D'Amico v. Ellinwood

• Citation: 209 Or. App. 713,149 P.3d 277
• Decision Date: 13 December 2006
• Docket Number: C02 3308DRB.,A122399.
• Parties: Lillian Jane D'AMICO, by and through Anne E. TRACEY, her Guardian Ad Litem, Appellant, v. Robert ELLINWOOD, III, Respondent. Robert Ellinwood, III, Third-Party Plaintiff, v. Andrea J. D'Amico, Third-Party Defendant.
• Court: Court of Appeals of Oregon

149 P.3d 277

209 Or. App. 713

Lillian Jane D'AMICO, by and through Anne E. TRACEY, her Guardian Ad Litem, Appellant, v. Robert ELLINWOOD, III, Respondent.

Robert Ellinwood, III, Third-Party Plaintiff, v. Andrea J. D'Amico, Third-Party Defendant.

C02 3308DRB.

A122399.

Court of Appeals of Oregon.

Argued and Submitted December 5, 2005.

Decided December 13, 2006.

COPYRIGHT MATERIAL OMITTED

Eli D. Stutsman, Portland, argued the cause for appellant. With him on the briefs was Eli D. Stutsman A Professional Corporation.

Peter Bunch argued the cause for respondent. With him on the brief was Zimmer & Bunch, LLC.

Before SCHUMAN, Presiding Judge, and LANDAU^* and ORTEGA, Judges.

ORTEGA, J.

Child, through her guardian ad litem, appeals from a judgment dismissing her paternity claim against Robert Ellinwood III. The trial court granted Ellinwood's motion for summary judgment on the ground that child's claim was barred by a stipulated judgment of nonpaternity entered in a dissolution proceeding between Ellinwood and child's mother, Andrea D'Amico. We conclude that, because child was neither a party nor in privity with a party to the dissolution proceeding, the judgment did not bar her claim. Accordingly, we reverse and remand for further proceedings.

The material facts are undisputed. D'Amico and Ellinwood were married in 1995, and child was born six months later. In 1998, Ellinwood filed a petition for dissolution of the marriage, alleging that child was a child of the parties. However, two months later, Ellinwood moved to amend the petition, alleging uncertainty about whether he was child's biological father and requesting genetic testing. Shortly thereafter, the parties agreed to a stipulated judgment regarding child's paternity, which the trial court entered in early 1999.

The "Findings" section of that judgment recited that Ellinwood "denies that he is [child's] biological father." It further provided:

"The parties are convinced that, because of the serious and ongoing conflict between them, it would be in [child's] best interest if the parties resolved the parentage dispute by entering a Judgment which declares that [Ellinwood] is not [child's] father and that, accordingly, [Ellinwood] will have no legal rights or obligations with respect to [child]."

D'Amico declared that she had the ability, assets, and income to meet all of child's present and future needs.

The judgment then declared that Ellinwood "is not the biological father of [child]." Under the terms of the judgment, Ellinwood relinquished all legal rights with respect to child "such that [child] will no longer be legally related to [Ellinwood] and accordingly [child] will no longer be considered an heir of [Ellinwood] for purposes of laws relating to wills and intestate succession." D'Amico surrendered "for herself and on behalf of [child] * * * all rights to receive child support or any other type of support from [Ellinwood] for the benefit of [child]." The parties, by signing the judgment, "stipulate[d] to all of the facts and agreements recited [in the judgment]" and to its entry.

The parties subsequently entered into a stipulated judgment dissolving their marriage. That judgment acknowledged the prior judgment and stated that "[n]o custody or child support issues are involved in this case." The dissolution judgment awarded D'Amico $675,000 as an equalizing judgment and $150,000 for a covenant not to compete, related to business interests that the parties had developed during their marriage.

About three years after entry of the dissolution judgment, child filed a petition alleging that Ellinwood is child's biological father and seeking a declaration of paternity and an award of child support. Child attached an affidavit from D'Amico, stating that Ellinwood is child's biological father and that D'Amico had signed the stipulated nonpaternity judgment because she "agreed that our daughter would be better off without contact from [Ellinwood] because of the acrimony and bitterness of our circumstances." She stated that child "was not a party to the proceeding" and did not know about it.

Ellinwood moved for summary judgment, contending that the doctrines of res judicata, issue preclusion, and judicial estoppel precluded child's paternity proceeding. Child responded that those principles did not bar her paternity claim, because she was neither a party nor in privity with a party to the dissolution proceeding.

The trial court entered summary judgment in Ellinwood's favor. The court found that, in the stipulated judgment of nonpaternity, D'Amico "agreed, swore, and corroborated that Ellinwood was not [c]hild's legal father." Apparently relying on Dept. of Human Resources v. Shinall, 148 Or.App. 560, 941 P.2d 616 (1997)—which we discuss below—the court concluded that the stipulated judgment was binding on child. The court accordingly dismissed all of child's claims.¹

On appeal, child renews her argument that the nonpaternity judgment does not bind her, because she was neither a party nor in privity with a party to that proceeding. Ellinwood responds that child was in privity with D'Amico in the dissolution proceeding. Ellinwood does not contend that child was a party or that she is bound even if she was not in privity with D'Amico. He thus implicitly concedes that if child was not in privity with D'Amico, child is not bound by the judgment. We begin our discussion of the privity question by explaining why that concession is legally correct.

Oregon has long subscribed to the related common-law doctrines of issue preclusion (collateral estoppel) and claim preclusion (res judicata). North Clackamas School Dist. v. White, 305 Or. 48, 50, 750 P.2d 485, modified on other grounds on recons., 305 Or. 468, 752 P.2d 1210 (1988).² Both "prevent[] harassment by successive proceedings and promote[] economy of resources in the adjudicatory process." Id. at 50-51, 750 P.2d 485. Claim preclusion bars a party from relitigating the same claim against the same opponent or another claim that is "`based on the same factual transaction that was at issue in the first, seeks a remedy additional or alternative to the one sought earlier, and is of such a nature as could have been joined in the first action.'" Bloomfield v. Weakland, 339 Or. 504, 510-11, 123 P.3d 275 (2005) (quoting Rennie v. Freeway Transport, 294 Or. 319, 323, 656 P.2d 919 (1982)). Issue preclusion, on the other hand, applies when the parties to a prior action subsequently, in a different action, again litigate issues "actually litigated and determined in the prior action * * *." State Farm Fire & Cas. v. Reuter, 299 Or. 155, 158, 700 P.2d 236 (1985). As to those issues, the earlier judgment is binding as to any determination that "was essential to the judgment." Id.

For either claim preclusion or issue preclusion to apply, the person against whom preclusion is asserted must have been a party or in privity with a party to the earlier proceeding. Bloomfield, 339 Or. at 511, 123 P.3d 275 (claim preclusion); Nelson v. Emerald People's Utility Dist., 318 Or. 99, 104, 862 P.2d 1293 (1993) (issue preclusion). The Supreme Court has emphasized the role of fundamental fairness in privity questions:

"This court also has held that a person who was not a party to an earlier action but who was in `privity' with a party to that earlier action also can be barred on claim preclusion grounds from bringing a second action. * * * An inherent limitation on using the concept of privity in such circumstances, however, is a concern about the fairness of binding a person to a judgment rendered in an earlier case in which he or she was not a party. As this court stated in Wolff v. Du Puis, 233 Or. 317, 321, 378 P.2d 707 (1963), privity `is merely a word used to say that the relationship between the one who is a party on the record and another is close enough to include the other within the res judicata.' And that relationship is `close enough' for purposes of preventing the third party from pursuing claims in a second trial `only when it is realistic to say that the third party was fully protected in the first trial.' Id. at 322, 378 P.2d 707. Thus, even if the present plaintiffs can be said to have been in privity with [a party] in the earlier litigation, claim preclusion will not operate to bar their claims in the present action unless it is fundamentally fair to do so."

Bloomfield, 339 Or. at 511, 123 P.3d 275 (s and further citation omitted).

Privity "includes those who control an action although not parties to it; those whose interests are represented by a party to the action; and successors in interest to those having derivative claims." Wolff, 233 Or. at 322, 378 P.2d 707 (citing Restatement of Judgments § 83 (1942)). Because Ellinwood does not (and apparently could not) contend that child controlled the dissolution proceeding or was a successor in interest, privity exists here only if D'Amico represented child's interests in the dissolution proceeding—and only if she did so in such a manner that child was "fully protected" so that the application of issue preclusion is "fundamentally fair."³ See Bloomfield, 339 Or. at 511, 123 P.3d 275.

Neither this court nor the Supreme Court has addressed the question of privity under the circumstances presented here. The cases closest to the question have involved the state seeking to establish paternity and a child support obligation after an earlier determination in a dissolution proceeding has declined to find paternity or award support. See State ex rel Moran v. Rushman, 177 Or.App. 290, 292-93, 33 P.3d 999 (2001), rev. den., 333 Or. 260, 39 P.3d 193 (2002); Mares and Mares, 131 Or.App. 439, 441-42, 886 P.2d 17 (1994). In those cases, we concluded that the state was not bound by the earlier determinations because it was neither a party nor in privity with a party, but was representing its own interests in the subsequent proceeding. Moran, 177 Or.App. at 294, 33 P.3d 999;...