Bessie Lee King v. Davidson (NMN) Taylor - Concurring ( 1995 )

IN THE COURT OF APPEALS OF TENNESSEE
WESTERN SECTION AT JACKSON
BESSIE LEE KING, ) FILED
)
Plaintiff/Appellee, October 17, 1995
) Shelby Circuit No. 56526 T.D.
)
VS. Cecil Crowson, Jr.
) Appeal No. 02A01-9504-CV-00091
) Appellate C ourt Clerk
DAVIDSON (NMN) TAYLOR, )
)
Defendant/Appellant. )
APPEAL FROM THE CIRCUIT COURT OF SHELBY COUNTY
AT MEMPHIS, TENNESSEE
THE HONORABLE D'ARMY BAILEY, JUDGE
COLEMAN GARRETT
Memphis, Tennessee
Attorney for Defendant/Appellant
ROBERT F. DONOHUE
W. MARK WARD
Memphis, Tennessee
Attorneys for Plaintiff/Appellee
AFFIRMED
ALAN E. HIGHERS, JUDGE
CONCUR:
DAVID R. FARMER, JUDGE
HEWITT P. TOMLIN, JR., SPECIAL JUDGE
This appeal arises out of a paternity action filed by the Plaintiff-Appellee, Bessie Lee
King, against the Defendant-Appellant, Davidson Taylor, to establish the paternity of King's
minor child, Davene. The action was originally filed in the Juvenile Court of Memphis and
Shelby County, but was transferred to Circuit Court after Mr. Taylor requested a jury trial.
Mr. Taylor, Ms. King, and Davene submitted to a blood test. The sworn blood test results,
which accompanied Appellee's motion for summary judgment, established that Mr. Taylor
had a 99.65% probability of being Davene's father. Relying on both the blood test and
T.C.A. § 24-7-112(b)(2) (Michie 1994), the trial court granted Ms. King's motion for
summary judgment. Mr. Taylor appeals the decision of the trial court.
When the present suit was originally filed, T.C.A. § 24-7-112 (b)(2) read as follows:
During any civil proceeding in which the question of parentage
arises, upon the motion of either party or on the court's own
motion, the court shall, at such time as it deems equitable,
order all necessary parties to submit to any tests and
comparisons which have been developed and adapted for
purposes of establishing or disproving parentage. Failure of
either party to make a motion for submission to such tests and
comparisons shall constitute a waiver and shall not be grounds
for a continuance. The results of such tests and comparisons,
including the statistical likelihood of the alleged parents's
parentage, if available, may be admitted into evidence as
provided in subsection (b).
In 1994, the Legislature deleted the existing code section and substituted the following
language:
(2)(A) In any proceeding where the paternity of an individual is
at issue, the written report of blood, genetic, or DNA test
results by the testing agent concerning the paternity is
admissible without the need for any foundation testimony or
other proof of the authenticity or accuracy of the test unless a
written objection is filed with the court and served upon all
parties thirty (30) days prior to the date of the hearing. For
purposes of this section, service shall be deemed made upon
the date of mailing.
(B) An individual is conclusively presumed to be the father of
a child if blood, genetic, or DNA tests show that the statistical
probability of paternity is 99% or greater. A rebuttable
presumption of the paternity of an individual is established by
blood, genetic, or DNA testing showing a statistical probability
of paternity of that individual at ninety-five (95%) or greater.
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(C) An affidavit documenting the chain of custody of any blood
specimen is admissible to establish such chain of custody.
T.C.A. § 24-7-112 (b)(2)(Michie 1994).
The current version of T.C.A. § 24-7-112(b)(2) became effective July 1, 1994.
Appellant argues that because this change in the statute effects substantive rather than
procedural rights, the statute cannot be applied retroactively. As our supreme court stated
in Kee v. Shelter Insurance, 852 S.W.2d 226, 228 (Tenn. 1993), legislation may be applied
retroactively in limited circumstances:
Generally statutes are presumed to operate prospectively and
not retroactively. Woods v. TRW, Inc., 557 S.W.2d 274, 275
(Tenn. 1977); Cates v. T.I.M.E. DC, Inc., 513 S.W.2d 508, 510
(Tenn. 1974). An exception exists, however, for statutes which
are remedial or procedural in nature. Such statutes apply
retrospectively, not only to causes of action arising before such
acts become law, but also to all suits pending when the
legislation takes effect, unless the legislature indicates a
contrary intention or immediate application would produce an
unjust result. Saylors v. Riggsbee, 544 S.W.2d 609, 610
(Tenn. 1976).
As the Appellee aptly states, the change imposed by the 1994 Amendment to T.C.A.
§ 24-7-112(b)(2) is procedural. The Tennessee Supreme Court has defined "procedure"
as:
[T]he mode or proceeding by which a legal right is enforced, as
distinguished from the law which gives or defines the right, and
which by means of proceeding, the court is to administer -- the
machinery, as distinguished from its product; . . . including
pleading, process, evidence, and practice . . ..Practice [is] the
form . . for the enforcement of rights or the redress of wrongs,
as distinguished from the substantive law which gives the right
or denounces the wrong . . .
Saylors v. Riggsbee, 544 S.W.2d 609, 610 (Tenn. 1976).
The current version of T.C.A. § 24-7-112(b) neither gives a right nor denounces a
wrong. A conclusive presumption of paternity, where the probability of paternity is 99%
or greater, simply expedites the resolution of paternity disputes. As such, the change in
the statute is procedural in nature.
Appellant contends that even if the amended version of T.C.A. § 24-7-112(b)(2)
applies to this case, application of the statute violates the Due Process Clause of the
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Fourteenth Amendment of the United States Constitution. It is well established that this
Court will not consider a constitutional question unless it is absolutely necessary for
determination of the case and the matter cannot be resolved on nonconstitutional grounds.
Hayes v. City of Pigeon Forge, 883 S.W.2d 619, 620 (Tenn. App. 1994) (citing Watts v.
Memphis Transit Management Co., 224 Tenn. 721, 727, 462 S.W.2d 495, 498 (1971)).
Moreover, both the Tennessee Rules of Civil Procedure and the Tennessee Rules of
Appellate Procedure require notice to the State Attorney General whenever the
constitutionality of any state statute is questioned and the state or an officer or agency is
not a party. See T.R.C.P. 24.04; T.R.A.P. 32. There is no evidence in the record of
compliance with that the above cited rules. We therefore decline to address Appellant's
argument that T.C.A. § 24-7-112(b)(2) is unconstitutional.
The final issue Appellant presents for this court's review is whether the trial court
erred in granting summary judgment in this matter. A trial court should grant a motion for
summary judgment when the movant demonstrates that there are no genuine issues of
material fact and that the moving party is entitled to a judgment as a matter of law.
T.R.C.P. 56.03; Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993). The only material fact in
this paternity suit is whether the Appellant is the father of Davene King. This fact was
conclusively established by the blood test to which all parties submitted. Based on T.C.A.
§ 24-7-112(b)(2), the trial court was correct in ruling that the Appellee was entitled to
judgment as a matter of law.
For the reasons stated herein, the judgment of the trial court is affirmed. Costs are
taxed to the Appellant.
HIGHERS, J.
CONCUR:
FARMER, J.
TOMLIN, SP. J.
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