### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE June 25, 200 2 Session KASIEA DELAWN CHANCE, ET AL 

### . v. CARL DENNIS GIBSON, JR.

Appeal from the Juvenile Court for Sevier County No. 01-M6-469 Jeff D. Rader, Judge FILED AUGUST 15, 2002 No. E2001-02836-COA-R3-JV

This is a suit by Kasiea Delawn Chance, adult daughter of Kayla D. Leonard, and Ms. Leonard, who joins in the prosecu

tion of thissuit again st Carl De nnis Gibson , Jr., see

king to est

ablish his p aternity as to Ms. Chance and recover support from the date of Ms. Chance’s birth, medical expense s incident thereto, and attorney fees. We a ffirm in part; vacate in part and remand.
Tenn.R.App. P. 3 Appeal as of Right ; Judgment

of the Juv enile Cour

t Affir med in Par

t and Vacated in Part; Cause Remanded H OUSTON M. G ODDARD , P.J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS and C HARLES D. S USANO , J R ., JJ., joined. Scott D. Hall , Sev ierville, Tennessee, for the Appellants, Kasiea D elawn Chance and Kayla D. Leonard Keith E. Haas, Sevierville, Tennessee, for the Appe llee, Carl Dennis Gibson, Jr. OPINION

At the outse t, we note that the case of Shell v. Law , 935 S.W.2d 402 (Tenn. Ct. App. 1996), makes it clear that there is no longer an almost irrebuttable presumption tha t a child born to a married couple is presumed to be a product of their union, but may be found--if the proof warrants-- to be the child of a third party. Mr. Gibson attempts to distinguish the case of Shell v. Law , on the ground that the paternal rights of Ms. Shell’s husband at the time of conception and birth, had been terminated. We do not1 We say “appar entl y” becaus e the divorc e decre e is not a pa rt of the r ecord. -2- find that this fact is critical to the holding in Shell . Additionally, we not e an affidavit from Mr. Chance wherein he states that he does not believe that he is the father of Ms. Chance. The Trial Court sustained Mr. Gibson’s motion to dismiss, which in effect was conv erted in to a motion for summary judgment upon admission of certain exhibits at the hearing below. The grounds relied upon by the Trial Court for dismissing the Plaintiffs’ suit were judicial estoppel as a res ult of th e pleading o f Ms. Leonard in a divorce action and the later- filed petition seeking support, as well as collateral estoppel stemming from the d

ivorce d ecree . Mr. Gibso n in his brief insists the Trial Cour

t should al so be aff

irmed und

er the do ctrines o f res jud icata and lach es. Our standard of review as to summary judgments is succin ctly state d in Staples v. CBL & Associates, Inc. , 15 S.W.3d 83, 89 Tenn. 2000): The standards governing the assessment of evidence in the summary judgment context are als o well est

ablished . Courts mus t view the evidenc e in the lig

ht most favora ble to the nonmoving party and must also draw all reasonable inferenc es in the nonmoving party’s favor. See Robinson v. Omer , 952 S.W.2d at 426; Byrd v. Hall , 847 S.W.2d at 210-11. Courts should grant a summary judgmentonly when boththe facts and

the infe rences to be draw n from the facts pe rmit a re asonable person to reach only one conclusion. See McCall v. Wilder , 913 S.W.2d 150, 153 (Tenn.1 995); Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn.1995). The record discloses that Ms. Leonard and her then-husband, James Dar rell Chance, were divorcedin June 1985 and, apparently, 1 Ms. Leonar d w as given full custody of Ms. Chance, although no provision was made for child support. Thereafter, pursuant to a petition filed by Ms. Leonard, an order was entered in March 1989 which re quired Mr . Chance to make c hild suppor

t payment s for Ms. Chance, which he honored until she reached he r majority. Th e Plaintiff

s appeal insisting th at the Tr

ial Court im

properl y recei ved cer

tain exhi b its , including the divorce petition filed by Mr. Chance and the petition seeking support fi led by Ms. Leonard, which had not been certified by the Clerk of the Court wher ein the c ase was heard

or otherwise authenticated. The statement of the evidence indicates that no proof was introduced at the hearing before the Trial Court, but that the aforesaid exhibits were presented and c onsidered by the Court over the objectio n of the Pla

intiffs’ counsel.-3-

It is true tha

t the cour t documen

ts were no t authent

icated. Howeve

r, under the fac ts of this ca se in the inte

rest of ju dicial ec onomy, an d the fur ther fa ct that we are mor ally cer tain th at thes e exhibits a re accurate, w e will nev erthele ss conside r them as d

id the Tri al Court. Having done so we conclude that the Trial Court was not in error in dismissing the suit of the mother, M s. Leona

rd. We r each thi s conclus ion beca use we a re satisf ied that sh

e is judici ally estopped, in light of her pleadings in the petition seeking support, to contend that Mr. Gibson is the father of the child. The c ase of Shell v. Law , 935 S.W.2d 402 (Tenn. Ct. App. 1996), states the doctrine as follows (at page 408):

The question regarding estoppel requires a more careful examination. The doctrine of judicia

l estoppel is gener

ally state d as follo ws: T he doctr

ine of jud

icial est oppel pro vides a lit

igant w ho ha s deliber atelytaken a p ositi on in one judi cial pro ceeding will not, a s a matter of law, b e allowe d to advan tage his o

r herself by taking an inconsistentposition in another sui t. In Melton v. Anderson , 32 Tenn. App. 335, 222 S.W.2d

666 (Ten n. App. 19 48) this c ourt said , at 669: A general statement of the doctrine of judicial e stoppel is that whe re one state s on oath in former l itigation, either in a pleading or in

a deposition or on oral testimony, a given fact as true, he will not be permitted to deny that fact in subseq ue nt litigation, although the parties may not be the same. (Citations omitted.) Extine v. TRW Koyo Steering Systems Co , 1994 WL 589557 Unpublished opinion Tenn. App. 1994. In reaching our conclusion, we are aw are that in Shellwe found under similar circumstances the doctrine did not apply. The reason we rea ched tha t conclus ion is bec ause, co ntrary to the fac ts of this case, it was shown that at the time of the pleadings filed by the wife in that case she believed her husband was indeed the father of the c hild and did not attempt to “advantage” herself. The present case, as already noted, is diffe rent in that the affidavit of Ms. Leonard shows that she believed at the time she filed the pleadings in question that her husband was not the father of the child but, rather , Mr. Gibso n was. The assertions of collateral estoppel and res judicata may be dispose d of summa rily. Both of these doctrines require

a suit betw een the s ame parties or their privities which is not present in the case at bar. State ex rel. Cihlar v. Crawford , 39 S.W.3d 172 (Tenn. Ct. App. 2000).-4-

Although the Tria

l Court fou

nd that Ms. Chance w as in privity with Ms. Leonard insofar as its findings r

egardin g collate

ral estop pel, we w ill assume

for the purpose of

this opinion

it meant to likewise find privity as to the doctrine of judicial estoppel. Our rese arch ha s disclose d that priv ity is freque ntly applied in cases involving res judicata and collateral estoppel, but we have found none to suggest it would apply in a case o f judicia l estoppel where one party has pleaded a f act diametri callyopposed to that late r attempt ed to be a sserted . We do no t believe it approp riate to extend that doctrine to a case of this nature wherein Ms. Chanc e was not

the part y pleadin g the facts attempted to be refuted and was a minor at the time the pleadings we re filed. As to the assertion by Mr. Gib son that Ms . Chance was bar red by la ches, we do not believe minors, who are not able to bring lawsuits in their own names, could be bound by this doctrine. In our resolution of this appeal, we have not overlooked the Trial Court’s concern that the child would have two legal fathers should the case proceed a nd DNA prove that Mr. Gibson is in fact the father. While we concede this as a r ather anomalous situation, we note where a n adoptio n occurs, the adopting father is father by virtue of the adoption, while the biological father is in fact also the father. Finallyas to Mr. Gibson’s argument suggesting that when a minor child recovers a judgment for injuries received

in a tort action, the suit may not be re-opened after th e child becomes an

adult. The fallacy of

applying this analogy is that in the tort action above referenced, the child wasa party to the ac tion, and i n the cas e at bar Ms

. Chance was not a party to the divorce proceedings nor the petition seeking support. In summary, we hold th at Ms. Leonard’s suit must be dismissed under the doctrine of judicial estoppel, but the suit of the daughter, Ms. Chance, may proceed. For the fore going rea sons the ju dgment of the Tria l Court is affirmed in part and vacate d in part and the cause remanded for administration of blood tests to determine whether Mr. Gibson

is the father of Kasiea Delawn Chance

. If he is found to be the father, the Trial Court shall then make a determin ation as to

what monie s, if

any, should be paid by Mr. Gibson as child support, medical expenses incident to birth, attorney fees, and an appropriate disposition of any amount found to be owing, which should include a consideration of the payments made by Mr. Chance for Ms. Chance’s support and whether Mr. Chance

should be r

eimburse d for payments he h as made. Costs of appeal are adju dged one-h alf aga inst Kayla

D. Leona

rd and he r surety and one- half aga

inst Carl D ennis Gibson, Jr.

_________________________________________ HOUSTON M. GODDARD, PRESIDING JUDGE