914 P.2d 355 (Colo. 1996), 94SC727, S.O.V. v. People in Interest of M.C.

Docket Nº:94SC727.
Citation:914 P.2d 355
Opinion Judge:Justice LOHR Justice.
Party Name:S.O.V., Petitioner, v. The PEOPLE of the State of Colorado, In the Interest of M.C., a child, and M.C., a child, Respondents.
Attorney:David C. Johnston, Paonia, for Petitioner. McMichael, Burlingame, Multz & Lipton, Donna A. Salmon, Denver, Edward A. Lipton, Grand Junction, for Respondents.
Case Date:April 08, 1996
Court:Supreme Court of Colorado
 
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914 P.2d 355 (Colo. 1996)

S.O.V., Petitioner,

v.

The PEOPLE of the State of Colorado, In the Interest of M.C., a child, and M.C., a child, Respondents.

No. 94SC727.

Supreme Court of Colorado, En Banc

April 8, 1996

David C. Johnston, Paonia, for Petitioner.

McMichael, Burlingame, Multz & Lipton, Donna A. Salmon, Denver, Edward A. Lipton, Grand Junction, for Respondents.

OPINION

Justice LOHR Justice.

We granted certiorari to review the court of appeals' decision in People in Interest of M.C., 895 P.2d 1098 (Colo.App.1994), a case brought by the Department of Social Services (State) on behalf of M.C., a minor child, to determine whether S.O.V. is M.C.'s father and to obtain payment of child support. The issue before us is whether a jury verdict of non-paternity in that case is binding on M.C. by operation of the doctrines of res judicata and collateral estoppel so as to prohibit M.C., who was not made a party to the case before the jury verdict was returned, from later intervening and seeking a determination that

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S.O.V. is her father. The trial court denied M.C.'s petition to intervene and granted S.O.V.'s motion to dismiss the case, relying on the conclusion that M.C. is bound by the jury verdict of non-paternity under the doctrines of res judicata and collateral estoppel. The court of appeals reversed on the basis that res judicata and collateral estoppel do not apply because M.C. was neither a party nor in privity with the State in the proceedings that eventuated in the jury verdict. Id. at 1102. We conclude that the doctrines of res judicata and collateral estoppel are not applicable because no final judgment had been entered on the jury verdict when M.C. sought to intervene, and M.C.'s motion to intervene was filed in the same case in which the jury verdict was delivered. We also hold that M.C. was not a party or in privity with the State in the proceedings that led to the jury verdict of non-paternity. For these two independently sufficient reasons, we affirm the judgment of the court of appeals, which reverses the trial court's order of dismissal and remands the case to that court for further proceedings.

I.

In November 1989, the State commenced this action by filing a "Petition for Parentage Determination and To Obtain Child Support" on behalf of M.C., who was then eight years old, pursuant to the Uniform Parentage Act, which appears in its present form at sections 19-4-101 to -130, 8B C.R.S. (1995 Supp.). The State petitioned for declaratory and other relief, including a determination that S.O.V. is the father of M.C. and is therefore obligated for medical expenses and support payments for the benefit of the child. M.C. was referred to as the "petitioner" in the initial pleading, but no guardian ad litem or other fiduciary was appointed to represent her. The case was tried to a jury, which determined that S.O.V. is not M.C.'s father and so has no duty to provide financial support for the child. This determination was made notwithstanding evidence of blood test results indicating a 99.9 percent probability that S.O.V. is M.C.'s father.

The State moved for a judgment notwithstanding the verdict or in the alternative for a new trial, and the trial court granted the motion for judgment notwithstanding the verdict. On appeal, the Colorado Court of Appeals reversed, holding that there was sufficient evidence to sustain the jury verdict, and remanded the case for consideration of the State's alternative motion for a new trial, which was based on alleged jury misconduct. People in Interest of M.C., 844 P.2d 1313 (Colo.App.1992).

The trial court held a hearing on April 1, 1993, and denied the new trial motion on the jury misconduct ground but took under advisement an assertion newly presented by the State in conjunction with the motion for new trial that the proceedings were jurisdictionally defective because the child had not been represented by a guardian ad litem.

Thereafter, on April 5, 1993, the trial court in a written order addressed the State's request for a new trial based on the alleged jurisdictional defect resulting from failure to join the child as a party. It concluded that the child was not properly represented and thus was not a party to the action. The court noted, on the one hand, that although the State's contention that the court should therefore grant a new trial because it did not have subject matter jurisdiction "may be technically appropriate," such an argument by the State "is not supported by equity" because the State had previously claimed to represent the child. On the other hand, the court noted that it must balance against such inequity the importance of having "a correct determination of paternity because the present verdict leaves the child fatherless" and because the child, not having been properly represented, would have a continuing right "to pursue a collateral attack on the judgment of non-paternity." Because such lack of finality was not in the best interests of the child, the parents, or the State, the court for the first time ordered appointment of a guardian ad litem for M.C. "to investigate the circumstances presented by the present status of this litigation and to determine whether the Child's interests warrant a collateral attack on the judgment represented by the jury's verdict of non-paternity." The court's order contained no ruling on the request for a new trial but stated that upon

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receipt of the guardian ad litem's report it would "schedule a conference with all counsel, including [the guardian ad litem] to determine how to proceed." 1

The guardian ad litem conducted an investigation and filed a report on June 3, 1993, stating "that it is in [M.C.'s] best interest to exercise her right to collaterally attack the jury verdict of non-paternity." After considering the guardian's report, the trial court set the matter for a status conference with counsel "to determine the procedures to be followed to implement the [guardian ad litem's] recommendation, and to determine if any other disposition short of a new trial is viable." At the status conference on August 5, 1993, the trial court directed the attorney for the child to file a petition on behalf of the child "either in this action or in a new case as his research dictates." The child's attorney then filed a petition for declaration of paternity and a motion to intervene on behalf of M.C., both bearing the same case number as the action that resulted in the jury verdict. On August 17, 1993, the trial court issued a written order that M.C. "shall and hereby is permitted to intervene in the within action." S.O.V. then moved "to dismiss this action based on the doctrines of res judicata and collateral estoppel," relying on the jury verdict and stating that the verdict "has been upheld after a direct appeal and is a final judgment." The trial court granted the motion to dismiss, ruling that although the child was not a party to the action preceding the jury verdict, she was in privity with the State, which was acting under the authorization of section 19-4-107, 8B C.R.S. (1995 Supp.), and "through its common law duty under the doctrine of Parens Patriae." The court held that M.C. therefore was barred by principles of res judicata and collateral estoppel from challenging the jury determination that S.O.V. is not her father.

On appeal, the court of appeals reversed. People in Interest of M.C., 895 P.2d 1098, 1102 (Colo.App.1994). That court held that M.C. was not in privity with the State because the child had interests in the paternity determination of a "different and broader nature" than those of the State. Id. As a result, the doctrines of res judicata and collateral estoppel did not apply. Id. We granted certiorari to decide whether M.C. is bound by the jury verdict of non-paternity and is thereby precluded from further efforts to obtain a judicial determination that S.O.V. is her father. 2

II.

S.O.V. asserts that the doctrines of res judicata and collateral estoppel bar M.C.'s relitigation of the issue of whether S.O.V. is M.C.'s father. 3 We disagree.

Res judicata, or claim preclusion, "operates as a bar to a second action on the same claim as one litigated in a prior proceeding when there is a final judgment, identity of subject matter, claims for relief, and parties to the action." City & County of Denver v. Block 173, 814 P.2d 824, 830 (Colo.1991). Res judicata binds parties to the action and persons in privity with such parties. Denver v. Consolidated Ditches Co., 807 P.2d 23, 32 (Colo.1991); People v. Hearty, 644 P.2d 302, 312 (Colo.1982). The doctrine not only bars litigation of issues actually decided but also any issues that should have been raised in the first proceeding but were not. City & County of Denver v. Block 173, 814 P.2d at 830; Pomeroy v. Waitkus, 183 Colo. 344, 350, 517 P.2d 396, 399 (1973). The

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doctrine of collateral estoppel is broader than the doctrine of res judicata because it applies to claims for relief different from those litigated in the first action, but narrower in that it applies only to issues actually litigated. City & County of Denver v. Block 173, 814 P.2d at 824; Industrial Com'n v. Moffat Cty. Sch. D. RE No. 1, 732 P.2d 616, 620 (Colo.1987). Collateral estoppel, or issue preclusion, bars relitigation of an issue if: (1) the issue is identical to that actually adjudicated in a prior proceeding; (2) the party against whom estoppel is asserted is a party or in privity with a party in the prior proceeding; (3) there was a final judgment on the merits; and (4) the party against whom estoppel is asserted had a full and fair opportunity to litigate the issues in the prior proceeding. City & County of Denver v. Block 173, 814 P.2d at 831; Industrial Com'n v. Moffat Cty. Sch. D. RE No. 1, 732 P.2d at...

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