Hooper v. Moser
| Decision Date | 22 October 2003 |
| Docket Number | No. M2001-02702-COA-R3-CV.,M2001-02702-COA-R3-CV. |
| Parties | RICHARD HOOPER, ET AL. v. RONALD MOSER. |
| Court | Tennessee Court of Appeals |
Appeal from the Circuit Court for Davidson County No. 01C-705 Thomas W. Brothers, Judge.
Judgment of the Circuit Court Affirmed.
Charles Galbreath, Nashville, Tennessee, for the appellant, Richard Hooper.
John P. Brown, III, Nashville, Tennessee, for the appellee, Ronald Moser.
WILLIAM C. KOCH, JR., J., delivered the opinion of the court, in which BEN H. CANTRELL, P.J., M.S., and D. MICHAEL SWINEY, J., joined.
This appeal involves the aftermath of the revelation of a long-kept secret regarding the parentage of a 28-year-old woman. When the woman discovered that the man who had raised her was not her biological father, she and her now stepfather filed suit in the Circuit Court for Davidson County against the person her mother identified as her biological father, seeking confirmation of her parentage and compensatory and punitive damages. The trial court dismissed the damage claims after court-ordered genetic testing confirmed that the defendant was the woman's biological father. The stepfather has appealed. We have concluded that the stepfather's damage claims should have been dismissed even though we do not subscribe to the trial court's reasoning.1 He has failed to demonstrate that he will be able to prove all the essential elements of his fraud or misrepresentation claim, and his implied contract claim is barred by the statute of repose in Tenn. Code Ann. § 36-2-306(a) (2001).
Richard and Faye Hooper were married in the early 1970s. Unbeknownst to Mr. Hooper, Ms. Hooper had an extramarital affair with a co-worker named Ronald Moser. When Dana Hooper was born approximately nine months later in 1972 or 1973, Mr. Hooper assumed that she was his daughter. As far as this record shows, Faye Hooper hid her marital indiscretions from Mr. Hooper and did nothing to cause him to question whether Dana Hooper was his child. Dana Hooper grew to adulthood believing that Mr. Hooper was her biological father, and during all this time, Mr. Hooper believed that Dana Hooper was his biological daughter.
For some reason not evident in this record, Mr. Hooper and Dana Hooper became suspicious about Dana Hooper's parentage in late 2000. They confronted Faye Hooper in late 2000, after genetic testing conclusively established that Mr. Hooper was not Dana Hooper's biological father. Faye Hooper revealed her affair with Mr. Moser. Even though she had not communicated with Mr. Moser for over twenty years, Faye Hooper also contacted Mr. Moser to tell him for the first time that he was probably Dana Hooper's biological father.
Dana Hooper and Mr. Hooper retained a lawyer who began sending letters to Mr. Moser demanding that he submit to genetic testing. When Mr. Moser did not respond to their satisfaction, Mr. Hooper and Dana Hooper sued Mr. Moser in the Circuit Court for Davidson County. Dana Hooper requested that Mr. Moser be ordered to submit to genetic testing and requested damages for "humiliation and anxiety."2 Mr. Hooper sought to recover $1,000,000 in compensatory and punitive damages. Dana Hooper was twenty-eight years old when the complaint was filed.
Mr. Moser moved to dismiss the complaint in April 2001. Before addressing Mr. Moser's motion, the trial court directed him to have genetic testing. In June 2001, the test results confirmed that Mr. Moser was Dana Hooper's biological father. Thereafter, the trial court converted Mr. Moser's motion to a motion for summary judgment and dismissed the complaint because it failed to "set forth sufficient facts to state a cause of action for fraud and misrepresentation."3
Mr. Hooper and Dana Hooper moved to "alter or clarify" the judgment and offered to file an amended complaint containing a more specific fraud and misrepresentation claim against Mr. Moser. Mr. Moser opposed the motion but also stated that he would reimburse Mr. Hooper for the cost of the paternity test. The trial court adhered to its dismissal of the damage claims but determined that the costs should be taxed against Mr. Moser because Dana Hooper had prevailed on her request to establish parentage. Both Mr. Hooper and Dana Hooper filed a notice of appeal. However, Dana Hooper appears to have abandoned her damage claim because the brief filed with this court on Mr. Hooper's behalf focuses solely on his claims.
A number of courts around the country have addressed the viability of "sexual fraud" claims typically made by biological fathers seeking to avoid their obligation to support their children. The courts have consistently rejected these claims on policy and privacy grounds. See, e.g., Welzenbach v. Powers, 660 A.2d 1133, 1136 (N.H. 1995); C.A.M. v. R.A.W., 568 A.2d 556, 563 (N.J. Super. Ct. App. Div. 1990); Wallis v. Smith, 22 P.3d 682, 685 (N.M. Ct. App. 2001); Jose F. v. Pat M., 586 N.Y.S.2d 734, 736 (N.Y. Sup. Ct. 1992). Mr. Hooper's complaint in this case differs from the typical sexual fraud claim. He is not seeking to avoid a legal obligation of parenthood but rather to recover his expenses to support another man's child. This difference has legal significance and prevents us from dismissing Mr. Hooper's tort claim on the same grounds used to dispose of sexual fraud claims.
Mr. Hooper's tort claim has taken on a chameleon-like quality. In his complaint, he invoked the "tort of fornication" which he characterized as "deceitful, wrongful and negligent." After Mr. Moser questioned whether the act of fornication was tortious, Mr. Hooper characterized his claim as a negligence action, specifically the negligent "failure . . . to practice birth control while fornicating." Later, relying on a strained reading of Henson v. Sorrell,4 he characterized his claim as one for "fraud, deceit and misrepresentation."5 The unfocused arguments in Mr. Hooper's brief obscure the current foundation of his tort claim. For the purpose of this opinion, we will presume that his tort claim continues to be based solely on fraud and misrepresentation because now he asks us only to determine whether Mr. Moser is "guilty of some form of fraud and misrepresentation."6
To succeed with a fraud or misrepresentation claim, a plaintiff must prove that the defendant either misrepresented a material fact or failed to disclose a material fact that he or she had a duty to disclose. Brown v. Birman Managed Care, Inc., 42 S.W.3d 62, 66 (Tenn. 2001); Chrisman v. Hill Home Dev., Inc., 978 S.W.2d 535, 538-39 (Tenn. 1998). Mr. Hooper's complaint contains no allegation that Mr. Moser made any representations to him regarding the parentage of Dana Hooper. Accordingly, Mr. Hooper's tort claim can succeed only if he can prove that Mr. Moser knew that Dana Hooper was his biological child and failed to disclose it to Mr. Hooper.7 Mr. Hooper's claim breaks down at this precise point. Mr. Hooper has neither alleged nor demonstrated that he can prove that Mr. Moser knew that Dana Hooper had been born or that he knew or should have known that he was Dana Hooper's biological father.
A summary judgment is appropriate when a plaintiff fails to demonstrate an ability to prove an essential element of his or her case at trial. Alexander v. Memphis Individual Practice Ass'n, 870 S.W.2d 278, 280 (Tenn. 1993); Wilson v. Rubin, 104 S.W.3d 39, 47 (Tenn. Ct. App. 2002). Mr. Hooper has failed to demonstrate that he will be able to prove that Mr. Moser knew that Dana Hooper was his biological daughter or that Mr. Moser failed to disclose this information to Mr. Hooper when he had an obligation to do so. Accordingly, Mr. Moser was entitled to a judgment as a matter of law on Mr. Hooper's fraud and misrepresentation claim.
Mr. Hooper also takes issue with the trial court's dismissal of his "implied contract" claim against Mr. Moser. He asserts that he is entitled to recover the financial support he provided to Dana Hooper prior to her eighteenth birthday and that his claim was timely because he filed it within one year after discovering that he was not her biological father. We have determined that Mr. Hooper's claim was not timely because it was not filed within three years after Dana Hooper's eighteenth birthday as required by Tenn. Code Ann. § 36-2-306(a).
Biological parents and adoptive parents have a moral and legal obligation to support their minor children. Tenn. Code Ann. § 34-1-102(a) (2001); Boggs v. Boggs, 520 U.S. 833, 848, 117 S. Ct. 1754, 1764 (1997) (quoting Rose v. Rose, 481 U.S. 619, 632, 107 S. Ct. 2029, 2037 (1987)); State Dep't of Human Servs. ex rel. Young v. Young, 802 S.W.2d 594, 600 (Tenn. 1990); Baker v. Baker, 169 Tenn. 589, 592, 89 S.W.2d 763, 764 (1935); Wallace v. Cox, 136 Tenn. 69, 72, 188 S.W. 611, 612 (1916). The obligation can also fall on the spouse of a biological or adoptive parent who willingly assumes all the responsibilities of parenthood knowing that the child is not his or her offspring. Maguinay v. Saudek, 37 Tenn. (5 Sneed) 146, 147-48 (1857); Sanderlin v. Sanderlin's Adm'r, 31 Tenn. (1 Swan) 441, 444 (1852); Tyler v. Tyler, 671 S.W.2d 492, 494 (Tenn. Ct. App. 1984); 1 HOMER H. CLARK, JR., THE LAW OF DOMESTIC RELATIONS IN THE UNITED STATES § 7.2, at 442 (2d ed. 1987).8
When a parent or other person with an obligation to support fails to provide necessary support, a third party may step in and provide the support and then recover from the legally responsible party. The normal procedure for obtaining reimbursement for the payment of a child's necessaries is an action against the child's biological or adoptive parents or the persons obligated to support the child. Cartwright v. Juvenile Court at Nashville, 172 Tenn. 626, 628, 113 S.W.2d 754, 755 (1938); State ex rel. Grant v. Prograis, 979 S.W.2d 594, 601 (Tenn. Ct. App. 1997). To maintain a successful...
To continue reading
Request your trial