# FILED Jan. 24, 1996 Cecil Crowson, Jr . Appellate Court Clerk STATE, EX REL, LOR RETTA HEAD ) OVERST REET, ) ) Plaintiff/Appellee, ) ) Appeal No. ) 01-A-01-9507- CH-00309 VS. ) ) Smith Chancery ) No. 5357 PAUL DANIEL K ING, ) ) Defendant/Appellant. )

COURT OF APPE ALS OF TENNESSEE MIDDLE SEC TION AT NASHVILLE

APPEALE D FRO M THE C HANC ERY C OURT O F SMI TH COU NTY AT CARTHAGE, TENN ESSEE THE HONORABLE C. K. SMITH, JUDGE

CHARLES W. BURSON Attorney Gen eral & Repor ter W ILLIAM ASHBY SMITH, JR. Assistant Att orney Gener al 404 James Roberts on Parkway Nashvil le, Tennessee 37243- 0499 Attorney for Plaintiff/Appellee THOMAS H. BILB REY 1024 Scottsvi lle Hig hway P. O. Box 97 Lafayette, Tennessee 37083 Attorney for Defendant/Appellant

AFFIRMED AND REMAN DED

BEN H. CAN TRELL, JUDGE CONCUR: LEW IS, J. KOCH, J.- 2 - 

## O P I N I O N

The only issue rais ed in this paternit y action i s whether there is any material evidence to

support the ju ry's verdict that t he appellant was the father of the child . We affirm.

The appellee testi fied that beginni ng in t he early par t of 1983 she engaged in sexual intercours e with theappellant approximately once a week. These liaisonslasted most of the year, even after t he appel lee became pregnant in October of 1983. She testi fied that she was not having s ex wi th anyone els e during the relevant pe riod.

The appellee also produced the tes timo ny o f the directo r of a Nashville laboratory that ran cert ain blood tests on the mother, the child, and the appellant. The first test, performed i n 1985 and testing blood cell chara cteristics, showed an 83.3% probability

that the appellan t was the c hild's father. A DNA test administered in 1993 establis he d a relative chance of paternit y at 99.83%. Combining t he test resul ts esta blish ed a 9 9.96 % cha nce o f pa tern ity.

The appellant arg ues that the appell ee's testimony should have been excluded by the doctr ine of judicial es toppel. He cites her sworn all egations in a paternity action and an act ion for outrag eous conduct f iled in 1984. In those pleadi ngs she swore (1) that w hen she learn ed sh e was p regna nt th e app ella nt gave her twenty dollars to buy medicine to induce an abor tion, and (2) t hat the appellant had acknowled ged by words and acts t hat he was the c hild's father. At the trial below the a ppellee testifie d (1) that shedid not talk to the appellant after she learned t ha t she was preg nant, until after the child was born and, (2) that the appellan t had never acknowledged that the child was his.- 3 - As a ge nera l ru le, the d octr ine of j udicia l estoppel prevents a witness from contradicti ng swor n testi mony given in a prior judicial proceeding. In Re: Adoption of Johnson , 678 S.W.2d 65 (Tenn. App. 1984). But the app li cation of the doctrine in this cas e would not help the appellant. If the appellant had obje cted at the trial and the two contradictory statements had been ex cluded, it would not change the essential parts ofthe appellee's testimony. Nor would it have aff ected the scientific evidence showing the probability that the appellant was the child's f ather.

The appellant als o cites the l arge amount of ev idence in the record that contradictsthe appellee's versi on of the f acts and points toward her stepfather, the appellant's brother, as t he real father of the child. These, ho wever, were facts for the juryto consider. We cannot reweigh the ev idence and must affirm i f there is materi al evidence to support the verdict. Rule 13(d), Tenn . R. App. Proc.

The judgment of the tr ial court i s affirmed. The cause i s remanded to the Chancery

Court of Smith C ounty for any further proceedi ngs necessar y. Tax the costs on appeal to appellant.

_____________________________ BEN H. CAN TRELL, JUDGE
CONCUR:

_______________________________ SAMUEL L. LEWIS, JUDGE

_______________________________ WILLIAM C. KOCH, JR., J UDGE