1 Ten n.R.Ct.Ap p. 10 states:

Th is Co urt, with the c onc urren ce of a ll judge s partic ipating in the cas e, may affirm, rev erse o r mo dify the act ions of t

he t ria l cou rt bymemorandu m opini on when a formal opi nion woul d h ave no p recedenti al value. when a case i s decided by memo randum opinion it shall be design ate d "MEMORANDUM OPIN IO N," sha ll not be published, and shall not be ci ted or relied on for any reason i n any un relat ed case. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE Februar y 14, 2 003 Session RICHARD HUMPHREY v. JEANETTA GAMMAGE, ET AL 

### . Appeal from the Chancery Court for Davidson County No. 01-2700-lll Ellen Hobbs Lyle, Judge

No. M2002-00507-COA-R3-CV - Filed May 14, 2003

This appeal arose after the trial cour t granted summary ju dgment for Jeanetta Gammage and D eborah Gamma ge against Richard Hu mph rey in his petit

ion to esta

blish pate rnity of Kare nda Raine s. Becau se the petitioner could not establish any issues of material facts as grounds to proceed with his petition, w e affir

m the judgment of the

trial cou rt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

L. C RAIG J OHNSON , S P . J., delivered the opinion of the court, in which P AT RICIA J. C OTT RELL , J. and W IL LI AM B. C AIN , J. joined

. Ro be rt L. W hi ta ke r, Na sh vi ll e, Te nn es se e, fo r t he ap pe ll an t, Ri ch ar d H um ph re y.
Gerald Wayne Davis , Nash ville, Tennessee, for the appellees, Jeanetta Gammage and Deborah Gammage.

MEMORAN DUM OP

INION 1 This is a paternity action filed by the petitioner, Richard Humphrey, see

king to establish the parent age of a deceased minor, Karend a Raines. This petiti on was fil ed as a resul t of th e peti tion er's dismissal as plaintiff in a wrongful death action where in he alleged that

he was the next-of-kin of the deceased minor. Karenda Raines was born to Karen Raines on February 4, 1987. She and her mother died as the result of an automobile accident on Dece mber 21, 1999. During most of

### -2-

Karend a's life the petitioner was incarcerated with the Te nnessee Department of Correction. The petitioner never m arried or att empte d to m arry Karend a's mother. He never provided any financ ial support during t he lifetime of the

child. No

visitation

priv ileges were ever esta blished a fter his releas e from prison. The bo dyof Kare nda Raine s was cre

mated, a nd a DNA Test to esta

blish parent age was never performed and is now impossible. The petitioner' s na me was listed as the father on her death certificate

. Mr. Humphre

y f iled suit under the w

rongfu l death sta

tuteas th e next-of-kin of Karenda Raines. In the complaint he alleg edthat he was the father of the deceased minor and, therefor e, was first in line to pursue legal action. Subsequently, he was on the losing end of a summary

judgment motion in Case No. 99-C-3626 in the Circuit Court for Davidson County, Te nnessee, b ecause he could not establish himself as the next-of-kin to the deceased child. As a result of the summary judgmen t, he filed thi s paternity action. The defendants in this cause filed a summary judgment motion, and on January 18, 2002, a hear ing was held in the Chancery Court for Davidson Co un ty, Tennessee. The Court dismissed plai ntiff' s petition because he could not establish any issues of material fact as a matter of law as grounds to proceed further on his petition. The plaintiff then filed this timely

appeal. Summary judgments are proper in civil cases that ca n be resolved on the b asis o f legal issues alone. Fruge v. Doe , 952 S.W.2d 408, 410 (Tenn. 1997) and Byrd v. Hall , 847 S.W.2d 208, 210 (Tenn. 199 3). The movi ng party has the burden of proving that its motion satisfies the require ments for summary

judgment under Tennessee Rules of Civil Procedure, Rule 56.03. When it is a prope

rly supporte d motion, the burden shif ts to the opp osing party

to set forth disputed material fa ct s w hi ch mu st be re so lv ed by the trier of fact . Once a

properl y su pported m

otion is put forth, the non-moving party must offer proof to establish the existence of the essential elements of the claim. The Court

must revie

w the evid

ence fi rst to dete rmine whe

ther a f actual d ispute exists. If it does exist, it must then determine whether the fact is material to a claim and whether or not the disputed fact creates a ge

nuine issue for the jury. Byrd , 847 S.W.2d 214. The Courtmust view the evidence in the light most favorable to thenon-moving party and draw all reas onable in

ferenc es in the non-moving party 's favor. Staples v. CBL. & Associates, Inc

. , 15 S.W.3rd 83 (Tenn. 2000). T.C.A. § 36-2-301 is the single cause of action to establish natural par entage in Tennessee when the matter is in dispute. The statute replaces all other prior s tatute s to establish contested parent age and exting

uishes all other pr

ior pres umptions of

parenta ge, whe ther by statute or by c ase law. See, T.C.A. § 36-2-304(c). Under the current statute, which allows a man to file a complaint to es tablish parentage, he can establish a r ebuttable presumption of paternity only under

certai n circumstances that are

found in th

e statute . Specifi c al ly, (1) the a lleged father and mothe

r must marry or attempt to marry be

fore or after the child's birth, or (2) he mu st rece

ive the child

into his homeand open

ly hold the ch

ild out as h

is natura l child whi le the ch il d i s u nd er th e a ge of ma jo ri ty, or (3) the results of a genetic test ar e positive for parentage as provide d in T.C.A. 24-7-112.

The petitione

r argu es that a

lthough h e canno t meet the

parenta ge pre sumpti on under

th e statute, he has created

genuineissues of disputed facts to establish parentage. Petitioner arg ues that

### -3-

he has a ttempted i n good faith to develop a relationship with Karenda Raines, but wa s prevented from doing so because of his lengthy in car cer ati on. In addition, he argues that he lived with and had
a sexual relationship

with the minor's mot

her during the time she be came pregnant. He also argues that Ms. Raines' family a

cknowledged

him as the minor'sfather and that t hey allowed h

is name to be placed on her death certificate. Although the previous list of facts ma y be disputed, none of th

ese claims are material to the issues and elements under the pre sent day pater nity statute.

The paternity s tatute cl early sets fort h the ele ments of th

e rebutt able pre sumpti ons of parenthood. After carefully reviewing the e vidence

as p resented by

the petiti oner in a

light most favora ble to him, the facts fail to make out a case under the pater nity statute. He and the dec e ased mother never ma rried or attempte d to ma rry bef

ore or at the time of or after the birth of the minor. The deceased minor was never taken into the pe titioner's home or held out by him to be his child. Fi na ll y, the dece ased mino r was c remated, a nd a genetic test was never per formed and is now impossible. There is no other evidence available to the pe titioner to prove h

is parentage under the paternity statute.

We find there is no evidence creati ng a material issue of fact as to the paternity of the deceased minor. Cons e quently, we find that the summary judg ment was appropriate under the circumst ances. We a ffirm th e decision of the trial court. The costs on appeal are taxed to the ap pe ll an t, Ri ch ar d H um ph re y.

___________________________________ L. CRAIG

JOHNSON, SPECIAL JUDGE