 40-3615. However, petitioner’s contention is completely ungrounded. In Howell v. State, 569 S.W.2d 428, 431 at n. 4 (Tenn.1978), the Tennessee Supreme Court held that inmates serving determinate sentences were not entitled to accrue either Good Time or Honor Time credits to reduce their parole eligibility dates. See also Gilbreath v. Bell, C.C.A. No. 01C01-9506-CC-00171, 1996 WL 29312 (Tenn.Crim.App., Jackson) (Jan. 26, 1996). In addition, petitioner’s reliance on Tenn. Code Ann. § 41-21-229 is also to no avail since said statute provides that good time and honor time credits cannot reduce mandatory sentences.

For reasons not apparent in the record, the Department of Corrections has awarded Appellant 165 prisoner performance sentence credits under Tennessee Code Annotated section 41-21-230. However, since no party is complaining about these particular credits, they will not be further noticed.

As to mandatory parole, under former Tennessee Code Annotated section 40-3614 (now section 40-28-117), Appellant is not eligible for such parole. The statute provides: “Prisoners serving a determinate or indeterminate sentence with a maximum term of over ten (10) years as fixed by the court shall be paroled by the board six (6) months prior to the completion of the maximum term of sentence less credit for good and honor time.” Tenn. Code Ann. § 40-3614 (1975 replacement) (emphasis added). Appellant began to serve his sentence on January 11, 1976 when he was arrested and would not be eligible for mandatory parole until six months prior to the completion of his determinate 99 year sentence.

From any practical point of view, sentence reduction credits could only assist Appellant in determining the earliest date on which he becomes eligible for parole under Tennessee Code Annotated section 40-3613 (1975 replacement). This date, as is settled in Slagle v. Reynolds, 845 S.W.2d 167 (Tenn.1992), is 30 years less such sentence reduction credits as he is eligible to earn and has actually earned. Once he becomes eligible for parole, it is in the discretion of the parole board as to whether or not he will actually be paroled. Doyle v. Hampton, 207 Tenn. 399, 340 S.W.2d 891 (Tenn.1960); Ivey v. Meadows, 216 Tenn. 678, 393 S.W.2d 744 (1965).

Appellant next complains that because he was sentenced in 1976 he is entitled to credits under the provisions of former Tennessee Code Annotated sections 41-332 and 41-334. The chancellor correctly held that because he is serving a 99 year determinate sentence, he is not eligible for any credits under these sections of the code no matter when he began serving his sentence. McFadden v. State, 532 S.W.2d 944 (Tenn.Crim.App.1975); Howell v. State, 569 S.W.2d 428 (Tenn.1978). As present Tennessee Code Annotated sections 41-21-212 and 41-21-214 are simply replacements of prior Tennessee Code Annotated sections 41-332 and 41-334, the same rule applies and Appellant is not eligible for such credits.

Appellant is entitled only to credits under Tennessee Code Annotated section 41-21-236 which was enacted in 1985 and provided in part: “Any person who committed a felony, including any Class X felony, prior to December 11, 1985, may become eligible for the sentence reduction credits authorized by this action by signing a written waiver waiving the right to serve the sentence under the law in effect at the time the crime was committed. However, sentence reduction credits authorized by this section may be awarded only for conduct and/or performance from and after the date a person becomes eligible under this subsection.” Tennessee Code Annotated section 41-21-236(c)(3). Appellant signed his appropriate waiver on March 1, 1986, and he does not dispute that the department has properly calculated credits for him under this statute since the date that he signed the waiver.

The action of the trial court in granting summary judgment to the Department of Correction, is affirmed with costs on appeal assessed to Appellant, Jimmy Richardson.


author: PER CURIAM.

text:
    VALLEY BAPTIST MEDICAL CENTER, Petitioner, v. Ester V. GONZALEZ, as next friend of M.G., Jr., Respondent.
    No. 00-0285.
    Supreme Court of Texas.
    Oct. 26, 2000.
    Roger W. Hughes, Ferriel C. Hamby, Jr., Adams & Graham, Harlingen, for petitioner.
    Elizabeth B. Hawkins, Benjamin L. Hall, III, Sheryl A. Scott, O’Quinn & Lam-inack, Houston, William Lassiter Holmes, Holmes & Holmes, McAllen, for respondent.
   PER CURIAM.

Ester Gonzalez, individually and as next friend of Michael Gonzalez, filed a petition to investigate claims under Texas Rule of Civil Procedure 202 in anticipation of a products liability suit. She named as respondents Valley Baptist Medical Center, Dr. Edwin Mierisch, and the unknown manufacturers of a fetal vacuum extractor. The trial court granted the petition and ordered presuit discovery, including the deposition of a Valley Baptist representative, under Texas Rule of Civil Procedure 202.4(a)(2).

Valley Baptist filed a notice of appeal with an emergency motion to stay depositions; the court of appeals denied the emergency motion. Valley Baptist then filed a petition for writ of mandamus with an emergency motion to stay depositions. The court of appeals initially granted the stay but then, two weeks later, denied Valley Baptist’s petition for writ of mandamus and vacated the stay. Valley Baptist subsequently filed a petition for writ of mandamus with this Court, which was denied.

In the meantime, another court of appeals panel granted Valley Baptist’s motion to reconsider its motion for emergency relief to stay depositions. Gonzalez immediately filed a motion to vacate the stay order and dismiss the appeal for want of jurisdiction; the court of appeals first denied Gonzalez’ motion, but then, sua sponte, reconsidered the motion and dismissed the appeal for want of jurisdiction in a published opinion.

While Valley Baptist’s motion for rehearing en banc was pending, it produced a representative for the ordered deposition and notified the court of appeals that the dispute may be moot. The court of appeals, sitting en banc, then withdrew its earlier opinion, and, concluding that rule 202 presuit discovery orders are not final and appealable when the party from whom discovery is sought is an anticipated party to the litigation, dismissed the appeal for want of jurisdiction. Valley Baptist Medical Center v. Michael Gonzalez, Jr., 18 S.W.3d 673 (Tex.App.-Corpus Christi). In its opinion, the court of appeals did not acknowledge that Valley Baptist had already appeared for the deposition. Nor did the court consider whether the appeal may be moot.

In its petition for review, Valley Baptist argues that its dispute with Gonzalez became moot when Valley Baptist produced a corporate representative for deposition. In the alternative, Valley Baptist contends that even if the dispute is not moot, the court of appeals erred in determining that rule 202 discovery orders are not final and appealable.

We conclude that Valley Baptist’s appeal became moot when it produced a representative for deposition and thus complied with the trial court’s discovery order. At that time, there ceased to be a live controversy between Valley Baptist and Gonzalez, who are the only parties to this appeal. See City of W. Univ. Place v. Martin, 132 Tex. 354, 123 S.W.2d 638, 638-39 (1939). Under article II, section 1 of the Texas Constitution, courts have no jurisdiction to issue advisory opinions. Speer v. Presbyterian Children’s Home & Serv. Agency, 847 S.W.2d 227, 229 (Tex.1993). Because Valley Baptist’s appeal of the discovery order became moot after the deposition occurred, the court of appeals’ opinion is advisory. Therefore, in accordance with rule 59.1 of the Texas Rules of Appellate Procedure, without hearing oral argument, we grant Valley Baptist’s petition for review, and without reference to the merits, vacate the court of appeals’ judgment and opinion, and dismiss this cause as moot.


text:
    In re The UNIVERSITY OF TEXAS HEALTH CENTER AT TYLER, Relator.
    No. 99-0450.
    Supreme Court of Texas.
    Oct. 26, 2000.
    Rehearing Overruled Jan. 17, 2001.

      Russ Wayne Harris, John Cornyn, Andy Taylor, Linda Eads, Office of the Attorney General of Texas, Austin, for Relator.
    Ron Adkison, Wellborn Houston Adki-son Mann Sadler & Hill, Henderson, for Respondent.
   PER CURIAM.

In the underlying litigation, the trial court ordered the University of Texas Health Center at Tyler to produce documents that the Health Center contends are protected from discovery by statutory medical peer review committee privileges created by former section 5 .06 of the Medical Practice Act and section 161.032 of the Texas Health and Safety Code. Janus McClain, the plaintiff in the underlying lawsuit, contended that the statutory privilege had been waived. We conclude that there has been no waiver of the exemption from discovery afforded by these statutes. Accordingly, the trial court abused its discretion by ordering production of all documents, and we conditionally grant a writ of mandamus.

James McClain and several other patients at the Health Center contracted an infection following open heart surgery. McClain and members of his family (collectively McClain) sued the Health Center and other defendants, asserting negligence. During discovery, McClain noticed the deposition of corporate representatives of the Health Center, and included within that notice a request for production of several categories of documents. This mandamus proceeding concerns documents that the Health Center contends were prepared by one of its peer review committees, the Infection Control Committee, as part of an evaluation of the medical care provided to McClain and the other patients who became infected.

The trial court conducted an evidentiary hearing, and the Health Center submitted the documents at issue for in camera inspection. A few days after that hearing, without notice to the Health Center, the trial court gave McClain the documents that had been submitted in camera. As soon as the Health Center learned that the trial court had released the documents, it objected. The trial court ordered the documents returned and held a second hearing. Additional testimony was taken, and the trial court ultimately entered an order requiring the Health Center to produce the documents to McClain. The court of appeals denied the Health Center’s petition for writ of mandamus without an opinion, and the Health Center seeks relief in this Court.

At the time that the proceedings took place in the trial court, the Medical Practice Act was contained in article 4495b of the Revised Civil Statutes of Texas. Effective September 1, 1999, that article was repealed and recodified in the Texas Occupation Code. We will refer in this opinion to article 4495b as it existed when the trial court made its decision.

Article 4495b provided that health-care entities may form peer review committees, defined in former section 1.03(a)(6), to evaluate the quality of medical and healthcare services and the competence of physicians:

“Medical peer review committee” ... means a committee of a health-care entity, the governing board of a health-care entity, or the medical staff of a healthcare entity, provided the committee or medical staff operates pursuant to written bylaws that have been approved by the policy-making body or the governing board of the health-care entity and authorized to evaluate the quality of medical and health-care services or the competence of physicians....

Former Tex.Rev.Civ.Stat.ANn. art. 4495b, § 1.03(a)(6). The statute defined “medical peer review” or “professional review action” to include “evaluation of the merits of complaints relating to health-care practitioners and determinations or recommendations regarding those complaints,” evaluation of “reports by a medical peer review committee to other committees or to the board,” and evaluation of “implementation of the duties of a medical peer review committee by its members, agents, or employees.” Id. § 1.03(a)(9)(D)-(E).

All proceedings and records of a medical peer review committee are confidential, and all records of, determinations of, and communications to a committee are privileged and are not discoverable, with certain exceptions not relevant here. See former Tex.Rev.Civ.StatAjw. art. 4495b, § 5.06(g), (j), (s)(3); see also Brownwood Reg’l Hosp. v. Eleventh Court of Appeals, 927 S.W.2d 24 (Tex.1996). Section 161.032 of the Health and Safety Code similarly provides that “[t]he records and proceedings of a medical committee are confidential and are not subject to court subpoena.” Tex.Health & Safety Code § 161.032(a).

Many of the documents at issue in this proceeding reveal on their face that they are “records or determinations of or communications to a medical peer review committee,” “reports and records received, maintained, or developed by ... a medical peer review committee” within the meaning of section 5.06(j) and (s)(3) of former article 4495b, “evaluation^] of medical and health-care services,” or “evaluation[s] of the merits of complaints relating to healthcare practitioners” within the meaning of section 1.03(a)(9) of former article 4495b. At an evidentiary hearing regarding the documents, the director of Clinical Research Management at the Health Center authenticated the Health Center’s by-laws authorizing its Infection Control Committee to evaluate the quality of health-care services. In response to McClain’s deposition notice, she searched the Infection Control Committee’s records, which were segregated from other records at the Health Center and were kept secure. She located responsive documents and confirmed that all of them were created by or at the request of the committee in connection with its evaluation of the medical care received by McClain and the other patients who contracted an infection. The foregoing evidence, which is undisputed, establishes that all the documents at issue were within the statutory privilege created by section 5.06 of former article 4495b and by section 161.032 of the Health and Safety Code. See generally Irving Healthcare Sys. v. Brooks, 927 S.W.2d 12 (Tex.1996); Brownwood Reg’l Hosp., 927 S.W.2d at 25.

McClain’s principal contention is that the privilege was waived when 1) the Health Center failed to object to the second of three virtually identical deposition notices, 2) the Health Center did not comply with recently promulgated Rule of Civil Procedure 193 in making its objections, and 3) the Health Center provided information about the committee’s evaluation in answers to interrogatories served by another patient in a suit that was consolidated for discovery with McClain’s. We consider each of these contentions in turn.

The day after McClain served his first deposition notice and request for documents, the Health Center served written objections, a motion for protective order, and a motion to quash, which asserted the statutory peer review privileges, among other matters. A few days later, on November 9, McClain served an “Amended Notice of Intention to Take Oral Deposition” that was identical to the first notice, except for the date of the deposition. The Health Center advised that it would not produce a witness on the specified date. Then on December 4, McClain served a third notice that was the same as the two prior ones except for the date of the deposition, which was to be December 15. A week after the third notice was served, the Health Center filed its “Supplemental Objection to Second Amended Notice of Deposition, Motion for Protection, and Motion to Quash Subpoena Duces Tecum.” In that pleading, the Health Center continued to assert that the documents requested were subject to statutory peer review committee privileges.

McClain contends that the Health Center waived its objections by failing to object to McClain’s second notice, the “Amended Notice,” served on November 9. We disagree. The Health Center had already made its objections clear in response to the earlier, virtually identical notice and request for documents. It was not required to reiterate its objections when only the date and time of the deposition were changed.

McClain also contends that the Health Center did not comply with new Rule 193 when it made its objections. That rule provides, among other things, that a “party should not object to a request for written discovery on the grounds that it calls for production of material or information that is privileged but should instead comply with Rule 193.3. A party who objects to production of privileged material or information does not waive the privilege but must comply with Rule 193.3 when the error is pointed out.” Tex. R.CivP. 193.2(f). The amended rule did not become effective until January 1, 1999, which was after McClain had served the final notice and after the Health Center had filed its objections to that notice. In any event, the Health Center's objections and motions made it clear that documents would not be produced and the basis for the objections, and thus, the Health Center did not waive any privileges under Rule 193.

The third basis for waiver, McClain contends, is an answer the Health Center gave in response to another plaintiffs interrogatory. The interrogatory answer provided some information about the committee’s recommendations. The Health Center had objected that the interrogatory called for remedial measures and that its answer could not be used against it, but the Health Center provided the requested information and did not assert a peer review privilege.

Former section 5.06 of the Medical Practice Act specifically addressed waiver. It provided that only a committee may execute a waiver, and the waiver must be in writing:

Unless disclosure is required or authorized by law, records or determinations of or communications to a medical peer review committee are not subject to subpoena or discovery and are not admissible as evidence in any civil judicial or administrative proceeding without waiver of the privilege of confidentiality executed in writing by the committee.

See former Tex.Rev.Civ.Stat.Ann. art. 4495b, § 5.06(j). Further, the Act provided that the party who seeks information has the burden of proving waiver: “Any person seeking access to privileged information must plead and prove waiver of the privilege.” Id. McClain had the burden of proving that the Health Center had waived its privileges.

In its written and verified answer to the interrogatory at issue, the Health Center voluntarily set forth specific recommendations that its medical peer review committee had made during its investigation of the outbreak of infection. However, the voluntary production of information about the Infection Control Committee’s recommendations in response to a discovery re-

quest does not waive the privilege that protects the documents received, maintained, or developed by the committee from discovery in this suit asserting health-care liability claims. Former section 5.06(j) provided the means for waiving the privilege, and there was no waiver in accordance with that statute. McClain is not entitled to the documents at issue.

We note that the trial court did not waive the Health Center’s privilege when it released the documents at issue to McClain. The privilege belonged to the Health Center, not the trial court, and production was involuntary from the Health Center’s standpoint. An involuntary production of documents did not constitute a waiver, even before implementation of our new rules of procedure governing discovery. See generally Granada Corp. v. First Court of Appeals, 844 S.W.2d 223, 226 (Tex.1992) (explaining that “ [disclosure is involuntary only if efforts reasonably calculated to prevent the disclosure were unavailing”).

The Health Center does not have an adequate remedy by appeal, and mandamus is appropriate to address a court order requiring production of privileged documents. See Brownwood Reg’l Hosp., 927 S.W.2d at 27-28.

Accordingly, pursuant to Rule 52.8(c) of the Texas Rules of Appellate Procedure, the Court grants the petition of the Health Center, and, without hearing oral argument, conditionally grants a writ of mandamus directing the trial court to vacate its order requiring that the Health Center produce the documents at issue.

      . Act of May 26, 1999, 76th Leg., R.S., ch. 693, § 1, 1999 Tex.Gen.Laws 3295, 3296, repealed by Act of May 13, 1999, 76th Leg., R.S., ch. 388, § 6(a), 1999 Tex.Gen.Laws 1431, 2439 (current version at Tex.Occ.Code § 151.002(a)(8)).

      . Former section 1.03(a)(9) provided in its entirety that:
      (9) "Medical peer review” or "professional review action” means the evaluation of medical and health-care services, including evaluation of the qualifications of professional health-care practitioners and of patient care rendered by those practitioners. The term includes evaluation of the merits of complaints relating to health-care practitioners and determinations or recommendations regarding those complaints. The term specifically includes evaluation of:
      (A) accuracy of diagnosis;
      (B) quality of the care rendered by a health-care practitioner;
      (C) reports made to a medical peer review committee concerning activities under the committee’s review authority;
      (D) reports by a medical peer review committee to other committees or to the board as permitted or required by law; and
      (E) implementation of the duties of a medical peer review committee by its members, agents, or employees.
      Act of June 1, 1987, 70th Leg., R.S., ch. 596, § 1, 1987 Tex.Gen.Laws 2325, 2326, repealed by Act of May 13, 1999, 76th Leg., R.S ., ch. 388, § 6(a), 1999 Tex.Gen.Laws 1431, 2439 (current version at Tex.Occ.Code § 151.002(a)(7)).

      . Act of June 1, 1987, 70th Leg., R.S., ch. 596, § 18, 1987 Tex.Gen.Laws 2325, 2334-36, repealed by Act of May 13, 1999, 76th Leg., R.S., ch. 388, § 6(a), 1999 Tex.Gen.Laws 1431, 2439 (current version at Tex.Occ.Code §§ 160.007(a), (b), (e)-(g), 160.006(c)).

      . The interrogatory and the Health Center’s response were:
      (i) Following discovery of surgical incision infection of Mrs. Wyatt, what procedural changes, if any, were recommended by the Infection Control Committee to strengthen the sterile barrier before the cardiac surgery was resumed, and please state the date that cardiac surgery was resumed.
      ANSWER:
      Objection. The form of this question suggests that the procedures in place at the time of the outbreak were in some way inadequate. Further, to the extent that procedures instituted as part of the investigation of the outbreak and after could be construed as “subsequent remedial measures” pursuant to Rule 407 of the Texas Rules of Evidence, the information requested is not admissible. Subject to the foregoing objection, and without waiving same, during the investigation of the outbreak, the following were recommended:
      1. Moratorium on sternotomy/cardioascu-lar[sic] surgeries:

        2. An investigation was instituted to establish the cause/source of the infections;
      3. The Center for Communicable Disease Control was contacted for recommendations and/or assistance in the investigation;
      4. All persons attending patients with sterno-tomy wounds were to were [sic] gloves and masks at all times;
      5. Housekeeping was to use different supplies for surgery cleaning and change their clothes when going into each operating suite;
      6. After leaving the surgery area, surgery personnel were to change scrubs before re-entering the surgery area;
      7. The Director of Pharmacy was to monitor the preparation of carioplegia and vein solutions.

      . Act of June 1, 1987, 70th Leg., R.S., ch. 596, § 18, 1987 Tex.Gen.Laws 2325, 2335, repealed by Act of May 13, 1999, 76th Leg., R.S., ch. 388, § 6(a), 1999 Tex.Gen.Laws 1431, 2439 (current version at Tex.Occ.Code § 160.007(e)-(g)).