# FILED
October 17, 19 95 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECT ION A T JA CKSON
BESSIE LEE KI NG, ) ) Plaintiff/Appellee, ) Shelby Circuit No. 56526 T.D. ) VS. ) A ppeal No. 02A 01-9504-CV-000 91 ) DAVIDSON (NMN)

TAY LOR, )

) Defendant/Appellant. )
APPEAL FROM THE CI RCUI T COUR T OF SH ELBY C OUNTY

AT MEMPHIS, TEN NESSEE THE HONORABLE D'ARMY BAILEY, JU DGE

COLEMAN GA RRETT Memphis, Tennessee Attorney for Defendant/Appellant
ROBERT F. DONOHUE W. MARK WA RD Memphis, Tennessee Attorneys for Plaintiff/Appelle e

AF FIRMED

ALAN E. HIGHERS , JUDGE
CONCUR:
DAVID R. FA RMER, JUD GE HEWITT P. TO MLIN, JR., SPECIA L JUDGE2

This appeal arises

out of a paternity

action filed by

the Plaintiff-Appel lee, Bessie Lee King, against the Defendant-Appell ant, David son Taylor, to establish t he paternity of King's minor child, Davene. The action w as origi nally file d in the Juvenile Court of Memphis and Shelby Coun ty, but was tr

ansferred to Ci rcuit Cour t after Mr. Tay lor

requested a jury trial. Mr. Taylor, M s. King, and Davene submi tted to a blood test. The sworn blood test results, which accompanied Appe llee's motion for summary judgment, esta blished that Mr. Tayl or had a 99.65% probabil ity of being Davene's father. Rely ing on bot h the blood t est and T.C.A. § 24-7-112(b) (2) (Mi chie 19 94), the trial court granted Ms. King 's motion for summary judg ment. Mr. Tay lor appeals t he decision of the t rial court

.

When the present suit was ori ginally filed, T.C.A. §24-7-112 (b)(2) read as follows: During any

civil proceeding in which the question of parent age arises, upon the motion of eithe r party or on the co urt' s own motion, the court shall , at such time as it deems equi table, order all necessary parties to submit to any tests a nd comparisonswhich hav e been developed and adapted for purposes of establishi ng or disprov ing parentag e. Failure of either party to make a motion for s ubmission to su ch tests and comparisonsshall const itute a wai ver and shall not be grounds fora continuance. The resultsof such testsand comparisons, including the statisti cal likel ihood of the alleg ed par ents' s parentage, if ava ilab le, m ay be a dmit ted i nto e vi dence as provided in subsection (b).
In 1994, the Legislature deleted th e existi ng code secti on and substituted the followi ng language: (2)(A) In any proc eeding w here the paterni ty of an individual is at issue, the w ritten repor t of blood, genet ic, or DNA test results by the testing agent concerning the paternity is admissible wi thou t theneed for a ny f o undat ion testimony or other proof of the authenticity or accuracy of the test unless a written objection is fi led with the court and served upon all parties t hirty

(30) days

prior to th e date of the hearing . For purposes of this section , servi ce shall bedeemed made upon the dat e of ma iling. (B) An indivi dual is concl usively presumed to be the father of a child if blood, genetic, or DNA tests show that th e statistic al probability

o f pat ernity is 99% or greater. A rebuttable presumption of the paternity of an indivi dual is establi shed by blood, genetic, or DNAtesting s howing a statistic al probabili ty of paternity of that ind ividual at ninety-five (95%) or greater.3 (C) An affidavit document ing the chain of custod y ofany blood spec imen is adm issib le to esta blish such chai n of cust ody. T.C.A. § 24-7-112 (b)(2)(Michie 1994).

The cur rent

ver sio n of T. C.A . § 24 -7- 112( b)( 2) b ecam e eff e ctive Jul y 1, 1994. Appellantargues that because this change in the sta tute effect s su bstantive rather than procedural rights, the statute cannot be applied retr oactively

. As our

supreme court stated in Kee v. Shelter Insurance , 852 S.W.2d 226, 228 (Tenn. 1993), legi slation may be applied retroactively in limited circumstances:

Generally statutes are p resumed to operate prospectively and not retro acti vely. W oods v. TRW , Inc. , 557 S.W.2d 274, 275 (Tenn. 1977); Cate s 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 retro spec tivel y, not only to causes of acti on arising before such acts become law, but also to all s uits pending when the legislat ion takes effect, un le ss the legislature indicates a contraryintention or immediate application would pr oduce an unjust result. Saylors v. Rig gsbee , 544 S.W.2d 609, 610 (Tenn. 1976).
As the Appellee aptly states, the chang e imposed by t he 1994 Amendment to T.C.A. § 24-7-112(b) (2) is pr

ocedural. The Tenness ee Supreme Court h as defined "procedure"
as: [T]he mode or proceedi ng by which a l egal rig ht is enforced, as distingui shed from the law which g ives or defines the rig ht, and which by means of proc eeding, the co urt is to admi nister -- the mach iner y, as disting uished from its product; . . . includi ng pleadi ng, process, ev idence, and practice . . ..Practic e [is] the form . . for

the enforcementof rights or the redress of wrongs, as distinguished from the subst antive law which gives the right or denounces the w rong . . . Saylors v. Rig gsbee , 544 S.W.2d 609, 610 (Tenn. 1976).

The current

version of T.C.A. § 24-7-112( b) neither g ives a r ightnor denounces a wrong. A conclusi ve presumpti on of paternity , where theprobab i lity of pater nity is 99%
or greater, simply ex pedites the res olution of paterni ty disputes . As such, the cha nge in the statute is procedural i n nature.
App ellant co ntends that ev en if the amended ver sion of T.C.A. § 24- 7-112(b)(2) applies to this case, application of th e statute violates the Due Proce s s Clause of the4

Fourteenth Amendment of the United States Const ituti on. It is well established that this Court will not consider a constitutional que s tion unless i t is absolutel y necessar y for determination of the case and the matter cannot be reso lved on nonconstitutional grounds. Hayes v. City of Pigeon Forg e , 883 S .W .2d 619 , 620 (T enn. Ap p. 1994 ) (citing W atts v. Memphis Transit Manag ement Co. , 224 Tenn. 721, 727, 462 S.W .2d 495, 498 (1971)). Moreover, both the Tennesse e Rules of Civil Procedure and the Tennessee Rul es of Appellate Procedure require noti ce to the State At torne y Gener al whenever the constitutional ity

of any state st atute 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. 3 2. There is no evidence i n the record of compliance with th at th e abo ve cited rules. W e therefore decline to address Appellant's argument that T.C.A. § 24 -7-112(b)(2) is unconstitutional.

The final issue Appe llant present s for this cour t's revi ewis whet her the trial court erred in granting summary judgment in this matter. A trial court should gra nt a motion for summary judgment w hen the movant demons trates that ther e a re no genuine iss ues of material fact and that the mov ing party is entitled to a judgment as a mat ter

of l aw. T.R.C.P. 56.03; Byrd v. Hall , 847 S.W.2d 208, 210 (Tenn. 1993). The onlymaterial fact in this paternity suit is whether the Appell ant is the fath er of Davene Ki ng. This fact w as conclusivelyestablished by the blood test t o which al l parties s ubmitted. Based on T.C.A. § 24-7-11 2(b)(2), the trial court was co rrect in ru ling that the Ap pellee was entitled to judgm ent a s a ma tter of la w.

For the reasons st ated herein, the judgment of the trial court is affirmed. Costs are taxed to the Ap pellant.
HIGHERS, J.
CONCUR:

FARMER, J.

TOMLIN, SP. J.