Brown v. Wyatt

Terry Crabtree, Judge,

concurring. The appellant, Hugh Brown, brings this appeal from an order granting summary judgment in favor of appellees on the ground that his complaint was barred by collateral estoppel. I am in agreement with the two judges on my panel that the dismissal of appellant’s complaint must be affirmed. It is my conclusion, however, that the trial court did not err in ruling that appellant’s claims were precluded on the basis of collateral estoppel.

The facts relevant to this appeal are as follows. In October 2000, appellant’s wife gave birth to twin daughters after being artificially inseminated with donated sperm obtained from California Cryobank, Inc. The insemination procedure was performed by appellee Dr. Richard A. Wyatt, who was employed by appellee Arkansas Women’s Center, P.A. Appellant’s wife subsequently filed for divorce. In the divorce proceeding, appellant contended that he should not be considered the father of the twins because he had not consented in writing to the artificial insemination procedure. Appellant’s argument was based on Arkansas Code Annotated section 9-10-201(a) (Repl. 2002), which provides that “[a]ny child born to a married woman by means of artificial insemination shall be deemed the legitimate natural child of the woman and the woman’s husband if the husband consents in writing to the artificial insemination.” (emphasis supplied). The trial court in that action rejected appellant’s contention finding that, because of his actions, he was estopped from denying paternity of the children based on the absence of written consent. Accordingly, the trial court determined that appellant was the father of the children and ordered him to pay $157 per week in child support. Appellant appealed the trial court’s decision.

While the appeal was pending, appellant filed the present action against appellees, Dr. Wyatt and the Arkansas Women’s Center. In his complaint, appellant asserted causes of action based on negligence and the tort of outrage seeking unspecified damages for emotional distress, pecuniary damages flowing from his child-support obligation to the children, and punitive damages. Appellant’s complaint was founded on the lack of written consent to the insemination procedure based on Arkansas Code Annotated section 9-10-202(b) (Repl. 2002), which provides that “[p]rior to conducting the artificial insemination, the supervising physician shall obtain from the woman and her husband or the donor of the semen a written statement attesting to the agreement to the artificial insemination, and the physician shall certify their signatures and the date of the insemination.” (emphasis supplied). As factual support for his claims, appellant maintained that he did not know that the procedure was going to be performed and that it was performed against his expressed wishes.

After answering the complaint, appellees moved for summary judgment, arguing: (1) that appellant’s claims for medical malpractice were barred by the two-year statute of limitations; (2) that appellant had failed to state facts upon which relief could be granted because there is no cause of action for wrongful birth; (3) that appellant had failed to state facts upon which relief could be granted because the statute does not give rise to a duty; and (4) that appellant’s complaint was barred by collateral estoppel based on the findings in the divorce suit. The trial court granted partial summary judgment in favor of appellees to the extent that the complaint alleged a cause of action for medical injury as being barred by the applicable statute of limitations. The court denied appellees’ motion for summary judgment on the remaining grounds without prejudice.

On October 22, 2003, we affirmed the divorce court’s ruling that appellant was estopped from denying that he was the father of the children. Brown v. Brown, 83 Ark. App. 217, 125 S.W.3d 840 (2003). After our decision, the trial court in this case revisited appellees’ motion for summary judgment. After a hearing, the trial court ruled that collateral estoppel barred appellant’s complaint. Because it was dismissing appellant’s complaint with prejudice on that ground, the court declined to rule on the other issues raised in the summary-judgment motion. This appeal followed.

The concept of res judicata has two facets: issue preclusion and claim preclusion. Barclay v. Waters, 357 Ark. 386, 182 S.W.3d 91 (2004). Issue preclusion is also known as collateral estoppel. Cox v. Keahey, 84 Ark. App. 121, 133 S.W.3d 430 (2003). The doctrine of collateral estoppel bars the relitigation of issues of law or fact actually litigated by the parties in the first suit, provided that the party had a full and fair opportunity to litigate the issue in question and the issue was essential to the judgment. Beaver v. John Q. Hammons Hotels, Inc., 355 Ark. 359, 138 S.W.3d 664 (2003). For collateral estoppel to apply, the following elements must be met: (1) the issue sought to be precluded must be the same as that involved in the prior litigation; (2) that issue must have been actually litigated; (3) the issue must have been determined by a valid and final judgment; and (4) the determination must have been essential to the judgment. Cox v. Keahey, supra. Unlike res judicata, collateral estoppel does not require mutuality of parties before the doctrine is applicable. Riverdale Development Co. v. Ruffin Systems, Inc., 356 Ark. 90, 146 S.W.3d 852 (2004).

In the former action, the divorce suit of Brown v. Brown, supra, the clear issue was whether appellant could take advantage of the lack of written consent, and it was determined that estoppel prevented appellant from so doing. This conclusion was based on the determination that appellant’s conduct indicated both that he knew about the insemination and that he consented to the procedure. This determination was based on the following findings of fact: that appellant signed a document entitled “A Frozen Donor Semen Specimen Agreement,” authorizing his credit card to be charged to pay for the semen specimen; that appellant helped choose the donor of the semen; that appellant knew that the procedure was to be performed and that his wife telephoned him afterwards to advise how it had gone; that appellant never said that he would not consent to the procedure and he signed the documents that were placed in front of him; that appellant helped pick out the children’s names; that appellant consented to being named the children’s father on their birth certificates; that he recognized them as his children after they were born; and that it was only after appellee began to discuss divorce that appellant decided to disclaim responsibility. See id.

In the present case, appellant again seeks to exploit the lack of written consent. He seeks to impose liability based on the lack of written consent, predicated on allegations that he had no advance knowledge of the insemination procedure and that the procedure was performed against his wishes. However, in the former action it was determined that appellant could not claim any benefit from the lack of written consent because his actions demonstrated that he did know about the procedure and that he gave his consent. It is abundantly clear that the same issues of law and fact that serve as the basis for appellant’s complaint in this action were fully litigated in the first suit and were essential to the final judgment that was rendered against him.

Contrary to the assertions in the prevailing opinion, the absence of written consent was the central and overriding issue in the divorce proceeding. Indeed, it was the sole basis on which appellant sought to deny paternity. Yet, it was determined as a matter of fact that appellant’s actions prevented him from taking advantage of the lack of written consent. In my view, the trial court in the present action was completely justified in finding that collateral estoppel bars this suit.