APPELLATE COURT OPINIONS

After receiving a routine hormone injection, the plaintiff patient experienced pain, facial swelling, numbness, and blindness. The plaintiff filed a complaint against the clinic, its employee physician, and the employer of the nurse who had administered the injection, alleging medical malpractice. The defendant clinic and physician filed a motion for summary judgment, and attached the expert affidavit of the defendant physician in which he stated that all of the defendants had treated the plaintiff in accordance with the relevant standard of care and according to their best medical judgment. After the physician’s deposition was taken, the plaintiff filed a motion for a determination by the trial court that his previously filed affidavit had been filed in bad faith, citing alleged inconsistencies with his deposition testimony and discovery admissions. The nurse’s employer filed a motion for summary judgment that relied upon the physician’s deposition testimony that the nurse had acted in accordance with the relevant standard of care and that the actions of the nurse had not caused the plaintiff’s injuries. A hearing was held at which the trial court denied the plaintiff’s motion to find that the physician’s affidavit had been made in bad faith, and the trial court allowed the plaintiff additional time in which to produce expert proof of causation. After the plaintiff was unable to obtain expert proof, the trial court ultimately granted the defendants’ motions for summary judgment. The plaintiff filed a timely notice of appeal. Finding no error, we affirm the judgment of the trial court.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Tennessee Supreme Court in accordance with Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court findings of fact and conclusions of law. Bobby Chris Couch was injured within the course and scope of his employment when he fell while unloading a truck. During the fall he caught his right leg between the truck and the loading dock. This resulted in a crushing injury to the right leg and a back sprain. Mr. Couch filed a complaint seeking to recover workers’ compensation benefits for permanent partial disability to his leg and back. The trial court awarded 5% partial disability to the lower extremity. However, the court found no permanent impairment to the back. The court’s final order required the employer to be responsible for future medical benefits for the leg and back injury. The employer has appealed only the award of future medical benefits for the back injury claiming that the trial court erred in making such an award when there was no expert medical proof of either permanent impairment or work limitations for the back injury. After review we affirm the trial’s court findings.

Knox County- The defendant, Jeffrey A. Sundahl, was charged with four counts of unlawfully and knowingly depriving the state of the realization of its lawful revenue by failing to remit sales tax revenue, a Class E felony; one count of unlawfully and knowingly delaying, hampering, impeding, obstructing, and thwarting the state in its collection of its lawful revenue by failing to register with the state under Tennessee Code Annotated section 67-6-601, a Class E felony; and one count of theft over $60,000, a Class B felony. The trial court dismissed all six charges on statute of limitations grounds. The state appeals the dismissals. We affirm the judgments of the trial court as to counts 1 through 5. We conclude, however, that the trial court wrongly applied a three-year statute of limitations to the theft count, count 6, and we reverse the judgment as to that count.

Appellant, who was the defendant in a previous criminal proceeding, filed a Writ of Mandamus seeking to obtain a refund of the bond he posted in the criminal case. The trial court dismissed the petition. Finding no error, we affirm.

The matters at issue pertain to the fee awarded a Co-Executor of an estate.  The Co-Executor appeals contending he was entitled to a contractual fee equal to five percent of the gross estate based on an oral agreement with the ninety-four year old widow of the testator who served as his co-executor. The Special Master and Chancellor made concurrent findings that the appellant had failed to properly administer the estate. They also found that his claimed excuse, that he was acting according to the wishes of his ninety-four year old Co-Executrix, did not relieve him of his affirmative fiduciary duties as a personal representative. The Chancellor awarded him a fee of $25,000 for his services as Co-Executor.  We have concluded he is entitled to no fee for his services.

This is a property case involving a restrictive covenant. The homeowners in a subdivision entered into a restrictive covenant agreement with the original developer of a tract of land directly across the highway from the residential subdivision. The restrictive covenant prohibits the use of the developer’s property for “billboards . . . not in place on December 1, 1995.” On December 1, 1995, three billboard structures existed on the burdened property. Years later, the defendant billboard company purchased easements in the three billboard sites and the existing billboard structures were removed. The defendant billboard company then erected three new billboard structures.  Subsequently, the plaintiff homeowner in the subdivision filed the instant lawsuit for injunctive and declaratory relief, alleging that the defendant billboard company’s placement of new billboard structures on the burdened property constituted a violation of the restrictive covenant. The parties filed cross-motions for summary judgment. The trial court granted summary judgment in favor of the defendant billboard company, and the plaintiff homeowner now appeals. We affirm, finding that the language of the restrictive covenant is unambiguous, and that it restricts only the use of the burdened property, limiting the use to the number of billboards on the property as of December 1, 1995.

This workers’ compensation appeal has been referred to the Special Workers’ Compensation Appeals Panel of the Supreme Court in accordance with Tennessee Code Annotated § 50-6-225(e)(3) for hearing and reporting of findings of fact and conclusions of law. The trial court found that the employee had suffered a work-related back injury and awarded the employee permanent partial disability benefits of 57.5% to the body as a whole. The employer appeals, contending that the employee’s back problems did not arise out of his employment. We affirm the trial court.

The Appellant, Shad Tankersly, was found guilty of violating his probation and ordered to serve his sentence in incarceration. On appeal, he challenges the trial court’s decision to revoke probation, asking this Court to determine whether a warrant is required to initiate a probation revocation proceeding and toll the time limitation within which to revoke probation. We hold that T.C.A. § 40- 35-311 plainly requires the issuance of a warrant to initiate a probation revocation proceeding, and, that in the absence of the issuance of a warrant during the probationary period, as is the case here, there is no tolling of the period. Therefore, we reverse and remand the judgment of the trial court.

The defendant was indicted for three counts of solicitation to commit first degree murder, committed while he was in prison for a previous, unrelated conviction. The defendant pled guilty to the three counts. As part of his plea agreement, he received three sentences of ten years each to be served concurrently. In a separate sentencing hearing, the trial court determined that the three concurrent sentences should be served consecutively to the sentence he was serving at the time the crimes were committed. The defendant appeals, arguing that he should have received concurrent sentences and that he was entitled to pre-trial jail credits for time served between the continuation of a parole hearing and his sentencing. We affirm the judgment of the trial court.

A commercial dealer in doors and associated hardware sued a former employee for breach of a non-compete agreement. The dealer asked the court to award it either injunctive relief or liquidated damages in the amount of $321,500. After a bench trial the trial court concluded that the non-compete agreement was unenforceable under the circumstances and dismissed the claim for liquidated damages. The court did, however, award the plaintiff nominal damages of $200 on its claim of unfair competition based on use of a proprietary form, as well as punitive damages of $3,000 on the same claim. The dealer appealed. We affirm the trial court.

Davidson County- Surgeon filed action against hospital and other related persons and entities seeking injunctive relief and monetary damages for the allegedly improper revocation of his hospital privileges and the false reporting of such to the State Medical Board and the National Practitioner Data Bank. The trial court granted Defendants partial summary judgment on all monetary claims asserted by surgeon pursuant to the Health Care Quality Improvement Act (HCQIA) and the Tennessee Peer Review Law. Having found that surgeon failed to show by a preponderance of the evidence that Defendants did not satisfy the four prong test for immunity provided under HCQIA, we affirm the decision of the trial court in all respects.

The chancery court granted a motion for summary judgment to the Plaintiff on the theory of adverse possession under the common law. The Court of Appeals reversed and dismissed based upon Tennessee Code Annotated section 28-2-110 (2000), holding that there was a failure on the part of the Plaintiff to pay real estate taxes on the land area at issue. We granted permission to appeal in order to determine whether the chancellor erred by failing to address a motion to amend before ruling on the motion for summary judgment and also to consider whether the statutory bar applies in these circumstances. Although the chancellor erred by failing to grant the motion to amend before entering judgment, the error was harmless because the statutory bar to an adverse possession claim does not apply to contiguous tracts where the area of dispute is not substantial and each of the owners have paid taxes on their respective properties.

The petitioner, Jamie Lou Haneline, appeals the Decatur County Circuit Court’s denial of his petition for post-conviction and error coram nobis relief. He contends that he is entitled to post-conviction relief because he received the ineffective assistance of counsel and that he is entitled to error coram nobis relief based upon newly discovered evidence. Upon review of the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

The defendant, Shannon Richard Hudson, was found guilty by a Hamilton County jury of three counts of aggravated sexual battery and one count of attempted aggravated sexual battery. The three counts of aggravated sexual battery were merged, and the defendant received an effective twenty-seven-year sentence in the Department of Correction. He was sentenced to twenty years for the aggravated sexual battery conviction and to seven years for the attempted aggravated sexual battery conviction, to be served consecutively for a total effective sentence of twenty-seven years. On appeal, he contends that: the evidence was insufficient to support the convictions; the trial court erred in allowing the jury to have access to the indictment during their deliberation; and the trial court should have merged all of his convictions. After careful review, we find no error and affirm the judgments of the trial court.

This case involves an ear clinic, a patient, and his physician. The patient did not have health insurance, but he was enrolled in a type of discount plan that contracts with healthcare providers to secure reduced rates on medical services for the plan’s members. The patient scheduled a treatment with the ear clinic, and he believed that the clinic and his physician participated in the discount plan. The patient underwent pre-surgery testing before learning that neither the clinic nor the physician accepted the discount plan. The patient refused to pay full price for the treatment, and it was never performed. However, the patient was billed for the pre-surgery testing. The patient filed suit against the clinic and his physician for breach of contract, but the trial court dismissed his complaint for failure to state a claim. The patient appealed to this Court, and we reversed. We also instructed the trial court to address the patient’s concerns that the court had not accommodated his hearing disability as required by the Americans with Disabilities Act. On remand, the Tennessee Supreme Court assigned a senior judge to preside over the case, and it appears that no oral proceedings took place thereafter. However, the patient attempted to join Shelby County, various county officials, and officers of the court as defendants, claiming that he had been damaged by the county and court’s failure to accommodate his disability. The patient also amended his complaint to add claims for medical malpractice and fraud against the clinic and his physician. The trial court denied the patient’s petition for joinder of the claims against the additional defendants. The court granted summary judgment to the clinic and physician on the breach of contract and medical malpractice claims, and the claim for fraud was dismissed for failure to state a cause of action. For the following reasons, we affirm.

The defendant, Raymond Lee Gibson, was convicted by a Hamilton County jury of one count of manufacturing methamphetamine. On appeal, he raises several evidentiary issues for our review and argues that the evidence is insufficient to support his conviction. After review of the record, we are not persuaded that the evidentiary issues merit relief, and we hold that the evidence at trial was sufficient to support the manufacturing conviction. The judgment of conviction is, therefore, affirmed.

I concur in the majority’s conclusion that the policy is not ambiguous and does not include excess coverage for injuries caused by uninsured motorists. I disagree, however, with the majority’s resolution of the estoppel claim because I do not agree that the requirements for summary judgment for the insurer on that claim were met. 

To properly support its motion, the moving party must either affirmatively negate an essential element of the non-moving party’s claim or conclusively establish an affirmative defense. If the moving party fails to negate a claimed basis for the suit, the non-moving party’s burden to produce evidence establishing the existence of a genuine issue for trial is not triggered and the motion for summary judgment must fail. If the moving party successfully negates a claimed basis for the action, the non-moving party may not simply rest upon the pleadings, but must offer proof to establish the existence of the essential elements of the claim.

Staples v. CBL & Associates, Inc., 15 S.W.3d 83, 88-89 (Tenn. 2000) (citations omitted). Thus, if, but only if, the moving party presents evidence sufficient to justify grant of the motion if the facts remain uncontested, the nonmoving party is required to come forward with some significant probative evidence which makes it necessary to resolve a factual dispute at trial. Where the moving party satisfactorily challenges the nonmoving party’s ability to prove an essential element of its claim, the nonmoving party has the burden of pointing out, rehabilitating, or providing new evidence to create a factual dispute as to that element. Staples, 15 S.W.3d at 88-89; Rains v. Bend of the
River, 124 S.W.3d 580, 587-88 (Tenn. Ct. App. 2003). 

A defendant moving for summary judgment must, in its filings supporting the motion, either affirmatively negate an essential element of the non-moving party’s claim or conclusively establish an affirmative defense. Blair v. West Town Mall, 130 S.W.2d 761, 767 (Tenn. 2004); Staples, 105 S.W.3d at 88-89. Only if the moving party presents evidence sufficient to justify grant of the motion if the facts remain uncontested is the nonmoving party required to come forward with some significant probative evidence which makes it necessary to resolve a factual dispute at trial. 

A defendant moving for summary judgment cannot rely solely on omissions in the plaintiff’s proof. McCarley v. West Quality Food Service, 960 S.W.2d 585, 588 (Tenn. 1998) (holding that the plaintiff’s inability to show whether his food poisoning was caused by defendant’s chicken or by food eaten at breakfast did not suffice to affirmatively negate the causation element of his negligence claim). Mere assertions that the non-moving party has produced no evidence do not suffice to entitle the moving party to summary judgment. Blair, 130 S.W.3d at 767-68; Staples, 15 S.W.3d at 88-89; Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998); McCarley, 960 S.W.2d at 588; Arnett v. Domino’s Pizza, 124 S.W.3d 529, 532 (Tenn. Ct. App. 2003). 

I cannot read the “New Policy Coverage Summary” as putting a reasonable person on notice that the “Optional Excess Protection” provision does not apply to the uninsured motorist coverage.  While the relationship between the excess protection coverage and the uninsured motorist coverage is made clear in the lengthy policy itself, specifically the Optional Excess Liability Coverage endorsement or form, nothing in Mr. Holt’s affidavit indicates he received that form or the entire policy before the accident. His affidavit refers only to the policy summary. Apparently, Encompass did not file an affidavit stating that it had provided the complete policy to Mr. Holt. 

In any event, I believe that Mr. Holt’s affidavit raises sufficient questions about misrepresentation by the agent as to his protection under the excess coverage provision and his reasonable reliance on those representations to preclude summary judgment. 

[A] representation of fact made to a party who relies thereon with the right to so rely may not be denied . . . if such denial would result in injury or damage to the relying party. Negligent silence . . . [or] conduct which . . . in fact mislead will work an estoppel notwithstanding there was no intention to do so. 

Cincinnati Ins. Co. v. Avery, 914 F.2d 255, 1990 WL 132245, at *5 (6th Cir. 1990) (citations omitted) (summarizing Tennessee law). 

Questions of reasonable reliance and misrepresentation are fact specific. I believe Mr. Holt has testified to sufficient facts to present a question for the fact finder. Encompass has not negated an essential element of the estoppel claim and, therefore, is not entitled to summary judgment.
 

Grandparents filed petition for contempt against Father for willfully denying Grandparents their court-ordered summer visitation and weekend visitation with grandchildren. Grandparents also requested a mental evaluation and counseling for both Father and the minor children. The trial court found Father in criminal contempt and ordered that the eldest child, B.H., undergo counseling. Father appeals arguing that the trial court erred in (1) holding him in criminal contempt of court and entering sanctions against him; and (2) ordering B.H. to undergo counseling. The judgment of the trial court is vacated in part, affirmed in part and remanded.

This case concerns a motor vehicle accident in which serious injuries were sustained. The insured believed that his insurance policy provided excess coverage if he were to be involved in an accident with an uninsured or underinsured motorist. In forming this belief, he relied upon statements by the insurance agent and the summary pages of his policy. Following the accident, the insurance company denied that the insured maintained excess protection under his uninsured or underinsured motorist coverage, citing an exclusionary endorsement in the policy. The insured alleged that the policy was ambiguous. The trial court granted the insurance company’s Motion For Summary Judgment, ruling that the policy was not ambiguous and that the insured’s affidavit was insufficient to create a genuine issue of material fact as to the representations made by the insurance agent. The judgment of the trial court is affirmed.

This is a retaliatory discharge case.  The plaintiff was an at-will employee of the defendant store.  While at work, the plaintiff witnessed a woman across the street from the store being physically assaulted by an unidentified man. The plaintiff employee took a baseball bat from under the work counter, left the work premises, and yelled and gestured at the assailant with the bat, causing him to leave the scene. The plaintiff then brought the woman back to the store, where the police were called.  Two days later, the defendant store terminated the plaintiff’s employment because he had left the work premises to aid the assault victim.  The plaintiff employee then sued the defendant, asserting that his termination violated Tennessee public policy. The defendant filed a motion to dismiss the complaint on its face, arguing that the termination did not violate a clearly established public policy of the State of Tennessee. The trial court denied the defendant’s motion to dismiss, determining that the complaint stated a valid claim for retaliatory discharge. The defendant was granted permission to file this interlocutory appeal by the trial court and by this Court.  We affirm, finding that the complaint states a claim for retaliatory discharge in violation of a clear public policy of the State of Tennessee.

In this case, we granted permission to appeal to determine whether a prisoner serving concurrent state and federal sentences in a federal correctional institution may attack his state convictions pursuant to a petition for writ of habeas corpus filed in this state. We hold that the petitioner, who is incarcerated in a federal correctional institution serving concurrent state and federal sentences, is not barred from challenging his state convictions by a state writ of habeas corpus. Because the petitioner has failed to attach the requisite documentation in support of his claim that his sentences are illegal, however, we affirm the summary dismissal of the petition but do so on different grounds than either the trial court or the Court of Criminal Appeals.

This is an appeal of a damage award. The plaintiff owned a house with a detached carport. A tenant in the house had agreed to “clean up” the house and lot; to do so, he rented on-site dumpsters from the defendant waste removal company. During the delivery of a dumpster, the defendant’s driver backed the delivery truck into one of the four columns supporting the carport structure. The carport partially collapsed. The plaintiff homeowner filed a lawsuit against the defendant waste removal company, alleging negligence and seeking damages. Prior to trial, liability was conceded; therefore, the primary issue at trial was the amount of damages. There was disputed testimony on the condition of the roof structure of the carport before the defendant’s driver hit it. After the trial, the trial court found that the carport did not have a “roof” at the time of the accident and determined that the cost of a new roof was $2,000. Deducting the cost of the “roof,” the trial court awarded damages in the amount of $20,000. The defendant waste removal company now appeals, arguing that the trial court erred in awarding damages or, in the alternative, in its calculation of damages. Finding that complete justice cannot be had by reason of a defect in the record, we remand the case for further proceedings in accordance with Tennessee Code Annotated § 27-3-128.

In this workers’ compensation case we granted the motion for review1 filed by the employee, Bonnie Turner (“Turner”), in order to evaluate the correctness of the trial court’s decision to award benefits to Turner against the Tennessee Department of Labor Second Injury Fund. The award was predicated upon the court’s determination that Turner had sustained a 60% permanent partial disability due to a work-related bilateral carpal tunnel injury and a resulting condition of hypertension. The trial court’s award in this case was made subsequent to that court’s decision to award Turner permanent total disability benefits against her employer as a result of a prior injury. We hold that an employee who is permanently and totally disabled as provided for in Tennessee Code Annotated section 50-6-207(4)(A)(i) is barred from receiving additional vocational disability benefits unless the employee can establish rehabilitation from the injury which caused the permanent and total disability. This principle applies even though the employee temporarily returns to work following the first injury and suffers a subsequent work-related injury close in time. Therefore, we reverse the trial court’s award against the Second Injury Fund.

The Defendant, Tevias Bledsoe, was charged with premeditated murder, murder in the perpetration of a felony, especially aggravated robbery, and unlawful possession of a handgun by a convicted felon, all in connection with the shooting death of Nathan Maroney. Apparently accepting the Defendant’s theory that the shooting was accidental, the jury acquitted him of all charges except felonious possession of a handgun. On direct appeal, the Defendant challenged for the first time the trial court’s jury instructions, claiming that the court should have charged the jury on the defense of duress. The Court of Criminal Appeals found that the trial court’s failure to instruct the jury on the defense of duress was plain error and granted the Defendant a new trial. The State sought, and we granted, permission to appeal. We hold that the Defendant is not entitled to a new trial on the basis of plain error. Accordingly, we reverse the judgment of the Court of Criminal Appeals and reinstate the judgment of the trial court.

A Madison County jury convicted the petitioner, Joseph W. Wilson, of three counts of aggravated rape and one count each of attempted second degree murder, especially aggravated robbery, especially aggravated burglary, conspiracy to commit aggravated burglary, and misdemeanor vandalism committed in 1999. He was sentenced to 71-years’ confinement. In 2005, he filed a post-conviction petition requesting DNA testing pursuant to the Post Conviction DNA Analysis Act of 2001. The court denied the petitioner's post-conviction petition, and on appeal he contends that the post-conviction court erred by denying his petition. After thoroughly reviewing the record and the applicable law, we conclude that there is no reversible error in the lower court’s judgment.