IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE January 6, 2016 Session KATHRYN E. MITCHELL, ET AL. v. CHARLES WESLEY MORRIS, ET AL.

Appeal from the Circuit Court for Washington County No. 32184 Hon. Jean A. Stanley, Judge

No. E2015-01353-COA-R3-CV-FILED-MARCH 9, 2016

D. MICHAEL SWINEY, C.J., concurring.

I concur fully in the majority’s decision in this case. I write separately only to express my opinion that the appropriate summary judgment standard to be applied by Tennessee courts now is as set forth in Rye v. Women’s Care Center of Memphis, MPLLC, ___ S.W.3d ___, 2015 WL 6457768 (Tenn. 2015), rather than Tenn. Code Ann. § 20-16-101. I believe our Supreme Court intended for the retroactive application of Rye when it stated: “In civil cases, judicial decisions overruling prior cases generally are applied retrospectively.” Rye, ___ S.W.3d at ___n.9, 2015 WL 6457768 at *35 n.9.

While there may be very little, if any, difference between the summary judgment standard as set forth in Rye and as contained in Tenn. Code Ann. § 20-16-101, I believe Rye sets the standard and is controlling on the courts of this State.

____________________________________ D. MICHAEL SWINEY, CHIEF JUDGE