Hokanson v. Lichtor, 51358

• Decision Date: 27 March 1981
• Docket Number: No. 51358,51358
• Citation: 626 P.2d 214,5 Kan.App.2d 802
• Parties: George HOKANSON, Appellant, v. Joseph M. LICHTOR, H. Lee Turner, and State Farm Mutual Insurance Company, a Corporation, Appellees.
• Court: Kansas Court of Appeals

Page 214

626 P.2d 214

5 Kan.App.2d 802

George HOKANSON, Appellant, v. Joseph M. LICHTOR, H. Lee Turner, and State Farm Mutual

Insurance Company, a Corporation, Appellees.

No. 51358.

Court of Appeals of Kansas.

March 27, 1981.

Syllabus by the Court

1. An issue becomes moot when an appellate court judgment would be of no consequence.

2. When a motion to dismiss under K.S.A. 60-212(b )(6) raises an issue concerning the legal sufficiency of a claim, the question must be decided from the well-pleaded facts of plaintiff's petition. The motion in such case may be treated as the modern equivalent of a demurrer.

3. Disputed issues of fact cannot be resolved or determined on a motion to dismiss for failure of the petition to state a claim upon which relief can be granted. The question for determination is whether in the light most favorable to plaintiff, and with every doubt resolved in plaintiff's favor, the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim.

4. In considering a motion to dismiss for failure of the petition to state a claim for relief, a court must accept the plaintiff's description of that which occurred, along with any inferences reasonably to be drawn therefrom. However, this does not mean the court is required to accept conclusory allegations on the legal effects of events the plaintiff has set out if these allegations do not reasonably follow from the description of what happened, or if these allegations are contradicted by the description itself.

5. The court is under a duty to examine the petition to determine whether its allegations state a claim for relief on any possible theory. It is not necessary that the petition spell out a legal theory for relief so long as an opponent is apprised of the facts that entitle plaintiff to relief.

6. Civil conspiracy does not become actionable without the commission of some wrong that would give rise to a cause of action independent of the conspiracy.

7. In the absence of a statute authorizing a cause of action for perjury, no civil cause of action for damages exists for perjury or conspiracy to commit perjury.

8. In an action for perjury and conspiracy to commit perjury, it is held: The trial court, for the reasons stated in this opinion, properly dismissed plaintiff's petition for failure to state a cause of action.

Donald E. Shultz, of Dodge City, for appellant.

Robert C. Foulston, of Foulston, Siefkin, Powers & Eberhardt, of Wichita, for appellees.

Before ABBOTT, P. J., and REES and MEYER, JJ.

ABBOTT, Presiding Judge:

The plaintiff, George Hokanson, appeals from an order dismissing his petition for failure to state a claim upon which relief may be granted.

The defendant State Farm Mutual Insurance Company (State Farm) insured Margaret E. Faulkner against liability arising out of the use of an automobile. She was involved in an automobile-motorcycle accident. The cycle was operated by plaintiff. State Farm employed defendant attorney H. Lee Turner to represent Margaret E. Faulkner. Turner and State Farm employed defendant Joseph M. Lichtor, an orthopedic surgeon, to examine Hokanson and to appear as a medical expert at trial. Counsel for Hokanson was of the opinion that Lichtor's medical report contained falsehoods, and prior to trial of the personal injury case he wrote Turner and threatened to sue Lichtor if Lichtor so testified.

Lichtor did testify in the personal injury case, which resulted in a jury verdict for Hokanson in the amount of $50. The trial judge, the Honorable Robert Baker, was of the opinion he had erred in admitting certain evidence, and he granted a new trial both on the issue of damages and on liability. No appeal was taken from that decision. While the personal injury case was awaiting retrial, Hokanson filed a lawsuit against State Farm, Turner and Lichtor, alleging that they had conspired to present perjured testimony through Lichtor and requesting actual and punitive damages. He further requested that all three defendants be enjoined from acting in concert to perpetrate a similar fraud on other courts and litigants within the state of Kansas and specifically that they be enjoined from so acting in the retrial of the personal injury case. In addition, the prayer sought to restrain Lichtor from testifying in the retrial.

The personal injury action was retried, with the Honorable Don Smith presiding, and resulted in a jury verdict finding Hokanson more than 50 percent at fault. Lichtor was permitted to testify, and he was extensively cross-examined. No appeal was taken from that judgment.

A month after the personal injury case was decided, the trial court in this case sustained defendants' motion to dismiss plaintiff's petition for failure to state a cause of action. Plaintiff appeals.

Plaintiff argues that the trial court was premature in dismissing the petition; that he stated a cause of action against each of the defendants alleging willful and false manipulation of a civil trial that resulted in a verdict and judgment against the defendants. Plaintiff argues his cause of action encompasses more than perjury and compares his allegations to abuse of process, stating:

"What we have charged specifically is that Doctor Lichtor is an hireling, a professional witness who, by agreement, prostitutes his professional opinion for hire. We charge, in addition, that with the knowledge and participation of counsel and the indemnity insurers, who are the employers of both counsel and the witness, an abuse is made, not of a paper process such as summons, subpoena or warrant, but the trial process itself."

As we view the record before us, and after having heard oral argument, plaintiff's intended cause of action ultimately depends upon one alleged tortious incident the false testimony of Lichtor at the first trial, supported by the conspiracy of Turner and State Farm. Thus, in our opinion, the question presented is whether a civil action exists for either perjury or conspiracy to commit perjury.

Defendants suggest we need not reach the merits, because the verdict and judgment against plaintiff in the second injury action renders the question moot.

An appellate court will not consider and decide questions raised on appeal when it is clear from the record that any judgment it might render with respect thereto would be unavailing or ineffective. Carr v. Diamond, 192 Kan. 336, 338, 388 P.2d 589 (1964). Defendants argue that should this court find that a valid claim exists and reverse the decision of the trial court, the decision would be "unavailing" to plaintiff since he cannot now recover in the negligence action. We are of the opinion the question of mootness is so intertwined with whether the petition states a cause of action on which relief can be granted that we decline to dismiss this appeal as moot. See Horner v. Schinstock, 80 Kan. 136, 101 P. 996 (1909).

The trial court dismissed this action based upon the authority of K.S.A. 60-212(b )(6), which permits dismissal when the plaintiff fails to plead a claim upon which relief can be granted.

This court's scope of review was set out in detail recently in Knight v. Neodesha Police Dept., 5 Kan.App.2d 472, PP 1-4, 620 P.2d 837 (1980):

"When a motion to dismiss under K.S.A. 60-212(b )(6) raises an issue concerning the legal sufficiency of a claim, the question must be decided from the well-pleaded facts of plaintiff's petition. The motion in such case may be treated as the modern equivalent of a demurrer.

"Disputed issues of fact cannot be resolved or determined on a motion to dismiss for failure of the petition to state a claim upon which relief can be granted. The question for determination is whether in the light most favorable to plaintiff, and with every doubt resolved in plaintiff's favor, the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim.

"In considering a motion to dismiss for failure of the petition to state a claim for relief, a court must accept the plaintiff's description of that which occurred, along with any inferences reasonably to be drawn therefrom. However, this does not mean the court is required to accept conclusory allegations on the legal effects of events the plaintiff has set out if these allegations do not reasonably follow from the description of what happened, or if these allegations are contradicted by the description itself.

"The court is under a duty to examine the petition to determine whether its allegations state a claim for relief on any possible theory. It is not necessary that the petition spell out a legal theory for relief so long as an opponent is apprised of the facts that entitle plaintiff to relief."

As is noted earlier in this opinion, in the final analysis plaintiff's cause of action is based on an allegation of presenting perjured testimony. Prior to the first trial, plaintiff alleged that the medical report contained falsehoods, and there is nothing in the record before us to give any indication that plaintiff did not know what Lictor was going to testify to at trial.

The overwhelming majority of authority from other jurisdictions holds that no civil cause of action for damages exists for either perjury or conspiracy to commit perjury. It is well settled that a plaintiff who has lost his case because of perjured testimony cannot sue the perjurer for damages. Morgan v. Graham, 228 F.2d 625, 627 (10th Cir. 1956); Anchor Wire Corp. v Borst, 277 App.Div. 728, 102 N.Y.S.2d 871 (1951); 70 C.J.S. Perjury §§ 92-93. See Annot., 54 A.L.R.2d 1298, § 7. No civil action for damages lies for false testimony or for subornation of false testimony. Annot., 31 A.L.R.3d 1423, § 2(a). Most courts reason that the remedy for perjury is criminal punishment or an action to set aside the judgment rather than a...