APPELLATE COURT OPINIONS

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.

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.

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.

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.

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.

Appellant challenges trial court’s rescission of a voluntary acknowledgment of paternity (“VAP”) and termination of child support. We reverse.

This is a will contest. The decedent was an 89-year-old woman with eight grown children. In May 2004, the decedent was diagnosed with senile dementia. Shortly thereafter, the trial court established a conservatorship for the decedent. On August 2, 2004, the decedent executed a will that divided her estate equally among her children. After the decedent died in 2005, the will was submitted for probate. One of the decedent’s sons contested the August 2004 will, asserting that the decedent lacked testamentary capacity when it was executed, and submitted for probate an earlier will whose terms favored him and disinherited three of the children. After a bench trial, the trial court found that the decedent had the mental capacity to execute the August 2, 2004 will and admitted it for probate. The will contestant now appeals, arguing that the trial court erred in placing the burden of proving testamentary capacity on him instead of placing it on the will’s proponent, and that the trial court also erred in finding that the decedent had testamentary capacity to execute the August 2, 2004 will. We affirm, finding that the issue turns primarily on the trial court’s assessment of the credibility of the witnesses and that the evidence preponderates in favor of the trial court’s finding that the decedent had testamentary capacity to execute the August 2, 2004 will.

The defendant, Charles E. Harrison, waived his right to a jury and proceeded with a bench trial. The trial court found the defendant guilty of theft of property over $1000 (Class D felony), Driving Under the Influence (D.U.I.) fourth offense (Class E felony), driving on a revoked license (Class A misdemeanor), and violation of the implied consent law (Class A misdemeanor). The trial court sentenced the defendant to an effective sentence of seven years and six months. The defendant received six years and six months as a Range II offender for the theft conviction; eleven months and twenty-nine days for the D.U.I. conviction; eleven months and twenty-nine days for the driving on a revoked license conviction; and five days for violation of the implied consent law. The misdemeanor sentences were imposed concurrently with each other but consecutively to the felony conviction. At the sentencing hearing, the D.U.I. fourth offense conviction was amended to D.U.I. third offense (Class A misdemeanor). The defendant challenges only the sufficiency of the evidence to support the theft conviction, contending that the State failed to prove the defendant intended to deprive the owner of his property. We conclude that sufficient evidence was presented to support the theft conviction beyond a reasonable doubt. We affirm the judgments of the trial court.

This appeal involves the termination of a police officer’s employment with the Memphis Police Department. The officer appealed his termination to the Civil Service Commission of the City of Memphis (“the Commission”). The Commission found that the City of Memphis (“the City”) had not shown that termination was reasonable, and it ordered that Officer Lindsey be reinstated with full back pay and benefits. The chancery court affirmed the Commission’s decision. For the following reasons, we reverse and uphold the City’s decision to terminate the officer.

The petitioner, Michael Hooper, appeals the trial court’s dismissal of his pro se petition for writ of
habeas corpus. Following our review, we affirm the judgment of the trial court dismissing the
petition.

Probation for the defendant, Greg Goff, was revoked after he tested positive for cocaine and admitted he had possessed and sold cocaine while on probation. In this appeal, the defendant contends that the trial court erred in revoking his probation and that his sentence is excessive in light of the circumstances surrounding his violation and past criminal history. After review, we conclude that the trial court did not abuse its discretion in revoking the defendant’s probation. Further, we conclude that our review is limited to whether the trial court abused its discretion in revoking the defendant’s probation and not the length of the sentence. We affirm the judgment of the trial court.

The trial court terminated the parental rights of E.S.J. (“Father”) with respect to his minor children, J.C.J. (DOB: April 30, 2003) and J.E.J. (DOB: May 4, 2002) (collectively “the children”), upon finding, by clear and convincing evidence, that grounds for termination existed and that termination was in the best interest of the children. The court awarded the maternal grandparents temporary custody of the children. Father appeals. We affirm.

The petitioner, Donald Clark, who was convicted of especially aggravated robbery, sought  postconviction relief from the Shelby County Criminal Court, which denied relief after an evidentiary hearing. On appeal, the petitioner presents several issues of the ineffective assistance of  counsel. We affirm the denial of post-conviction relief.

The Petitioner, Matthew Lee Rogers, appeals the judgment of the habeas court denying his petition for habeas corpus relief. After reviewing the record and applicable law, we note that this Petitioner was recently granted a new trial on direct appeal, and his grounds for habeas corpus relief are now moot. Thus, we find no error in the judgment of the habeas court and affirm the denial of the habeas corpus petition.

The Appellant, Roger A. Weaver, Jr., appeals the sentencing decision of the Lauderdale County
Circuit Court. Pursuant to the terms of plea agreements stemming from two separate cases, Weaver pled guilty to the crimes of reckless aggravated assault, felony reckless endangerment, and aggravated assault and received an effective sentence of nine years in confinement. On appeal, Weaver argues that the trial court erred in denying non-incarcerative sentences for each conviction. After review, the judgment of the trial court is affirmed.
 

Following a jury trial, Defendant, Dennis Jarrett, was convicted of driving after being declared a
habitual motor vehicle offender, a Class E felony, and violation of the open container law, a Class
C misdemeanor. The jury found Defendant not guilty of violation of the seatbelt law. Following
a sentencing hearing, the trial court sentenced Defendant as a Range III career offender to six years for his felony conviction. Defendant does not appeal the length of his sentence or the sufficiency of the evidence supporting his misdemeanor conviction. On appeal, Defendant argues that (1) the evidence was insufficient to support his felony conviction; (2) the trial court erred in not granting Defendant’s motion for a mistrial; and (3) the trial court erred in excluding Defendant from the courtroom during his trial. After a thorough review of the record, 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 the provisions of Tennessee Code Annotated section 50-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The Employee suffered an injury to his leg when his knee buckled while he walked across the floor of the Employer’s warehouse. The trial court dismissed his cause of action, finding that the injury was idiopathic and not compensable because the Employee had not proven any hazard incident to the employment that caused or exacerbated his injury. The Employee appealed. We find that the evidence does not preponderate against the finding of the trial court and affirm the decision of the trial court.

The Appellant, Roy Gene Russom, was convicted by a Henderson County jury of violating the Motor Vehicle Habitual Offender Act and was subsequently sentenced, as a Range II offender, to four years in the Department of Correction. On appeal, Russom raises the single issue of sufficiency of the evidence. Following review, the judgment of conviction is affirmed.

This appeal is before this Court after remand by order of the Tennessee Supreme Court. The Petitioner, Dwight K. Pritchard, appeals the summary dismissal of his petition for a writ of habeas corpus. The Petitioner contends that the guilty pleas he entered were not knowing and voluntary because the sentences imposed by the trial court were illegal. A recent decision of the Tennessee Supreme Court compels our conclusion that summary dismissal was proper. The judgment of the Davidson County Criminal Court summarily dismissing the petition is affirmed.

Inmate filed medical malpractice action against hospital for the allegedly negligent performance of his surgery and the failure to order appropriate post-operative treatment instructions. Hospital filed motion for summary judgment, alleging that it was an improper party to the suit because it was not a legal entity capable of being sued. The trial court granted the motion and inmate appeals. We affirm the decision of the trial court, finding that (1) hospital is not a legal entity capable of being sued; and (2) the trial court did not abuse its discretion by allowing hospital to reset its motion for summary judgment.

The Petitioner, Carl Anthony Watson, was convicted of rape, and the trial court sentenced him to ten years. This Court affirmed the conviction and sentence on appeal. The Petitioner subsequently filed a petition for post-conviction relief, which the post-conviction court dismissed after a hearing. On appeal, the Petitioner contends that he was denied the effective assistance of counsel at his original trial, and that the post-conviction court erred in failing to grant a continuance of the evidentiary hearing. We affirm the post-conviction court’s judgment.