                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE

                    DOUGLAS BLAIR v. TRACEY M. NORRIS, ET EL.

                  Direct Appeal from the Chancery Court for Knox County
                          No. 138781-3 Sharon Bell, Chancellor



                   No. E1999-00836-COA-R3-CV - Decided May 17, 2000


This is a suit wherein the Plaintiff Douglas Blair seeks a determination that he is the father of
Dillon Michael Norris, born June 4, 1993, while the child’s mother, Tracey M. Norris, was
married to and living with Michael W. Norris. The Trial Court found that the suit was not timely
filed as required by T.C.A. 36-2-304(b)(2)(A). Mr. Blair’s appeal insists that under the doctrine
of equitable estoppel the Trial Court’s dismissal of his action was error. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Summary Judgment of the Chancery Court
affirmed and remanded

GODDARD , P.J., delivered the opinion of the court, in which FRANKS and SWINEY, JJ. joined.

Jerrold L. Becker, Knoxville, Tennessee, for the appellant, Douglas Blair

J. Elaine Burke and Ricky A. W. Curtis, Knoxville, Tennessee, for the appellees, Tracey M.
Norris and Michael W. Norris

                                           OPINION


                This is a suit by Douglas Blair, which seeks a declaration that he is the father of
Dillon Michael Norris, born June 4, 1993, while the child’s mother, Tracey M. Norris, was
married to and living with Michael W. Norris. The suit was filed on May 27, 1998, almost five
years after the birth of the child. The Trial Court sustained the Norrises motion to dismiss which,
because affidavits were introduced by Mr. Blair and the Norrises, in effect became a motion for
summary judgment, based upon T.C.A. 36-2-304(b)(2)(A), which provides the following:
               If the mother was legally married and living with her husband at the time
       of conception and has remained together with that husband through the date a
       petition to establish parentage is filed and both the mother and her husband file a
       sworn answer stating that the husband is the father of the child, any action seeking
       to establish parentage must be brought within twelve (12) months of the birth of
       the child. In the event that an action is dismissed based upon the filing of such a
       sworn answer, the husband and wife who filed such sworn answer shall be
       estopped to deny paternity in any future action.

               We affirm the judgment of the Trial Court.

                Mr. Blair’s affidavit,1 which is in accordance with the allegations in his complaint,
states the following:

               Comes Douglas Blair and makes oath as follows:

               1.      That I am the plaintiff in the above-styled action brought to
                       determine the parentage of Dillon Michael Norris, DOB 6-4-93.

               2.      That I am the biological father of Dillon Michael Norris.

               3.      That the mother of Dillon Michael Norris, the defendant Tracey M.
                       Norris, and I had frequent sexual contact at or around the time of
                       the conception of Dillon Michael Norris.

               4.      That the defendant has acknowledged to me on many occasions
                       that Dillon Michael Norris is, in fact, my son. I have accepted
                       Dillon Michael Norris as my son, have visited with him frequently,
                       and have publicly acknowledged Dillon Michael Norris as my son.

               Based upon the foregoing facts, Mr. Blair’s appeal insists that the doctrine of
estoppel requires reversal of the summary judgment.




       1
       It should be noted that the affidavit makes no reference to any representations made by
Mr. Norris.


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                The doctrine of equitable estoppel is set out in Mr. Blair’s appellate brief, which
cites the case of Consumer Credit Union v. Hite, 801 S.W.2d 822 (Tenn. Ct. App. 1990), and
quotes from Callahan v. Town of Middleton, 41 Tenn. Ct. App. 21, 36, 292 SW.2d 501, 508, as
follows:

       The essential elements of an equitable estoppel as related to the party estopped are
       said to be (1) Conduct which amounts to a false representation or concealment of
       material facts, or, at least, which is calculated to convey the impression that the
       facts are otherwise than, and inconsistent with, those which the party subsequently
       attempts to assert; (2) Intention, or at least expectation that such conduct shall be
       acted upon by the other party; (3) Knowledge, actual or constructive of the real
       facts.

               Mr. Blair’s brief, however, does not quote that portion of the opinion immediately
following the above-quoted sentence:

               As related to the party claiming the estoppel they are (1) Lack of
       knowledge and of the means of knowledge of the truth as to the facts in question;
       (2) Reliance upon the conduct of the party estopped; and (3) Action based thereon
       of such a character as to change his position prejudicially, 19 Am.Jur.Estoppel
       Sec. 42, pp. 642-643.

                In response the Norrises contend that “the doctrine of equitable estoppel would
not apply to paternity actions, as they are entirely statutory in nature.” In support of this assertion
they cite the case of Johnson By Johnson v. Wilbourn, 781 S.W.2d 857 (Tenn. Ct. App. 1989),
which refused to apply the doctrine in an adoption suit (at page 861):

               A case very much in point, in which the chancellor likewise erred in
       decreeing an adoption based upon equitable maxims, is St. Vincent’s Infant
       Asylum v. Central Wisconsin Trust Co., 189 Wis. 483, 206 N.W. 921 (1926). In
       that case, St. Vincent’s placed a four-year-old child with adoptive parents who
       advised St. Vincent’s of their intent to adopt the child. Adoption papers were
       prepared, but there is no evidence that the adoption proceedings were carried out.
       After the child had lived with the adoptive parents for seven years, following the
       death of the second of the two parents, suit was filed seeking to procure for the
       child all the rights of an adoptive child. The trial court held that the child stood in
       the relation of an adoptive son of the deceased, disposing of the case upon the



                                                  -3-
       equitable maxim that equity regards as done that which ought to have been done.
       In reversing, the Wisconsin Supreme Court stated:

                    The error in so considering the case lies in overlooking the fact that
            adoption proceedings are wholly statutory and do not depend upon equitable
            principles.... In order to constitute one an adopted son of another, there must
            be judicial proceedings to that end conformably to the statute. Equity has no
            power to declare an adoption. Id. 206 N.W. at 922.

               However, the estoppel asserted by Mr. Blair is not directed at the paternity
proceeding, but rather at the statute of limitation, insisting that the Norrises are estopped to rely
upon the statute.

               In the case at bar there is nothing in the record to show that any representation was
made by either of the Norrises to Mr. Blair relative to the statute in question, and indeed it is
highly unlikely that any of the parties to this suit knew of such a statute.

               However that may be, as already noted, there is nothing in the record to suggest
that Mr. Blair was misled by any statements or actions of the Norrises relative to the statute.

               Finally, we point out that should we sustain Mr. Blair’s position and ultimately it
be determined that Mr. Blair is indeed the father of the child, we would have the anomalous
situation, under the present record, that insofar as Mrs. Norris is concerned Mr. Blair is the father
and insofar as Mr. Norris is concerned Mr. Blair is not.

                For the foregoing reasons the judgment of the Trial Court is affirmed and the
cause remanded for collection of costs below. Costs of appeal are adjudged against Mr. Blair
and his surety.




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