Johnson v. Hunter

• Decision Date: 09 November 1989
• Docket Number: Nos. C2-88-1765,C2-88-2012,s. C2-88-1765
• Citation: 447 N.W.2d 871
• Parties: Tia Marie JOHNSON and State of Minnesota, Petitioners, Appellants, v. Terry Lee HUNTER, Respondent.
• Court: Minnesota Supreme Court

Page 871

447 N.W.2d 871

Tia Marie JOHNSON and State of Minnesota, Petitioners Appellants, v. Terry Lee HUNTER, Respondent.

Nos. C2-88-1765, C2-88-2012.

Supreme Court of Minnesota.

Nov. 9, 1989.

Syllabus by the Court

1. The trial court's refusal to vacate the order nunc pro tunc and reinstate the Hennepin County action or, in the alternative, to vacate the dismissal with prejudice and enter a dismissal without prejudice was not an abuse of discretion.

2. The child is not precluded, by reason of the earlier dismissal with prejudice of the paternity action brought by her mother and the state, from bringing a paternity action against her alleged father. Due to the child's paramount interests at stake, she is entitled to an opportunity for an adjudication on the merits of her parentage.

3. The trial court did not abuse its discretion in awarding attorney fees and costs to the alleged father in connection with the denial of a motion to vacate.

Brad A. Johnson, St. Paul, for appellants.

Jay P. Yunek, Erickson, Zierke, Kuderer, Madsen & Wollschlager, P.A., Fairmont, for respondent.

Heard, considered and decided by the court en banc.

POPOVICH, Chief Justice.

In 1969, Stephanie Johnson Saunders brought a paternity action in Hennepin County alleging Terry Lee Hunter was the father of her daughter, Tia Marie Johnson. That action was orally dismissed with prejudice after Saunders failed to appear at trial. In 1985, Tia Marie Johnson brought a paternity action in Ramsey County against Hunter, which was dismissed based on res judicata after Hunter obtained an order nunc pro tunc reflecting the 1969 dismissal; Johnson appealed. In a Hennepin County action the state's motion to vacate either the order nunc pro tunc or the dismissal with prejudice was denied; the state appealed. Hunter was awarded costs and attorney fees in the Hennepin County motion to vacate but not in the Ramsey County paternity action. The appeals were consolidated and a court of appeals panel affirmed, holding Johnson's action was barred by the 1969 dismissal and the trial courts correctly decided the attorney fees issues. Johnson v. Hunter, 435 N.W.2d 821, 823-24 (Minn.App.1989). We granted further review, and now affirm in part and reverse in part.

I.

In 1969, Stephanie Johnson Saunders, as complaining witness, and the State of Minnesota brought a paternity action in Hennepin County District Court pursuant to Minn.Stat. Sec. 257.19 (1969) (repealed 1971) against respondent Terry Lee Hunter as the alleged father of Saunders' daughter, Tia Marie Johnson. Not only was Tia Marie just six months old at the time, but she was neither named as a party nor represented by independent counsel or a guardian ad litem in the 1969 action. The matter was continued several times for various reasons. Finally, when Saunders failed to appear for trial, court recessed and numerous attempts were made to contact her. Although the county attorney had not been in contact with Saunders for almost a month and did not subpoena her for trial, Saunders apparently told a representative from the welfare department about ten days prior to trial that she "want[ed] to drop everything" and was expecting a settlement. When she did not appear after court reconvened, the 1969 case was orally dismissed with prejudice for lack of prosecution.

In 1985, Saunders initiated a paternity action in Ramsey County District Court again alleging Hunter was the father of Tia Marie Johnson. Johnson was later substituted for Saunders as plaintiff and a guardian ad litem was appointed for her. The guardian was subsequently removed when Johnson reached the age of majority. Blood tests were ordered, with the results indicating a strong probability that Hunter was Johnson's father. On January 21, 1988, Hunter obtained an ex parte order nunc pro tunc in Hennepin County District Court reflecting the 1969 oral dismissal with prejudice. The Ramsey County District Court then dismissed Johnson's action on February 24, 1988, based on the Hennepin County order nunc pro tunc and denied Hunter's request for costs and attorney fees.

The state moved on July 15, 1988, in Hennepin County District Court to vacate the order nunc pro tunc and reinstate the Hennepin County action or, in the alternative, to vacate the dismissal with prejudice and enter a dismissal without prejudice. The motion was denied and Hunter was awarded $1,000 in costs and attorney fees.

Johnson appealed the Ramsey County judgment dismissing her action; the state appealed the Hennepin County judgment denying its motion to vacate. These appeals were consolidated and the court of appeals panel affirmed, holding the oral 1969 Hennepin County dismissal properly granted, Johnson's paternity action barred by the dismissal order, and the attorney fees issues not erroneously decided. Johnson v. Hunter, 435 N.W.2d 821, 822-24 (Minn.App.1989).

II.

Vacating an order is a matter vested in a trial court's discretion and will not be overturned absent a clear abuse of that discretion. See Kosloski v. Jones, 295 Minn. 177, 180, 203 N.W.2d 401, 403 (1973) (default judgment). The Hennepin County District Court emphasized that signing the order nunc pro tunc in 1988 was "merely a housekeeping chore" putting the 1969 dismissal in proper form. Although we agree with Hunter's counsel, who conceded at oral argument that giving notice to the appropriate parties would have been better practice than obtaining the order ex parte, we cannot say the lower court abused its discretion in refusing to vacate the order.

Ordering an involuntary dismissal pursuant to Minn.R.Civ.P. 41.02(1) also rests within a trial court's discretion. See, e.g., Butkovich v. O'Leary, 303 Minn. 535, 536, 225 N.W.2d 847, 849 (1975). The court of appeals panel held the dismissal was proper because of Saunders' "apparent refusal or unwillingness to appear for trial." Johnson, 435 N.W.2d at 822-23. While the record indicates contradictory reasons for Saunders' absence, we again decline to say the lower court abused its discretion in refusing to vacate the dismissal with prejudice and enter a dismissal without prejudice. Accordingly, we affirm on this issue.

III.

In Voss v. Duerscherl, 425 N.W.2d 828, 831 (Minn.1988), we concluded a "paternity action did not survive against the father and siblings of the deceased putative father." Whether an unrepresented child would be barred from maintaining a subsequent paternity action was queried in dicta. Id. at 831 n. 9. The issue is now before us and implicates the related doctrines of res judicata and collateral estoppel.

Under res judicata or "claim preclusion," a final judgment on the merits bars a second suit for the same claim by parties or their privies. Under collateral estoppel or "issue preclusion," once an issue is determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation.

Kaiser v. Northern States Power Co., 353 N.W.2d 899, 902 (Minn.1984) (citations omitted); see also 4 D. McFarland & W. Keppel, Mason's Minnesota Civil Practice Sec. 2533 (1979) (hereinafter Mason's ).

Although blood and genetic tests were performed, no evidence whatsoever was presented in either the 1969 or 1985 actions on the issue of parentage. Because "[t]here can be no estoppel when there is a reasonable doubt as to whether a fact was actually adjudicated," Wolfson v. Northern States Management Co., 221 Minn. 474, 479, 22 N.W.2d 545, 548 (1946), we doubt whether collateral estoppel applies in this procedural context and focus our analysis on res judicata. The parties agree the claims are identical, but dispute whether there was a final adjudication on the merits and privity for res judicata to apply.

The court of appeals panel held an oral dismissal with prejudice, later reflected in a written order nunc pro tunc, is a final adjudication for res judicata purposes. Johnson, 435 N.W.2d at 824. We agree. Even though a case dismissed with prejudice for lack of prosecution, as was the 1969 action, is disposed of on nonsubstantive ground, see Lampert Lumber Co. v. Joyce, 405 N.W.2d 423, 425 (Minn.1987), such a dismissal nonetheless "operates as an adjudication on the merits," Firoved v. General Motors Corp., 277 Minn. 278, 283, 152 N.W.2d 364, 368 (1967), and thus can form the basis for res judicata.

We are mindful of the importance of determining the proper parties in paternity actions for res judicata purposes. See Voss, 425 N.W.2d at 831 (father and deceased siblings of putative father not proper parties). While not involved in this appeal, the state was a party in the 1969 action. Saunders, as complaining witness, was also a party in the action. See State v. Sax, 231 Minn. 1, 8, 42 N.W.2d 680, 684-85 (1950) (mother is party to illegitimacy proceedings even if action is brought by state). Consequently, Saunders and the state are barred by res judicata from bringing another paternity action against Hunter. Johnson would also be precluded from bringing her paternity claim, even though she was not named in the 1969 action, if she were in privity with the original parties. 4 Mason's Sec. 2535, at 120.

Without addressing her relationship with the state, the court of appeals panel determined Johnson was in privity with her mother in the 1969 action. Johnson, 435 N.W.2d at 823. The parent-child relationship, however, is traditionally excluded from privity notions for res judicata purposes. E.g., Brown v. Terry, 375 So.2d 457, 458-59 (Ala.1979) (quoting 1B J. Moore, Moore's Federal Practice p 0.414 (2d ed.1974)); Arsenault v. Carrier, 390 A.2d 1048, 1051 (Me.1978); see generally Comment, Privity, Preclusion, and the Parent-Child Relationship, 1977 B.Y.U.L.Rev. 612, 618-19 (hereinafter Privity ). This court has never specifically held that privity encompasses familial relationships, instead believing privity must be determined by the facts of each case....