Supreme Court Opinions

Format: 10/23/2014
Format: 10/23/2014
Donna Faye Shipley, et al. v. Robin Williams - Concurring
M2007-01217-SC-R11-CV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Judge Barbara N. Haynes

I concur in the majority opinion but write separately to address the dissenting opinion’s assertion that the “sky is falling.” The majority opinion has not substantially altered “the standard of review of summary judgments based on the inadmissibility of evidence relating to an essential element of the nonmoving party’s case.” Despite Justice Koch’s statements to the contrary, after the release of this opinion, appellate courts will continue to review evidentiary determinations using an abuse of discretion standard. Stating otherwise does not advance this discussion.

Davidson County Supreme Court 08/11/11
Donna Faye Shipley, et al. v. Robin Williams - Concurring/Dissenting
M2007-01217-SC-R11-CV
Authoring Judge: Justice William C. Koch, Jr.
Trial Court Judge: Judge Barbara N. Haynes

We originally granted the application for permission to appeal in this case to address a question regarding summary judgments in medical malpractice cases that was left unanswered in Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008). That question is whether a defendant in a medical malpractice case who does not present evidence that his or her conduct complied with the applicable standard of care is entitled to a summary judgment when he or she demonstrates that the expert witness or witnesses the plaintiff plans to present at trial do not satisfy the requirements of Tenn. Code Ann. § 29-26-115 (Supp. 2010).

Davidson County Supreme Court 08/11/11
Donna Faye Shipley, et al. v. Robin Williams
M2007-01217-SC-R11-CV
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge: Judge Barbara N. Haynes

In medical malpractice actions, Tennessee adheres to a locality rule for expert medical witnesses. Claimants are required by statute to prove by expert testimony the recognized standard of acceptable professional practice in the community where the defendant medical provider practices or a similar community. Tenn. Code Ann. § 29-26-115 (2000 & Supp. 2010). Since the locality rule was enacted in 1975, Tennessee courts have reached different conclusions in interpreting it. The rule does not define "similar community," nor does it provide guidance as to how a community is determined to be "similar" to the defendant’s community. In this case, we address and clarify the applicable standards that courts should use in determining whether a medical expert is qualified to testify as an expert witness in a medical malpractice case. Applying these standards, we hold that the trial court’s exclusion of the claimant’s two proffered medical experts under the locality rule was error. The trial court’s grant of summary judgment is affirmed in part and vacated in part.

Davidson County Supreme Court 08/11/11
Alicia D. Howell v. Nissan North America, Inc., et al.
M2009-02567-SC-WCM-WC
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge: Judge F. Lee Russell

The issue presented in this workers’ compensation case is whether the employee made a meaningful return to work. Upon being released by her physician to return to work, she resigned her employment after her employer told her that she would have to return to a production line job that, based on her work experience and personal knowledge of the work conditions and her physical abilities and limitations, she did not believe she could perform. The trial court awarded her additional benefits, ruling that she did not have a meaningful return to work and was eligible for reconsideration of her earlier settlement for workers’ compensation benefits pursuant to Tennessee Code Annotated section 50-6-241 (Supp. 2010). The Special Workers’ Compensation Appeals Panel reversed. We hold that the employee did not have a meaningful return to work following her injuries and that the evidence does not preponderate against the trialcourt’s award of increased permanent partial disability benefits. The judgment of the Appeals Panel is reversed, and the judgment of the trial court is reinstated.

Moore County Supreme Court 08/11/11
Knox County ex rel. Environmental Termite & Pest Control, Inc. v. Arrow Exterminators, Inc. et al.
E2007-02827-SC-R11-CV
Authoring Judge: Justice William C. Koch, Jr.
Trial Court Judge: Chancellor Daryl Fansler

This appeal involves a claim under Tennessee’s False Claims Act. A local vendor of termite control services became suspicious that two of its competitors had overbilled Knox County for termite control services provided to Knox County’s public schools. After confirming its suspicions by obtaining and reviewing public records and by hiring an attorney and private investigator, the vendor presented a detailed report of its findings to county officials who were unaware that the overbilling had occurred. When the County delayed taking remedial action, the vendor filed a qui tam suit authorized by Tenn. Code Ann. § 4-18-104(c) (2005) in the Chancery Court for Knox County. The County joined the vendor’s lawsuit and eventually settled with both of the companies named as defendants in the vendor’s lawsuit. When the qui tam plaintiff sought a share of the County’s settlement with one of the defendants, the County asserted that the qui tam plaintiff was not eligible to receive any of the settlement proceeds. The trial court heard the matter without a jury and held that the qui tam plaintiff was an “original source” for the purpose of Tenn. Code Ann. § 4-18-104(d)(3)(A) and, therefore, was entitled to receive 28% of the settlement proceeds or $71,546.46. The Court of Appeals affirmed the trial court’s conclusion that the qui tam plaintiff was entitled to recover 28% of the value of the settlement proceeds but remanded the case for the purpose of redetermining the value of the settlement proceeds. In re Knox Cnty., Tenn. ex rel. Envtl. Termite & Pest Control, Inc., No. E2007-02827-COA-R3-CV, 2009 WL 2144478 (Tenn. Ct. App. July 20, 2009). The County filed a Tenn. R. App. P. 11 application on the sole issue of whether the qui tam plaintiff is eligible to recover a portion of the settlement proceeds. We affirm the decisions of both the trial court and the Court of Appeals that the qui tam plaintiff is an “original source” and, therefore, is eligible to receive a portion of the proceeds from the County’s settlement with one of the vendors.

Knox County Supreme Court 07/20/11
Timmy Sykes et al. v. Chattanooga Housing Authority et al.
E2008-00525-SC-R11-CV
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge: Judge W. Jeffrey Hollingsworth

The plaintiffs, former employees of the Chattanooga Housing Authority (“CHA”), brought retaliatory discharge actions against the CHA and the Chief of the CHA Public Safety Department, pursuant to the Tennessee Public Protection Act, Tennessee Code Annotated section 50-1-304 (2008 & Supp. 2010), and the Tennessee Human Rights Act (“THRA”), Tennessee Code Annotated section 4-21-301 (2005). The trial court granted the defendants summary judgment on all claims. On appeal, the Court of Appeals vacated summary judgment on the THRA claim, finding genuine issues of material fact, and affirmed the trial court’s judgment in all other respects. We affirm the grant of summary judgment on the Tennessee Public Protection Act claims because the undisputed facts establish that the plaintiffs cannot prove the essential element of an exclusive causal relationship between the plaintiffs’ whistleblowing activity and their discharge, as required by the statute. We also affirm the Court of Appeals’ ruling vacating summary judgment in defendants’ favor on the THRA claims because there are genuine issues of disputed fact making summary judgment improper.

Hamilton County Supreme Court 06/24/11
James Crowley et al. v. Wendy Thomas
M2009-01336-SC-R11-CV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Judge Joseph P. Binkley, Jr.

The plaintiff obtained a judgment against the defendant in the general sessions court. The defendant appealed to the circuit court. In the circuit court, the plaintiff amended his complaint to add an additional plaintiff and an additional cause of action and to seek additional damages. Shortly before trial, the defendant filed a notice dismissing her appeal. The circuit court dismissed the appeal and affirmed the judgment of the general sessions court pursuant to Tennessee Code Annotated section 27-5-107 (2000). We hold that the circuit court properly dismissed the defendant’s appeal and affirmed the general sessions judgment. To preserve the plaintiff’s original cause of action after such dismissal, the plaintiff must perfect an appeal to the circuit court as prescribed by Tennessee Code Annotated section 27-5-108 (2000). We therefore affirm the judgment of the lower courts.

Davidson County Supreme Court 06/17/11
Rudolph Powers v. State of Tennessee
W2008-01346-SC-R11-PC
Authoring Judge: Justice Gary R. Wade
Trial Court Judge: Judge Lee V. Coffee

In separate trials, the petitioner was convicted of aggravated rape for an incident occurring in March of 1980 and of aggravated rape and robbery by use of a deadly weapon for an incident occurring in May of the same year. In 2007, the petitioner sought to have deoxyribonucleic acid (“DNA”) analysis performed on the remaining evidence pursuant to the Post-Conviction DNA Analysis Act of 2001, arguing that exculpatory results would create a reasonable probability that he would not have been prosecuted or convicted on either charge. The petitioner contended that he could conclusively establish his innocence if the DNA profile developed from the evidence was uploaded into a DNA database and matched another profile in the system. The post-conviction court denied relief. The Court of Criminal Appeals affirmed, holding that DNA analysis was limited to a comparison between the petitioner’s DNA and that collected as a part of the evidence in the case. We granted the petitioner’s application for permission to appeal to determine (1) whether the General Assembly intended to permit petitioners proceeding under the Act to use DNA database matches to satisfy their burden and (2) whether the Court of Criminal Appeals’ interpretation of the statute served to preclude the development of scientific evidence supportive of actual innocence. We hold that the Post-Conviction DNA Analysis Act permits access to a DNA database if a positive match between the crime scene DNA and a profile contained within the database would create a reasonable probability that a petitioner would not have been prosecuted or convicted if exculpatory results had been obtained or would have rendered a more favorable verdict or sentence if the results had been previously available. Because the criteria for ordering DNA analysis under the Act are established, the judgment of the Court of Criminal Appeals is reversed and the cause is remanded to the post-conviction court for entry of an order granting DNA analysis.

Shelby County Supreme Court 06/16/11
Evelyn Nye v. Bayer Cropscience, Inc., et al.
E2008-01596-SC-R11-CV
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge: Judge W. Neil Thomas, III

In this products liability case, a widow sought compensation for the death of her husband from mesothelioma allegedly caused by exposure to asbestos at his workplace. She sued the company that sold products containing asbestos to her husband’s employer. She based her claim on strict liability and alleged that the seller sold defective products and failed to warn her husband of the products’ health risks. The jury found that the seller was at fault, but that her husband’s employer was the sole cause of his injury and awarded her nothing. The widow appealed. The Court of Appeals reversed and remanded for a new trial based on erroneous jury instructions that more probably than not affected the judgment of the jury. On review, we hold that the seller was subject to suit in strict liability, pursuant to Tennessee Code Annotated section 29-28-106(b) (2000), because none of the products’ manufacturers were subject to service of process. Further, we hold that the trial court erred by instructing the jury that the seller could not be held liable for failure to warn if the jury found that the consumer, identified as the employer, was already aware of any danger in connection with the use of the products or if the employer had been given adequate warnings. This jury instruction was erroneous for two reasons. First, it applied the learned intermediary doctrine, which the courts of this state have limited to medical products and pharmaceuticals. Second, the jury instruction misidentified the consumer as the employer, when the consumer who was required to be warned was the employee, Mr. Nye. Because the error more probably than not affected the judgment of the jury, the judgment of the trial court is reversed and the cause is remanded for a new trial.

Hamilton County Supreme Court 06/07/11
Dalton Reb Hughes et al. v. the Metropolitan Government of Nashville and Davidson County, Tennessee et al.
M2008-02060-SC-R11-CV
Authoring Judge: Justice Gary R. Wade
Trial Court Judge: Judge Thomas W. Brothers

After being injured when he jumped out of the path of a front-end loader owned by a governmental entity and operated by its employee, the plaintiff filed suit, claiming that the employee either was negligent in his operation of the equipment or had acted intentionally and that the governmental entity was liable under the Governmental Tort Liability Act. The trial court entered judgment for the plaintiff against the governmental entity and the Court of Appeals affirmed. The governmental entity sought permission to appeal, arguing first that the employee had acted outside the scope of his employment and, secondly, that he had committed an assault against the plaintiff, either of which would preclude liability under the Act. Although we hold that the employee’s conduct fell within the scope of his employment, his operation of the equipment constituted the intentional tort of assault rather than negligence. The governmental entity cannot, therefore, be held liable under the Act absent proof of its negligent supervision. The judgment of the Court of Appeals is reversed as to the governmental entity, and the cause is remanded to the trial court for entry of judgment against the employee.

Davidson County Supreme Court 05/24/11
Wendell P. Baugh, III et al., v. Herman Novak et al.
M2008-02438-SC-R11-CV
Authoring Judge: Justice William C. Koch, Jr.
Trial Court Judge: Chancellor Timothy L. Easter

This appeal raises the issue of whether a contract for the sale of an interest in a corporation and related indemnity agreements are unenforceable because they are contrary to public policy. The sellers of the corporate interest filed suit against the purchasers in the Chancery Court for Williamson County seeking damages for the purchasers’ alleged breach of their indemnity agreement. The purchasers counterclaimed asserting, among other things, that the sellers had fraudulently induced them to purchase the interest in the corporation. Following a bench trial, the trial court awarded a $201,715.50 judgment to the sellers and dismissed the purchasers’ counterclaim. On appeal, the Court of Appeals, on its own motion, invalidated the stock purchase agreement and the related indemnity agreements on the ground that they were contrary to the public policy reflected in Tenn. Code Ann. § 48-16-208 (2002). Baugh v. Novak, No. M2008-02438-COA-R3-CV, 2009 WL 2474714 (Tenn. Ct. App. Aug. 13, 2009). We granted the sellers’ Tenn. R. App. P. 11 application for permission to appeal and now find that the Court of Appeals erred by finding that the agreements at issue in this case were contrary to public policy. We have also determined that the evidence fully supports the trial court’s decision to dismiss the purchasers’ counterclaim for fraudulent inducement.

Williamson County Supreme Court 05/20/11
Michael Angelo Coleman v. State of Tennessee
W2007-02767-SC-R11-PD
Authoring Judge: Justice William C. Koch, Jr.
Trial Court Judge: Judge W. Mark Ward

This appeal involves the role of expert testimony in proceedings to determine whether a prisoner who has been sentenced to death is intellectually disabled and thus barred from being executed under Tenn. Code Ann. § 39-13-203 (2010). An inmate facing execution filed a motion in the Criminal Court for Shelby County to re-open his post-conviction proceedings on the ground that he was intellectually disabled at the time he committed the crime for which he was convicted and on the ground that his trial counsel had been ineffective in investigating and presenting mitigating evidence. At the hearing, the prisoner presented expert testimony that his functional intelligence quotient (“I.Q.”) was actually lower than the raw test scores on his I.Q. tests and that he was mentally disabled for the purpose of Tenn. Code Ann. § 39-13-203(a). The State presented no contrary evidence. The trial court dismissed the prisoner’s motion to re-open his post-conviction petition after concluding that he had failed to prove that he was intellectually disabled and that he was procedurally barred from raising his ineffective assistance of counsel claim. The Court of Criminal Appeals affirmed the judgment of the trial court. Coleman v. State, No. W2007-02767-CCA-R3-PD, 2010 WL 118696 (Tenn. Crim. App. Jan. 13, 2010). We granted the prisoner’s Tenn. R. App. P. 11 application for permission to appeal. We find that Tenn. Code Ann. § 39-13-203(a)(1) does not require that raw scores on I.Q. tests be accepted at their face value and that the courts may consider competent expert testimony showing that a test score does not accurately reflect a person’s functional I.Q. or that the raw I.Q. test score is artificially inflated or deflated. We have also determined that both the post-conviction trial court and the Court of Criminal Appeals properly determined that the prisoner’s claim involving the ineffective assistance of his trial counsel in connection with the investigation and presentation of mitigation evidence is procedurally barred. 

Shelby County Supreme Court 04/11/11
David Lee Wright ex rel. Kaitlyn Lee Wright v. Anita J. Wright et al.
M2008-01181-SC-R11-CV
Authoring Judge: Chief Justice Cornelia A. Clark
Trial Court Judge: Judge John McAfee

We granted this appeal to determine the proper method for computing a reasonable attorney’s fee when the attorney represents a minor. In this case, after the attorney obtained a $425,000 settlement for a minor injured in an automobile accident, the trial court awarded the attorney $141,666.66, or one-third of the recovery, pursuant to the terms of the attorney’s contingent fee agreement with the minor’s father. The court-appointed guardian ad litem appealed the fee award, and the Court of Appeals reversed. Upon remand, the trial court conducted an evidentiary hearing and determined that $131,000 would be a reasonable attorney’s fee, and the Court of Appeals affirmed. Reviewing for an abuse of discretion, we hold that the trial court applied the correct legal standard by analyzing the ten factors set forth in Tennessee Supreme Court Rule 8, Rule of Professional Conduct 1.5(a). We further hold that the fee award was neither illogical, based on an erroneous assessment of the evidence, nor an injustice to the minor. We therefore affirm the judgment of the trial court.

Fentress County Supreme Court 03/29/11
Kristen Cox Morrison v. Paul Allen, et al.
M2007-01244-SC-R11-CV
Authoring Judge: Justice Gary R. Wade
Trial Court Judge: Chancellor Claudio Bonnyman

After the death of her husband, the plaintiff filed suit against their agents/financial planners based upon several theories of recovery in regard to the termination of a life insurance policy from one company and the acquisition of a replacement policy from a second company. After initially contesting the award of benefits, the second company, which was also named as a defendant in the suit, settled with the plaintiff. At the conclusion of the bench trial as to the liability of the agents, the plaintiff was awarded substantial damages as to each policy based upon various theories of recovery: the agents’ failure to procure a life insurance policy as directed, negligence, negligent misrepresentation, breach of fiduciary duty, and violation of the Tennessee Consumer Protection Act. The Court of Appeals affirmed in part, but held that the damages in contract relating to the failure to procure should be offset by the amount of the plaintiff’s pre-trial settlement with the second insurance company. Because of the nature of the issues presented, this Court granted permission to appeal. As to the policy for which benefits were denied by the second company, we hold that (1) a cause of action may arise for the failure of the agents to procure a policy not subject to contest; (2) the claim for failure to procure may be actionable, notwithstanding the policy holders’ admission that they did not read the insurance application; and (3) because the settlement by the second life insurance company was not specifically resolved based upon contract, the agents are not entitled to a credit against damages caused by their failure to procure. As to the policy terminated by the plaintiff, we hold that the evidence preponderates against any award of damages based upon negligence, negligent misrepresentation, breach of fiduciary duty, or violations of the Tennessee Consumer Protection Act. Finally, we hold that the ad damnum clause in the complaint provided the agents with sufficient notice to support a damage award in the amount of $1,000,000 plus pre-judgment interest. The judgment of the Court of Appeals is affirmed in part and reversed in part, and the cause is remanded to the trial court for determination of post-judgment interest.

Davidson County Supreme Court 02/16/11
Kristen Cox Morrison v. Paul Allen, et al. - Dissent
M2007-01244-SC-R11-CV
Authoring Judge: Chief Justice Cornelia A. Clark
Trial Court Judge: Chancellor Claudia Bonnyman
Davidson County Supreme Court 02/16/11
Kristen Cox Morrison v. Paul Allen, et al. - Dissent
M2007-01244-SC-R11-CV
Authoring Judge: Justice William C. Koch, Jr.
Trial Court Judge: Chancellor Claudio Bonnyman
Davidson County Supreme Court 02/16/11
Estate of Martha S. French v. Stratford House et al.
E2008-00539-SC-R11-CV
Authoring Judge: Justice Gary R. Wade
Trial Court Judge: Judge L. Marie Williams

The administratrix of the estate of the deceased brought this wrongful death suit against the defendant nursing home and its controlling entities, alleging damages as the result of ordinary negligence, negligence per se, and violations of the Tennessee Adult Protection Act. The trial court granted the defendants’ motion for partial summary judgment, holding that the Tennessee Medical Malpractice Act applied to the ordinary negligence claims, thereby precluding allegations of negligence per se or violations of the Tennessee Adult Protection Act. The trial court also dismissed a claim for punitive damages. The Court of Appeals affirmed, but vacated the portion of the order dismissing the punitive damages claim. This Court granted the administratix’s application for permission to appeal in an effort to clarify the standards governing nursing home liability and to resolve a conflict in the decisions rendered by the Court of Appeals. We hold that, because the administratrix of the estate of the deceased has alleged violations of the standard of care pertaining to both medical treatment and routine care, she has made claims based upon both medical malpractice and ordinary negligence. Further, she may offer proof of negligence per se and violations of the Tennessee Adult Protection Act as support for her ordinary negligence claims. We affirm the Court of Appeals’ reinstatement of the punitive damages claim. The judgment of the Court of Appeals is, therefore, affirmed in part and reversed in part. The cause is remanded to the trial court.

Hamilton County Supreme Court 01/26/11
Bob Fannon v. City of LaFollette et al. - Concurring
E2008-01616-SC-R11-C
Authoring Judge: Justice William C. Koch, Jr.
Trial Court Judge: Judge John D. McAfee

I concur with the Court’s conclusion that Mr. Fannon has standing under Tenn. Code Ann. § 8-44-106(a) (2002) to seek judicial relief from his colleagues’ violation of the Sunshine Law [Tenn. Code Ann. §§ 8-44-101 to -111 (2002 & Supp. 2010)]. I also agree that Mr. Fannon was the prevailing party in the proceedings below and that he was entitled to recover discretionary fees under Tenn. R. Civ. P. 54.04(2) but not attorney’s fees. I am constrained to prepare this separate opinion because, unlike the Court, I have concluded that Mr. Fannon’s status as a public official provides an independently sufficient basis to confer standing on him to challenge the conduct of his fellow members of the LaFollette City Council.

Campbell County Supreme Court 12/21/10
Bob Fannon, Individually and as a City Councilman for the City of LaFollette v. City of LaFollotte, et al.
E2008-01616-SC-R11-CV
Authoring Judge: Justice Gary R. Wade
Trial Court Judge: Judge John D. McAfee

An elected council member of the City of LaFollette filed a declaratory judgment action alleging that three other members of the council had violated the terms of the Open Meetings Act in the process of adopting a resolution to increase the pay of various city employees. The trial court, after a hearing, granted a temporary restraining order, restricting implementation of the pay raises until the City complied with the procedural requirements of the City Charter. The order did not address the Open Meetings Act allegations. At a subsequent meeting, the Council, apparently in accordance with the requisite guidelines, approved the pay raises. After the Plaintiff filed a motion for summary judgment and then a motion seeking attorney’s fees and costs, the trial court dismissed the Open Meetings Act claim as moot, but awarded fees and costs to the council member who had initiated the suit. The order did not address a challenge by the City to the council member’s standing to sue. On direct appeal by the City, the Court of Appeals confirmed that the council member had standing as a taxpayer, rather than in his official capacity, but reversed the award of attorney’s fees and costs. Because the litigation involves issues of public interest, this Court granted an application for permission to appeal. We hold that the council member had no standing to sue as a council member or a taxpayer, but that he did have standing based upon his allegations of an Open Meetings Act violation. As the prevailing party, he is entitled to an award of discretionary costs, but not attorney’s fees. The judgment is, therefore, affirmed in part and reversed in part, and the cause is remanded to the trial court for further proceedings consistent with this opinion.

Campbell County Supreme Court 12/21/10
Michael Sanford v. Waugh & Company, Inc. et al.
M2007-02528-SC-R11-CV
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge: Chancellor Ellen Hobbs Lyle

The primary issue presented in this appeal is whether an individual creditor of an insolvent corporation may bring a direct cause of action for breach of fiduciary duty against the corporate directors and officers. We hold that a creditor of an insolvent corporation may not bring a direct claim, only a derivative claim, against officers and directors for breach of the fiduciary duties they owe to the corporation. We adopt the reasoning of the Delaware Supreme Court in North American Catholic Educational Programming Foundation, Inc. v. Gheewalla, 930 A.2d 92 (Del. 2007), observing that corporate creditors are adequately protected by existing law, and that recognizing a new direct cause of action is unnecessary and would impede corporate governance. We further hold that the trial court properly excluded evidence of conspiracy to interfere with contract and dismissed the claim for punitive damages. The judgment of the Court of Appeals is reversed.

Davidson County Supreme Court 12/17/10
CAO Holdings, Inc. v. Charles A. Trost, Commissioner of Revenue
M2008-01679-SC-R11-CV
Authoring Judge: Justice William C. Koch, Jr.
Trial Court Judge: Chancellor Carol L. McCoy

This appeal involves a corporation’s liability for the payment of use tax following its purchase of a business jet. After it received an assessment from the Tennessee Department of Revenue for over $700,000, the corporation paid the tax and filed suit in the Chancery Court for Davidson County seeking a refund on the ground that it qualified for the sale for resale exemption under Tenn. Code Ann. § 67-6-102(a) (28)(A) (Supp. 2004) because it had leased the aircraft to another corporation. Both the corporation and the Department filed motions for summary judgment. The trial court granted the corporation’s motion for summary judgment, and the Department appealed. A divided Court of Appeals panel affirmed the trial court. CAO Holdings, Inc. v. Chumley, No. M2008-01679-COA-R3-CV, 2009 WL 1492230 (Tenn. Ct. App. May 27, 2009). We granted the Department’s application for permission to appeal. We have now determined that neither party is entitled to a summary judgment because material disputes exist regarding the factual inferences or conclusions that can be drawn from the facts.

Davidson County Supreme Court 12/15/10
Debra M. Barkes, et al. v. River Park Hospital, Inc.
M2006-01214-SC-R11-CV
Authoring Judge: Justice Sharon G. Lee
Trial Court Judge: Judge Larry B. Stanley, Jr.

River Park Hospital has filed a Tenn. R. App. P. 39 petition for rehearing requesting this Court to reconsider its opinion filed on October 20, 2010. We have carefully reviewed the entire record and appellate briefs, from all of which we conclude that our opinion addressed and considered all issues raised by River Park in its appeal. Accordingly, the petition for rehearing is respectfully denied and the costs of this petition are taxed to River Park Hospital, Inc., d/b/a River Park Hospital, for which execution may issue if necessary.

Warren County Supreme Court 11/30/10
Lou Ella Sherrill, et al. v. Bob T. Souder, M.D., et al.
W2008-00741-SC-R11-CV
Authoring Judge: Justice Gary R. Wade
Trial Court Judge: Judge Donald H. Allen

This litigation involves a claim of medical malpractice against the two defendants, a physician and the corporation operating his clinical practice, alleging negligence in the prescription of a drug. The trial court granted the defendants' motion for summary judgment on grounds that the suit was barred by the one-year statute of limitations. The Court of Appeals affirmed. The question before the Court is the propriety of summary judgment on statute of limitations grounds. Although the trial court properly concluded that the cause of action accrued more than a year before the suit was filed, there is a genuine issue of material fact regarding whether the plaintiff was of unsound mind on the date the cause of action accrued, thus tolling the limitations period. Because the suit was not time-barred as a matter of law, the grant of summary judgment must be reversed. The cause is remanded to the trial court for proceedings consistent with this opinion.

Madison County Supreme Court 10/28/10
Joseph Davis, et al. v. Patrick J. McGuigan, et al.
M2007-02242-SC-R11-CV
Authoring Judge: Justice Janice M. Holder
Trial Court Judge: Judge Hamilton V. Gayden, Jr.

This appeal arises from a trial court's grant of summary judgment in an action against a real estate appraiser for fraudulent misrepresentation and for violation of the Tennessee Consumer Protection Act. A husband and wife alleged that the appraiser, who was hired by the bank financing the husband and wife's home construction, recklessly overestimated the value of their proposed construction and that they reasonably relied on the appraisal value to their detriment. The Court of Appeals affirmed the trial court's ruling, holding that an appraisal is an opinion that cannot form the basis for a fraudulent misrepresentation claim. We hold that an opinion can form the basis of a fraudulent misrepresentation claim. We further hold that genuine issues of material fact preclude summary judgment as to the husband and wife's claims against the appraiser. We reverse the Court of Appeals and remand the case to the trial court for further proceedings consistent with this opinion.

Davidson County Supreme Court 10/26/10