                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    July 14, 2010 Session

                IN RE: ESTATE OF JAMES A. HAMILTON a/k/a
                        JAMES ROBERT HAMILTON

                  Appeal from the Chancery Court for Marion County
                      No. 7299    Jeffrey F. Stewart, Chancellor


                No. M2009-01882-COA-R3-CV - Filed February 14, 2011


A woman who failed to have her paternity determined while her putative father was living
filed a complaint seeking to establish her right to inherit a part of his estate. Tennessee Code
Annotated §31-2-105 requires paternity to be established by clear and convincing evidence
if paternity is sought to be established after the putative father’s death. Prior to the trial, the
woman moved the chancery court to order the deceased’s family to provide her with DNA
samples in an effort to prove the deceased was her father. The trial court denied this motion,
finding the rules of civil procedure do not require nonparties to provide DNA samples.
Following a bench trial, the court concluded the woman failed to prove by clear and
convincing evidence that the deceased was her father. The woman appealed. We affirm the
trial court in all respects because, first, nothing in the Rules of Civil Procedure requires the
deceased’s family members to provide DNA samples to assist the woman in proving she was
the deceased’s daughter. Second, the positive and negative evidence rule does not apply to
the testimony in this case because there was no conflicting testimony by eyewitnesses to the
woman’s conception. Third, the missing evidence and missing witness rule applies to jury
trials, whereas this trial was a bench trial, and there was no evidence that the purportedly
missing evidence or missing witnesses were under the estate’s control.

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


P ATRICIA J. C OTTRELL, P.J., M.S., delivered the opinion of the Court, in which A NDY D.
B ENNETT and R ICHARD H. D INKINS, JJ., joined.

H. Graham Swafford, Jr., Jasper, Tennessee, for the appellant, Lora Davis.

Russell Anne Swafford, Dunlap, Tennessee, for the appellee, Alice Hamilton Davis, in her
capacity as Administratrix of the Estate of James A. Hamilton.

                                               OPINION

       On April 29, 2009, Lora Davis filed a Complaint in the Chancery Court of Marion
County to establish her right to inherit a portion of the estate of James Albert Hamilton, who
passed away on November 26, 2007, leaving no will. Alice Hamilton Davis, who was Mr.
Hamilton’s sister and is the administratrix of Mr. Hamilton’s estate, was named as the
defendant.1 Lora claimed Mr. Hamilton was her father, and that under the laws of intestacy
she was entitled to share his estate with the children of Mr. Hamilton’s other daughter, who
predeceased Mr. Hamilton.

       Lora was not legitimated during Mr. Hamilton’s lifetime. Prior to trial, Lora filed a
motion to compel Mr. Hamilton’s family members to provide a DNA sample in an effort to
prove she was Mr. Hamilton’s daughter. The trial court denied this motion on the basis that
no authority compels nonparties to provide DNA samples.

                                       I. T ESTIMONY AT T RIAL

        This case was tried before the Chancery Court without a jury on June 15, 2009. Lora
testified that Mr. Hamilton treated her as his daughter from the time she was five or six years
old until the time he died. The witnesses Lora presented included her mother, her mother’s
sister, her current husband, her ex-husband, and her mother’s brother.

        All these witnesses provided consistent testimony that Mr. Hamilton treated Lora as
his daughter and that Lora always referred to Mr. Hamilton as “Daddy.” They testified that
Mr. Hamilton spent time with Lora when he was able to see her, that Lora resembled Mr.
Hamilton, and that Mr. Hamilton treated Lora as his daughter from the time she was a young
girl. Lora’s mother testified that she was living with Mr. Hamilton and his sister’s family
when she became pregnant, and that she lived with Mr. Hamilton and his sister’s family for
fifteen months. Lora’s mother testified she was certain Mr. Hamilton was Lora’s father and
that there was no other man who could have been Lora’s father when she became pregnant.

      Witnesses for the defense included the Administratrix, her husband, their daughter,
and their son-in-law. They all testified that they did not see much of Lora while Mr.
Hamilton was living and did not know whether or not Lora was Mr. Hamilton’s daughter.



        1
         Because the plaintiff and defendant share the same last name, we will refer to the plaintiff as Lora
and the defendant as either Alice or the Administratrix.

                                                    -2-
        The Administratrix testified that the first time she met Lora was at the funeral home
when Mr. Hamilton’s daughter Lacey passed away. She also testified Lora’s mother brought
photos of Lora to her house when Lora was a child and told Alice that Lora was Mr.
Hamilton’s daughter. When asked whether any of her brothers other than Mr. Hamilton ever
referred to Lora as Mr. Hamilton’s daughter, the Administratrix replied, “Well, they might
have, you know.” Alice also testified that when Mr. Hamilton died, Lora was not initially
listed in the program for Mr. Hamilton’s funeral service. Alice explained that Lora was upset
she was not listed in the program, and so Alice had the program changed to include Lora as
Mr. Hamilton’s daughter. With regard to how long Lora’s mother lived with Mr. Hamilton
and Alice’s family when Lora’s mother and Mr. Hamilton first met, Alice testified that
Lora’s mother lived with her family for a month or two, but she did not think Lora’s mother
lived with her for fifteen months.

                                II. T RIAL C OURT’S R ULING

      Following a bench trial, the trial court held Lora had failed to prove by clear and
convincing evidence that Mr. Hamilton was her father, stating:

       [T]he burden of proof is to prove by clear and convincing evidence her case
       that Buck Hamilton was her father. That means that there could no serious or
       substantial doubt concerning the correctness of the conclusions drawn from the
       evidence, or that the proof produces in the fact-finder’s mind that firm belief
       or conviction with regard to the truth of a claim sought to be established or that
       Black’s Law Dictionary that no reasonable doubt in the mind of the trier of
       fact concerning the matters at issue. While I think that there was evidence that
       was presented by the plaintiff that could be in her favor, I don’t think it would
       be of the nature that would be clear and convincing evidence, and so I find that
       the plaintiff has not carried her burden of proof in this case, and would find
       then for the estate.

       Lora’s counsel duly filed a Notice of Appeal with this court and claimed the trial court
erred (1) in denying Lora’s motion to require Mr. Hamilton’s family members to submit to
a DNA test to establish that Mr. Hamilton was Lora’s father; (2) in failing to apply the
negative evidence rule to the testimony presented at trial; and (3) in applying the missing
witness or withheld evidence rule. We will address each of these issues in turn.




                                              -3-
           III. P ROOF OF P ATERNITY BY C LEAR AND C ONVINCING E VIDENCE

        Lora did not establish Mr. Hamilton’s paternity before he passed away. Therefore,
the statute governing paternity for purposes of intestate succession requires Lora to prove Mr.
Hamilton was her father by clear and convincing evidence. The applicable portion of the
statute governing this issue provides:

       (a) If, for purposes of intestate succession, a relationship of parent and child
       must be established to determine succession by, through, or from a person:
                                            .....

              (2) . . . a person born out of wedlock is a child of the mother. That
              person is also a child of the father, if:

                                            .....

                     (B) The paternity is established by an adjudication before the
                     death of the father or is established thereafter by clear and
                     convincing proof . . . .

Tenn. Code Ann. §31-2-105.

       The Tennessee Supreme Court examined the meaning of the “clear and convincing”
standard in another paternity case. The Court wrote:

       The “clear and convincing” standard falls somewhere between the
       “preponderance of the evidence” in civil cases and the “beyond a reasonable
       doubt” in criminal proceedings. To be “clear and convincing,” the evidence
       must “produce in the mind of the trier of facts a firm belief or conviction as to
       the allegations sought to be established.”

In re Estate of Walton v. Young, 950 S.W.2d 956, 960 ((Tenn. 1997) (quoting Fruge v. Doe,
952 S.W.2d 408, 412 n.2 (Tenn. 1997), itself citing Hobson v. Eaton, 399 F.2d 781, 784 n.2
(6th Cir. 1968), cert. denied, 394 U.S. 928 (1969)). As stated, Lora was required to meet a
higher standard of proof than is required to show that something happened more likely than
not, but not so high that there can be no reasonable doubt that an event occurred.

       Lora does not argue on appeal that the trial court erred in ruling she had not proved
her case by clear and convincing evidence. Therefore, we will not address the issue of
whether the trial court’s ultimate holding is supported by the evidence.

                                              -4-
                                       IV. DNA Test

        Lora relies on Tennessee Rules of Civil Procedure 34.01 and 34.03 to support her
argument that Mr. Hamilton’s family members should have been required to provide DNA
samples. Rule 34.01 addresses requests made by one party to another party to produce
documents, or to inspect and copy, test, or sample tangible things in the possession or control
of the party upon whom the request is served, or to permit entry upon land or other property
in the possession or control of the party upon whom the request is served for the purpose of
inspecting and measuring, surveying, photographing, testing, or sampling the property or
designated object or operation. Rule 34.01, by its terms, does not apply to nonparties.

       Although Alice Davis is the named defendant and was the sister of Mr. Hamilton, the
putative father, she is being sued solely in her capacity as administratrix of the estate. It is
not clear from the record from which family members Lora was seeking DNA. Lora’s
counsel did not argue before this Court that she should have been entitled to obtain Alice’s
DNA separate and apart from Mr. Hamilton’s other family members. However, even if Lora
was seeking a DNA sample from Alice, Lora’s attorney failed to cite any case law or other
authority that Rule 34 authorizes a third party to take a sample from Alice’s bodily tissues.

        The record does not show that Lora ever filed a discovery request under Rule 34
asking Alice to submit to a DNA test. The 2009 Advisory Commission Comments to Rule
34 explain that “issues of burden and intrusiveness raised by requests to test or sample can
be addressed under Rules 26.02 and 26.03.” In the absence of evidence in the record to show
Lora sought this discovery through the Rules of Civil Procedure or filed a motion to compel
this discovery, Rule 34.01 does not help Lora’s argument.

       Lora also relies on Rule 34.03 to argue Mr. Hamilton’s family should have been
required to provide DNA samples. While Lora is correct that Rule 34.03 applies to
nonparties, the rule addresses “documents and tangible things” nonparties may have in their
possession, as well as permitting an “inspection.” As the Advisory Commission Comments
make clear, “This Rule provides a method by which a party may obtain access to relevant
material objects under the control of another party.”

      Lora provides no authority to support her argument that an “inspection” as used in
Rule 34.03 includes a DNA sample taken from a nonparty’s body. In any event, to the extent
Lora was seeking DNA samples from Mr. Hamilton’s family other than Alice, Lora has not
made any showing that those other family members were under Alice’s control. Therefore,
Rule 34.03 does not further Lora’s cause any more than Rule 34.01 does.




                                              -5-
                      V. P OSITIVE AND N EGATIVE E VIDENCE R ULE

       Lora next argues the trial court erred in failing to apply the positive and negative
evidence rule to conclude Lora failed to prove by clear and convincing evidence that Mr.
Hamilton was her father. Positive evidence includes a witness’s testimony that he or she saw
or heard a particular event. Negative evidence includes a witness’s testimony that if a
particular event occurred, he or she did not see or hear it. If a witness was in a position to
see or hear a particular event and testifies that the event did not occur, that evidence would
be positive evidence that the event in question did not occur. 11 T ENNESSEE J URISPRUDENCE
Evidence §220 (2004). Positive testimony is generally entitled to more weight than negative
testimony when the witnesses are equally credible. Id.

      The Tennessee Court of Criminal Appeals described the difference between positive
and negative testimony in State v. Smith:

       Positive or affirmative testimony is that given by a witness who, having been
       present at the time in question, testifies that an alleged fact or event did exist
       or occur, or who, having been not only present but also attentive, testifies not
       merely that he did not see or hear or otherwise observe the alleged fact or
       event, but that it did not exist or occur. Negative testimony in the strict sense
       is that given by a witness who, having been present, testifies, not positively
       that an alleged fact or event did not exist or occur, but merely that he did not
       see or hear or otherwise observe its existence or occurrence. If a witness,
       having been present, testifies that he was attentive but did not see or hear or
       otherwise observe the alleged fact or event, his testimony, while commonly
       termed as negative, is not of a purely negative character; and where a witness
       describes a fact or event observed by him, and an opposing witness observes
       and describes the same fact or event differently, the testimony of both is
       equally positive.

626 S.W.2d 283, 285-86 (Tenn. Cr. App. 1981).

        This rule has been discussed and applied in numerous cases. See, e.g. Tenn. Cent. Ry.
Co. v. Page, 282 S.W. 376, 377 (Tenn. 1926) (damages action resulting from collision
between train and car); State v. Blair, 634 S.W.2d 627, 631 (Tenn. Cr. App. 1982) (sodomy
case); Atkins v. Smith, 9 Tenn. App. 212, 216 (Tenn. Ct. App. 1928) (negligence action
where child was injured in the street); Watts v. Wilkerson, No. 03A01-9310-CV-00350, 1994
WL 85951, at *2 (Tenn. Ct. App. 1994) (wrongful death action). This rule has been
criticized as causing more confusion than clarification when a trial judge instructs a jury to
disregard negative testimony when positive testimony conflicts with the negative testimony.

                                              -6-
See State v. Blair, 634 S.W.2d at 634 (“Because the negative evidence rule promotes more
confusion than clarity, we think the better practice would be to omit the instruction
altogether.”); Watts v. Wilkerson, 1994 WL 85951, at *2 (negative evidence rule out of
favor).

       Lora’s counsel argued that the testimony provided by Alice’s witnesses should have
been treated as negative testimony because these witnesses testified they did not know
whether or not Mr. Hamilton was Lora’s father, whereas the testimony by Lora’s witnesses
should have been treated as positive testimony and therefore given greater weight by the
chancellor because they testified they believed Mr. Hamilton was Lora’s father. The belief
of the witnesses does not rise to the level of positive evidence. The trial court appropriately
declined to apply the positive and negative evidence rule.

                        VI. M ISSING W ITNESS OR E VIDENCE R ULE

        Lora’s final argument is that the trial court misapplied the missing witness or evidence
rule in concluding Lora failed to prove by clear and convincing evidence that Mr. Hamilton
was her father. With regard to missing witnesses, Lora’s counsel referred to “family
members” who were unavailable at trial, but did not identify these individuals. With regard
to missing evidence, he argued that “a non intrusive DNA test to determine paternity one way
or the other amounts to withheld evidence.”

        The missing witness or evidence rule is generally an instruction a trial judge gives to
a jury allowing them to draw a negative inference against a party when that party does not
call a witness or present evidence that under reasonable circumstances the party would have
introduced if the testimony or evidence would have assisted that party’s case. Nichols v.
Nichols, 856 S.W.2d 397, 402 (Tenn. 1993); 11 T ENNESSEE J URISPRUDENCE Evidence §27
(2004).

        We recently reviewed the missing witness rule in Elchlepp v. Hatfield, 294 S.W.3d
146 (Tenn. Ct. App. 2008), and we reviewed the missing evidence rule in Richardson v.
Miller, 44 S.W.3d 1 (Tenn. Ct. App. 2000). In both cases we recognized that a trial court
may instruct a jury that they may consider the absence of a witness or evidence to conclude
the witness’s testimony or missing evidence would have been adverse to the party who failed
to introduce it only under certain circumstances. These circumstances include: (1) the party
that failed to produce the witness or evidence had it within their power to produce such
witness or evidence; (2) the missing witness or evidence was under the party’s control; (3)
the witness or evidence was not equally available to the other party; (4) the witness’s
testimony or evidence would not simply be cumulative; (5) a reasonable person in the party’s
position would have produced the witness or evidence if such witness or evidence would

                                              -7-
have been helpful; and (6) the party has not given a reasonable excuse for failing to present
the witness or evidence. Elchepp v. Hatfield, 294 S.W.3d at 154; Richardson v. Miller, 44
S.W.3d at 28; see generally 11 T ENNESSEE J URISPRUDENCE Evidence §§27-28 (2004)
(general discussion of missing evidence and missing witness rules).

       While we have already noted Lora’s failure to specify particular witnesses who should
have testified at trial, we also note that Lora has not shown how any missing witnesses were
under the estate’s control and unavailable to Lora to subpoena to testify at trial. Moreover,
she has not shown that DNA evidence from family members other than Alice was under the
estate’s control, as she must before the missing evidence rule is even arguably applicable.

       In any event, the missing witness and missing evidence rule applies to jury trials
where the trial judge instructs the jury how to interpret the evidence or lack thereof, and Lora
does not explain how this rule can apply to a bench-tried case such as this. For all of these
reasons, the missing witness or missing evidence rule does not come into play in this case.

      The trial court is affirmed. Costs of this appeal are taxed to the appellant, Lora Davis,
for which execution may issue if necessary.




                                                    _________________________________
                                                    PATRICIA J. COTTRELL, JUDGE




                                              -8-
