T.R. v. A.W. Ex Rel. Pearson

limit tending negate or conduct

warranty shall be construed wherever other;

reasonable as consistent with each [subject negation IC 26-1-2-202] inoperative or limitation is to the extent that such construction is unreasonable." addition, (8)(a) subsection of the same provision states that:

"unless the circumstances indicate otherwise, implied all ex- warranties are expressions cluded like is' 'as ...." {(our emphasis)

Applying the statute the court could correctly agreement conclude that the expressly warranted engine they machine had a new and that agreed respects in other there implied merchantability be no warranties of 26-1-2-814, purpose. or fitness for IC a find Since evidence sustained ing express warranty was breach

ed, cure, and that the seller refused to properly permitted buyer

court to re Hill, purchase. scind the Art Inc. v. Heck (1983),Ind.App., ler 457 N.E.2d 242. Affirmed.

STATON, P.J., HOFFMAN, J., con- cur.

T.R., (Defendant Appellant Below), A.W., by friend, her next Lee PEAR (Plaintiff SON, Appellee Below).

No. 3-883A275. Court of Appeals Indiana,

Third District.

Oct. Rehearing Denied Jan.

legal issues fully have been litigated and resolved in his favor compe- court of jurisdiction. tent apply order to the doctrine of res judicata, following elements must be satisfied: (1) judgment the former must have been rendered a court of competent jur- isdiction; (2) the former must have been

merits; rendered on the

(3) the matter was, now in might issue been, determined in the former suit; and (4) the controversy adjudicated in the former action must have been be- parties tween present suit or privies. Williams, (1981) Williams v. Ind.App., 427 N.E.2d Gloss v. Continental Grimm, Jr., Howard S. Michael A. Aspy, Co., (1981) Assur. Ind.App., 415 N.E.2d Wayne, Fort appellant. for Kirsch, Robert E. Deputy Pros. Atty., element at issue in this case Support Div., Child County Noble Prosecu- concerns privies. or their At the Office, Albion, tor's appellee. for time A.W.'s mother brought original daughter were HOFFMAN, Judge. clearly in privity. 21, 1977, On October G.L.W. peti filed a tion to establish paternity of purposes For daughter, preclusion, her issue § A.W., under IND.CODE element of privity contemplates 31-4-1-1 seq.1 et a mutu petition Her alleged al or relationship T.R. was the fa successive the same A.W., ther rights or responsible for interests which sup port. Following by jury, trial matter of adjudication. Indiana, verdict was " '[plrivy' is one who rendered in favor after of TR. rendition of the acquired has an interest 31, 1983, A.W., On March by her next subject matter affected the judgment." friend, Pearson, Lee Director of the Noble Smith v. Co., (1972) Midwest Mut. Ins. County Department, Welfare peti- filed a Ind.App. 259, at § tion under IND.CODE 81-6-6.1-1 seq. et alleging that TR. was her father. TR. filed a motion for summary judgment con- Under the paternity statute in ef tending petition that this was barred fect at the lawsuit, time of G.L.W.'s 1977 doctrine judicata. The trial court paternity actions could be commenced denied this petition, motion. On T.R.'s the mother as the representative child's issue was certified for interlocutory appeal purpose recovering from the father to this Court. a reasonable share of the necessary The sole issue appeal § on is whether support. IND.CODE 31-4-1-1 seq. et same man prosecuted can be a second time present statute, Under the state or for paternity where the same facts and county departments public may welfare Repealed Acts P.L. Section 57. See now, § IND.CODE 31-6-6.1-1 et seq. on the same illegitimate's legal also act as the was based facts and See, issues now forwarded. T.R. now faces the support. IND. a suit to enforce § 31-6-6.1-2(b). CODE either stat- Under ordeal, embarrassment, expense same ute, interest, the child is the real incurred the 1977 suit. Were this a purposes by any representa- served matter, criminal he protected by would be same, i.e., tive is the the child's enforce jeopardy provisions the double of the Unit- support. ed States and Indiana constitutions. It fundamentally seems unfair to make him clearly The record indicates that gambit run the same a second time. fully represented rights G.L.W. A.W.'s the 1977 suit. This trial was held before Finally, the failure to preclusion invoke jury. presented by Evidence was first in this case results in an unnecessary delay G.L.W., T.R., by finally then and rebutted and additional already burden on an over- by judge properly G.L W. The trial in crowded system. court years Seven law, jury structed the on the and a verdict passed original since the trial resolved this finding that T.R. was not A.W.'s father issue in T.R.'s favor. paternity was returned. The issue of possibility compro not clouded From the perspective, the im decided, mise because of other issues to be position preclusion will not dilute any might happen proceed in a dissolution rights not already forwarded her moth ing. exclusively The suit dealt with the er in the first suit. present The statute, by and the concomitant joining mother, putative fa obligation support in the event ther as necessary parties to paternity ac exactly was established. It is this sort of tions problem avoids the now considered. preclusion case in which issue must be in not, It however, does extend to the are iden voked. issues now forwarded privies or their a new cause of action where suit, tical those forwarded the 1977 their cases fully have been litigated under liability in both cases is based on the prior statute. fully same facts. The issues were conclusively litigated in the first action and reasons, For these the doctrine of issue relitigated. may not be preclusion bars retrial of case. The this. pre- Not of issue elements decision of the trial court is reversed and present, policies favoring clusion grant remanded with instructions T.R.'s preclusion clearly outweigh the reasons summary judgment. motion for First, retrying this matter. courts favor Reversed and remanded. repose purpose the final of decisions. The system disputes. of our court is to resolve parties representing If the same different STATON, P.J., concurs. successively

interest are allowed to reliti- GARRARD, J., opinion. dissents with issues, gate judg- the same facts and final illusive, if not ment would become an unat- GARRARD, Judge, dissenting. goal. tainable Although supports ma- my sentiment Second, promote policies courts should jority appeal, my reaction to this under- discourage judgments. inconsistent which standing position concerning of Indiana's relitigation of this case is not certain While requires doctrine of res me to results, produce contrary possibility disagreement, to our how- dissent. Central is not inconceivable. ever, majority's is the assumed conclusion original action was Third, harassing litiga- the need to avoid representative capaci- strictly in a concern, brought legitimate worthy tion is a of con- it clear under the stat- ty. I believe barring subsequent sideration suits. had a inter- substantial ute that successfully TR. defended the suit proceeding, an inter- brought by mother, G.L.W., A.W.'s of her own est est that was not necessarily solely action may brought be guardian identical with the interests of her child. or next friend. If the mother during dies Clearly under Indiana law the child was not the pendency the child in privity See, with her. e.g., Tobin v. guardian its or next friend may be sub- McClellan 225 Ind. stituted for the mother. The action shall commenced filing peti- a verified tion." case arose from a fact situation possible made change in the law be- Under the law effective at the time of tween the times the two actions were suit, mother's initial only the mother brought. When the mother filed the initial could petition file a pursuant to the statuto paternity suit such actions were controlled rily procedure defined for establishing an by IC 81-4-1-1 seq., et Children Born Out alleged obligation father's his Wedlock. Some of the relevant sections A_ B_ C_ - of that chapter are as follows: D____ 150 Ind.App. "See. 1. It is obligation the of the 599; N.E.2d Fisher v. State Indiana ex state of provide Indiana to proper legal rel. Morrow Ind.App. 552, 117 74 procedures that will enable children born (decided N.E.2d 743 3-631, under Burns' out of wedlock to proper care, main- Replacement replaced, was tenance, education, protection, support not in effect changed, by 31-4-1-9); IC opportunities and the same as children accord, Harter v. Johnson 16 Ind. in wedlock; born and it is the purpose of this act to procedures establish that will 1, enable such 1979, children to Effective rights have such October IC 81-4-1-1 et privileges. and seq. repealed replaced by IC 31-6- See. 2. parents The seq. (Acts 6.1-1 a et child born P.L. Section 1). out of An important wedlock and legitimated, aspect here- the new act is inafter referred to in this mother is longer act as the no the per- 'child,' owe the child necessary mainte- son in whose name action can nance, care, brought. be medical education, IC 8381-6-6.1-2reads as fol- sup- port, and are liable for the child's funeral lows: expenses. The obligations imposed upon "Persons may who file paternity ac- parents support legitimate chil- tion-Necessary partiess-(a) A paterni- dren hereby are imposed upon par- the ty may action filed following the be ents of children born out of wedlock. persons: See. 8. The mother may recover from (1) mother, expectant or mother. the father a reasonable share of the nee- (2) A man alleging that he is the essary support and child, care of the biological child's father, or that he is the including necessary maintenance, medi- expectant father of an unborn child. care, cal education and the child's funeral (3) The expenses in mother the and a man alleging event of the death of the child. that he is her biological father, child's See, expectant the mother and a alleg- 4. The man may recover from ing that he the is the biological father the father of necessary expenses of the child, unborn pregnancy filing jointly. and birth.

EJ ^{[*] [*] [*]} # ^[*] (4) A may case of her Sec. 9. An brought death, action to by her legal the compel mother, or, represent- support may A except person file under the his petition age. age if A he is person eighteen competent who is ^[18] atives. If the insane, mother be of un- incompetent otherwise may petition file a mind, sound eighteen under (18) years through guardian, his guardian litem, ad age or under any other disability, or next friend. capaci- representative only in a public wel- (b) department of The state public county department of repre- ty, the concern is not whether fare or day if: in court but paternity action sentative has had his may file a welfare represented person has." whether mother; (1) The 299 N.E.2d at 870. Because Nye, supra the child (2) person with whom merely rep- appearance in a the executor's resides; or capacity, the court found resentative's depart- county (8) The director privity as to legatee executor welfare; public ment of the testa- question of which will was assignment of executed an has tor's valid last will. of the federal under Title IV-D rights 83 of the Restatement "Section seq.] 651 et Security Act U.S.C. Social [42 privity thereto use the word Comment case, (c) every identity of interests which describe the mother, any person alleged to be in either their may so connect necessary parties to the ac- father are capaci personal or their 81-6-6.1-2, by Acts as added tion. [IC may to an action ties that one not a 1; 1980, P.L. P.L. See. nevertheless be bound 291-1988, 2; See. P.L. Sec. 1.]" and its rendered therein. Section statute, predecessor, unlike its Under as follows: Comment read pater- necessary party to the child is a party but who person 'A who is not a in effect Had this statute been nity action. in an is in with filed the initial in 1977 when terminating in a valid assuming the child would petition, is, in 84- the extent stated Sections to main- required before party made a been by to the bene- and entitled bound judi- of res taining the the doctrine judicata. fits of the rules present by suit the the cata would bar Comment: expresses Privity a. is a word which party to clearly was not a Because A.W. matters and as to certain the idea that suit, argues that we TR. instead prior the persons who cireumstances in certain privity in that she was with should find but who parties to an action are not by prior judg the thus bound mother and in their interests with it are connected paternity. his question to the of ment as ref- with the are affected contention, quotes T.R. support of his in the ac- to interests involved erence Nye v. extensively from In re Estate of The tion, parties. word they as if Ind.App. Bank First National control an those who 'privy' includes 157 Ind. reh. denied (see it although parties to not action Nye court 301 N.E.2d 786. App. 84); are whose interests Section those Indiana will executor of an held that the party to the action represented by a relitigate in Indiana subsequently not could 85-88); in in- (see successors Sections Florida will of decedent's the due execution having derivative claims those terest to previously decid court had a Florida where per- 89-92). are other (Sections There validity in a suit will's in of the ed favor may not may or interests sons whose the residuary legatee of by the litigated by judgment directly affected less be Relying on cited sections will. Indiana one of the to of their relation because Restatement from the A.L.I. comments effect of judgment; the parties to the reasoned Judgments, the court the Law is dealt judgment upon such in the will con interest the executor's that 98-111). (Sections Topic with lega representative of the the test was as person is that a The statement had no direct The executor interests." tees' judg- of a benefit by or has litigation. bound of the in the result interest the short method privy is a ment as a stranger to the the "[WJhen circumstances stating under that subsequent party to the is a executor] [the purpose and for the of the case at hand ond husband was in with the wife as he is bound and entitled to the to the issue of the child's status. In find- benefits of all or some of the rules of ing against the defendant on that issue the judicata by way res merger, bar or court stated: collateral estoppel. To determine though "Even might we persuaded when and to what extent he is bound agree marrying person rights, has it necessary to con- known to have previously been married sider his relation to the to the purportedly divorced, now one is es- action or to matter of the topped question the marital status de- (our action.' emphasis)" creed purported (which divorce we Nye, supra 869-870. concede), do we accept cannot thesis that he estops also himself remains whether the moth- question the paternity implications of a er here acting as the custody order made inciden- child first action to tal to the divorceedecree. Such an order justify finding the same of privity as was does not status, the child's espe- found in Nye. 85(1)(A) Section affect Re- cially when the child is not a party to statement, quoted Nye, from states: the action. fact, any want "(1) Where a is rendered in an binding on the child's status effect party which a prop- thereto seems to be the basic reason erly acts another, on for behalf of widespread practice not appointing other is guardian ad him, litem or other- (a) for bound and entitled to the bene- wise providing representation his fits of the rules of res with in divorce cases and paternity-support reference to such of his interests as at cases. The finding that the child 'was the time are controlled born as the issue of marriage' action; (our ...." emphasis) amounts to no more than a finding that 299 N.E.2d at 869. he was born to the during wife the mar- Further in Nye the court Oregon cited an riage, a fact not in dispute in the instant " proposition case for the trial in [A] case, nor in case, the divorce so far as party which one contests against his claim the record here reveals. another should estop be held to a third It would basic, seem to be beyond party only when it is realistic say to challenge, that anything decided in the party third fully protected in the case at bar is in way no binding on the first trial.'" Nye, 299 N.E.2d at 870.1 child or personal on his I have found no Indiana cases which or his heirs his death. That is so after have decided the issue now before us. I do simple reason that he is not a find assistance in considering cases from party to this action. The child is not a Indiana jurisdictions and other which in- chattel the title to which is in dispute volve the effect of paternity determi- between rival claimants. Each of the nations in other contexts. (who two rivals are only to (1971), A. B. v. C. D. Ind.App. 535, 150 action) lays claim to an exclusive 277 N.E.2d 599 was a declaratory judgment interpersonal relationship between him- action in which a woman's second husband self person (the and a third child). The sought to be declared the natural father of presumes law now the existence of that the woman's child during born her first relationship between the third person marriage. The divorce decree ending (the child), and the defendant. The other first marriage awarded the custody wife coin, side of that practically speaking at the child as a child of marriage. least, is the presumption that the rela- defendant argued ex-husband that the see- tionship of father and son does not exist Citing 1. v. DuPuis 233 Or. 378 P.2d Wolff prospectively That "'To hold a child bound plaintiff between in a by finding nonpaternity divorce be overcome can

presumption not a action in the child was judicially estab- relationship can be the conduct of would be to allow which the to only in an action lished fundamen- mother to foreclose the most party. is a child system right possesses in our tal a child nothing to es plaintiff avail It would jurisprudence." paternity in a relating to facts tablish expressed The court Cal.Rptr. at 91. binding only on himself and judgment the likelihood of a full adver concern over a determination Such the defendant. given paternity issue sary hearing on the ap child's heir make him the would not might the other concerns nor, continues long as Indiana parent, so pa desire to establish competing with her mutuality requirement to the to adhere having past per ternity: to reticence could the judicata, doctrine of res its feelings serutiny; guilt life sonal himself of such child avail dissolution; availability of about - plaintiff's heir." the child the make child; support the desire government aid to (our emphasis) alone, possible keep 227 N.E.2d at child as hers alleged sup father on from the concessions on to hold v. D. went The court in A. B. C. Id.3 port property settlement. paternity could husband's second court concluded: declaratory judgment established favoring the estab- public policy "'The the child and action in which an requiring fa- paternity and lishment of pro- statutory procedure joined, the support obligations thers to assume being seq. not by IC 31-4-1-1 et vided one, equally highly but is a beneficial the mother. anyone available finality of salutary is the interest App.3d 91 Cal. v. Ohls Ruddock party wishes to If either judgments. 154 Cal.Rptr. 87, through a a child finality to the insure a child- sued to establish guardian ad litem they may in the marital dissolution and her relationship herself parent between simple step joining by taking the do so prior dissolu In the accommodating poli- ex-husband. both thus proceeding. The issue single cies not a the child was to which tion dissolu- in a marital court had determined determined party, the child binding upon the is not father. The Cali tion action not the child's man was contrast, in party. joined as unless court said: fornia White observed: it is said: out tions is to the One reason support in the adequately presented to the court. by the ad finding child is not supported requirement omitted] In two footnotes "In an annotation 'But The rule that Our litem for him.' wife, the there is little the Supreme Court has adjudication appointment of a and she litigate widespread practice a for this nonpaternity the child is party the weight the child ordinarily has such an interest point as to the to the in 65 A.L.R.2d at practice to the plea question of concerning paternity, in concerned, ensure that action he is appointing in authority. is not bound guardian quoted is stated the a divorce in other that, judicata paternity Again, if the it is in so text a page it will be not bound ad [citations guardian jurisdic- is avail- paid to general case is Judge far as litem. with- by a so judgment. Mayhew able or their App. take estoppel. Under this paternity Judicata binds the is child and the child's the ship, of of such Privity, Two law If represented compromise paternity issue case lacks the there advantage ^[111] 1977 Preclusion privies to the former when there issue finding be instances in which child even either representative." BN.U.L.Rev. 244N.E.2d review articles by Paternity, 37 U.Colo.L.Rev. and the lack in of or be bound party a on identity a divorce by parent so that the v. Deister the though requirement the the 448, necessary make either subsequent of Parent-Child discuss the 454. (our emphasis) proceeding as to the interest he is (1969) preclusive a child's Comment, mutuality only parties not a between the the former ^[144] judgment Relation- problem interest party, could effect Ind. 479; Res 102 an support action for or under the Uni- nity action reasoning that the mother's ac- Parentage form formally Act brought on tion brought was under a designed statute behalf of judgment the the may be provide a remedy alone, for her though binding shown to be in terms of her needs without join- actual respect with sup- der if the proper mother acted in a repre- porting the child. The court said: " capacity." sentative [statutory citations court has consistently 'This held that omitted] for a or decree to judi- be res at

Id. cate, or to operate estoppel, there must be an identity of sum, In issues and in an California Ruddock, under identity or in privity child cannot be bound a paternity deter- parties. with the mination in a dissolution We have proceeding unless also held 'parties' term includes formally joined those party. as a who are However, directly interested in child can be bound matter such a determination suit, of a in who right an have a actual proceeding make a brought defense, who control proceedings.' mother on behalf, the child's if proper "acted in a Whitehead repre- (1969), Genl. Tel. Co. 20 108, 114, Ohio sentative St.2d capacity." 254 Id. "If it N.E.2d 10. appears particular that a party, minor child although clearly before here the court in person, were not represented privity. is so far person '[A] by others with another if he that his interest succeeds to an received actual protection, and efficient estate or an decree will interest formerly held binding upon held to be Whitehead, him." another.' Id. at 92. supra, 254 - N.E.2d 10. Privity does not generally Other recognized cases have that, al arise from the relationship par between though not named as a party to paternity ent and child. Arsenault v. Carrier suit, the child is the real in interest in (Me.1978), 390 A.2d 1051. The such a suit. Everett (1976), v. Everett 57 mother, cause, instant suing App.3d 65, Cal. Cal.Rptr. 8; Stevens v. Cal.App.2d separate on her claim, pursuant (1943), to the Kelley 134 P.2d statutory remedy provided her. Al 56;4 A. (1971), B. v. C. D. 150 Ind.App. though the mother's claim and the child's 535, 277 N.E.2d 599. IC 831-4-1-1 seq., et claim relate to the same subject matter, though not establishing the child as a party the claims are distinct. While the dis suit, to the makes clear primary pur prejudice missal with barred the subse pose of the statute is to assure that quent mother, action of the it in way no care and of the child born out of affected the separate action." wedlock is parental enforced as a obliga tion the same as for children born in wed N.E.2d at 127. Ind.App., lock. In the (1982), Matter M.D.H. Everett, supra, the California Court 119, 128; 37 N.E.2d D.R.S. v. R.S.H. 4 Appeals held that a prior court's judg- (1980), Ind.App., 412 1257, 1261; N.E.2d ment (in on the merits a suit brought by Sullivan v. O'Sullivan 130 Ind. mother) that the defendant was not the App. 142, 162 N.E.2d 315. father was not res on the issue of in a subsequent suit brought by Johnson v. Norman 66 Ohio St.2d against issue child before the same defendant. The Supreme Ohio Court was similar to that the initial trial was entered before us now but the the court suit after five days of evidence was establish had been jury, dismissed heard a followed the prejudice. with There was no stipulating trial on the taking the issue from the merits as in this case. The court jury held the and submitting it to the court on the child was not barred from bringing pater- a deposition alone. The child's sub- Although 4. questions Everett efficacy part brief, the of the two cases are in accord on this - ‘ holding, of the pointed Stevens as point. out in the the child the status of determine does not prior judgment alleged the sequent action the Diann W. B. v. Sendi of collusion between ...." Michael result the 475, 1009. 467 N.Y.S.2d alleged father's 121 Misc.2d argued parties and (1982),113 Accord, Horry M.N. A. v. Dana al- not be should judicata res of defense 635, court 449 N.Y.S.2d appellate Misc.2d The California lowed. court's sus- the lower reversed

agreed and of the doctrine application alleged father's demurrer. taining of ex- context was parent-child in Preclusion Privity, in amined Public In Commissioner Welfare BY.U.L. Relationship, 1977 Parent-Child (1940), 284 v. Koehler New York City of general in begins Rev. 612. 587, York the New N.E.2d article N.Y. saying: terms filiation order a Appeals affirmed Court crite- meet the that the facts "Provided not man who was against a entered preclusion or issue either claim ria for The issue mother.5 of the child's husband adequately parent has that admissibility of to the pertained case in the interest in the child's represented to be appeared In what evidence. certain pre- justifiably a court can first dictum, said: the court of the brought on behalf clude an action brought to are "Paternity proceedings is reached after a child upon imposed statutory duty a enforce re- parent. These brought by the whom child to of a natural the father per- generally satisfied quirements are duty. no law owed at common father any recov- litigation. Since injury sonal Snell, 216 N.Y. Lawton People ex rel. usually claim will ery a minor child's on 1917D, 222. Ann.Cas. 111 N.E. adequate they have parents, go to his brought by may proceeding Such fully litigate incentive to opportunity and likely 'is or is if the child mother or of the on behalf or claims the issues public charge' by public to become that any claims as related as well Act, Courts Inferior Criminal official. (our empha- independently." they hold child is not 1. The subd. Section sis) nor is proceedings necessary party to the filiation dissolution both Id. at 622. The order mother. of the the husband is to be estab- proceedings where not con- does proceeding in such a made party, is not a the child lished and them binding on adjudication an stitute difficulty in assur- acknowledges article under claiming through or or com- are not interests ing the child's that legiti- not the is or is that the child them however, that: recognizes, promised. It An parents. married offspring of mate deny preclusion inflexibly "To person other some adjudging that order insure cases serves relations domestic father is the the mother's husband than offends rights, but preservation of provide ordering him to the child and Besides policies. preclusion fundamental binding is, plain, not a it is for its of inconsistent possibility fostering the It does illegitimacy. adjudication of finality, and over- postponed judgments, nor child the status establish courts, preclusion denial burdened to estab- competent evidence it would be relitiga- allows filiation cases divorce any proceeding illegitimacy in lish embarassing potentially [sic] tion parties." are others which harassing questions." However, New at N.E.2d Id. at considered subsequently courts have York proceed- filiation The article asserts hold- "the seminal quote the above-cited policies stronger conflict ings generate a pro- a filiation ing to the effect ... proceedings. do divorce party] than not a the child is ceeding [in been wife had husband one born while living apart from mother had been 5. The year preceding birth. separate year. New York for more than a husband included wedlock" a "child born out of that time 104 illegitimate "The child is often an un- of how attentive apparently wanted was to the naturally courts are rights. skeptical of the adequacy representa- of The law review lastly article discusses by tion the natural mother. There is a the possibility of extending con resulting apply preclusion reluctance to cept. Supra at 637. The article cautions representation. based on such More- per that the parent-child se inclusion of the over, lower courts are becoming more relationship within the realm of privity aware protect of the need to the interests might increase dangers of children los illegitimates as a result of changing ing rights through valuable the collusion or social attitudes toward illegitimacy and compromise of parents. Id. at 688. Supreme

recent Court securing cases for However, the privity concept has been ex illegitimates many rights. substantive panded through cases such as Armstrong time, At the policies same favoring v. Armstrong Cal.App.3d 942, preclusion become even more critical. A 544 P.2d Cal.Rptr. 805, which in determination nonpaternity should troduced the notion of a adequate provide an accused man with some assur- representation of her children's interests ance finality, especially if accom- the context of a dissolution proceeding as plished through the use of group- blood preclude sufficient to the children from la ing tests. Inconsistency judgments in ter litigating the support father's obliga paternity actions is less tolerable than in tion to them though even the children were personal injury litigation; a man is either not to the dissolution action. The the father of a child or he is not. Irree- Indiana case A. B. v. C. D. oncilable decisions would seem to indi- Ind.App. 5, quoted from 53 cate that one court had duty failed in its above, hints at the possibility same provide just forum for adjudication combination parent-child of a relationship disputes. Finally, unnecessary reliti- adequate representation might pre gation of the paternity among issue clude a child from relitigating issues al the most harassing imaginable." actions ready by parent. contested her 277N.E.24 Id. at 6382. n. 42. The article reviews by three means which presented We are paternity with a action legislatures and courts have attempted to brought by against a child a man who erase the uncertainty surrounding succes- years several earlier in an brought paternity sive suits. The most viable solu- by the child's mother was found not to be tion is mandatory joinder of all the child's father. On first blush it seems having significant interest in litiga- patently unfair T.R. twice to tion. Id. at 640. procedural This device is litigation of alleged parental his relation- provided now by 31-6-6.1-2(c) IC but the ship with A.W. The record shows that code revision came too late to cover the first trial was held before jury, that evi- case now before us. dence presented mother, first jurisdictions Some apply a party real then T.R. and then rebutted interest rule to include the child as a party mother, and that the jury being after in- litigation. Id. at 686. But as much structed on the law judge the trial re- as the Indiana might cases recognize the turned a verdict for T.R. that he was not substantial interest a child has in the out- A.W.'s father. The issue of paternity was litigation come of brought by her mother to clouded the possibility of compro- alleged establish the paternity father's un- mise because of decided, other issues to be der seq., IC 31-4-1-1 et I am unwilling to might happen in a proceed- dissolution say that the child was the real party in ing. The suit dealt with the interest and automatically bound obligation concomitant prior determination even though not named event was estab- as a lished. and regardless summary judgment should be motion for however, only one issues, Identity of to required T.R. is elements affirmed. four invoke being able before establish I dissent. therefore no au provides T.R. judicata. bar mother-daughter re holding the thority for or for being privity one

lationship as to ade scope privity due extending the prior Under quate representation. inter had a substantial statute the protection of That in the her own. est of might also serve she interest to establish is insufficient interest TOBIAS, Plaintiff-Appellant, A. Sharon representative privity for exception to supra. Nye, adopted Estate capacity v. Blonder-Tongue said White As Justice DI- COMPENSATION VIOLENT CRIME Illinois Laboratories, University Inc. VISION, of the Industrial a division (1971), 402 U.S. Foundation Indiana, Defendant-Appellee. Board of 788; 1434, 1443, 28 L.Ed.2d S.Ct. 2-384A88. No. ap- who never litigants-those "Some action-may not be in a peared Indiana, Appeals of Court of litigating estopped without collaterally Third District. had a chance They have never the issue. arguments evidence present Oct. prohibits es- process Due on the claim. more exist- despite one or

topping them issue identical adjudications of the ing posi- against their squarely stand tion." litigates say that a mother who cannot We in a final issue to rep- adequately necessarily suit given In a interests. her child's resented compromise the final may case wholly for considerations determination personal proceedings outside in- overlooking the child's her, effectively a com- saying not that such I am terests. case, I present part of promise was the mother's unwilling to conclude that am is suffi- on the merits of the issue exception an additional to create cient mark our requirements which privity judicata. res the doctrine of applications to show TR. has failed Because of succession sense in the traditional either formerly held or an interest to an estate (1981), 66 another, v. Norman Johnson or in the St.2d Ohio capacity of true sense apply to res does doctrine T.R.'s suit. The denial preclude A.W.'s

Case Details

Case Name: T.R. v. A.W. Ex Rel. Pearson

Court Name: Indiana Court of Appeals

Date Published: Oct 31, 1984

Citation: 470 N.E.2d 95

Docket Number: 3-883A275

Court Abbreviation: Ind. Ct. App.