Cogan v. Cogan
| Decision Date | 05 May 1986 |
| Docket Number | Docket No. 77567 |
| Citation | 149 Mich.App. 375,385 N.W.2d 793 |
| Parties | Sandra COGAN and Sandra Cogan as Next Friend of Kevin Cogan, Plaintiffs- Appellees, v. Leon COGAN, Defendant-Appellant. 149 Mich.App. 375, 385 N.W.2d 793 |
| Court | Court of Appeal of Michigan — District of US |
[149 MICHAPP 377] Hyman, Gurwin, Nachman, Friedman & Winkleman, by Edward D. Gold and Lori A. Lutz, Southfield, for plaintiffs-appellees.
Rubenstein, Isaacs, Lax & Bordman, P.C. by Steven L. Schwartz and Robert A. Kuhr, Southfield, for defendant-appellant.
Before MacKENZIE, P.J., and CYNAR and DEMING *, JJ.
Defendant, Leon Cogan, appeals by leave granted from the trial court's denial of his motion to compel discovery. The sought-after discovery consists of a court order to compel the parties to submit to an HLA blood-group testing. The reason given by the defendant for such discovery is the necessity of the test to assist him in proving his defense of "truth" in this lawsuit brought by his former wife, plaintiff Sandra Cogan, and a child born during the marriage, plaintiff Kevin Cogan, in which they charge him with slander, defamation, and intentional infliction of emotional distress because he stated he is not the biological father of Kevin Cogan.
Plaintiff Sandra Cogan and the defendant are not strangers to this Court. Cogan v. Cogan, 119 Mich.App. 476, 326 N.W.2d 414 (1982), lv.den. 417 Mich. 988 (1983), involved the defendant's post-divorce motion to challenge the paternity of plaintiff Kevin Cogan. This Court held in Cogan, supra, that, since the defendant failed to raise the question of paternity in the original divorce action, he [149 MICHAPP 378] was precluded from doing so by the doctrine of res judicata. 1
While the matter of the defendant's position in Cogan, supra, was pending in the divorce case, the plaintiffs began this action at law with the attendant right to a jury trial. The defendant answered the plaintiffs' complaint by pleading that any statements he made were true and that truth is an absolute defense to defamation. Defendant then filed his motion to compel the parties (plaintiff Kevin is now an adult) to submit to the HLA tests. 2 The plaintiffs state that they should not be required to submit to such a test because collateral estoppel bars relitigation of the paternity issue, that defendant is barred from denying paternity because of the doctrine of equitable estoppel and, lastly, that defendant has failed to provide a factual basis for his request. The trial judge agreed with the plaintiffs and, in his opinion denying defendant's motion, stated:
Defendant argues that the trial court erred in holding that the collateral estoppel doctrine barred his request for HLA blood testing since the question of paternity has not been actually and fully litigated and since the parties to the divorce proceeding and this proceeding are not the same. We agree.
Collateral estoppel bars relitigation of issues previously decided between the same parties where a second cause of action is different. Howell v. Vito's Trucking & Excavating Co, 386 Mich. 37, 41-42, 191 N.W.2d 313 (1971); LaVergne v. Community National Bank of Pontiac, 132 Mich.App. 387, 347 N.W.2d 463 (1984). Unlike the situation before this Court in Cogan, supra, the present defamation action is a different cause of action from either the original divorce action or defendant's request for a determination of paternity and/or abatement of child support. Accordingly, principles of collateral estoppel rather than res judicata apply here.
While res judicata bars the relitigation of issues which might have been presented in the first action, collateral estoppel conclusively bars only issues "actually litigated" in the first action. Stolaruk Corp v. Dep't of Transportation, 114 Mich.App. 357, 361-362, 319 N.W.2d 581 (1982); Braxton v. Litchalk, 55 Mich.App. 708, 718, 223 N.W.2d 316 (1974); Rinaldi v. Rinaldi, 122 Mich.App. 391, 398, 333 N.W.2d 61 (1983). A question has not been actually litigated until put into issue by the pleadings, submitted to the trier of fact for a determination, and thereafter determined. Sahn v. Brisson, 43 Mich.App. 666, 670, 204 N.W.2d 692 (1972). Moreover, in order to be "litigated as a matter of [149 MICHAPP 380] fact", the issue must have constituted a material question in the other controversy. See MacKenzie v. Union Guardian Trust Co, 262 Mich. 563, 247 N.W. 914 (1933).
In the instant case, paternity was not a material issue in the original divorce proceeding. Accordingly, entry of the judgment of divorce did not act as a bar to defendant's subsequent attempt to establish nonpaternity for the purpose of defending against plaintiffs' defamation action. Nor does the dismissal of defendant's petition for determination of paternity and/or abatement of child support collaterally estop defendant from attempting to establish nonpaternity in the instant case. Where an action is terminated by the granting of an accelerated judgment, such judgment does not constitute litigation on the merits. Oakley v. Dep't of Mental Health, 122 Mich.App. 638, 332 N.W.2d 552 (1983), vacated on other grounds 418 Mich. 886, 341 N.W.2d 434 (1983). We therefore conclude that the trial court erred in finding that either the original divorce action or the dismissal of defendant's subsequent petition to determine paternity barred any attempt by defendant to defend against plaintiffs' defamation action by establishing nonpaternity.
Moreover, for collateral estoppel to apply, there must be a mutuality of parties. In Grano v. Ortisi, 86 Mich.App. 482, 488, 272 N.W.2d 693 (1978), a case involving the relitigation of issues previously decided but with different parties and in which the trial judge relied upon the doctrine of res judicata and collateral estoppel, this Court in reversing wrote:
Except for the fact that plaintiff Sandra Cogan and defendant Leon Cogan were at one time parties to a divorce action, this case is not unlike Grano, supra, because we have an additional plaintiff, Kevin Cogan, seeking money damages. Therefore, the doctrine of collateral estoppel does not apply.
The defense in this case is "truth", and one of the tools the defendant seeks to use to prove this alleged truth is the HLA type test. He should have it to defend this suit brought by the plaintiffs.
Since the defendant has raised truth as a defense, plaintiffs' argument of equitable estoppel is without merit. Plaintiffs' claim that defendant has failed to provide a factual basis for his request ignores the fact that paternity is in controversy and MCR 2.311(A) provides for the relief the defendant seeks.
Our disposition in this case makes it unnecessary to consider the defendant's other argument, that he was denied his constitutional right to present a defense by the trial court's ruling.
Reversed. Costs to appellant.
According to the certified concise statement of facts submitted in this appeal, the following background information is included.
Pursuant to the terms of the contested judgment [149 MICHAPP 382] of divorce, which was entered on April 26, 1978, the trial court found on the record that Kevin Cogan was the child of the parties. Over three years after the entry of the judgment of divorce, on June 24, 1981, defendant filed a petition to determine paternity seeking a full evidentiary hearing, including blood group testing, on the issue as to whether defendant could be excluded as the father of Kevin...
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