Harmon v. Headley

• Decision Date: 28 January 2003
• Docket Number: No. WD 61068.,WD 61068.
• Citation: 95 S.W.3d 154
• Parties: Heath HARMON, Appellant, v. Sandra HEADLEY, Defendant; Harry Nitchals, Respondent, Taylor Nitchals, Respondent,
• Court: Missouri Court of Appeals

95 S.W.3d 154

Heath HARMON, Appellant, v. Sandra HEADLEY, Defendant;

Harry Nitchals, Respondent,

Taylor Nitchals, Respondent,

No. WD 61068.

Missouri Court of Appeals, Western District.

January 28, 2003.

Meryl Lynn Lange, Raymore, MO, for appellant.

James E. Switzer, Clinton, MO, for respondent.

Before JAMES M. SMART, JR., P.J., ROBERT G. ULRICH, and RONALD R. HOLLIGER, JJ.

PER CURIAM.

Heath Harmon appeals the trial court's dismissal of his petition filed under the Missouri Uniform Parentage Act.

Factual and Procedural Background

On August 10, 2001, Heath Harmon filed a petition in the Cass County Circuit Court alleging that Harmon is the natural father of the minor child Taylor Nicole Nitchals. Harmon requested the court to declare that there is no father-child relationship between the child and the respondent Harry Nitchals and to determine that there is a father-child relationship between Harmon and the child. This appeal arises from the trial court's dismissal of that petition.

During the marriage of Harry Nitchals and Sandra Nitchals, Taylor Nicole was born on July 24, 1995. On December 11, 1997, the couple was legally separated, and final judgment for dissolution of marriage was entered on April 26, 1998. The dissolution court declared the paternity of the child based upon the presumption that Nitchals, as the husband, was the father of Taylor Nicole. Harry Nitchals did not contest the issue of paternity at the dissolution proceedings. Harmon, the appellant in this case, was not a party to that dissolution action.

First Declaration of Paternity Petition

On February 5, 1999, Harry Nitchals filed a declaration of paternity petition in the Bates County Circuit Court seeking a declaration that Taylor Nicole was not his child (based on DNA test results) and asking the court to find that Harmon was the father. In that petition, Nitchals joined as defendants: the mother, Sandra Nitchals; the minor child, Taylor Nicole; and Heath Harmon as the putative father. Paragraph eight of Nitchals' petition alleged specifically with regard to Harmon, that Sandra Nitchals had admitted under oath that she had sexual intercourse with Harmon on multiple occasions in the latter part of 1994 and that she is not aware of any individual who could potentially be the father of Taylor Nicole other than Nitchals or Harmon.

Harmon, acting pro se, filed a general denial. He further stated that the claim was frivolous and prayed that Nitchals be required to pay his attorney's fees. Sandra Nitchals filed a motion to dismiss on the basis of res judicata and collateral estoppel, in that the child's paternity had been fully adjudicated and declared by the dissolution court. The child's guardian ad litem also argued that the cause should be dismissed based upon the same principles and because it was in the child's best interests. The GAL pointed out that the minor child or the putative father could bring a paternity action, at that point, but that such an action still may not lie if it were not in the best interests of the child.

On June 14, 2000, the Bates County court granted the motion to dismiss, finding that "[i]n the legal separation/dissolution proceeding, Taylor Nicole Nitchals was determined to be the child of Presumed Father [Nitchals] and Mother[.]" The court based its ruling on principles of collateral estoppel and res judicata. The cause was dismissed and no appeal was taken from that judgment by any party.

This Declaration of Paternity Petition

Over a year later, on August 10, 2001, Harmon filed a petition for declaration of non-paternity and declaration of paternity asking the court to find that he is the natural father of Taylor Nicole and that no father-child relationship exists as to Taylor Nicole and the respondent Nitchals. Harmon's petition named all the same parties as had been named in Nitchals' earlier petition. The only difference was the reversal of the plaintiff and defendant roles. In response to Harmon's petition, Nitchals filed a motion to dismiss based upon the principles of res judicata and collateral estoppel. Nitchals argued also that the claim was barred by Rule 55.32, the compulsory counterclaim rule. On January 16, 2002, the trial court entered its judgment and order granting the motion to dismiss. This appeal arises from the trial court's dismissal of that petition.

Standard of Review

Copies of the pertinent pleadings and the judgment from the earlier Bates County paternity action were attached to the motion to dismiss. For that reason, the motion shall be treated as one for summary judgment and reviewed accordingly, pursuant to Rule 55.27(b).¹ Summary judgment is proper where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. ITT Commercial Fin. Corp. v. Mid — America Marine Supply Corp., 854 S.W.2d 371, 377 (Mo. banc 1993). Here, where there are no disputed issues of fact and the question is purely an issue of law, the standard of review is de nova Id. at 376. The summary judgment must be affirmed if, as a matter of law, it is sustainable on any reasonable theory. S & P Oyster Co. v. U.S. Fidelity and Guar. Co., 865 S.W.2d 379, 381 (Mo.App.1993); Baker v. Baker, 813 S.W.2d 116, 119 (Mo.App. 1991).

Claim Barred by the Compulsory Counterclaim Rule

In Harmon's three points on appeal, he attempts to show the inapplicability of the principles of res judicata, collateral estoppel, and the compulsory counterclaim rule, respectively. The compulsory counterclaim is an alternate form by which the courts enforce the principles of res judicata and collateral estoppel. Beasley v. Mironuck, 877 S.W.2d 653, 656 (Mo.App.1994). Because we find that the claim is barred by the compulsory counter-claim rule, it is not necessary to address each of his points individually. Summary judgment should be affirmed, regardless of the theory upon which it is based, where such judgment could have been reached under any reasonable and available theory. McNeill v. Community Title Co., 11 S.W.3d 863, 866 (Mo.App. 2000).

The issues in Harmon's petition are identical to the issues raised in the earlier petition filed by Nitchals. The compulsory counterclaim rule states: A pleading shall state as a counterclaim any claim that at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim....

Rule 55.32(a) (emphasis added). Here, this claim arose out of the transaction or occurrence that was the subject matter of the earlier claim. Both actions sought a declaration of paternity as to the same minor child.

Failure to assert such a claim results in the claim being barred from being adjudicated in the future. See Knight v. M.H. Siegfried Real Estate, Inc., 647 S.W.2d 811, 813 (Mo.App.1982). "The compulsory counterclaim is a means of bringing together all logically related claims into a single litigation, through the penalty of precluding the later assertion of omitted claims." Neenah Co. v. Cox, 955 S.W.2d 595, 599 (Mo.App.1997). Claims and issues which could have been litigated in a prior adjudicated action are precluded in a later action between the same parties or those in privity with them. Beasley, 877 S.W.2d at 656 (citing 20 AMJUR2D, Counterclaim, Recoupment, and Setoff § 13 (failure to file counterclaim is res judicata of relief that might have been obtained thereby); 3 MOORE'S FEDERAL PRACTICE ¶ 13.12[1] (compulsory counterclaim rule equivalent to res judicata)). As noted, supra, pursuant to Rule 55.27(b) the motion is treated as one for summary judgment. Summary judgment is a judgment on the merits, thus res judicata principles do apply. Williams v. Rape, 990 S.W.2d 55, 59 (Mo.App.1999).

Harmon does not attempt to argue that the claim does not meet the criteria of "aris[ing] out of the transaction or occurrence that is the subject matter of the opposing party's claim." Rather, Harmon's argument is that barring his claim on the basis of the compulsory counterclaim rule is improper because his claim had neither accrued nor matured at the time he was served the pleadings in the prior action. He says this is so because at that time he was unaware that he was the child's father. He argues that the only notice he had of the possibility of his paternity was (1) the allegation in Nitchals' petition (and the attached DNA report) indicating that the DNA testing showed that Nitchals was not the father, and (2) the affidavit of the child's mother that there was no other individual apart from Harmon or Nitchals who could be the father. Harmon contends that, because that case was dismissed after pending only a little over a year, he did not have enough information to proceed with his own counterclaim. He claims he had no opportunity to get his own DNA tested. Therefore, Harmon claims, he was not able in the prior proceedings to bring his own claim of paternity.

Harmon's Claim Was Matured At The Time Of The...