*1 887 from his to inherit is entitled OK 24 show he/she kindred, no evidence his father’s father and Jimmy MILLER, Plaintiff-Appellant, D. was ac acknowledgment submitted this was presence of a by Egon in the
tually signed merely alleged, in Jason competent witness. Hall, Judy Judy February trial court brief Bill A. MILLER a/k/a summary Hall, Hall, motion for response to Laura’s and Nora Defendants- support Appellees. of his own motion judgment and in Egon signed the summary judgment, that No. 87615. presence compe of a acknowledgment in the proof such tent witness. In absence Supreme Court of Oklahoma. actually acknowledgment signed was witness, competent presence of a Egon 24, 1998. March currently be writing taken cannot requirement(s) comply with the sufficient to Estate, Re 200 Okla.
§of 215. See In Lewis’ 174, 176 (1948);
352, 194 Burns v. Law P.2d
son, P.2d Okla.
Therefore, paternity remains a mate Jason’s disputed the matter factual issue and
rial proceedings.10
must be remanded further above,
¶ specified 27 For reasons opinion Appeals’ memorandum
Court Civil VACATED, judgment trial court is REMAND- and the matter
REVERSED THE TRIAL COURT FOR FUR-
ED TO
THER PROCEEDINGS.
¶ SUMMERS, V.C.J., KAUGER, C.J.,
HODGES, ALMA HARGRAVE and
WILSON, JJ., concur. ALA, JJ., concur in 29 SIMMS OP
part; part. dissent in J., WATT, dissent.
SIMMS, Justice, part, concurring part:
dissenting judg- court’s 1 I would affirm the trial respects. in all favor of Laura
ment
¶ 2 that Justice I am authorized state in the view ex- Dissents Joins
Watt
pressed herein. request finally appeal trustee bank because made We note that we decline in this Egon may produce possibility other chil- request exists into trustee bank’s to delve —made designated distribution dren the trust’s determination of who should be before trial court—for a Egon’s date. issue. The included in the "class” *4 allegedly representations made false
who plaintiff was the father of that defendant Judy A. child and who revealed to Miller’s later, child, years almost fifteen We an- plaintiff was the child’s father. plaintiffs affirmative as to swer dam- claim, negative to his claim age but equitable relief. Jimmy (“Jimmy”) D. Miller sued his wife, Judy Judy former A Miller Hall a/k/a Childers) (now (“Judy”) Judy par- and her ents, parents”) (“Judy’s Bill Nora Hall equitable damages and relief based on the fraud, intentional infliction of theories of distress, quantum meruit. He alleges petition purpose that for the inducing marry Judy, him to defendants him knowingly misrepresented to *5 child, pregnant was his and contin- she with perpetrate against to this fraud him for ued years purpose next fifteen for the causing perform him to the duties of husband that alleges and father. He further after carrying this for fifteen out fraud almost develop loving him to a years permitting and relationship, Judy par- and her parent-child suddenly unexpectedly pulled and ents rug out from under him proverbial reveal- Jimmy not fact ing to the child that was Jimmy alleges her father. that defen- then further undermined bond with dants encouraging develop her to a the child relationship with “real father” and her her family.” “real responded with a mo- 3 The defendants petition for failure state tion dismiss granted judge trial cause of action. The a motion, appealed. and defendants’ Appeals, No. The Court of Civil Division court, holding order of the trial affirmed the (a) the plaintiff cannot recover under Purcell, Tracey, Appellant. for Jack quantum meruit because theories of fraud Haselwood, Shawnee, Appellee for W.S. prohibited provisions of O.S. he is Judy Judy A Miller Hall. a/k/a (b) paternity, disputing § 3 from Shawnee, Henson, Appellees for Virginia theory of intentional infliction emotion- Bill Nora Hall. complained of fail because the acts al distress outrageous- degree minimum to meet the ALA, OP Justice. facie, state, necessary prima claim ness infliction of emotional distress. presented on for intentional dispositive issue petition disagree plaintiff’s and hold that court We certiorari is whether trial erred and intentional inflic- damages claim fraud dismissing plaintifPs action states distress, defendants, unjust not for of emotional but against the tion equitable relief joint, particularly, pro- primary, custody we enrichment. More ed but not of A and (a) provisions parent-child nounce that of 10 has O.S.1991 maintained a continuous re- inapplicable plaintiffs lationship daughter with his 3 are fraud-based since the di- (b) law,1 plaintiffs action at action is not vorce. (c) doctrine, by preclusion barred Oklahoma early approxi- 6 In when A was recognizes a claim for fraudulent inducement old, mately years fifteen she decided she no marriage goes into a valid where fraud longer live wanted to with her mother. She (d) relationship, the essentials of the marital Jimmy’s According moved into home. states, facie, plaintiffs petition prima a case Jimmy, January, year almost one distress, of intentional infliction of emotional father, coming after to live with her A in- (e) plaintiff fails to state claim for him originally formed that when she had may theory unjust
which he recover on a expressed him, a desire to live her with enrichment. grandparents, mother and her Bill and Nora Hall, Jimmy had told her that was her I urged “get real father and had her to family.” According know ‘real’ her to Jim- THE ANATOMY OF LITIGATION my, A grand- told him that her mother ¶4 Jimmy Judy father, parents D. had identified her Miller and A. Hall real had dating early were introduced her to fami- months of 1980. members her “real ly,” Jimmy Judy given photographs had of A to years was seventeen old and members family”, According Jimmy, in of this “real was fifteen. March and had stated to her 1980, Judy parents, nothing Jimmy and her Bill that there was either she or and Nora Hall, Judy Jimmy informed him that could do about it.2 pregnant, was states that A’s his, January, the child revelations 1996 were the first and that child *6 only Judy Judy parents could notice he had that be his inasmuch as had not had and her any in paternity had sexual relations with man other had deceived him 1980 as to his than Jimmy. Relying representations, Judy carrying. Jimmy of the child was on these then Jimmy 24, 1980, Judy very and A that paterni- married on October underwent month a test, they ty proceeded Jimmy and to as which verified that live husband and was not nearly years. for A’s biological wife five father.
¶5 ¶ Judy carrying Jimmy The child petition was at the his on filed March Jimmy, of marriage subsequently time her to approximately two months after first A, named learning was born on December being that his of A was During nearly five-year marriage, their parents. Jim- denied his ex-wife her and For my, together Judy, with theory recovery, raised the as Jimmy alleges child his first own, disputing legitimacy, his never her that he fraudulently marry be- was to induced lieving girl Judy at all times that little knowing misrepresenta- the was his the biological Jimmy Judy Judy parents child. and divorced tions of and her he that was the father, Jimmy 1985. The only divorce decree recites that he and that was the man who Judy parents father, and possibly are the of a minor child could be the with of the child Jimmy alleges Judy named A. pregnant that made that whom she was then she because proceed- recitation to the court in the divorce had not had sexual intercourse with oth- ing, knowing it to be Relying allegedly false. The court or- er man. on knowing these Jimmy pay support dered to misrepresentations, Jimmy child for A in Judy married and Fifty the amount One Hundred on responsibilities Dollars took the of husband and ($150.00) per beginning August fraud, month on Jimmy father. For this seeks dam- Jimmy faithfully defendants, alleges ages against that he has including all an paid grant- that amount as equal ordered. He was amount to the sum of the court-ordered facts, 1. For a discussion of recoverable and nonrecov- 2. Some of these which stand uncontrovert- ed, damage erable elements of an action for the gleaned plaintiff's were from briefs. here, type alleged Nagy Nagy, of fraud see Cal.App.3d Cal.Rptr. explicit exception of an plus Noting absence since support payments made child appellate fraud court Section damages. punitive implied exception, say- to create an refused recovery, theory his second 8 For protect to innocent ing “[t]he that desire marriage- Jimmy alleges that the defendants’ parental long and to foster term children pater- inducing misrepresentations, cruel by creating a is not furthered fraud bonds him for fifteen nity perpetrated against hoax Jimmy’s request exception.” Characterizing of this hoax years, the callous revelation damages sup- return all child as “the A, and effort undermine through him interest,” port paid along with the Court of A to extreme and with amount bond Appeals Jimmy A’s held that since was Civil conduct, him outrageous causing severe emo- legal father at the time he was ordered For tort of intentional tional distress. pay support, court to child he was and distress, Jimmy seeks infliction of emotional legally obligated make continues damages against all defendants. payments, and is entitled to the such not recovery, theory Jim- 9 For his third he and return that which was still my Judy unjustly has been en- alleges that obligated pay. Having legally determined expense by equal amount riched at his §§ 1 provisions under of 10 O.S.1991 support child monthly court-ordered seq. Jimmy was A’s father at the et ($150.00) Fifty per Dollars One Hundred divorce, Ap- of Civil time Court month, paid August, he has since unnecessary inquire into peals deemed it Judy all Jimmy from restitution of seeks Judy fraudulently whether had misled paid support as other sums to her child and Jimmy’s in the action about court divorce equitable relief. A, Jimmy’s paternity of As for claim for distress, intentional infliction jointly motion 10 The defendants filed a appellate alleged held facts court that the they to dismiss which admitted (b) claim, (a) Jimmy’s petition the basis for in the as A conceived in March of was fifteen-year “confessing a lie Jimmy years old time characterized as was seventeen at the (c) revealing identity fifteen, the child of her Jimmy Judy and Judy and (d) father”, October, 1980, could be construed biological on not married in was bom (e) people as and outra- Jimmy Judy reasonable extreme December therefore, as a matter of geous, and could A as a lived husband wife raised *7 law, in support Jimmy’s favor. in a verdict family their until their divorce member of 1985. ¶ conceptualizes dissenting judge 13 The
¶ differently. Jimmy’s quite urged 11 the court lawsuit She The defendants trial Jimmy’s not points out action is one to Jimmy’s for to that petition to failure dismiss and, paternity there- upon may grant- a establish disestablish state claim which relief be fore, inquire there need to whether an provisions of 10 is no They argued ed. that the the exception for fraud can be read into judicata § of 3 and doctrine res O.S.1991 According § to provisions of 10 O.S.1991 3. Jimmy recovering damages or ob- bar from dissent, Jimmy’s petition states a claim taining any on of the relief from them other relief on because such agreed trial court based fraud theories advanced. The Further, recognized is law. granted motion action defendants’ to dismiss. of damages Jimmy seeks are not restitution Jimmy appealed. support majority as- payments, child ¶ split 12 In a decision the Court of Civil serts; rather, merely he uses the amount order, Appeals court’s hold- affirmed trial support as measure of his paid child a ing prove his fraud and that order to Finally, the dissent dis- legal damages. Jimmy quantum damages, would have meruit majority’s for affirm- agrees with the reason This, dispute of A. the Court Jimmy’s cause action ing the dismissal ruled, terms Appeals of Civil is barred infliction of distress. for intentional 3, provide two-year § of 10 a O.S.1991 ¶ granted Jimmy sought 14 cer- disputing paternity cer- time limit for under circumstances, here. tain all of which obtain tiorari.
894 required plaintiff
II them.8 A neither identify specific theory recovery a nor to STANDARD OF REVIEW out remedy set the correct or relief which ¶ prius In reviewing a nisi 15 may possible he be If relief is entitled.9 dismissal, disposition by this court examines any under set facts which can be estab- the issues de novo.3 Motions dismiss are allega- lished and are with consistent pur generally tions, with viewed disfavor.4 The motion dismiss should be denied.10 pose of a motion to dismiss is to test the law petition generally can dismissed be claims, governs underlying cognizable legal lack theory or for According Fraser, pe facts.5 Professor cognizable legal insufficient facts under a tition is sufficient under Oklahoma theory.11 recapitulation This stan- of the Pleading Code if it “the discloses existence reviewing dards for on cases decided motion legally recog necessary of the elements of a our guides dismiss review this case. nized claim or cause of A motion action.”6 upon failure to dismiss for state claim Ill granted
which relief can be will not sus § THE OF O.S.1991 3 PROVISIONS 10 DO appear tained unless it should doubt without REQUIRE NOT DISMISSAL OF plaintiff prove that the can no set of facts PLAINTIFF’S PETITION FOR FAIL- support claim for relief.7 court The URE TO STATE A CLAIM challenged must take as true all of the ¶ pleading’s allegations together with all rea 16 argue provi- Defendants may § sonable inferences which be drawn from sions of 10 O.S.1991 312 are a statute of Loosen, 103, ¶ 4, 3. Lockhart v. prove 1997 OK 943 P.2d doubt that can no set facts 1074, 1077; Washington Depart support v. ex State rel. claim of his which would entitle him Corrections, 139, ¶7, Gibson, 41, 45-46, Conley ment 1996 OK 915 P.2d to relief.” v. 355 U.S. 359, 361; 102, 99, Depart (1957); v. Indiana National Bank State 78 S.Ct. 2 80 L.Ed.2d Groce v. Services, 98, 2, Foster, 88, 12, 902, 906; ment Human 1994 OK 880 1994 OK 880 P.2d 371, Inc., Dyke Hospital, P.2d 375. v. Saint Francis OK 1993 114, ¶ 7, 295, 298; Bryan 861 P.2d v. ¶ Frazier Lockhart, 3, 5, 1078; supra 4. note at V at Indiana 73, 13, Hosp. Authority, Memorial OK 1989 775 Bank, 3, ¶ 4, 375; National Kentucky at at 281, P.2d See 287. also Committee Comment to Company v. Central Insurance Le- 2012(B), Life § 12 O.S.1991 which observes that Duc, (N.D.Cal.1992). F.Supp. 814 2012(B) virtually the same as Federal Rule 12(b). of Civil Procedure Gammill, 149, ¶ 5. Zaharias v. OK P.2d Savings 8. Great Plains Federal and Loan Associa- ¶ 2, Dabney, tion 1993 OK n. 846 P.2d Fraser, George B. The Petition Under the New 1088, 1090, n. 3. Code, Pleading Okla, L.Rev. Id., J., (Opala, Carpet Cleaning concurring). at A-Plus Janitorial & Em- Association, ployers' Compensation Workers' 922; ¶ 9, OK National Diversi- Lockhart, 4,¶ 1077; *8 supra 10. note at at Services, Corporate Business Inc. v. Financial Bank, ¶ fied supra Indiana National note at at Inc., 36, ¶ 9, Opportunities, 662, 665; 1997 OK 946 P.2d 376. Ford, Doenges Delbrel Bros. OK ¶ 36, 3, 1320; Washington Lockhart, 5,¶ 1078; supra at note at State, 7,¶ supra at note at 361. The of terms ¶ Bank, Indiana National at at 2012(B) provide pertinent part; § 12 O.S.1991 375; Kentucky Company, Central Insurance Life defense, fact, “Every in law a or to claim for supra note at 835. claim, any pleading, relief in terclaim, cross-claim, a whether coun- claim, third-party or provisions seq. §§ The of 10 O.S.1991 et1 responsive pleading shall be asserted the change were amended in 1994. The effected in required, except thereto if one is that the fol- by Section 3 the 1994 amendments does not lowing may option plead- defenses of the the plaintiff legal affect either status the of as father by beer made motion: availability the or of 3 as a to Section bar the plaintiff's action. Prior to its amendment upon 6. Failure to state a claim which relief provided: Section 3 granted; can be complaint presumption legitimacy disput- "[A] should not be dismissed for fail- "The of can be appears beyond only by ure state a claim it unless ed the husband wife or the deseen- 95(3),13 by “discovery § the Supp.1997 are which, when all its elements limitations applicable to actions. rule” fraud-based as met, legitimacy of up presumption the sets toor bar, just paternity actions a not majority of The of the Court Civil respon- legal rights the in which actions accepted conceptualiza Appeals defendants’ pater- in the of inherent status disputing paternity sibilities of the case one tion contested, any meaning action nity but also to the of rather than are within Section Holding law of as a common fraud action. paternity of is an element the issue where explicit of 3 admits neither nor Section proof. fraud, majority implicit exception for the af appeal, in the trial and on 17 Both court Jimmy’s petition. of firmed the dismissal the on defen- plaintiff engages argument not argued that whether or Sec The dissent accepts con- He terms. defendants’ dants’ exception a is irrelevant tion 3 contains fraud of statutory presumption the tention that Jimmy’s paternity suit is not a ac because lawsuit, but dispute in his legitimacy is dissent, According to the Section 3 tion. the exception 3 should argues to Section that an applicable only claim limitation is to a time dispute the recognized be when failure or one paternity, or disestablish establish by action, timely the dissent in a fashion was caused relief. Plaintiff’s paternity related action and argues urges, is a common law fraud parties’ fraud. Plaintiff the other governed by provisions therefore not presumption legit- of the purposes that the 3,§ by but the statute of limita 10 O.S.1991 having it af- by not imacy be served would 95(3) § Supp.1997 found in O.S. tions defendants, who, those like protection ford discovery rule by the their fraud and then revealed engaged in a juncture, own conduct. At this fraudulent certiorari, plaintiff 19 In his brief on a explicitly deny that his is does adopts reasoning, arguing that the dissent’s action, implicitly he identifies paternity but brought action has not he by law fraud period as one common contained in claim therefore the limitations inapplica- § governed of 10 3 is arguing provisions that his claim should be O.S.1991 fraud, argues Plaintiff that his claim for 12 O.S. ble. of limitations for statute may disputed pursuant be Illegitimacy in Section or both of them. section dant of one may proved provides: be other fact. Section 3 now such a case like 3....” " during dispute presump- that if the. child is bora Persons Provided entitled marriage by the and is reared course of limit tion—Time family wife as member of their husband and disputing legitimacy for a without period child's during a child is bom the course B. If (2) presump- years, two of at least marriage the husband and is reared disputed anyone.” tion cannot be family without as a member of their dis- wife legitimacy Section presumption to which legitimacy period puting child's for a of at §§ provisions O.S.1991 3 refers is in the of 10 (2) years, presumption cannot be two least and 2: by anyone. disputed Presumption legitimacy ‘‘§1. presumed are All children bom wedlock Supp.1997 § Limitations other 13. 12 O.S. legitimate.” be actions "§ of mar- 2. Children bora after dissolution recovery actions other than for the "Civil riage wedlock or before brought property can within the real been mar- of woman who has All children ried, following periods, cause of after the action (10) ten months after bom within accrued, have and not afterwards: shall marriage presumed to be are dissolution marriage. child legitimate of that children (2) years: action two ... an 3. Within legitimate before wedlock becomes bom subsequent *9 ground cause of on the of fraud—the relief marriage parent." of its case not be deemed to action in such shall and the were amended in 1994 These statutes fraud; discovery the accrued until the of have were at the time versions in effect amended plaintiff's They opera- lawsuit was filed. remain today. 2 states Subsection A. of Section now tive discovery rule allows limitations tort 14. The exceptions, presumed "a man is that with certain injured tolled until the knows cases to be or, all intents to father of a child for be the natural diligence, of should any in the exercise reasonable of obtain. purposes” if five conditions Porter, Reynolds injury. of the provides "the have known Section that B. of 2 Subsection ¶88, 820 n. 8. n. P.2d paternity pursuant to this 1988 OK presumption of created perpetrated against estoppel various tortious acts him argument stitutional attack and with defendants, that to alleged respect applicability he has facts the of this statute. bring would his action within the limi- which period agree.
tations
for those torts.15 We
IV
NEITHER CLAIM NOR ISSUE
PRECLU-
previously
20 We have not
consid
A
SION IS
PROPER
FOR
BASIS
statutory presumption
ered whether the
of
DISMISSING PLAINTIFF’S ACTION
legitimacy
plain
bars an action in which the
child,
seeking
delegitimize
tiff is not
to
or
¶ 22
interpose
Defendants
the di
obligations
parenthood,
avoid the
of
to
but
present
vorce decree as a
to the
bar
case
damages
alleged
rather
to obtain
from an
principle
judicata.
under the
res
of
The
falsely representing
tortfeasor for
that he is
judicata
imprecisely
term res
is often used
to
the father of the child. We
the
hold
doctrines,
separate
denote two
and distinct
§
provisions of 10
in
O.S.1991
cannot be
judicata
preclusion
known as res
claim
or
recovery
voked
defeat
for the kind of
estoppel
preclusion.16
collateral
issue
alleged
plaintiff asking
conduct
here. Were
two
These
doctrines are often used inter
court
legal
the
to terminate his
as A’s
status
changeably
they
closely
because
are
related
father,
he would be barred
3 from
Section
promote
general
and both
same
public
the
doing so.
is not asking
Plaintiff
the court to
policy
identify
concerns. Defendants fail to
asking
this.
do
He is
the court to consider
of
they
these
doctrines
intend
the
A,
biological relationship
the issue of his
the
judicata.
use of
term res
destroy
legal
relationship.
judg
not
his
principle
the
Under
of claim
ment in his
in this
favor
ease will not sever
preclusion, a
judgment
final
on
the merits
A nor
legal rights
status to
alter the
precludes
parties
an action
relitigat-
the
from
obligations arising
parent-child
from the
ing
claim,
adjudicated
not
but also
relationship.
biological
Plaintiffs
connection
any
actually
theories or
issues
were
merely
proof
A is
here
needs
he
decided,
decided,
or could have been
in that
perpetrated
show that certain torts were
preclusion
action.17 The
of claim
doctrine
Introducing
him.
against
evidence that he is
prevent piecemeal
designed
litigation
biological
prove
not the
of A
father
that he
through
splitting
single
aof
claim into
victim of fraud or
inflic
intentional
separate
preclusion
lawsuits.18
claim
When
tion
emotional distress
disputing
is not
asserted,
analyze
the court must
the claim
prohibited
pro
the sense
prior
involved
action to ascertain
§
visions of 10 O.S.1991 3.
it
whether
is in fact
same
as that assert
¶ 21
provisions
§
of 10 O.S.1991 3 do
in the subsequent
ed
Defining
action.
require
plaintiffs petition
dismissal of
term “claim”
aspect
is the most difficult
failure to
applying
state
cause of action. It is there-
preclusion.19
claim
In Retherford,
unnecessary
fore
plaintiffs
to consider
con- we defined claim as:
Halliburton,
statutory
applicable
15. See note 13 for
limitations
18.
1977 OK
Retherford
to fraud. The statute of limitations for an action
P.2d
on the
based
tort of intentional
of emo-
infliction
years.
tional distress is
two
also
See 12 O.S.
Vestal,
(1969)
Injury
D.
Allan
Personal
Annual
95(3);
Supp
Way
Williams v. Lee
Motor
variety
analytical
at V-43. Vestal
describes
Inc.,
64, ¶7,
Freight,
1984 OK
approaches
defining
claim. While not advo-
cating
single approach, he concludes:
"A mechanical
Judgments
speaks
16. The
definition
claim would
Restatement
seem
now
judicata
preclusion”
to be less
res
as
desirable than one which is
"claim
and collateral
derived
estoppel
preclusion.”
policy
underly
"issue
from
considerations which
Restatement
74;
(sic)
McCurry,
§
411,
judicata/preclusion.
Allen v.
res
doctrine of
Judgments
(Second)
U.S.
purpose
101 S.Ct.
897
purpose
preclusion is to
legal
separate
has no
The
of issue
“relieve
concept
“a
which
parties
of
things.
order of
It
the
of the cost and vexation multi-
in the natural
existence
lawsuits,
resources,
ple
judicial
legal policy,
of
the
conserve
and
is what
the makers
decisions,
say
Legislature
preventing
courts
it is.
It
inconsistent
encour-
and the
plaintiffs
age
adjudication.”23
of
reliance
satisfy
exists
the needs
for a
on
redress,
means
of defendants for a con-
of
¶
preclusion may apply
Issue
26
ceptual
within which
defend an
context
precluded
the
has
when
to be
had an
accusation,
and of the courts
a frame-
opportunity
litigate partic
a
and incentive
justice.”20
work
to administer
within which
ular issue
lost on that issue.24
and has
The
¶
this
Considering
light
24
in
of
definition
sought
defendant must show that the issue
claim
in the divorce action and
pressed
the
precluded
actually litigated
and de
case,
that
in this tort
we conclude
advanced
in
prior
termined
the
action
the
between
that the
lawsuits do not tender the same
two
parties
privies,
or their
and that the determi
fundamentally
claim.
action in tort is
civil
nation was
to the decision in
essential
the
proceeding. The
different from a divorce
prior
argue
action.
Defendants
this is
purpose
is to
of a tort action
establish liabili-
respect
true in this
to the
case with
issue of
ty
wrong
damages.
for a
and to recover
legal
paternity.
disagree.
pater
The issue of
We
purpose
a
action is
of divorce
to end
action,
nity, as
settled
the divorce
is not
wife,
relationship
marital
a husband
of
and
paternity
identical
the issue of
which is
parties’ rights
responsibil-
and
determine the
allegations
present
raised
children,
any
ities to
each other and
ease.25 The
determination
a
The divorce
divide marital assets.
action did
case
that male
divorce
identifies
whom the
any allegation of
not involve
tortious behav-
society
responsible
law and
hold
car
will
ior of the
here.
ac-
kind asserted
The two
rying out
of a father
the duties
toward
distinct,
preclusion
being
tions
claim
is not
child, including
duty
providing
finan
invocable.
support.
cial
It also
who
identifies
male
child,
respect
to the
rights
will have
with
¶
preclusion
25 The other
doc
visitation,
including
right to
deter
trine,
imprecisely goes
sometimes
un
rights,
right
mines
such as the
mutual
judicata,
preclusion.
der the name res
is issue
inheritance.
preclusion,21
Under the doctrine of issue
once
¶27
present
case
a court has decided an issue
fact or of law
Plaintiff in the
is not
necessary
disputing paternity
it relates to
judgment,
parties
to its
same
as
privies
relitigate
rights
responsibilities
may
or their
that issue
established be-
Rather,
action,
him
in this tort
brought upon
a suit
a different claim.22 tween
and A.
9,
also,
¶
18,
AG,
Volkswagenwerk
Retherford, supra
at
at
See
v.
56
20.
note
968.
Robinson
1268,
Cir.1995);
(10th
F.3d
1272
Restatement
(1982) ("When
descriptive
§
21. The use of the more
term issue
27
an issue
Judgments
(Second)
preclusion
actually litigated
was advanced in
works of Profes
of fact or law
determined
D.Vestal,
Judicata/Preclusion,
sor
Res
Allan
judgment,
valid
and final
determina-
Per
(1969);
Injury
Res
judgment,
Judicata/Preclu
tion is
essential to the
determina-
sonal
Annual
(1974);
Expansion,
L.
sion:
Rev. 357
S. Cal.
subsequent
tion is
action
conclusive in
between
Judgment as Preclusive
State Court
in Section
parties,
or a
whether on the same
different
Court,
Litigation
in a Federal
L.
Okla.
claim.”).
(1974),
adopted
27,
Rev. Judg
Restatement
(1982);
Comment b
Under
ments
(Second)
94,
Allen,
16,
supra
at
23.
449 U.S.
101 S.Ct.
note
57, 6,¶
8,
Lathrop,
side v.
OK
n.
645 P.2d
at 414.
514, 517,
8;
61,
Armstrong,
n. Veiser v.
1984 OK
¶ 8,
7,
796, 799,
7.
n.
688 P.2d
n.
Judgment
State Court
Preclusive
Vestal,
Court,
Litigation
supra
Section 1983
in a Federal
16,
McCurry, supra
Allen
note
at 449 U.S.
21, at
note
94,
414;
101 S.Ct. at
National
Busi-
Diversified
Inc.,
7,
11,
666;
Services,
supra
at V
ness
note
at
Ada,
24, 9,
5,
We
attribute to the 1994 amendments dis-
City
OK
Chambers v.
n.
1068, 1072,
5;
Kane,
supra,
change
cussed in note
no
894 P.2d
n. Wilson
23;
claim
would affect
discussion of
or issue
OK
n.
our
n.
Veiser,
9;
preclusion.
n.
at
n.
*11
plaintiff’s biological
A
sought
precluded,
nexus to
is the sole
to be
as a result of the
plaintiff
adversary
issue. The
is
special
seeks
not
conduct of his
or other
relief
status,
circumstances,
change
legal
damages
adequate
hut
in tort.
did not have an
judgment establishing
legal
opportunity
or
status of
incentive to obtain a full
adjudication
paternity in a
and fair
in the initial
proceeding may
divorce
not be
action.”
biological
invoked to bar a determination of
¶
Taking plaintiffs
allegations
paternity in
upon
a tort action based
the kind
true,
puiposes
as we must for
of this
alleged
of fraudulent conduct
here.
appeal,
painfully
plaintiff
it is
obvious that
meaningful opportunity
has never had a
¶ 28 Even if the
in the for
issues
litigate any aspect
paternity, legal
or bio
identical,
present
mer and
action were
we
logical. The defendants’ fraudulent conduct
permit preclusion
would not
to be
doctrine
during
years
first
two
of A’s life effective
in
preclusion
invoked
this case.
Issue
is not
ly
possibility
plaintiff
foreclosed the
applied mechanistically.
may only
It
be in
dispute
timely
in a
could
fashion his
party against
if
voked
whom the earlier
Moreover,
status as A’s father.28
at the time
interposed
decision is
a “full
had
and fair
proceeding, plaintiff
the divorce
had no
opportunity”
litigate
the critical issue in
reason to foresee that his
would
previous
apply
case.26 This
condition
present
become an issue in the context of the
ing
preclusion
important
issue
is an
safe
way
In
action.
no
can it be said that the
guard
preclusion
in
fair
administration of
opportunity
has had a full
fair
doctrine.27 The circumstances to which con
litigate
biological
the issue of
paternity.
given
sideration
determining
should be
in
party
whether a
has had a full and fair
¶30 This
recently
court has
held
opportunity
litigate
prior
an issue in a
availability
that the
of new evidence can be
action are set
in
forth
the Restatement of
in determining
considered
litigant
whether a
(Second)
28,
Judgments
at Section
which has had a full
opportunity
litigate
and fair
states:
prior
purposes
issue
action for
“Although
actually
an issue
litigated
applying preclusion doctrine.29 Plaintiff in
by a
judgment,
determined
valid and final
this case had no evidence before or at the
action,
and the determination is essential to the
time of the divorce
or for that matter
judgment,
relitigation
1996,
up
issue
until
put
should have
him on
subsequent
parties
action between the
notice that he was not
biological
A’s
father.
precluded
following
circum- That evidence was
plain
discovered
long
stances:
tiff
after the
proceeding
divorce
reason,
history.
too,
For this
defendants are
barred in this case from invoking preclusion
(5) There is a clear
convincing
need
doctrine.
for a new determination of the issue ...
(b)
¶31
sufficiently
because it was not
foresee-
Authorities cited
defendants in
at
able
the time of the initial action that
their
on
significantly
brief
certiorari differ
the issue would
arise
the context of a
their factual
present
circumstances from the
(c)
action,
subsequent
party
because the
case
unpersuasive.30
and are therefore
Services, Inc.,
26. National
safeguard.”);
Business
Department
cant
Danner Dillard
Diversified
7,
11,
667;
¶
ONG,
supra
Stores, Inc.,
144, 9,
at
note
at
Fent v.
1997 OK
V
causation,
difficulty
proving
of
dan-
PETITION
STATES
PLAINTIFF’S
claims,
the fear
ger of fraudulent
and
of a
THE THEORY
CLAIM BASED ON
litigation.33 Although they
of
refused
flood
OF
OF INTENTIONAL INFLICTION
recovery
grant
recognition
formal
for
DISTRESS
EMOTIONAL
suffering, courts nevertheless
mental
found
¶32
truly
ways
providing
of
recourse for
intentional
infliction of
serious
The tort of
emotions,
injuries
displaying,
to feelings
not
to the
emotional
was
known
distress
time,
according to
at the
readily
not
em-
one commentator
and was
common law31
technique in
recovery
adaptability
of
un-
“a notable
of
re-
grounds
braced as a distinct
1934, dressing the
of
century. As
more serious invasions
this
til well into this
late as
important
personality.”34
rejected
interest of
Dam-
of Torts
emotional
the Restatement
liability, say-
ages
for
for emotional distress were often as-
separate
a
basis
distress as
“parasitic”
an adjunct
augmen-
sessed as
or
ing,
which is intended or which
“conduct
likely
predicated
tation to
torts or
on a
though not so intended
to cause
traditional
theory.35
strong-
breach of contract
Prosser
only a
or emotional disturbance
mental
subject
ly
the actor
criticized the continued resort
subter-
another
to liabili-
does
fuge
involving
emotional distress
ty
resulting
for
distress
there-
cases
real
objections
acknowledging the
basis
primary
from.”32 The
to the
and advocated
recovery
subsequent
a
view
for
paternity
decree in
31. The common law
emo-
in a divorce
support
grounds
Leigh
on
Knight,
action to determine child
v.
tional
was stated in
9
distress
598,
854,
father.
577,
that he was not the child’s
The court
Rpts.
Eng.
H.L. Cas.
863
11
complaint
attempt
as an
to vacate
dismissed the
a
(1861) ("Mental pain
anxiety the law
cannot
judgment
grounds
of fraud after the
on
value,
redress,
and does not
when
unlawful
vacating
judgment
period
a
had
limitations
for
alone.”).
complained
act
of causes that
A form
Meredith,
expired); Cain v.
1994 OK CIV APP
of intentional infliction of emotional distress was
116,
(application
preclu-
people could conclude defendants’ con- allegations, prove as well as the other ele- duct was outrageous. indeed extreme and jury ments of the tort50 and whether a would in fact find such conduct extreme and outra- Appeals The Court of Civil described geous questions express are about which we complained “confessing the behavior of as opinion. no We need consider whether year fifteen revealing identity he and allegations may of defendants’ conduct ... biological father.” This [A’s] rather cold reasonably regarded sufficiently be as ex- and lifeless characterization of defendants’ outrageous treme and to meet the 46 stan- conduct fails to take into account much of they may reasonably dards. We believe be (1) plaintiff alleges, what including telling regarded. so people might That rational dif- premarital of a going falsehood to the heart plaintiff’s allegations fer as to whether may parental of the marital and relationship, a reasonably regarded outrageous implicitly repeated falsehood which was ev- split demonstrated decision this ery day until the defendants decided the ease Appeals. the Court of Civil Where (2) them, longer falsehood was no useful to people issue, reasonable may differ on this causing develop parental the threshold has been crossed and dismissal child, relationship with a believing that child *15 improper. is biological to be his offspring, and then caus- ing plaintiff to learn that the child was not (3) own, VI
biologically
using
plaintiff
his
the
to
emotional,
fulfill
physical,
and financial
PLAINTIFF
STATES CLAIM FOR
obligations of a
years
husband for almost five
FRAUDULENT INDUCEMENT
years,
and of a father for
knowing
fifteen
TO MARRY
(4)
his,
that
obligations
really
these
were not
undermining
plaintiffs relationship
to his
38 An
damages
action for
for
child,
by gratuitously
first
revealing to the
marry
fraudulent
inducement
to
has been
plaintiff,
child that
the man
recognized
she knew as her
in
respect
Oklahoma with
to both
father, was
in
biologically
fact
related to
void
marriages.51
and valid
Like other
her,
by attempting
and then
actions,
to establish and
fraud-based
a claim for fraudulent
parental relationship
foster a
marry
between
inducement to
allege
must
all the ele
1)
child and another man whom the defendants ments of common law fraud. These are:
a
father”,
family,
2)
identified as A’s “real
representation,
and his
false material
made as a
(5) failing' to
plaintiff
positive
reveal the truth to the
assertion which is either known to be
action,
in
false,
the divorce
resulting
plaintiff
in
recklessly
knowledge
made
without
joining
3)
in
truth,
a
document acknowledging
with the intention that it be
(6)
parental
A,
4)
relationship
failing
upon,
to
to
acted
upon by
and which is relied
a
reveal the truth to the
in
party
court
the divorce
party’s
to that
detriment.52 The re
action, thereby showing contempt
quirement
for the
representation
that
the false
be
judicial system
making
and
court
easily
divorce
material is
person
met where the
mis
(7)
unwitting accomplice
fraud,
an
to
causing
represents
capacity
that he or she has the
to
plaintiff
knowledge
to suffer from
marry
when
fact he or she lacks such
that
used,
he had been hoodwinked
capacity,
as in
bigamy.
the case of
We have
Cases,
50.In order to recover for intentional infliction of
Family
Distress in Domestic Violence
distress,
prove,
Quarterly
Law
must
in addi-
403-404.
outrageous
tion to extreme and
conduct
de-
fendants,
Tice,
they
intentionally
1168;
that
acted
or reck-
51. Tice v.
1983 OK
672 P.2d
lessly
Whitney Whitney,
and that he has in fact suffered severe
194 Okl.
905 proceed- Judy’s representation the divorce support and child receipt of the riched A, father of if ing plaintiff return it was the compelled by equity to may be false,76 only intrinsic fraud. Per- constitutes him. testimony intrinsic fraud.77 jured constitutes ¶47 general rule is that The remaining acts of fraud which con restitution of benefits can be no there premarital and the alleges, original fraud valid, judg to a unreversed pursuant ferred misrepresentation paternity prior of ongoing If, judgment stands.70 long as as the ment divorce, perpetrated by Judy were not to the here, vacating a expired for the time has support procurement order and of fraud,71 allegedly obtained judgment therefore, of do not constitute kind fraud independent may bring an aggrieved party equity will warrant the intervention which judgment annulled have the equity suit in judgment vacation of a and restitu- order pur money transferred property or and the theory recovery Plaintiff’s third tion. returned, only if judgment but suant to the rejected. correctly predicated on extrinsic claim is the vacation prevail, plaintiff must In order to fraud.72 particularity the material facts allege with SUMMARY authorizing fraud constituting the extrinsic ¶50 recovery petition sought Plaintiff’s judgment.73 equity to annul fraud, meruit, quantum under the theories ¶48 fraud differs from Extrinsic of emotional dis- and intentional infliction (a) The former consists
intrinsic fraud.74
rejected by
All
theories were
tress.
of these
party
conduct of a successful
fraudulent
claim,
for failure to state a
the trial court
(b)
actual
practiced outside of an
which was
affirmed
the Court of
the dismissal was
(c)
process
which was
adversary trial or
plead-
Appeals. Having reviewed the
Civil
affirmatively
directly and
on the
practiced
novo—as it must —this court holds
ings de
(d) whereby
prevent
he was
party,
defeated
claim based
plaintiff’s
states a
petition
fairly
presenting fully and
his side
ed from
inflic-
of fraud and intentional
on the theories
the ease.75
distress,
plaintiff is
tion of
proceed
¶49
for
on these
relief
to al
entitled
petition fails
Plaintiffs
theory
“quantum
me-
grounds.
fraud.
Plaintiff’s
constituting
extrinsic
lege
facts
Gotcher,
party
injury
after he
the defeated
his
mislead
70. Terrell v.
197 Okl.
P.2d
(1936);
ready
proceed
(1946);
with the
§
that he was
announced
Restatement,
Restitution,
Douthwaite,
party
during the trial the successful
Attorney’s
trial.
If
Graham
Guide
to Restitu-
testimony
perjured
urges forged
§
or
3.4
instruments
tion,
of whom he had
or fails to introduce witnesses
1031(4) provides
testimony
help
§
for the
knowledge
12 O.S.1991
whose
would
71. Title
judgment
guilty
fraud
adversary
impair
of a
vacation or modification
his own case he is
obtaining
fraud,
fraud,
it.
practiced
the successful
for relief from
but it is intrinsic
requires pro-
Supp.1997
12 O.S.
Title
application
made to the court
must be
modify
judgment
ceedings
to vacate
joined and
having jurisdiction of the issues
”
procurement
with-
to be commenced
Wolcott,
fraud in its
Okl.
Calkin v.
tried.’
(2)
filing
judgment.
years
two
after the
Ball,
(1938); Phillips
P.2d
197(1961).
*18
8,¶89,
Chapman Chapman,
OK
72.
v.
1369, 1372.
P.2d
Wolcott, supra
note
Calkin v.
75.
Ball,
100; Phillips
v.
Id.
Judy
representation to
made the
76. At the time
equity, by
independent
which a
suit in
74. An
court,
already statutorily
Jimmy was
the divorce
judgment
will
attack is launched on
collateral
Therefore,
presumed
it
to be A’s
father.
fraud,
from
but
not lie for relief
intrinsic
statement in the context
cannot be said that her
the former
extrinsic fraud. Relief from
from
technically
proceeding was
false.
the divorce
in the same case
must be
direct attack
Intrinsic fraud
the fraud was committed.
which
Contra,
goes
perjury
which
77. See note 74.
of the successful
"...
fraudulent conduct
jurisdiction
extrinsic.
is considered
practiced during
the court’s
the course of
which was
134, ¶27,
City,
OK
adversary
joined
State v. Oklahoma
the issues
actual
trial of
directly
affirmatively
P.2d
618-619.
had no effect
unjust
correctly
ruit” or
enrichment was
UPON Oklahoma, Respondent. The STATE of OF COURT CIVIL APPEALS’ OPINION No. PC-97-404. VACATED; TRIAL ORDER IS COURT’S OF DISMISSAL REVERSED IN PART Appeals of Criminal Court Oklahoma. PART, THE AND AFFIRMED IN AND March CAUSE IS REMANDED FOR FURTHER PROCEEDINGS IN ACCORDANCE PRONOUNCEMENT.
WITH THIS KAUGER, C.J., SUMMERS, V.C.J., LAVENDER, HODGES, ALMA WATT, JJ., concur.
WILSON HARGRAVE, JJ., 53 SIMMS and
dissent.
SIMMS, Justice, dissenting: my opinion correctly 1 In the trial court plaintiffs
dismissed all claims for failure to
state a cause of action and the Court of
Appeals correctly judgment. I affirmed granted
would not have certiorari I dis- portion majority’s opinion
sent to that
reversing judgment. trial In court’s ad- failings,
dition to it’s other this “action” is
merely poorly disguised by plaintiff effort indirectly directly
to do what he not do could
since his of this child is irrebuttable 10, O.S.1991, §§
and conclusive. Title David, See, J.D., e.g., V.R. Wanda
OK
¶ 2 I am authorized to state that Justice joins expressed
HARGRAVE the views
herein.