State, ex rel, Lorretta Head Overstreet v. Paul Daniel King - Concurring

STATE, EX REL, LORRETTA HEAD )
OVERSTREET, )
)
Plaintiff/Appellee, )
) Appeal No.
) 01-A-01-9507-CH-00309
VS. )
) Smith Chancery
) No. 5357
PAUL DANIEL KING, )
Defendant/Appellant.
)
) FILED
Jan. 24, 1996
Cecil Crowson, Jr.
COURT OF APPEALS OF TENNESSEE Appellate Court Clerk
MIDDLE SECTION AT NASHVILLE
APPEALED FROM THE CHANCERY COURT OF SMITH COUNTY
AT CARTHAGE, TENNESSEE
THE HONORABLE C. K. SMITH, JUDGE
CHARLES W. BURSON
Attorney General & Reporter
WILLIAM ASHBY SMITH, JR.
Assistant Attorney General
404 James Robertson Parkway
Nashville, Tennessee 37243-0499
Attorney for Plaintiff/Appellee
THOMAS H. BILBREY
1024 Scottsville Highway
P. O. Box 97
Lafayette, Tennessee 37083
Attorney for Defendant/Appellant
AFFIRMED AND REMANDED
BEN H. CANTRELL, JUDGE
CONCUR:
LEWIS, J.
KOCH, J.
OPINION
The only issue raised in this paternity action is whether there is any
material evidence to support the jury's verdict that the appellant was the father of the
child. We affirm.
The appellee testified that beginning in the early part of 1983 she
engaged in sexual intercourse with the appellant approximately once a week. These
liaisons lasted most of the year, even after the appellee became pregnant in October
of 1983. She testified that she was not having sex with anyone else during the
relevant period.
The appellee also produced the testimony of the director of a Nashville
laboratory that ran certain blood tests on the mother, the child, and the appellant. The
first test, performed in 1985 and testing blood cell characteristics, showed an 83.3%
probability that the appellant was the child's father. A DNA test administered in 1993
established a relative chance of paternity at 99.83%. Combining the test results
established a 99.96% chance of paternity.
The appellant argues that the appellee's testimony should have been
excluded by the doctrine of judicial estoppel. He cites her sworn allegations in a
paternity action and an action for outrageous conduct filed in 1984. In those
pleadings she swore (1) that when she learned she was pregnant the appellant gave
her twenty dollars to buy medicine to induce an abortion, and (2) that the appellant
had acknowledged by words and acts that he was the child's father. At the trial below
the appellee testified (1) that she did not talk to the appellant after she learned that
she was pregnant, until after the child was born and, (2) that the appellant had never
acknowledged that the child was his.
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As a general rule, the doctrine of judicial estoppel prevents a witness
from contradicting sworn testimony given in a prior judicial proceeding. In Re:
Adoption of Johnson, 678 S.W.2d 65 (Tenn. App. 1984). But the application of the
doctrine in this case would not help the appellant. If the appellant had objected at the
trial and the two contradictory statements had been excluded, it would not change the
essential parts of the appellee's testimony. Nor would it have affected the scientific
evidence showing the probability that the appellant was the child's father.
The appellant also cites the large amount of evidence in the record that
contradicts the appellee's version of the facts and points toward her stepfather, the
appellant's brother, as the real father of the child. These, however, were facts for the
jury to consider. We cannot reweigh the evidence and must affirm if there is material
evidence to support the verdict. Rule 13(d), Tenn. R. App. Proc.
The judgment of the trial court is affirmed. The cause is remanded to
the Chancery Court of Smith County for any further proceedings necessary. Tax the
costs on appeal to appellant.
_____________________________
BEN H. CANTRELL, JUDGE
CONCUR:
_______________________________
SAMUEL L. LEWIS, JUDGE
_______________________________
WILLIAM C. KOCH, JR., JUDGE
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