IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

October 10, 2000 Session

STATE OF TENNESSEE, ex rel. JUDY LYNN STANLEY v. JOHN 

FRANK HOOPER

 Appeal from the Juvenile Court for Dickson County

No. 04-99-009-M A. Andrew Jackson, Judge

No. M2000-00916-COA-R3-CV - Filed January 11, 2001

This is an appeal from the trial court’s order finding the appellant to be the natural father of the

appellee’s minor child. The appellant contends that the trial court erroneously denied the appellant’s

request for a jury trial and that the trial court erroneously excluded an out of court statement

identifying the appellant’s brother as a potential father. We affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right ; Judgment of the Juvenile Court 

Affirmed and Remanded

BEN H. CANTRELL, P.J., M.S., delivered the opinion of the court, in which WILLIAM C. KOCH, JR.

and WILLIAM B. CAIN, JJ., joined.

David D. Wolfe, Dickson, Tennessee, for the appellant, John Frank Hooper.

Paul G. Summers, Attorney General and Reporter and Stuart Wilson-Patton, Assistant Attorney

General, for the appellee, State of Tennessee, Department of Human Services, ex. rel., Judy Lynn

Stanley.

OPINION

This case involves a paternity dispute that initially arose in 1990 and was eventually appealed

to this Court. This Court reversed the trial court’s judgment of paternity finding that the conclusive

presumption of paternity set out at Tenn. Code Ann. § 24-7-112(b)(2)(B) was unconstitutional and

remanded the cause so that the appellant would have an opportunity to rebut the presumption of

paternity. State v. Hooper, No. 01A01-9605-CV-00231, Dickson County (Tenn. Ct. App. filed

February 28, 1997, at Nashville). Upon remand, Ms. Stanley non-suited the initial paternity petition

in June of 1997 and refiled it in September of 1997. 
1

Although the pertinent facts are, for the most part, set out in our earlier opinion, we find it necessary to recount

such facts in this op inion. 

-2-

The evidence established that the appellee began a relationship with the appellant in the mid1980's.1

 Over the years the parties cohabitated intermittently, and in November of 1988, the appellee

had a premature child, fathered by the appellant. The child survived only six days. The parties

continued their relationship and, according to the appellee’s testimony, again begin living together.

Although the appellant went to Texas in the early part of 1989, he returned to Tennessee in March

of that year. The appellee testified that the parties continued to live together upon the appellant’s

return and that she became pregnant in July of 1989 while she was living with the appellant. The

appellee admits that she moved out of the appellant’s residence in August of 1989. In the latter part

of 1989, the appellee wrote several letters to the appellant communicating that he was not the father

of the child she was carrying. However, the appellee testified that these letters were written under

threats to her life made by the appellant’s mother. In addition, one of the letters stated that “as long

as me and you know that the baby is yours is all that matters.” Ms. Stanley gave birth to Anthony

Bryan Stanley in April of 1990.

In September of 1990, the State of Tennessee, as assignee for the appellee, filed a suit to

obtain judgment of paternity and support payments against the appellant for the child. A subsequent

DNA paternity test established a 99.71% “probability of paternity.” The trial court held that Tenn.

Code Ann. § 24-7-112(b)(2)(B) entitled the State to summary judgment establishing the appellant’s

paternity as a matter of law. On appeal to this Court, we found such statutory presumption

unconstitutional and remanded the cause so that the appellant would have an opportunity to rebut

the presumption of paternity. The State subsequently voluntarily non-suited the original paternity

action. Several months later the State filed another petition to establish paternity. The appellant

filed an Answer and again denied paternity of the child and demanded a jury trial. The trial court

denied the appellant’s request for a jury trial and the case was set for a hearing. After a hearing, the

trial court entered a judgment finding that the appellant is the legal and biological father of the minor

child. The appellant now appeals.

A. THE JURY TRIAL

The appellant first takes issue with the trial court’s denial of his demand for a jury trial. We

note that the statute in effect at the time the original paternity action was filed stated that, upon the

defendant’s demand for a jury trial or if the judge of his own motion orders, “the case shall be

transferred to the circuit or chancery court for jury trial on the issue of paternity.” Tenn. Code Ann.

§ 36-2-106(a) (Supp. 1990). This statute was repealed in June of 1997. The current statute

governing paternity actions provides that paternity and legitimation actions “shall be without a jury.”

Tenn. Code Ann. § 36-2-308 (Supp. 1999). This statute became effective July 1, 1997, after the

appellee voluntarily non-suited the original paternity action but before the appellee filed the second

petition to establish paternity. 
-3-

The appellant argues that he had a vested right to a trial by jury and that he could not be

deprived of that right by the appellee’s non-suit in June of 1977. See Anderson v. Smith, 521 S.W.2d

787 (Tenn. 1975). We disagree. Although it is hard to pin down the definition of a “vested right,”

one court defined it as one “which it is proper for the state to recognize and protect and of which [an]

individual could not be deprived of arbitrarily without injustice.” Morris v. Gross, 572 S.W.2d 902,

907 (Tenn. 1978). In a more general sense a vested right 

[m]ust be something more than a mere expectation based upon an anticipated

continuance of the existing law; it must have become a title, legal or equitable, to the

present or future enjoyment of property or to the present or future enjoyment of a

demand, or a legal exemption from a demand made by another; and if before such

rights become vested in particular individuals, the convenience of the state induces

amendment or repeal of certain laws, these individuals have no cause to complain.

16B Am. Jur. 2d Constitutional Law § 703. Here it is important to distinguish a vested right from

an accrued right. “A right conferred solely by statute in the public interest may have accrued before

the repeal or modification, but does not follow that the accrued right in such cases is a vested right

in the constitutional sense.” Id.

Since there is no constitutional right to a jury trial in a paternity case, Rooker v. Rimer, 776

S.W.2d 124 (Tenn. Ct. App. 1989), we think the appellant at most had an accrued statutory right to

a jury in the former case. So long as that case continued, the repeal of the statute would not remove

the right. See Tenn. Code Ann. § 1-3-101 (“the repeal of a statute does not affect any right which

accrued . . . nor any proceeding commenced, under or by virtue of the statute repealed.”)(emphasis

supplied); see also Johnston v. Cincinnati N.O. & T.P. Ry. Co., 240 S.W. 429 (Tenn. 1922). But that

statutory right was not a vested right that would survive the appellee’s non-suit. Therefore when the

appellee refiled the action, after the statute had been repealed, the appellant no longer had the right

to demand a jury.

B. THE OUT OF COURT STATEMENT

The appellant further contends that the trial court erred by excluding an out of court statement

allegedly made by the appellant’s brother, Bill Hooper. At trial, the appellant attempted to introduce

evidence regarding a statement allegedly made by Bill Hooper admitting that he had sexual relations

with the appellee and that he was the father of the appellee’s child. The trial court found the alleged

statements were hearsay and did not allow testimony regarding such statements. We note that the

evidence established that the appellant’s mother, step-father, and sister knew where Bill Hooper

lived and how to get in touch with him. However, Bill Hooper was not present and did not testify,

in deposition form or otherwise, at the trial. The appellant contends that the trial court erred in

excluding testimony regarding the alleged statements. The appellant submits that such statements

did not constitute hearsay because the statements were offered as an admission against interest made

by an unavailable declarant. See Tenn. R. Evid. 804. 
-4-

We first note that it is undisputed that the statements allegedly made by the declarant

constitute hearsay. See Tenn. R. Evid. 801(c). However, Rule 804 provides that a statement against

interest is not excluded by the hearsay rule if the declarant is unavailable as a witness. Tenn. R.

Evid. 804. The rule sets out that “unavailable” includes situations in which the declarant is unable

to testify because of death or then existing physical or mental illness or infirmity or where the

declarant is absent from the hearing and the proponent of the statement has been unable to procure

the declarant’s attendance by process. Tenn. R. Evid. 804(a)(4)-(5). 

At trial, the appellant claimed that his brother was unavailable to testify because he had

suffered an aneurysm. However, there was no evidence presented to substantiate this claim.

Therefore, we cannot find that the trial court erred in not finding the declarant unavailable based

upon this mere assertion. See Tenn. R. Evid. 804(a)(4). The appellant further argues that the

declarant was unavailable to testify because he was a resident of Oklahoma, he was beyond the

jurisdiction of the trial court, and he was estranged from his family. However, the evidence does not

establish that the appellant ever tried to procure the declarant’s attendance by process. In fact, the

appellant did not even take the declarant’s deposition. Furthermore, there is no evidence supporting

the assertion that the declarant was estranged from his family or that such alleged estrangement

would somehow prevent the declarant from testifying in this cause. As such, we cannot find that the

declarant was an unavailable witness under Tenn. R. Evid. 804(a)(5). Therefore, the alleged

statements do not fall within the purview of Rule 804 and the trial court correctly excluded the

statements as inadmissible hearsay.

The judgment of the trial court is affirmed. The cause is remanded to the Chancery Court

of Dickson County for any further proceedings necessary. Tax the costs on appeal to the appellant,

John Frank Hooper, for which execution may issue if necessary.

_________________________________________ 

BEN H. CANTRELL, PRESIDING JUDGE, M.S.