Copeland v. Anderson

• Decision Date: 24 September 1985
• Docket Number: No. 4,No. 61067,61067,4
• Citation: 707 P.2d 560,1985 OK CIV APP 30
• Parties: 1985 OK CIV APP 30 Linda A. COPELAND, f/k/a Linda A. Anderson, Appellant, v. Robert E. ANDERSON, Appellee
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 560

707 P.2d 560

1985 OK CIV APP 30

Linda A. COPELAND, f/k/a Linda A. Anderson, Appellant, v. Robert E. ANDERSON, Appellee.

No. 61067.

Court of Appeals of Oklahoma,

Division No. 4.

Sept. 24, 1985.

Released for Publication by Order of

the Court of Appeals Oct. 18, 1985.

Thomas S. Bala, Walter R. Gaidaroff, Robert Leyton Wheeler, Inc., Oklahoma City, for appellant.

Andy M. Coats, Kelley C. Callahan, Crowe & Dunlevy, Oklahoma City, for appellee.

BRIGHTMIRE, Presiding Judge.

Does civil liability for the tort of perjury exist in this state? This is the foremost question which arises from the sustention of a demurrer to plaintiff's cause of action for perjury and pretrial deceit. A procedural problem concerning our jurisdiction to review will be preliminarily disposed of sua sponte. We hold that civil liability for the tort of perjury does lie in this state but that plaintiff has not factually pleaded the essential elements of such a cause of action.

I

The parties were divorced October 19, 1981. The decree awarded Linda A. Anderson, now Copeland, custody of two minor children, child support, alimony and a share of the marital estate. It was not appealed. On March 12, 1982, Mrs. Anderson filed a petition in the divorce case to vacate the decree on the ground the adjudication was obtained as a result of fraud on the part of her former husband, Robert E. Anderson, in concealing certain negotiations with his employer, McDonald's hamburger chain, which "had a direct relationship to the earning capacity of [Anderson]." ¹

While that petition was pending, Mrs. Anderson filed this action on March 7, 1983, charging her former husband with having concealed from plaintiff that arrangements were underway at the time of trial for "granting of a [McDonald's] store to defendant," and with having "falsely denied to the court [during divorce proceedings] that he had any plans to acquire an interest in a store by way of joint venture or by way of a business facility lease with an option to buy," and that such concealment caused plaintiff to be awarded far less than she would have been awarded had Mr. Anderson's "true earning capacity" been disclosed, all to her damage of at least $150,000. She also asked for $500,000 punitive damages because of the alleged fraud and deceit practiced by Mr. Anderson. In other words, plaintiff is seeking to recover damages resulting from her former husband's deceit before and his alleged perjury during the divorce trial.

In the fullness of time, Mrs. Anderson filed a second amended petition in this case which was divided into what she called three causes of action. Each consisted of substantially the same factual allegations and each sought essentially the same ultimate relief. The first "cause" was for damages said to have resulted from defendant's perjury and deceit. One change was in the substitution of the word "endeavors" for the word "plans" in referring to what defendant had concealed and falsely denied in court. The second "cause" asked for vacation of the divorce decree, presumably so she could once more try to get an additional $150,000 from defendant. The third "cause" requested the court to modify the decree and give her "an additional award of property, or alimony in lieu of property in the amount of $150,000.00."

On August 19, 1983, the trial court sustained defendant's demurrer to plaintiff's action for damages in her last petition after concluding that the facts she stated would not entitle her to the requested relief. ² Plaintiff appeals the ruling contending her petition does state a cause of action.

II

At the outset we take up the jurisdictional question concerning the validity of this appeal--whether it is taken from an appealable order.

Ostensibly the appeal is from an order sustaining a demurrer to only one of three causes of action. Since one cannot appeal from sustention of a demurrer to one of several causes unless the question is certified by the trial court--which was not done here--we face the prospect of having to conclude that the order appealed is not a final and appealable one and dismiss the appeal as prematurely brought. LaVelle v. Fair Oil Company, 388 P.2d 13 (Okl.1963); Fowler v. City of Seminole, 196 Okl. 167, 163 P.2d 526 (1945). An analysis of the petition, however, convinces us that the demurrer should not be treated as addressing only a part of the petition but all of it because in our opinion plaintiff has pleaded but one cause of action and seeks a single relief objective--compensation--based on a single set of operative facts. It is in effect a general demurrer. The rule with regard to such a demurrer is that if a petition states any "facts" entitling the pleader to relief it should be overruled. Romney v. Davis, 208 Okl. 81, 253 P.2d 546 (1953). Of course the flip side of this legal coin is that if the petition states insufficient facts for any relief a general demurrer must be sustained. Under these circumstances, then, the order appealed should be considered as having disposed of the entire petition and is therefore a final one which vests in us jurisdiction to decide the issue raised.

III

The first substantive question to decide is without precedent in this state and is whether our law permits recovery of damages in a civil action for testimonial perjury. If it does, then a secondary question arises, of course, and that is whether the facts plaintiff has pled state such a cause of action.

A.

With regard to the first question, we conclude that our state constitution and statutes do authorize such an action.

Prefatorily it might be helpful to note that perjury is a crime in this state and statutorily defined as the willful "making or subscribing" of a false statement under oath, "in a trial, hearing, investigation, deposition, certification or declaration." ³ Perjury is also a civil wrong within the purview of Article 2, § 6 of our state constitution, ⁴ and our statutory law. See, e.g., 76 O.S.1981 §§ 1, 2 and 5(a). ⁵

Actionable perjury is a form of the tort of deceit. To create liability there must be proof that the perjurious statement consisted of a deceit as defined in the first three paragraphs of 76 O.S.1981 § 3, ⁶ which, to use the language of the statute, "willfully deceives another," e.g. a litigant, a juror, or an investigator, with intent to induce him to alter his position to his or another's injury or risk. In the case of trial testimony, for instance, the proof must show a litigant suffered detriment as a result of deception practiced on the trier of fact by the witness. ⁷ And, if such detriment is shown, the damaged party is entitled to be compensated for it by the tortfeasor. ⁸

Ironically, after this country achieved independence, American courts tended to rely on English common law for precendential guidance in areas not covered by statute. Thus with regard to the tort of perjury it is not surprising that early decisions in this country unquestioningly followed a sixteenth century English decision which denied plaintiff the right to recover compensatory damages for the tort of perjury. ⁹ In at least one state, however, the action is allowed by statute. ¹⁰ And in New York recovery may be had in a civil action for treble damages against any attorney or counselor "who ... [i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party." ¹¹

One can hardly help wondering how the English jurists came up with their no action idea in the first place. A satisfactory answer requires an exploration of the dark and slippery caverns of Anglo-Saxon jurisprudence as its evolutionary development gave birth to existing decisional law of perjury. It also requires recognition of the fact that the first decision came at a time when the English fact finding process was undergoing vast changes and only lately had emerged from a feudalistic social structure which had begun with the Norman Conquest in 1066--a process that featured trial by ordeal (abolished by a church council in 1215), determination of facts by "wager of battle," the judicial duel (not officially abolished until 1819 when the unused law was invoked by an ingenious defendant!), "wager of law," and juries composed of "witnesses" to the facts. ¹²

Two early conceptual issues over which a major word war was waged by opposing groups of late medieval legal scholars and judges alike were: (1) whether there was a common law crime of perjury before enactment of the so-called Perjury Statute of 1563 (5 Eliz. c. 9), and (2) whether this statute was a declaratory one, that is, a codification of a preexisting common law crime of perjury, or an "innovative" one introducing a new procedure, remedy or crime. We shall not linger on such complex historical details except to observe the impact of a case that arose three years after the enactment of the Perjury Statute, when a person named Onslowe was charged with having committed perjury in the King's Bench Court. ¹³ The Onslowe court concluded in effect that the Perjury Statute was innovative, that is, it created a new crime of perjury and since there never was a common law crime of perjury, the Court of Star Chamber was without jurisdiction to hear a perjury case. ¹⁴ The conclusion that the Perjury Statute was innovative was contrary to the explicit language of the statute's preamble and it was probably for this reason the Star Chamber appears to have ignored the Onslowe's Case pronouncement.

The decision was also attacked on another front. Lord Chief Justice Coke--who maintained that perjury was a common law crime before passage of the 1563 Elizabethan statute--and his allies open fired on the Onslowe's Case by publishing an incendiary condemnation of it as being a product of "gross ignorance," the fruit of men "that never read the books at large." ¹⁵ Returning the fire two centuries later was a furious Lord Stephen who approved the Onslowe's Case reasoning. He...