author: COOPER, Chief Justice.

text:
    STATE of Tennessee, Appellant, v. Rickey E. MITCHELL, Appellee.
    Supreme Court of Tennessee, at Jackson.
    Dec. 31, 1984.

      Gordon W. Smith, Asst. Atty. Gen., W.J. Michael Cody, Atty. Gen. and Reporter, Nashville, for appellant. ■
    Charles G. Black, Memphis, for appellee.
   OPINION

COOPER, Chief Justice.

The issue before this court is whether the double jeopardy clauses of the state and federal constitutions bar a prosecution for vehicular homicide when the defendant, prior to the victim’s death, had pled guilty to and been sentenced in municipal court for driving while under the influence of an intoxicant, disregarding a stop sign, and unlawful possession of a controlled substance. We find no double jeopardy violation and reverse the judgment of the Court of Criminal Appeals dismissing the indictment for vehicular homicide.

A truck driven by defendant collided with a car driven by Lawrence John Pleas-ants on February 20, 1982. A state warrant was issued, and defendant appeared in the Municipal Court of Memphis two days after the accident where he waived a jury trial and entered his pleas of guilty. He was given a 60 day sentence, of which 58 days were suspended, and a $300.00 fine for driving while under the influence of an intoxicant. He was fined $25.00 for disregarding the stop sign, and another $250.00 for unlawful possession of a controlled substance. In addition, defendant was placed on probation for 11 months, 29 days, and his operator’s license was suspended for six months. On March 2, 1982, Pleasants died, allegedly as the result of injuries he received in the February 20, 1982, accident.

On June 15, 1982, the Shelby County Grand Jury indicted the defendant on two counts of vehicular homicide. The first count charged that defendant, “did unlawfully and feloniously kill Lawrence John Pleasants by the operation of a motor vehicle” with the killing “being the proximate result of the said Rickey E. Mitchell’s intoxication.” The second count charged that defendant “did operate a motor vehicle ... at speeds in excess of the posted or legal speed limits” with the victim’s death being the proximate result of “conduct creating a substantial risk of death or serious bodily injury ... under circumstances manifesting ... extreme indifference to the value of human life.”

The defendant moved to dismiss the indictment on the ground that the second prosecution violated the double ■ jeopardy provisions of the Fifth Amendment to the United States Constitution, and Article 1, Section 10, of the Tennessee Constitution. The motion to dismiss was denied, but an interlocutory appeal was taken to the Court of Criminal Appeals under Rule 9, T.R.A.P. A majority of that court reversed the dismissal of defendant’s plea of double jeopardy, and dismissed the indictment charging vehicular homicide.

The double jeopardy clause of the Fifth Amendment of the federal constitution, applicable to the states through the Fourteenth Amendment, states that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” Article 1, Section 10 of the Tennessee Constitution provides that “no person shall, for the same offense, be twice put in jeopardy of life or limb.” These clauses prohibit a state or the federal government from trying a defendant for a greater offense after it has convicted him of a lesser included offense. Brown v. Ohio, 432 U.S. 161, 168-69, 97 S.Ct. 2221, 2226-27, 63 L.Ed.2d 187 (1977); State v. Cloud, 688 S.W.2d 552, 553 (Tenn.1979). An offense is necessarily included in another “if the elements of the greater offense, as those elements are set forth in the indictment, include, but are not congruent with, all’ of the elements of the lesser.” State v. Smith, 627 S.W.2d 356, 358 (Tenn.1982).

An exception to the prohibition occurs, and prosecution is allowed for the greater offense, when an element of the greater offense has not occurred at the time of the prosecution for the lesser offense, or when facts necessary to the greater offense were not discovered prior to the first trial, despite the exercise of due diligence. Jeffers v. United States, 432 U.S. 137, 151-52, 97 S.Ct. 2207, 2216-17, 53 L.Ed.2d 168 (1977). This is, in effect, two exceptions for the subportions are dealt with separately. The first portion requires only that an element necessary to complete the greater offense has not occurred at the time of the original prosecution. Diaz v. United States, 223 U.S. 442, 448-49, 32 S.Ct. 250, 251, 56 L.Ed. 500 (1912). It does not require a showing of due diligence. United States v. Walker, 546 F.Supp. 805, 810 (D.C.Hawaii 1982).

This defendant could not have been charged with vehicular homicide at the time of his trial in municipal court, for the death of Mr. Pleasants — a necessary element to prosecution for vehicular homicide — had not yet occurred. Thus, this case falls within the exception to the proscription against double jeopardy, and the defendant may be prosecuted for vehicular homicide.

We reverse the decision of the Court of Criminal Appeals, affirm the trial court’s dismissal of defendant’s plea of double jeopardy, and remand the case for further proceedings.

FONES, BROCK, HARBISON and DRO-WOTA, JJ., concur.


source: Caselaw Access Project

author: MATHERNE, Special Judge:

license: Public Domain

text:
    TENNESSEE FARMERS MUTUAL INSURANCE COMPANY and South Carolina Insurance Company, Plaintiffs, Counter-Defendants, Appellants, v. C.D. GREER and wife, Anna Lee Greer, and Jackson Production Credit Association, Defendants, Counter-Plaintiffs, Appellees.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    June 11, 1984.
    Rehearing Denied July 11, 1984.
    Permission to Appeal Denied by Supreme Court Sept. 24, 1984.

      Thomas H. Rainey, Menzies, Rainey, Kizer & Alder son, Jackson, for plaintiffs, counter-defendants, appellants.
    Robert V. Redding, Reynolds, Deusner & Redding, Selmer, for defendants, counter-plaintiffs, appellees.
   MATHERNE, Special Judge:

The plaintiff insurance companies seek a declaratory judgment on whether they are liable to the defendants for the loss of about 40,000 hens. The defendants filed a counter claim, suing under the policies issued them by the plaintiffs. The jury held for the defendants, and judgment for damages plus prejudgment interest in the amount of $120,418.15 was entered in favor of the defendants and against the plaintiffs. The plaintiffs appeal under ten issues for review. We will consider only two of those issues, namely, (1) whether the juror Mrs. Helen Nichols was guilty of such misconduct as to require a new trial, and (2) whether the chancellor erred in overruling the plaintiffs motion for a directed verdict.

I. The Motion for a Directed Verdict

On or about May 24, 1980, electric power was lost to approximately 32 of 36 fans in laying house No. 4 on the defendant’s poultry farm. About 40,000 hens in laying house No. 4 died as a result of the fans being inoperative.

The policies insured, as to scheduled payment [which included the chickens] as follows:

Perils Insured Against
This policy under this form insures against direct loss to the property covered by the following perils, subject to the conditions herein and of the policy of which this form is made a part.
Fire or Lightning, excluding any loss resulting from any electrical injury or disturbance to electrical appliances, devices, fixtures or wiring caused by electrical current artificially generated, unless fire ensues and then only for the loss caused by such ensuing fire.

The plaintiffs argue that under the above coverage any loss resulting from any electrical injury or disturbance by lightning would not be covered unless fire ensued and then only to the extent of loss caused by the ensuing fire.

The plaintiffs further claim that the loss was excluded from coverage under the following policy provision:

This policy under this form does not insure against loss: ... (4) caused by or resulting from power, heating or cooling failure.

The defendants claim that lightning struck the electrical supply to building No. 4, as a result of which a fire ensued causing the loss of electrical power through the operating of a circuit breaker, which interrupted the power supply to the fans.

On the night of May 24, 1980, a severe electrical storm swept through the area of the defendant’s poultry farm. The death of the chickens was not discovered until the following morning when an employee observed the situation and called Don Greer, son of the defendants. When Greer arrived at the building he discovered that a 400 ampere breaker had tripped, cutting off the power supply to the 32 fans. He testified that the fans did not serve to cool the building, but to remove noxious gases generated from the manure droppings. Greer observed that a 30 ampere breaker, located on the top right of two columns of such breakers was burned away. Greer also observed smoke and charred marks on the main breaker, and smoke on the panel box in an area directly below the 400 ampere breaker and behind the damaged 30 ampere breaker.

The damage to the electrical system was examined by one expert, Delmon Ashcraft, for the defendants, and three experts, Russell Jackson, Malcolm Martin and Joseph Googe, for the plaintiffs. Ashcraft felt that there was evidence of a fire because of smoke damage and molten aluminum and copper droplets in the panel. His opinion was that lightning damaged the 30 ampere breaker and caused it to build up a temperature high enough to trip the 400 ampere breaker or caused arcing which tripped the 400 ampere breaker magnetically.

Russell Jackson’s opinion was that the ventilation fans went off because of a poor connection and corrosive elements which were present in the panel, namely, ammonia, dirt and chicken feathers.

Malcolm Martin’s opinion was that the 30 ampere breaker failed because of a high resistence contact caused by corrosion from the atmosphere. He was of the opinion that lightning did not cause the damage.

Joseph Googe’s opinion was that the damage to the 30 ampere breaker was caused by heat damage due to arcing between missing connectors on the breakers. The arcing produced high temperatures, and the bakelite on the breaker decomposed and fell away. He was of the opinion that lightning did not cause the damage.

When ruling on a defendant’s motion for directed verdict the court must take the strongest legitimate view of the evidence of the plaintiff, allow all reasonable inferences in his favor, discard all countervailing evidence, and deny the motion where there is any doubt as to the conclusions to be drawn from the whole evidence or any dispute as to any material determinative evidence. Holmes v. Wilson (Tenn.1977) 551 S.W.2d 682.

We, therefore, affirm the chancellor’s overruling the plaintiff’s (counter-defendant) motion for a directed verdict. We also affirm the granting of that motion insofar as disallowing the defendant’s (counter-claimant) claim for the statutory bad faith penalty.

II. Juror’s Misconduct

We hold that the juror, Mrs. Helen Nichols, was guilty of such misconduct as to require a new trial of this lawsuit.

On voir dire the plaintiff’s attorney asked the jurors the following:

Q. Do any of you know—I’m going to name some witnesses in this case and ask you whether you—possible witnesses, and ask you whether you know or are acquainted with them or whether any member of your family might know them or be related to them. (Emphasis added.)

Counsel then named five potential witnesses and ended the list with the following or sixth witness so named:

Q. Mr. Delmon Ashcraft, engineer, in Corinth, Mississippi.

No potential juror, including Mrs. Helen Nichols, gave an audible answer to the question as it related to each witness named, including Delmon Ashcraft.

At other points in the voir dire the plaintiff’s attorney emphasized the fact that the proof would include the testimony of expert witnesses and that Mr. Ashcraft would appear as an expert witness on behalf of the Greers and stressed the importance of there being no connection between a juror and Mr. Ashcraft which might in any manner influence a juror.

After the jurors were selected, the chancellor instructed them on certain rules which they must follow, the first of these rules given was:

Number one, to not mingle with or talk to the lawyers, the witnesses, the parties or any other person who might be connected with or interested in this case, except for casual greetings.

The trial began with the testimony of Don Greer, the son of the defendants. The next witness was Mr. Ashcraft, who had completed his testimony on first direct examination and was apparently still on the witness stand, when the following occurred:

The Court: Nine o’clock. We’ll recess— it’s five-thirty right on the nose. And we’ll just resume this at nine o’clock in the morning.
No, I can’t let you ask the witness anything.
Mrs. Nichols: It’s not about this. I want to ask him about my son. They work together. (Emphasis added.)
Mr. Ashcraft: Ask me tomorrow. (Whereupon, the jury was dismissed, and the Court adjourned at approximately 5:30 P.M. on March 28, 1984....)

No objection or motion was made at that time as a result of the action and statements of Mrs. Nichols. The insurer’s attorney made the action and statements of Mrs. Nichols Ground # 5 of his motion for a new trial which was overruled by the chancellor.

There are two broad classes of causes for challenge of a juror: (1) propter defectum (on account of some defect) from personal objections as alienage, infancy, lack of statutory requirements, etc., and (2) propter affectum (on account of partiality) from some bias or partiality either actually shown to exist or presumed to exist from circumstances. Durham v. State (1945) 182 Tenn. 577, 188 S.W.2d 555.

Generally, objections to a juror based upon causes propter defectum cannot be made after verdict. Monday v. State (1930) 160 Tenn. 258, 23 S.W.2d 656; Nashville C. & St.L. Ry. v. Williams (1932) 164 Tenn. 144, 46 S.W.2d 815. The reason for the rule is that a mere technical defect, or the failure of a juror to meet certain required qualifications, does not raise the presumption of bias on his part. Unless prejudice be actually shown it cannot be presumed that the technically incompetent juror was not impartial and fair in his deliberations.

However, objections to a juror based upon causes propter affectum may be made after verdict. Durham v. State, supra. The ground for challenge in the instant case is the deliberate withholding of information asked for on voir dire. This amounts to false swearing and does raise the presumption of bias and partiality. Mrs. Nichols cannot be said to have entered the jury box with an indifferent mind toward the parties. From this false swearing it must be presumed that Mrs. Nichols was deprived of the ability or capacity to act impartially and disinterestedly. The challenge in this lawsuit is of the propter affectum class.

According to the record, only Mrs. Nichols, Delmon Ashcraft and the chancellor had any knowledge of Mrs. Nichols admitted misconduct on voir dire, and the chancellor gained the knowledge after the trial was in progress. The insureds argue that objection by counsel for the insurer should have been made, and if that counsel did not know of the admitted misconduct, he should have by due diligence known of it. We hold this argument to be unfounded. The only reason any motion or challenge is made is to inform the trial court of facts which require action on the part of the court. Here, the chancellor had the facts, there was no need to inform him. We hold that the chancellor committed reversible error when he failed to inform counsel of the event which happened before him and take such action as necessary to insure a fair and impartial jury. We also note that two alternate jurors had been qualified and were available for service as regular jurors.

III. Conclusion

The judgment of the chancellor overruling the plaintiffs’ motion for a directed verdict except insofar as it dismissed the defendant’s claim for the statutory bad faith penalty is affirmed. The chancellor’s failure to grant the plaintiffs’ motion for a new trial because of juror misconduct is reversed. This cause is remanded to the trial court for a new trial. The accumulated cost to date in the trial court and in this court is adjudged one-half against each party. The cost of the new trial will be there adjudged.

TOMLIN and CRAWFORD, JJ., concur.


author: KOCH, Judge.

text:
    Richard P. PRICE, Plaintiff-Appellant, v. MERCURY SUPPLY COMPANY, INC., Leonard Weil, and Ruth Weil, Defendants-Appellees.
    Court of Appeals of Tennessee, Middle Section.
    Aug. 30, 1984.
    Permission to Appeal Denied by Supreme Court Dec. 31, 1984.

      Richard Manson, Nashville, for plaintiff-appellant.
    William H. Lassiter, Jr., Nashville, for defendants-appellees.
   OPINION

KOCH, Judge.

Mr. Richard P. Price was discharged from his position as vice president in charge of sales for Mercury Supply Company, Inc. He filed this action against his former employers alleging breach of an oral employment contract, fraud, misrepresentation, and age discrimination. After a lengthy and at times acrimonious discovery process, the Chancery Court for Davidson County, Part III, granted the defendants’ motion for a summary judgment pursuant to Rule 56 of the Tennessee Rules of Civil Procedure and dismissed Mr. Price’s amended complaint. This appeal follows. For the reasons stated herein, we hold that the defendants were entitled to a summary judgment based upon the undisputed facts presented in this record.

Mr. Price commenced this action on August 10, 1981. Subsequently, on October 21, 1981, he filed an amended complaint setting out three causes of action. In substance, the complaint alleged that the defendants had breached an oral contract for lifetime employment by terminating Mr. Price without good cause. The complaint also alleged that by this termination, the defendants had discriminated against Mr. Price because of his age and were guilty of acts of fraud and misrepresentation.

The defendants filed an amended answer on May 14, 1982. Therein, they denied the material allegations in the amended complaint and raised the following three affirmative defenses: first, the alleged oral employment contract relied upon by Mr. Price was barred by the statute of frauds; second, that, in fact, no oral contract was ever made; and third, that the employment contract between the parties was terminable at the will of either party.

On July 20, 1982, the defendants filed an “Amended Motion for Summary Judgment and/or, in the Alternative, Motion to Dismiss” relying upon the affidavits of the defendants and certain discovery depositions of the parties and other witnesses. In their brief accompanying this motion, the defendants stated that there was no dispute concerning the material facts and argued that no oral employment contract ever came into existence and that they could not be found to be guilty of age discrimination because Mr. Price was not in the class of persons protected by Federal and state age discrimination statutes.

On August 23, 1982, Mr. Price responded to this motion by filing a pleading styled as a “Motion Opposing Defendants’ Motion for Summary Judgment” stating that material factual disputes existed thereby rendering a summary judgment inappropriate. In the brief accompanying this pleading, Mr. Price stated that there are two disputed issues: first, the “issue of fraud” and second, “whether there is a contract.” Attached to this pleading was Mr. Price’s affidavit dated August 23, 1982 and a copy of the written employment contract entered into by the parties on July 6, 1970. Later, on September 8, 1982, the affidavits of Mr. Price and his wife, signed on September 7,1982, were filed in support of his opposition to the defendants’ motion for summary judgment.

The trial court heard the defendants’ motion on October 9, 1982. On December 29, 1982, the trial court entered a memorandum opinion granting the defendants a summary judgment. An order granting the defendants’ motion for summary judgment was entered on January 7, 1983. Mr. Price tried unsuccessfully to appeal this decision thinking it was a final order.

On July 14, 1983, D. Price Supply Company, Inc. moved for a summary judgment challenging the defendants’ third-party complaint. The trial court denied this motion on October 7, 1983. Subsequently, on October 11, 1983, pursuant to the defendants’ motion in accordance with Rule 41.01 of the Tennessee Rules of Civil Procedure, the trial court dismissed the defendants’ counterclaim and third-party claim. This order finally resolved all the issues between the parties. Mr. Price has now perfected this appeal on the basis that the defendants’ motion for summary judgment should not have been granted because there are disputes of material facts between the parties.

This is an appeal from the trial court’s decision to grant the defendants’ motion for a summary judgment. Thus, our normal review pursuant to Rule 13(d) of the Tennessee Rules of Appellate Procedure does not apply. Instead, our role is to determine whether the requirements of Rule 56 of the Tennessee Rules of Civil Procedure were met. Hill v. City of Chattanooga, 533 S.W.2d 311, 312 (Tenn.App.1975). In making this determination, this Court views the pleadings, depositions, answers to interrogatories, admissions, and competent affidavits in a light most favorable to the opponent of the motion. Likewise, all legitimate conclusions from the record should be drawn in favor of the opponent of the motion. Jones v. Home Indemnity Insurance Co., 651 S.W.2d 213, 214 (Tenn.1983) and Bennett v. Mid-South Terminals Corp., 660 S.W.2d 799, 800 (Tenn.App.1983).

Our courts have repeatedly described the purpose of summary judgments and the circumstances when they are proper. These principles bear restating. A motion for summary judgment can provide a quick, less expensive means to conclude a case that can be disposed of on the legal issues alone because there are no disputed material facts. Brookins v. The Round Table, Inc., 624 S.W.2d 547, 500 (Tenn.1981) and Ferguson v. Tomerlin, 656 S.W.2d 378, 382 (Tenn.App.1983). However, such motions cannot be used as substitutes for a trial of disputed factual issues. Jones v. Home Indemnity Insurance Co., 651 S.W.2d 213, 214 (Tenn.1983). Thus, the Tennessee Supreme Court has held that any dispute over material facts or even an uncertainty as to whether there are disputed material facts will render granting a summary judgment improper. Executone of Memphis, Inc. v. Garner, 650 S.W.2d 734, 736 (Tenn.1983) and Evco Corp. v. Ross, 528 S.W.2d 20, 25 (Tenn.1975). Even if the basic facts are not in dispute, this Court has held that granting a summary judgment is not proper when the parties disagree about the inferences to be drawn from the facts. Prescott v. Adams, 627 S.W.2d 134, 138-39 (Tenn.App.1981).

The Tennessee Rules of Civil Procedure contain explicit directions for opponents to a motion for summary judgment to follow. In part, Tenn.R.Civ.P. 56.05 provides:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials in his pleading, but his response, by affidavits or otherwise provided in this rule must set forth specific facts showing there is a genuine issue for trial.

The term “genuine issue for trial” referred to in Tenn.R.Civ.P. 56.05 connotes genuine factual issues. It does not include issues involving legal conclusions to be drawn from the facts. Thus, our courts have held that opponents to a motion for summary judgment should not take their predicament lightly and will be required to come forward with some “specific factual information,” other than mere pleadings, in support of their position if they wish to avoid a quick, unfavorable decision. Fowler v. Happy Goodman Family, 575 S.W.2d 496, 498 (Tenn.1978) and Ferguson v. Tomerlin, 656 S.W.2d 378, 382 (Tenn.App.1983).

It follows, therefore, that if the opponent to a motion for summary judgment introduces no competent and material evidence demonstrating that a genuine issue of material fact exists, the trial court may grant the summary judgment by finding that the moving party is entitled to a judgment as a matter of law. Brookins v. The Round Table, Inc., 624 S.W.2d 547, 550 (Tenn.1981) and Poppenheimer v. Bluff City Motor Homes, 658 S.W.2d 106, 110 (Tenn.App.1983). A defendant is entitled to a summary judgment if the court determines that the complaint and undisputed facts in the record fail to state a claim upon which relief can be granted.

We have reviewed the pleadings and evidence in this record in the manner required by Tenn.R.Civ.App. 56 and have determined, for reasons different than those relied upon by the trial court, that the defendants were entitled to a judgment as a matter of law.

The Material Facts

As Tenn.R.Civ.P. 56 requires, we have examined the pleadings in this case to determine which facts are material and then have considered the competent proof to determine whether there exist any genuine and material factual disputes. While Mr. Price’s testimony in his depositions and affidavits is at times vague and contradictory, we have viewed his testimony as a whole in a light most favorable to him. Based upon this review, we find that the following facts are uncontradicted or undisputed.

For many years prior to 1970, Mr. Leonard Weil operated a business known as Mercury Supply Company. This business sold cleaning materials and janitorial supplies in the Nashville and Middle Tennessee area. Mr. Weil had complete charge of the business, although his wife was a nominal partner.

In July, 1970, Mr. Price applied for and obtained a job as a salesman with Mercury Supply Company. On July 6, 1970, Mr. Price and Mr. Weil signed a written employment contract of indefinite duration which could be cancelled by either party for any reason upon fifteen days notice. Under this contract, Mr. Price was employed as a salesman, and his compensation consisted of a straight weekly salary as well as a commission based on the sales he actually made. This contract specifically provided that Mr. Price’s compensation could be altered from time to time without affecting the validity of the rest of the contract.

The company prospered during the years immediately after 1970. Mr. Price and his employer, Mr. Weil, became friends, and Mr. Weil took a personal interest in Mr. Price and his family. In accordance with the contract, Mr. Price received annual salary increases in recognition of his performance.

In August, 1972, Mr. Price was given the title of sales coordinator. While he was still acting as a salesman, he also took on the responsibility to hire and train other salesmen. Later, in 1973, Mr. Price’s title was changed to sales manager. His duties were still the same as they had been when he was the company’s sales coordinator. Again, as permitted by the 1970 employment contract, the basis for Mr. Price’s salary was changed so that in addition to his weekly salary and commissions based upon his personal sales, Mr. Price was entitled to receive an annual bonus based upon the company’s annual profits as contained in the annual profit and loss statement. On June 30, 1974, Mr. Price received his first such bonus.

Mr. Weil continued to be pleased with Mr. Price’s performance and told Mr. Price and others that Mr. Price was doing a good job and that his work was one of the reasons why the company’s sales had increased.

In March, 1975, Mr. Price’s title was changed to vice president for sales. There was no change in his compensation at that time. His duties remained the same as they had been when he was sales manager and sales coordinator.

During this time, Mr. Price states in his affidavits and depositions that Mr. Weil told him that he would never have to worry about employment because of the service he had rendered to the company in the past. Mr. Price also stated that Mr. Weil told him he would never have to worry about employment if he performed his duties and achieved a million dollars in sales. All parties agree that none of these statements were reduced to writing and that no new written contract was signed in March, 1975 or at any time thereafter.

In August, 1976, Mr. Weil decided to give Mr. Price two additional incentives consisting of an option to purchase five shares of stock of Mercury Supply Company and an enhanced bonus plan based upon the company’s annual profits. Both these agreements were reduced to writing on August 19, 1976 and were given to Mr. Price. The stock option expired by its own terms on August 31,1977, without Mr. Price exercising it. Even though the bonus plan expired by its own terms on July 1, 1977, Mr. Price continued to receive an annual bonus calculated in accordance with this agreement through June 30,1980, the end of the last full fiscal year that Mr. Price worked for the company.

It was about this time that the relationship between Mr. Price and Mr. Weil cooled. While each person gave different reasons for this, this difference is not material. Both parties agree that they were experiencing difficulties. Mr. Weil went so far as to hire an industrial psychologist to help resolve these problems. In September, 1978, in the presence of this psychologist, Mr. Weil told Mr. Price that his performance was not satisfactory and gave him an ultimatum that if the situation did not improve, Mr. Price would be discharged.

The relationship between the two did not improve. Following a disagreement in February, 1981, concerning the manner in which Mr. Price conducted a sales meeting, Mr. Weil called Mr. Price into his office on March 2, 1981, and discharged him. The company’s board of directors formally ratified this action by written resolution which provided that Mr. Price should receive six months severance pay — three months to be paid immediately and the remainder to be paid in June, 1981. On March 13,1981, Mr. Weil sent Mr. Price a letter confirming the termination of his employment on March 2, 1981. Mr. Price was thirty-nine years of age at the time of his termination.

The Breach of Contract Claim

The linchpin of Mr. Price’s entire claim is his assertion that on March 5, 1975, the parties entered into a valid oral employment contract wherein Mr. Price was hired as the vice president for sales of Mercury Supply Company for the rest of his life or until he retired. If this contract is found not to exist or to be unenforceable, then Mr. Price has no basis for relief because as an employee-at-will, he could be discharged at any time for any reason upon receiving fifteen days notice.

After reviewing the proof, the trial court found that the oral contract allegedly entered into on March 5, 1975 was barred by Tenn.Code Ann. § 29-2-101(5), the provision of Tennessee’s statute of frauds providing that no action shall be brought on a contract “which is not to be performed within the space of one (1) year from the making thereof” unless the contract itself is in writing and signed by the party to be charged. Relying upon Dickens v. Tennessee Electric Power Co., 175 Tenn. 654, 137 S.W.2d 273 (1940), the trial court found that the oral employment contract was unenforceable because Mr. Price’s retirement would take place beyond one year from the making of the contract.

We disagree with the trial court’s legal conclusion in this regard.

A defense predicated upon the statute of frauds must, of necessity, presume that the parties had an agreement but that Tenn.Code Ann. § 29-2-101 renders this agreement unenforceable because it is one of those species of agreements required to be in writing. Tennessee’s version of the statute of frauds, Tenn.Code Ann. § 29-2-101, was originally enacted in 1801. Like those existing in all other states except Louisiana, Tennessee’s statute of frauds is patterned after the English Statute of Frauds and Perjuries enacted in 1677. Its purpose is to prevent frauds based upon oral testimony and to deter the formation of contracts based upon loose statements or innuendoes long after witnesses have become unavailable or when memories of the precise agreement have been dimmed by the passage of time. Boutwell v. Lewis Bros. Lumber Co., 27 Tenn.App. 460, 465, 182 S.W.2d 1, 3 (1944). See also 2 A. Corbin, Contracts § 275 (1950); 72 Am.Jur.2d Statute of Frauds § 7 (1974); and 37 C.J.S. Frauds, Statute of § 1 (1943).

The portion of the statute of frauds at issue in this case, Tenn.Code Ann. § 29-2-101(5), which proscribes oral contracts not to be performed in one year from the time they are made is generally referred to as the infra annum provision. Of all the provisions of the statute of frauds, it is generally construed very narrowly by the courts, see 2 A. Corbin, Contracts § 444 (1950), because courts generally attempt to give effect to contracts rather than defeating them. Accordingly, our courts have declined to construe a contract to require performance over more than one year if to do so would render the contract unenforceable because of the statute of frauds. Srygley v. City of Nashville, 175 Tenn. 417, 420, 135 S.W.2d 451, 452 (1940).

The application of Tenn.Code Ann. § 29-2-101(5) has been construed many times by our courts. It is now well-settled that the determination concerning whether a particular agreement is included within the statute of frauds depends upon the terms of the agreement itself and the intentions of the parties at the precise moment the contract is made. Johnston v. Cincinnati, N.O. & T.P. Ry. Co., 146 Tenn. 135, 147-48, 240 S.W. 429, 432-33 (1921); Deaton v. Tennessee Coal and Railroad Co., 59 Tenn. (12 Heisk.) 650, 653-54 (1874); and Leinau v. Smart, 30 Tenn. (11 Hum.) 307, 310 (1850). This Court, adopting the view of the Restatement of Contracts held forty years ago that

The question is not what the probable, expected, or actual performance of the contract may be, but whether, according to the reasonable interpretation of its terms, it requires that it should not be performed within the year. Unless the court, looking at the contract in view of the surroundings, can say that in no reasonable probability can such agreement be performed within the year, it is its duty to uphold the contract.
Boutwell v. Lewis Bros. Lumber Co., 27 Tenn.App. 460, 464, 182 S.W.2d 1, 3 (1944).

These decisions prompted Judge Allison Humphries, then serving on the Court of Appeals, to hold:

... it is now well settled that if a contract, when made, was in reality capable of full and bona fide performance with the year, it is to be considered as not within the statute.
Anderson-Gregory Co. v. Lea, 51 Tenn.App. 612, 616-17, 370 S.W.2d 934, 936 (1963).

The Tennessee Supreme Court has specifically held that an oral employment contract for an unspecified term is not subject to the statute of frauds because it is capable of complete, bona fide performance within one year of its making should the employee die within that time. East Tennessee, Virginia & Georgia Railroad Co. v. Staub, 75 Tenn. (7 Lea) 397, 400 (1881). This holding has been reaffirmed in numerous other cases. Dickens v. Tennessee Electric Power Co., 175 Tenn. 654, 657, 137 S.W.2d 273, 274 (1940); Boutwell v. Lewis Bros. Lumber Co., 27 Tenn.App. 460, 464, 182 S.W.2d 1, 3 (1944); and Walker v. Walker, 12 Tenn.App. 130, 137 (1930).

This is in accord with the view expressed by most courts and commentators. Succinctly stated, the majority rule is that an oral employment contract for an indefinite term that can be terminated at any time at the will of the parties is not within the statute of frauds because it is capable of being fully performed within one year either through the employee’s death or by either party’s decision to terminate the contract. Restatement (Second) of Contracts § 130, comment a, illustration 2 and comment b, illustration 6 (1979); A. Corbin, Contracts §§ 446, 451 (1950); 72 Am.Jur.2d Statute of Frauds §§ 11, 40, 42 n. 45 (1974) and 37 C.J.S. Frauds, Statute of §§ 49, 62c (1943). See also Annot., 60 A.L.R.3d 226 § 16 (1974).

When the disputed facts in this case are viewed in light of these precedents, it is clear that any oral contract between Mr. Price and Mercury Supply Company, if indeed there is a contract, would not be barred by the statute of frauds. Mr. Price himself stated that the term of this contract would be for life or until he decided to retire. Thus, it could be performed within one year because Mr. Price could have died or could have elected to retire within a year after the alleged contract was made. The fact that neither contingency occurred is not sufficient to bring the agreement within Tenn.Code Ann. § 29-2-101(5).

However, even if Mr. Price is able to avoid the statute of frauds, he will not necessarily be able to recover for a breach of contract unless he can show that a contract existed. The normal rules of contracts must still apply even if an agreement does not come within the statute of frauds. See 73 Am.Jur.2d Statute of Frauds § 514 (1974) and 37 C.J.S. Frauds, Statute of § 222 n. 80 (1943).

Like any other party attempting to prove the existence of a contract, Mr. Price is required to show that the agreement on which he relies was supported by adequate consideration, that there was a mutual assent to the terms of the agreement and that it was sufficiently definite to be enforceable.

The terms of the oral employment contract upon which Mr. Price rests his case can best be described in his own words. The following exchange is illustrative of his understanding of the agreement:

QUESTION: In March of 1975, you have alleged, in your lawsuit, for several million dollars, that the July 6th, 1970 contract was terminated, and a new contract came into existence. And I asked you what the terms and conditions of the new contract were, and you said that one of the terms was that you had a contract or you had an agreement, for a lifetime, and you didn’t have anything to worry about, for the rest of your life.
What was another term and condition of that contract?
MR. PRICE: I don’t recall any other terms. All I recall was that this was for services that I had rendered, in the past.

Based upon Mr. Price’s description of the purported oral contract entered into on March 5, 1975, we conclude that the undisputed evidence shows that no valid contract was ever formed at that time. Mr. Price states that the consideration for this contract was the services he had rendered to the company in the past. This is clearly inadequate consideration. Clark v. Small, 14 Tenn. (6 Yer.) 417, 421 (1834). See also 17 Am.Jur.2d Contracts § 125 (1964) and 17 C.J.S. Contracts § 116 (1963). Further, Mr. Price’s inability to describe the other material terms of the new contract with precision leads to the conclusion that Mr. Weil’s statements about job security did not rise to the level of a contract but rather were statements of encouragement and approval of Mr. Price’s work at that time.

While we think that the fair reading of this record supports the conclusion that no oral contract was ever formed on March 5, 1975, we are not unmindful that this case comes before us following a summary judgment. This requires us to indulge every presumption in favor of Mr. Price’s testimony. This is difficult because much of his testimony is vague and contradictory. However, even if we infer from the record that Mr. Price and Mercury Supply Company entered into a new oral employment contract on March 7, 1975, there would still be no breach because this contract would be terminable at will.

Our courts have long held that an oral contract for life time employment or permanent employment amounts to an indefinite hiring terminable at the will of either party where the employee furnishes no consideration other than the services required in the agreement. Combs v. Standard Oil Company of Louisiana, 166 Tenn. 88, 90-92, 59 S.W.2d 525, 526-27 (1933); Savage v. Spur Distributing Co., 33 Tenn.App. 27, 30-31, 228 S.W.2d 122, 124 (1950); and Hughes v. Taubel-Scott-Kitzmiller Co., 6 Tenn.App. 432, 441 (1927). This being the case, an employee-at-will can be discharged without the breach of contract at any time for no cause at all. Clanton v. Cain-Sloan Co., 677 S.W.2d 441 (Tenn.1984) and Whittaker v. Care-More, Inc., 621 S.W.2d 395, 396 (Tenn.App.1981).

Thus, even if this Court were to agree with Mr. Price’s premise that an oral contract was formed on March 5, 1975, the undisputed facts in this record require the legal conclusion that this contract was not breached when Mr. Price was discharged because he was an employee-at-will. Thus, the defendants could discharge Mr. Price at any time without breaching the contract.

The Age Discrimination Claim

Mr. Price also contended in his amended complaint that the defendants had discriminated against him in violation of 29 U.S.C. § 623 et seq. and Tenn. Code Ann. § 4-21-105 because he was terminated. The trial court found this age discrimination claim to be without merit because the undisputed proof was that Mr. Price was thirty-nine years of age at the time of his discharge and therefore he was not within the class of persons protected by these laws. Since this issue is not contained in Mr. Price’s briefs as required by Tenn.R.App.P. 27(a)(4), we conclude that Mr. Price is not contesting the validity of the trial court’s decision.

The Fraud and Misrepresentation Claim

Mr. Price finally alleged in his amended complaint that the defendants fraudulently induced him to become vice president for sales and to remain with the company by making certain misrepresentations. According to Mr. Price, these misrepresentations included: (1) compliments on his work, (2) statements of his value to the company, (3) statements that he would have a job until retirement if he continued to do his job, (4) an agreement to pay him a bonus based on the company’s annual profits and (5) an offer to permit him to become part owner of the business.

While it is true that courts are reluctant to grant summary judgments to dispose of claims based upon fraud, a party asserting fraud, when confronted with a motion for summary judgment must produce some competent and material evidence to support his claim. Fowler v. Happy Goodman Family, 575 S.W.2d 496, 498 (Tenn.1978).

Upon examination of this record, we find no material fact presented by Mr. Price that would support a claim based upon fraud—promissory or otherwise. On the contrary, Mr. Price’s own testimony defeats this claim because he repeatedly admits that the defendants honored all commitments to him except the perceived commitment for lifetime employment. This statement, even if made, cannot provide the basis of an allegation of fraud because, at most, it created a contract terminable at the will of either party. It is difficult to conclude that Mr. Price remained employed by the defendants as vice president for sales solely on the basis of this statement. He testified that his duties did not change when his title was changed to vice president for sales in March, 1975. He also conceded that, in fact, he was offered an opportunity to purchase stock in the company and agreed that for the last four years of his employment, his compensation was, in fact, based upon the company’s annual profits.

Production of Documents

The final issue raised by Mr. Price relates to the trial court’s failure to order the defendants to produce certain documents requested in accordance with Tenn.R.Civ.P. 34. Decisions with regard to discovery matters are in the sound discretion of the trial court, and so appellate courts are reluctant to reverse a trial court’s decision unless a clear abuse of discretion is demonstrated. Payne v. Ramsey, 591 S.W.2d 434, 436 (Tenn.1979); Holt v. Webster, 638 S.W.2d 391, 394 (Tenn.App.1982); and Strickland v. Strickland, 618 S.W.2d 496, 501 (Tenn.App.1981). See also 8 Wright & Miller, Federal Practice and Procedure § 2215 (1970). A trial court’s decision involving discovery must be viewed in the context of the issues being tried and the posture of the ease at the time the request for discovery is made.

The discovery request at issue here was preceeded by approximately one year of discovery taking the form of depositions of the parties and various witnesses, the filing of and answers to written interrogatories, and the submission of documents accompanied by sworn affidavits. Mr. Price was deposed twice. Numerous documents were requested and filed. Numerous documents requested by both parties were not filed but without subsequent objection. Both parties and their counsel at times exhibited a distinct lack of desire to facilitate this process. Both counsel threatened to seek redress in court and, in fact, did. Mr. Price himself was ordered by the trial court to answer certain questions propounded during his deposition after he refused to do so.

On September 9, 1982, Mr. Price filed a motion pursuant to Tenn.R.Civ.P. 34 requesting that the defendants be ordered to produce documents relating to the following matters: (1) the cost of the products purchased by the defendants for resale, (2) the sales records of certain employees, (3) the corporate profit and loss statements, (4) the annual corporate audits, and (5) the personal bank statements and tax returns of Mr. Weil and his wife. This motion specifically recited that these documents were necessary to help Mr. Price prove that the defendants had no good basis to terminate him. Also attached to this motion was correspondence from the defendants’ counsel stating that many of these documents had already been produced and that others could not be produced because they had not been identified with reasonable particularity as required by Tenn.R.Civ.P. 34.02.

On September 22, 1982, the trial court entered an order reserving judgment on this motion until the hearing on the defendants’ motion for summary judgment. There is nothing in the record before us to indicate that Mr. Price renewed his motion following the trial court’s decision to grant a summary judgment in favor of the defendants.

Motions for the production of documents pursuant to Tenn.R.Civ.P. 34 are circumscribed by the requirement contained in Tenn.R.Civ.P. 26.02(1) requiring discovery to be limited to:

any matter, not privileged, which is relevant to the subject matter of the pending action, whether it relates to the claims or defenses of the party seeking discovery or to the claims and defenses of any other party.

While the outer limits of “relevancy” are necessarily vague, see 8 Wright & Miller, Federal Practice and Procedure § 2008 n. 20 (1970), the United States Supreme Court, construing the Federal counterpart to Tenn.R.Civ.P. 26.02(1), held:

“The key phrase in this definition — ‘relevant to the subject matter involved in the pending action’ — has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matters that could bear on, any issue that is or may be in the case.”
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S.Ct. 2380, 2389, 57 L.Ed.2d 253 (1978).

While Mr. Price’s amended complaint prays for an award of back pay, there is no factual allegation in the complaint that the defendants breached his employment contract by not paying him the compensation to which he was entitled. He testified that he had no basis to question the manner in which his bonuses were computed, and all the witnesses he deposed likewise testified that their bonuses were accurately paid and that mistakes were corrected when they were discovered. The purpose for which Mr. Price sought these documents in September, 1982, was not material because as a matter of law he was at most an employee-at-will who could be terminated at any time without good cause. Thus, it appears that the documents requested by Mr. Price prior to the summary judgment bore little relevance to the determinative issues in this case and their absence did not produce the summary judgment under review.

Upon our examination of the record, we do not conclude that the trial court abused its discretion by declining to order the production of the documents enumerated in the September 2, 1982 motion pursuant to Tenn.R.Civ.P. 34.

In sum, we hold that there is no genuine dispute concerning the facts that are material and relevant to the outcome of this case. Based upon these facts and undisputed testimony, we find that the defendants were entitled to a summary judgment as a matter of law because Mr. Price was an employee-at-will and, therefore, was subject to dismissal at any time for any reason or no reason. Further, Mr. Price’s claims of age discrimination and fraud and misrepresentation must fail because there is no competent evidence in the record to support them.

Thus, the judgment of the trial court granting the defendants a summary judgment is affirmed. The Court also concludes that this is not a frivolus appeal, and therefore the defendants’ motion pursuant to Tenn.Code Ann. § 27-1-122 is denied.

The costs of this appeal are taxed against Mr. Richard P. Price and his sureties for which execution, if necessary, may issue.

TODD, P.J., and CANTRELL, J., concur.

      . Both the defendants and the plaintiff filed briefs to support their pleadings pursuant to a local rule of court. While these briefs were not included in the appellate record originally certified to this Court, this Court, pursuant to Tenn. R.App.P. 24(e) ordered them to be filed, and they are now properly before this Court.

      . This pleading is foreign to the Tennessee Rules of Civil Procedure. It is not in accord with Tenn.R.Civ.P. 7.02(1). However, we will consider it as the plaintiffs response pursuant to Tenn.R.Civ.App. 56.05 to the defendants’ motion for summary judgment.

      . These may be relevant legal issues, but they are not genuine issues of material fact required to be raised by Tenn.R.Civ.P. 56.05.

      . The defendants filed a motion to dismiss this appeal on November 30, 1983 based upon the plaintiffs failure to fully comply with Tenn.R. App.P. 5(a) by not serving a notice of appeal on counsel for the defendants. This Court remanded this matter to the trial court for disposition on December 13, 1983. Thereafter, on December 30, 1983, the defendants renewed their motion to dismiss the appeal in the trial court. While the record reveals that the trial court took certain action relating to the appellate record, there is no showing that any action was taken on the defendants’ renewed motion by the trial court before the appellate record was transmitted to this Court by the Clerk and Master on January 26, 1984 pursuant to Tenn.R.App.P. 24. Since the defendants have fully participated in this appeal without prejudice and have not renewed their motion to dismiss since the record was filed in this Court, we find that they have waived their objection based upon Tenn.R. App.P. 5(a). In any event, this record demonstrates substantial compliance with Tenn.R. App.P. 5(a), and therefore, pursuant to Tenn.R. App.P. 2 as construed in G.F. Plunk Construction Co. v. Barrett Properties, Inc., 640 S.W.2d 215 (Tenn.1982), we suspend the requirements of Rule 5(a) as they apply to Mr. Price to the extent necessary.

      . Allegations in pleadings are not, by themselves, evidence of facts. Hillhaven Corp. v. State ex rel. Manor Care, Inc., 565 S.W.2d 210, 212 (Tenn.1978). Likewise, arguments of counsel in briefs and otherwise are not evidence. Goodway Marketing, Inc. v. Faulkner Advertising Assoc., Inc., 545 F.Supp. 263, 268 n. 3 (E.D. Penn., 1982) and 10A Wright, Miller & Kane, Federal Practice and Procedure § 2723 n. 9 (1983).

      . The contradictions in Mr. Price's testimony are not sufficient to create a genuine issue of material fact. Shearer v. Homestake Mining Co., 557 F.Supp. 549, 558 n. 5 (D.S.D.1983) and U.S. v. Dercacz, 530 F.Supp. 1348, 1351 (E.D.N.Y.1982). See also 10A Wright, Miller & Kane, Federal Practice and Procedure §§ 2722, 2738 (1983).

      . Smith v. Pickwick Electric Cooperative, 212 Tenn. 62, 71-72 367 S.W.2d 775, 780 (1963) and Clark v. Small, 14 Tenn. (6 Yer.) 417, 421 (1834).

      . American Lead Pencil Co. v. Nashville, Chattanooga & St. Louis Railway Co., 124 Tenn. 57, 63-64, 134 S.W. 613, 615 (1910); Marshall v. Whites Creek Turnpike Co., 47 Tenn. (7 Cold.) 252 (1869); and Forest, Inc. of Knoxville v. Guaranty Mortgage Co., 534 S.W.2d 853, 857 (Tenn.App.1975).

      .Contrary to Mr. Price’s assertion his lengthy employment for the defendants is inadequate consideration since he had already been paid. Pearson v. Youngstown Sheet and Tube Co., 332 F.2d 439, 441 (7th Cir.1964), cert. denied, 379 U.S. 914, 85 S.Ct. 262, 13 L.Ed.2d 185 (1964).


text:
    Dennis L. KNAPP, Administrator of the Estate of David L. Knapp, Deceased, Plaintiff-Appellant, v. HOLIDAY INNS, INC. and Holiday Inn Nashville-North, Defendants and Third-Party Plaintiffs-Appellees, v. Norman D. LANE, Third-Party Defendant-Appellee.
    Court of Appeals of Tennessee, Middle Section.
    Oct. 11, 1984.
    Permission to Appeal Denied by Supreme Court Dec. 31, 1984.

      Sidney Gilreath, Frances L. Ansley, Knoxville, for plaintiff-appellant.
    Thomas M. Donnell, Jr., Stewart, Estes & Donnell, Nashville, for defendants and third-party plaintiffs-appellees.
    Gayle Malone, Jr., Trabue, Sturdivant & DeWitt, Nashville, for third-party defendant-appellee.
   OPINION

KOCH, Judge.

This is a wrongful death action predicated upon a common law dram shop cause of action similar to that recognized in Brookins v. The Round Table, Inc., 624 S.W.2d 547 (Tenn.1981) and Mitchell v. Ketner, 54 Tenn.App. 656, 393 S.W.2d 755 (1964). It was concluded prior to trial when the trial court granted a summary judgment for the defendant owner of the cocktail lounge where the person causing the fatal accident had been served alcoholic beverages immediately prior to the accident.

This case presents a unique situation in which the party seeking a summary judgment contends that it is entitled to a judgment as a matter of law because all available witnesses having direct and personal knowledge of the material facts have made statements favorable to the movant thereby precluding any possibility of a genuine dispute of material fact. In response, the opponent to the motion for summary judgment concedes that the statements of all available witnesses with direct knowledge of the facts are in the movant’s favor. However, the opponent to the motion contends that a genuine and material factual dispute exists because the credibility of the defendant’s witnesses and the weight to be given their testimony should not be decided at the summary judgment stage but should be resolved by the trier of fact at a trial on the merits.

For the reasons stated in this opinion, we find that granting a summary judgment was not appropriate in this case.

On December 3, 1982, Mr. Dennis L. Knapp, acting as the administrator of his son’s estate, brought this action in the Sixth Circuit Court for Davidson County against Holiday Inns, Inc., the owner of a cocktail lounge named “Chuggers” located in the Holiday Inn Hotel in Nashville adjacent to 1-65. In substance, the complaint alleged that employees of Chuggers lounge had illegally and negligently served alcoholic beverages to Mr. Norman D. Lane, a regular and frequent Chuggers patron, after he had reached an intoxicated condition. The complaint further alleged that immediately after leaving Chuggers, Mr. Lane caused an automobile accident on 1-65 which resulted in David L. Knapp’s death. The complaint concludes that Holiday Inn, Inc.’s negligence was the proximate cause of David L. Knapp’s death.

Holiday Inns, Inc. moved for a summary judgment on October 25, 1983, contending (1) that the complaint failed to state a claim upon which relief can be granted, (2) that it had committed no negligent act that was the proximate cause of the accident in which David L. Knapp was killed, and (3) that David L. Knapp’s death resulted from independent and superceding causes over which Holiday Inns, Inc. had no control. In support of its contentions that there were no genuine factual issues and that it was entitled to a judgment as a matter of law, Holiday Inns, Inc. filed the deposition of Norman D. Lane, an affidavit of one of Mr. Lane’s employees, an affidavit of one of Mr. Lane’s former clients who was a cocktail waitress at Chuggers on the night David L. Knapp was killed, and affidavits from another waitress and the Food and Beverage Director of the hotel concerning Chuggers’ general policy concerning serving alcoholic beverages.

In response to the motion for summary judgment, Mr. Knapp filed the affidavit of a Professor of Toxicology from the Indiana University School of Medicine and the affidavit of the Director of the Crime Laboratory of the Tennessee Bureau of Investigation together with attached exhibits relating to the level of Mr. Lane’s intoxication at the time the fatal accident occurred.

The trial court conducted a hearing on the motion for summary judgment on January 6, 1984. During this hearing both in briefs filed and during argument, Mr. Knapp challenged Holiday Inn, Inc.’s affidavits in support of the motion for summary judgment on the basis of bias and interest of the persons upon whose affidavits the motion for summary judgment was predicated. Likewise, Holiday Inns, Inc. challenged the competency of the affidavits submitted by Mr. Knapp. On January 9, 1984, an order was entered granting Holiday Inns, Inc. a summary judgment.

The dispositive issue both in the trial court and in this appeal is whether there exists a genuine factual dispute concerning whether the employees of Chuggers served alcoholic beverages to Norman Lane when he was visibly intoxicated. This is a material issue because the owner or operator of an establishment selling alcoholic beverages by the drink to the public may only be held liable for injuries proximately caused by serving alcoholic beverages to a person who is visibly intoxicated at the time the alcoholic beverages are served. Brookins v. The Round Table, Inc., 624 S.W.2d 547, 550 (Tenn.1981) and Mitchell v. Ketner, 54 Tenn.App. 656, 666, 393 S.W.2d 755, 759 (1964). See also Tenn.Code Ann. § 57-4-203(c).

Holiday Inns, Inc. sought to show definitively that Mr. Lane was not visibly intoxicated by relying on the deposition of Mr. Lane himself, the affidavits of one of Mr. Lane’s former clients who was one of the cocktail waitresses at Chuggers who served Mr. Lane prior to the accident, and Mr. Lane’s law clerk who talked with him by telephone while Mr. Lane was at Chug-gers.

This proof shows that Mr. Lane began drinking at his law office during the afternoon of the day David Knapp was killed and that he drank more at his law office than he did while he was at Chuggers. He had nothing to eat that day because he was on a diet. While he could not remember when he left his law office, Mr. Lane remembered that he drove directly to Chug-gers and that he arrived there some time prior to 6:30 p.m. He planned to stay there until the traffic congestion eased before continuing home. He did not remember how many drinks he was served while he was at Chuggers.

A waitress employed at Chuggers who was a former client and friend of Mr. Lane stated in an affidavit that she served him two drinks during happy hour before she left work at 7:00 p.m. and that Mr. Lane did not appear to be intoxicated when she saw him. Mr. Lane’s law clerk stated in an affidavit that he called Mr. Lane at Chug-gers at approximately 6:30 p.m. shortly after Mr. Lane arrived and that Mr. Lane did not sound intoxicated during that telephone conversation.

Mr. Lane recalled ordering another drink from another waitress before he left Chug-gers, but by affidavit, this waitress had no independent recollection of Mr. Lane or that she ever served him as a customer at Chuggers.

When Mr. Lane left Chuggers at 8:00 p.m. hedrove onto 1-65. He remembers being concerned about being arrested for driving while intoxicated immediately prior to the accident. Approximately ten minutes after leaving Chuggers, he mistook the gas pedal for the brake pedal and accelerated into the rear of the automobile ahead of him, drove across the highway’s medial strip, and struck the automobile being driven by David Knapp head on.

Mr. Knapp was killed, and Mr. Lane was rendered unconscious and remained so for some time after the accident. A sample of Mr. Lane’s blood was taken within an hour after the accident. It was subsequently analyzed by the Tennessee Bureau of Investigation’s crime laboratory and was found to have a blood alcohol concentration of ,23%.

Mr. Lane admitted in his pleadings that it was his negligence that caused David Knapp’s death and that he was driving while intoxicated when the accident occurred.

The benefits of granting summary judgment in proper cases have been recognized repeatedly. Brookins v. The Round Table, Inc., 624 S.W.2d 547, 550 (Tenn.1981) and Ferguson v. Tomerlin, 656 S.W.2d 378, 382 (Tenn.App.1983). However, our courts have also been quick to point out that summary judgments should not be used as substitutes for trials on the merits when the material facts are in dispute, Jones v. Home Indemnity Insurance Co., 651 S.W.2d 213, 214 (Tenn.1983), or when there is uncertainty about whether the material facts are in dispute, Executone of Memphis, Inc. v. Garner, 650 S.W.2d 734, 736 (Tenn.1983) and Evco Corp. v. Ross, 528 S.W.2d 20, 25 (Tenn.1975), or even when the parties disagree about the inferences to be drawn from the facts. Prescott v. Adams, 627 S.W.2d 134, 138-39 (Tenn.App.1981).

The procedural requirements contained in Tenn.R.Civ.P. 56 used to consider a motion for summary judgment have also been reviewed on prior occasions and need no great elaboration here. Suffice it to say that the party moving for a summary judgment must first carry the burden of demonstrating that no genuine dispute involving material facts exists and that he is entitled to a judgment as a matter of law. Tenn.R.Civ.P. 56.03. See also Phillips v. Pittsburgh Consolidated Coal Co., 541 S.W.2d 411, 413 (Tenn.1976) and Poppenheimer v. Bluff City Motor Homes, Division of Bluff City Buick Co., 658 S.W.2d 106, 110 (Tenn.App.1983). Once confronted with a motion for summary judgment, the opponent to the motion cannot take it lightly and is required to demonstrate why granting a motion for summary judgment would be inappropriate. In most instances, the opponent to a motion for summary judgment defeats the motion by demonstrating that genuine disputes concerning material facts exist. See Fowler v. Happy Goodman Family, 575 S.W.2d 496, 498 (Tenn.1978) and Ferguson v. Tomerlin, 656 S.W.2d 378, 382 (Tenn.App.1983).

The decisions of our state courts construing Tenn.R.Civ.P. 56 have repeatedly held that when a court is determining whether all the requirements of Tenn.R.Civ.P. 56 have been met in a particular case, the pleadings and other competent factual proof should be viewed in a light most favorable to the opponent of the motion and likewise, that all legitimate conclusions should be drawn in the opponent’s favor. Jones v. Home Indemnity Insurance Co., 651 S.W.2d 213, 214 (Tenn.1983) and Bennett v. Mid-South Terminals Corp., 660 S.W.2d 799, 800 (Tenn.App.1983). The Federal courts construing Fed.R.Civ.P. 56 which is substantially similar to Tenn.R.Civ.P. 56 have stated the same principle another way. Under Fed.R.Civ.P. 56, persons moving for a summary judgment are held to the strict standard of making a showing that excludes any real doubt as to the existence of any genuine issue of material fact, and thus their papers are viewed with great strictness while the opposing party’s proof is viewed with more indulgence. Adickes v. S.H. Kress and Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970) and Maiorana v. MacDonald, 596 F.2d 1072, 1080 (1st Cir.1979). See also 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2738 n. 31 (1983) and 6 J. Moore, Moore’s Federal Practice, If 56.22[1], at 56-1333 (2d Ed.1982).

While summary judgments can be granted in negligence cases when the requirements of Tenn.R.Civ.P. 56 have been satisfied, the Tennessee Supreme Court has cautioned that as a general matter, summary judgments should be granted only hesitantly in negligence cases because the ultimate determinative issues in these eases should be decided by the trier of fact after an opportunity to view witnesses’ demean- or and to evaluate their credibility. Bowman v. Henard, 547 S.W.2d 527, 530 (Tenn.1977). The Bowman decision involved a medical malpractice action wherein the defendant’s motion for a summary judgment was supported by affidavits of other physicians containing expert opinions. Recognizing with approval the general rule that opinion evidence should be weighed and evaluated by the trier of fact, the Court, in a narrowly drawn ruling, held that affidavits containing expert opinions could be used to support a motion for a summary judgment in medical malpractice cases because, with the exception of matters within a layman’s common knowledge, medical malpractice is to be proved using expert testimony.

In the Bowman v. Henard opinion, the Tennessee Supreme Court, like other courts, has recognized that there are cases in which it is not proper to force a party to try his case on affidavits because to do so would prevent the trier of fact from having the opportunity to view the witnesses as they testify and thus to decide upon their credibility and the weight to be given to their testimony. Bowman v. Henard, 547 S.W.2d 527, 529-30 (Tenn.1977).

This conclusion is in full harmony with the decisions of Federal courts construing Fed.R.Civ.P. 56. These decisions conclude that evidence in the form of affidavits is, on the whole, the least satisfactory form of evidentiary material to use in support of a motion for summary judgment because the use of affidavits deprives the opposing party of an opportunity to cross examine the witness thereby depriving the fact finder of any real opportunity to judge the witness’ credibility and to determine the weight to be given to the testimony. Judge Friendly has expressed this proposition as follows:

“But even if the trial should turn out to be nothing more than a swearing contest, with the parties saying the same thing in the witness chair they have said in affidavits, the court would have the benefit of observing their demeanor, particularly under cross-examination, and the case would come to us [the appellate court] with factual findings on the disputed matters which are lacking in the opinion before us ...”
Painton & Co. v. Bourns, Inc., 442 F.2d 216, 233 (2d Cir.1971).

See also 6 J. Moore, Moore’s Federal Practice ¶¶ 56.15[4], at 56-514 and 56.22[1] at 56-1325 (2d Ed.1982) and 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2722, at 56 (1983).

Courts construing the federal counterpart to Tenn.R.Civ.P. 56 consistently hold that summary judgments should not be granted in cases where the outcome hinges squarely upon the state of mind, intent, or credibility of the witnesses. Hoover v. Switlik Parachute Co., 668 F.2d 964, 968 (9th Cir.1981) and Irwin v. United States, 558 F.2d 249, 252 (5th Cir.1977). Stated another way, doubt as to the credibility of material witnesses will create a genuine issue of material fact sufficient to render granting a summary judgment improper. Transway Finance Co. v. Gershon, 92 F.R.D. 777, 778-79 (E.D.N.Y.1982). See also C. Wright & A. Miller, Federal Practice and Procedure § 2726, at 113 (1983) and 6 J. Moore, Moore’s Federal Practice If 56.15[3], at 56-475 (2d Ed. 1983). This is especially the case when the basic facts are under the control of one of the parties.

A party seeking to defeat a motion for summary judgment by questioning the credibility of witnesses must fairly raise this issue in the trial court at the time the motion for summary judgment is being considered. Lundeen v. Cordner, 354 F.2d 401, 408 (8th Cir.1966). See also 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2726, at 118-19 (1983) and 6 J. Moore, Moore’s Federal Practice ¶ 56.15[4], at 56-524 (2d Ed.1982). However, if the opponent to a motion for summary judgment succeeds in raising a genuine doubt concerning a witness’ credibility by a sufficient showing of the witness’ bias, prejudice, or interest, the summary judgment should be denied, and the case should be decided by the trier of fact. Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 628, 64 S.Ct. 724, 729, 88 L.Ed. 967 (1944). 6 J. Moore, Moore’s Federal Practice 1156.15[4], at 56-526 (2d Ed. 1982). Thus, in a wrongful death action, Judge Wisdom cautioned:

“The court should be cautious in granting a motion for summary judgment when resolution of the dispositive issue requires a determination of state of mind. Much depends upon the credibility of the witnesses testifying as to their own states of mind. In these circumstances the jury should be given an opportunity to observe the demeanor, during direct and cross-examination, of the witnesses whose states of mind are at issue.”
Croley v. Matson Navigation Co., 434 F.2d 73, 77 (5th Cir.1970).

After analogizing a motion for summary judgment with a motion for a directed verdict, the United States Supreme Court held that the credibility of witnesses and the weight to be given their testimony should be left to the jury and that a summary judgment supported by affidavits of interested witnesses was not proper because “... a summary disposition ... should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.” Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 624, 64 S.Ct. 724, 727, 88 L.Ed. 967 (1944).

Our courts have also equated motions for summary judgments pursuant to Tenn.R.Civ.P. 56 with motions for directed verdicts. Bennett v. Mid-South Terminals Corp., 660 S.W.2d 799, 800 (Tenn.App.1983). Under state law, a directed verdict should not be granted if there is any doubt about the conclusions to be drawn from the evidence. Sauls v. Evans, 635 S.W.2d 377, 379 (Tenn.1982) and Redding v. Conally Ford, Inc., 662 S.W.2d 938, 942 (Tenn.App.1983). Uncontradicted evidence will not entitle a party to a directed verdict, and by analogy to a summary judgment, when the credibility of the evidence has been called into question using one of the legal modes available to test the credibility of witnesses. Curtis v. Kelsey Wheel Co., 168 Tenn. 262, 264, 77 S.W.2d 449, 449-50 (1935); Standard Oil Co. of Louisiana v. Roach, 19 Tenn.App. 661, 674, 94 S.W.2d 63, 71 (1936); and Sprankle v. Meyernick, 4 Tenn.Civ.App. 515, 520 (1913).

This case presents a clear situation where a summary judgment is not proper because the outcome of this case rests solely upon the credibility of the witnesses who can be considered competent to testify from personal knowledge about Norman Lane’s demeanor and conduct while he was at Chuggers prior to the fatal accident. Mr. Knapp squarely challenged the credibility of these witnesses in the trial court and has sufficiently called the credibility of these witnesses into question to create a genuine issue of material fact.

In fact, this record reveals that there is only one witness other than Mr. Lane himself who has any direct, personal knowledge concerning Mr. Lane’s conduct at Chuggers. This witness is the waitress who served Mr. Lane during the first half hour he was at Chuggers. In addition to being an employee of the defendant, this witness admitted that she was a personal friend and former client of Mr. Lane. These relationships are sufficient to raise a question of this witness’ credibility which should be resolved at a full hearing on the merits. In other dram shop cases, an employee of the defendant tavern owner has been found to be sufficiently interested in the proceeding to be impeached. See Harden v. Seventh Rib, Inc., 311 Minn. 27, 247 N.W.2d 42, 46 (1976).

In addition to the question about the weight to be given to this waitress’ testimony, it is evident that Holiday Inns, Inc.’s affidavits do not exclude the existence of a dispute with regard to the material facts. None of the proof submitted by Holiday Inns, Inc. provides any evidence concerning Mr. Lane’s demeanor at Chuggers for an hour immediately before he left. Mr. Lane was served by two waitresses that night. The first waitress who served him until approximately 7:00 p.m. left the establishment and had no chance to observe Mr. Lane further. The second waitress who would have served Mr. Lane from 7:00 p.m. until the time he left had no independent recollection of Mr. Lane nor any of the events at Chuggers that evening. This absence of proof is not sufficient for Holiday Inns, Inc. to carry its burden required by Tenn.R.Civ.P. 56.03 of demonstrating that there are no genuine disputes of material fact.

While we have determined that the questioned credibility of Holiday Inns, Inc.’s witnesses, by itself, is sufficient to render a summary judgment inappropriate in this case, we also find that a portion of the evidence Mr. Knapp presented in opposition to the summary judgment may also be competent to create a material factual dispute.

In response to Holiday Inns, Inc.’s motion for summary judgment, Mr. Knapp filed an affidavit of the director of the crime laboratory of the Tennessee Bureau of Investigation attaching certified copies of the records relating to the blood alcohol concentration tests conducted upon a sample of Mr. Lane’s blood which was taken within an hour after the fatal accident. While proper foundation would be required in order to admit these documents into evidence at trial, Tenn.Code Ann. § 55-10 — 410(d) provides that this evidence is admissible in any court as evidence of the facts stated therein and of the results of the blood alcohol test itself.

Any material fact can be proved by circumstantial evidence Law v. Louisville & N.R. Co., 179 Tenn. 687, 696, 170 S.W.2d 360, 363 (1943) (Chambers, J., concurring) and Greer v. Lawhon, 600 S.W.2d 742, 745 (Tenn.App.1980). In certain cases, this Court has recognized that a well connected train of circumstances may be more convincing than direct evidence on the same matters. Ballew v. Ballew, 43 Tenn.App. 340, 346, 309 S.W.2d 125, 128 (1957). See also Sprankle v. Mathis, 4 Tenn.Civ.App. 522, 528 (1913).

Well reasoned authority from other jurisdictions holds that the level of a person’s intoxication as well as his demean- or may be proved by circumstantial evidence. Lasky v. Baker, 126 Mich.App. 524, 337 N.W.2d 561, 563 (1983) and Schwedler v. Galvan, 46 Ill.App.3d 630, 4 Ill.Dec. 891, 895, 360 N.E.2d 1324, 1328 (1977). While not conclusive, the results of properly conducted blood alcohol concentration tests can assist the trier of fact in determining the state of a person’s intoxication. Campbell v. Carpenter, 279 Or. 237, 566 P.2d 893, 896 (1977). See also R. Erwin, Defense of Drunk Driving Cases § 15.01 et seq. (3d Ed.1984); E. Cleary, McCormick on Evidence § 205(A) (3d Ed.1984); and S. Gard, Jones on Evidence § 14.37 (6th Ed. 1972).

This authority leads us to conclude that evidence concerning Mr. Lane’s blood alcohol concentration and properly admitted expert testimony concerning the conclusions that can be drawn from the results of the blood alcohol concentration test are relevant to the question of whether Mr. Lane was visibly intoxicated while at Chuggers. Using the tolerant standard required when considering the evidence used to oppose a motion for summary judgment, we find that the proof relating to Mr. Lane’s blood alcohol concentration, when viewed together with the other proof, creates a material factual dispute thereby rendering a summary judgment inappropriate.

The trial court’s, decision to grant Holiday Inns, Inc. a summary judgment is, therefore, reversed, and the case is remanded for further proceedings.

The costs of this appeal will be taxed to Holiday Inns, Inc. and its surety for which execution, if necessary, may issue.

TODD, P.J., and CANTRELL, J., concur.

      . Holiday Inns, Inc. also filed a third-party action against Norman Lane seeking indemnity and contribution in the event Mr. Knapp obtained a judgment against Holiday Inns, Inc. While this action was pending, Mr. Lane and Mr. Knapp entered into a settlement whereby Mr. Lane agreed to pay Mr. Knapp 5109,334.19 thereby discharging Mr. Lane from any further liability to Mr. Knapp or David L. Knapp’s estate. The trial court’s action granting Holiday Inn, Inc. a summary judgment finally resolved all issues among the parties because Holiday Inns, Inc.'s third-party complaint was predicated upon a determination of liability in the action filed by Mr. Knapp which was dismissed as a result of the summary judgment.

      . Holiday Inns, Inc. submitted two other affidavits in support of its motion for summary judgment. They have no bearing on Mr. Lane’s demeanor while at Chuggers but rather relate to Chuggers’ general policy concerning serving alcoholic beverages to persons who appear intoxicated.

      . Tenn.Code Ann. § 55-10-408(b) provides for a presumption that a person is under the influence of alcohol if there is .10% or more by weight of alcohol in his blood.

      . While decisions of Federal courts construing Fed.R.Civ.P. 56 are not binding on our courts. they provide highly persuasive precedents when we are called upon to construe those portions of Tenn.R.Civ.P. 56 that are substantially similar to Fed.R.Civ.P. 56. Bowman v. Henard, 547 S.W.2d 527, 530 (Tenn.1977). See also D. Paine, Recent Developments in Tennessee and Federal Procedure, 36 Tenn.L.Rev. 276, 278 (1969).

      . Frazier v. Moore, 651 S.W.2d 240, 242 (Tenn.App.1983) and Wyatt v. Winnebago Industries, Inc., 566 S.W.2d 276, 279 (Tenn.App.1977).

      . The Court also relied upon C. Wright & A. Miller, Federal Practice and Procedure § 2738 (1977) as authority for its holding. See also Frazier v. Moore, 651 S.W.2d 240, 242 (Tenn.App.1983).

      . See J. Sobieski, A Survey of Civil Procedure in Tennessee-1977, 46 Tenn.L.Rev. 271, 337 (1979) and J. King, The Standard of Care and Informed Consent Under the Tennessee Medical Malpractice Act, 44 Tenn.L.Rev. 225, 263 (1977). See also Dolan v. Cunningham, 648 S.W.2d 652, 653 (Tenn.App.1982).

      . See 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2738 n. 49 (1983).

      . See Advisory Committee’s Note, Proposed Amendments to Rules of Civil Procedure For The United States District Courts, 31 F.R.D. 621, 648 (1962). See also 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2726, at 115-16 (1983) and 6 J. Moore, Moore’s Federal Practice § 56.15[4], at 56-519 (2d Ed.1982).

      . Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962); Wilmington Trust Co. v. Manufacturers Life Insurance Co., 624 F.2d 707, 709 (5th Cir.1980); Madison v. Deseret Livestock Co., 574 F.2d 1027, 1036-37 (10th Cir.1978); and Subin v. Goldsmith, 224 F.2d 753, 758-59 (2d Cir. 1955).

      . A similar standard has been applied to summary judgments. Haga v. Blanc & West Lumber Co., 666 S.W.2d 61, 65 (Tenn.1984); Executone of Memphis, Inc. v. Garner, 650 S.W.2d 734, 736 (Tenn.1983); and Prescott v. Adams, 627 S.W.2d 134, 138-39 (Tenn.App.1981).

      . Mr. Lane’s testimony in his deposition reveals that his memory about his conduct is less than reliable. Mr. Lane's law clerk admits in his affidavit that he never saw Mr. Lane on the day of the accident. Testimony regarding a telephone conversation is barely relevant to the issue of whether Mr. Lane was visibly intoxicated during the ninety minutes Mr. Lane remained at Chuggers after the telephone call.

      . See State v. McKinney, 605 S.W.2d 842, 845-46 (Tenn.Crim.App.1980). See also D. Paine, Tennessee Law of Evidence §§ 85 and 237 (1974).

      . See also State v. Moore, 245 N.C. 158, 95 S.E.2d 548, 550-51 (1956) and 2 J. Wigmore, Evidence in Trials at Common Law § 235 (J. Chadbourn Rev. 1979).

      . See also State v. Wheeler, 120 N.H. 496, 416 A.2d 1384, 1385-86 (1980); Dick v. Molitor, 305 Minn. 390, 234 N.W.2d 583, 585 (1975); McGary v. State, 421 N.E.2d 747, 751 (Ind.App.1981); and Tutt v. State, 128 Ga.App. 636, 197 S.E.2d 432, 433 (1973) (Eberhardt, J., concurring). But see Schwarzbach v. Dunn, 252 Pa.Super. 454, 381 A.2d 1295 (1977).