APPELLATE COURT OPINIONS

In September of 2009, Judy Dotson McConnell and Jerry Dotson (“Plaintiffs”) sued Pat Fuller, John Fuller, and Lela Dotson Gravett (“Defendants”) alleging, in relevant part, that the Last Will and Testament of Clarence E. Dotson, which was offered for probate in May of 2003, was a fraudulent will. Defendants filed a motion to dismiss for failure to state a claim upon which relief may be granted alleging that the statute of limitations barred Plaintiffs’ claim. After a hearing, the Trial Court entered its order on February 16, 2010 finding and holding, inter alia, that Plaintiffs’ lawsuit was not filed within the statute of limitations and that Plaintiffs failed to “allege facts which would bring into play fraudulent concealment,” which would have tolled the statute of limitations. The Trial Court dismissed Plaintiffs’ suit. Plaintiffs appeal to this Court. We affirm.

In this divorce case the Trial Judge granted the parties a divorce, divided the marital property, and ordered transitional alimony to the wife until the husband pays the wife an amount ordered by the Court to render the property settlement equitable. The parties have appealed, and we modify the Judgment because the Trial Court inadvertently included an amount in the property division which he had found to be the separate property of the husband. We adjust the property division along the lines intended by the Trial Judge and set a definite time for the transitional alimony to comply with the statute.

Inmate brought petition for writ of certiorari challenging his conviction of the prison disciplinary offense of conspiracy to violate state law. The trial court granted judgment on the record to the Tennessee Department of Correction (“TDOC”). We have concluded that TDOC failed to follow the Uniform Disciplinary Procedures, but that this departure did not affect the disposition of the case. We therefore affirm the chancellor’s decision.

A woman who failed to have her paternity determined while her putative father was living filed a complaint seeking to establish her right to inherit a part of his estate. Tennessee Code Annotated §31-2-105 requires paternity to be established by clear and convincing evidence if paternity is sought to be established after the putative father’s death. Prior to the trial, the woman moved the chancery court to order the deceased’s family to provide her with DNA samples in an effort to prove the deceased was her father. The trial court denied this motion, finding the rules of civil procedure do not require nonparties to provide DNA samples. Following a bench trial, the court concluded the woman failed to prove by clear and convincing evidence that the deceased was her father. The woman appealed. We affirm the trial court in all respects because, first, nothing in the Rules of Civil Procedure requires the deceased’s family members to provide DNA samples to assist the woman in proving she was the deceased’s daughter. Second, the positive and negative evidence rule does not apply to the testimony in this case because there was no conflicting testimony by eyewitnesses to the woman’s conception. Third, the missing evidence and missing witness rule applies to jury trials, whereas this trial was a bench trial, and there was no evidence that the purportedly missing evidence or missing witnesses were under the estate’s control.

Former cohabitant brought this partition action with respect to real and personal property. On appeal, the defendant argues that the trial court erred in dividing the real property and a mobile home, in finding the motor vehicles to be jointly-owned property, and in dividing the proceeds of a savings account equally between the parties. We have concluded that the trial court erred in dividing the savings account, which is titled in the defendant’s name alone. In all other respects, we affirm the decision of the trial court.

In this divorce action, Wife appeals the trial court’s denial of: (1) an oral motion for a continuance supported by her doctor’s affidavit; and (2) a motion to add, as necessary parties, two mortgagees of real estate alleged to be marital property. Discerning no error, we affirm.

This appeal involves an award of sanctions. We reverse because the moving party did not comply with the safe harbor provision of Rule 11.03 of the Tennessee Rules of Civil Procedure.

Mother appeals action of the trial court in adding a “paramour provision” to an order approving parenting plan for minor child. We modify the judgment and affirm in all other respects.

Louise Helen Hindman (“Wife”) and Tommy K. Hindman (“Husband”) were divorced in August of 1997, at which time the trial court approved a marital dissolution agreement (“the MDA”) submitted by the parties. Relevant to the instant case, the MDA addressed future medical and educational expenses for the parties’ minor child (“Son”). After Wife refused to reimburse Husband in compliance with the pertinent provisions of the MDA, he filed a petition seeking to have her held in contempt. The trial court ultimately ordered Wife to pay $43,678. We affirm.

This is the second appeal of this wrongful death action, arising from a pedestrian versus motor vehicle collision that fatally injured a seven-year-old child at a downtown Clinton intersection. The action was filed pursuant to the Tennessee Governmental Tort Liability Act (“GTLA”), Tenn. Code Ann. § 29-20-101 et seq., against the City of Clinton (“the City”) by plaintiffs Curtis Robin Russell (“Mr. Russell”) and Dorothy Louise Russell (“Mrs. Russell”) (collectively “the Russells”) as next of kin of the decedent, their son Curtis Tyler Russell (“Curtis”). The Russells settled with the driver of the vehicle, Ladislav Misek (“Mr. Misek”), who was subsequently dismissed as a party-defendant from the lawsuit. The trial court in the first trial entered judgment after a nonjury trial, apportioning equivalent liability to Mrs. Russell and the City. On appeal, this court held that: (1) the trial court committed reversible error when it failed to rule on the fault to be attributed to Mr. Misek; and (2) material evidence existed for the culpability and fault to be assigned to Mr. Misek. On remand, the trial court altered its judgment, attributing 45% of the fault each to Mrs. Russell and the City and 10% to Mr. Misek. The City appealed. We affirm.

Sheriff filed a petition for judicial review regarding a decision of the Peace Officer Standards and Training Commission (POST) denying the sheriff’s request for certification. The sheriff argued that his basic recruit training in 1976, when he was a sheriff’s deputy, was equivalent to the Tennessee Law Enforcement Training Academy recruit training required by POST. The chancellor ordered POST to issue a certificate of compliance to the sheriff. Finding no error in POST’s decision, we reverse the chancellor’s decision.

Appellant contends that he is a beneficiary of a trust created by his parents and thus entitled to distributions of principal and income. In a declaratory judgment action, the trial court determined that Appellant was not entitled to mandatory distributions of income or principal until both of his parents were deceased. We affirm this portion of the trial court’s judgment. The trial court also determined that no corporate trustee was required. We reverse this portion of the trial court’s judgment and remand for the appointment of a corporate trustee.

The Bureau of TennCare filed a claim against a decedent’s estate to recover the cost of medical assistance provided to the decedent. The Estate filed an exception to the claim. The probate court sustained the claim, and the Estate appealed the probate court’s ruling to the circuit court which heard the matter de novo. The circuit court reversed the probate court and disallowed the claim of TennCare. TennCare appeals; we hold that the circuit court was without subject matter jurisdiction to review the probate court’s order. We vacate the judgment of the circuit court and remand the case.

This is a divorce case. One minor child was born of the marriage. After the parties filed for divorce, the wife relocated out of state with the parties’ child without obtaining court permission to do so. The husband filed a petition to hold the wife in contempt for relocating out of state with the child. The trial court declined to hold the wife in contempt, designated the wife as the primary residential parent, and ordered the husband to pay child support. In dividing the marital property, the husband was ordered to pay the statutory penalty for early withdrawal of the monies in his retirement savings account. The wife was awarded rehabilitative alimony and attorney fees as alimony in solido. The husband now appeals the relocation decision, the designation of primary residential parent, the assessment of the retirement account penalty, and the award of attorney fees. We  affirm.

Advanced Photographic Solutions, LLC (“Advanced”) sued National Studios, Inc. a/k/a NSI Closeout, Inc. (“National”) and Harold C. Lewis (“Lewis”) alleging that National owed on an account that was in default. After a jury trial, the trial court entered its Final Judgment on the jury’s verdict finding, inter alia, that Advanced had a contract with National, that National had breached the contract, that Lewis had a contract with Advanced providing his personal guaranty to pay National’s debt, and that Lewis had breached his contract of personal guaranty. The Final Judgment awarded Advanced judgment against National and Lewis jointly and severally in the amount of $400,526.70, and judgment against Lewis solely in the amount of $54,806.00 as attorney’s fees. National and Lewis appeal to this Court. The issues raised on appeal concern whether there was material evidence to support the jury’s verdict. We find that the record contains material evidence to support the jury’s verdict, and we affirm the trial court’s Final Judgment.

Inmate of the Tennessee Department of Corrections appeals the trial court’s grant of summary judgment to the Department in inmate’s declaratory judgment action. Finding no error, we affirm.

This appeal arises out of the dissolution of a partnership. After several days of trial, the parties reached a settlement agreement. After the partnership property was sold pursuant to the settlement agreement and the proceeds were to be disbursed, one of the defendants claimed that he was entitled to more money than the settlement agreement provided for him to receive. The trial judge denied the request for additional funds. We affirm and remand for the trial court to determine a reasonable and appropriate attorney’s fee.

This is a termination of parental rights case concerning a minor child Navaeh L. (“the Child”), who is the daughter of Elizabeth L. (“Mother”) and William T.(“Father”). Separate petitions to terminate the parents’ rights were filed by Nicole Q., the Child’s maternal aunt, and her husband, Bryan (collectively, “Aunt and Uncle”), after the Child was adjudicated dependent and neglected, pursuant to Mother’s stipulation. Following this finding, the Child was placed in the custody of Aunt and Uncle. Father’s paternity of the Child was not established until after the adjudicatory hearing, but before the petition to terminate was filed. Mother and Father, represented by separate counsel, each opposed the termination of their rights. Following a bench trial, the court granted both petitions upon finding, by clear and convincing evidence, that each of the alleged grounds was established and that termination was in the best interest of the Child. As to Father, the trial court relied upon the grounds of abandonment by failure to support and failure to visit and the persistence of unremedied conditions. Father appeals. ¹ We affirm.

In this divorce case, the trial court granted Roger Dale Raper (“Husband”) and Johanna Raper (“Wife”) an absolute divorce, thereby ending their 26-year union. A bench trial was held to resolve the remaining issues of property division and alimony. The court divided the marital property and awarded Wife alimony in solido and alimony in futuro. Husband appeals and challenges each of these determinations. We affirm.

Plaintiff, a guest passenger in a vehicle involved in an accident, filed this action to recover uninsured motorist benefits. The vehicle in which Plaintiff was riding was owned and operated by an insured of Shelter Insurance Company. The accident was the fault of the driver of another vehicle who was not insured; therefore, Plaintiff seeks to recover uninsured motorist coverage benefits from Shelter. Insisting that Plaintiff was not entitled to benefits under the driver’s policy because Plaintiff did not meet the definition of an “insured” in the policy, Shelter moved for summary judgment. The trial court found that Plaintiff was an “insured” under the terms of the Shelter policy and denied the motion. This interlocutory appeal followed. We have determined that Plaintiff is not an “insured” pursuant to the terms of the Shelter policy and that Shelter is entitled to summary judgment as a matter of law. Therefore, we reverse and remand with instructions to grant Shelter’s motion for summary judgment.

The trial court awarded a directed verdict to the Defendant in this tort action arising out of an automobile accident. We reverse and remand for further proceedings.

This is a zoning case. The homeowner purchased a house in an area zoned as single-family residential and applied to have the property rezoned for office use. The application was considered by the town legislative body. Some members of the legislative body recused themselves. A majority of the members present voted in favor of the rezoning application, but it did not receive a majority of the entire membership of the legislative body, including the members who recused themselves. Pursuant to T.C.A. § 13-7-204, the rezoning application was deemed to have failed. The homeowner then filed a petition for a common law writ of certiorari, asking that the trial court deem the rezoning application approved based on the favorable vote of the majority of  the members who participated in the consideration of his rezoning application. The trial court  granted the writ, deemed the rezoning application approved, and modified the legislative body’s  decision to grant the homeowner’s application. The town appeals. We reverse, finding, inter alia,  that an affirmative vote by a majority of the entire membership of the town legislative body was required for adoption of the rezoning application.

State representative appeals dismissal of her suit to recover attorney fees incurred as a result of her former opponent’s contest of the election. The trial court held that the Tennessee Constitution and statutes governing election contests vest exclusive jurisdiction to decide contests for the office of state representative, and that, consequently, the court was without jurisdiction to determine the issue of costs and fees awardable under the statute. We hold that the chancery court correctly determined that it was without jurisdiction to decide issues arising under § 2-17-115.

Plaintiffs appeal the summary dismissal of their medical malpractice claims against three physicians, an orthopedic surgeon, and two hematologists. In December 2004, Plaintiffs’ mother, who suffered from several medical conditions, underwent a total hip replacement and remained in the hospital under the care of several doctors for ten days. Nine days after surgery, her condition dramatically declined; she died the following day from a severe diffuse pulmonary and gastrointestinal hemorrhage. Plaintiffs filed suit alleging the physicians breached the standard of care for their respective specialties in the care of their mother. Each defendant filed a motion for summary judgment and each motion was supported by the affidavit of the defendant as an expert witness. Plaintiffs submitted an affidavit of their expert witness in response. The trial court ruled that Plaintiffs’ only expert was not a qualified witness under Tenn. Code Ann. § 29-26-115 and granted summary judgment to all three defendants. On appeal, Plaintiffs claim the trial court abused its discretion in finding that their expert witness was not qualified to testify. We affirm the trial court’s ruling that Plaintiffs’ expert was not qualified to testify under Tenn. Code Ann. § 29-26-115 and the summary dismissal of Plaintiffs’ claims.