Truong v. Truong

Decision Date27 November 2018
Docket NumberNo. ED 106304,ED 106304
Citation564 S.W.3d 761
Parties Kenny TRUONG, Appellant, v. Jacinta TRUONG, Respondent.
CourtMissouri Court of Appeals

Nathan S. Cohen, 210 S. Bemiston Ave, St. Louis, MO 63105, for appellant.

Jonathan D. Marks, Four City Place Dr., Suite 497, Creve Coeur, MO 63141, for respondent.

KURT S. ODENWALD, Presiding Judge


Kenny Truong ("Truong") seeks reinstatement of his petition alleging that Jacinta Truong ("Mother") fraudulently, negligently, and intentionally misrepresented the paternity of Mother’s middle child and caused Truong emotional damages. The circuit court dismissed Truong’s petition for failure to state a claim on which relief can be granted. Because Truong seeks to recover damages not recognized by Missouri law, we affirm the circuit court’s dismissal of his petition.

Factual and Procedural History

Truong and Mother were lawfully married. Prior to their marriage, while Truong and Mother were dating, Mother gave birth to two children.1 A paternity judgment deemed that Truong is First Child’s biological father. Truong’s name was recorded as the father on Second Child’s birth certificate. Truong and Mother subsequently married, and Third Child was born during the marriage.

Truong and Mother separated, and Mother initiated a dissolution-of-marriage action. During the pendency of the dissolution-of-marriage action, Truong took a paternity test and discovered that he is not Second Child’s biological father. Following this discovery, Truong filed a civil action against Mother for one count of misconduct, negligence, and intentional misrepresentation of paternity, and one count of fraud. Specifically, Truong claimed that Mother owed a duty of care to Truong to disclose he was not the father of Second Child. Truong alleged that Mother’s negligent failure to disclose Truong’s non-paternity caused Truong to incur emotional damages as he "cared for, raised and contributed to the support and well[-]being of the child for over ten years." Truong’s petition also maintained Mother fraudulently represented to Truong that he was the father of Second Child, that Mother knew Truong was not the child’s father, that Truong relied on Mother’s misrepresentation as he cared for, raised, and contributed to the well-being and support of the child, and he was thereby emotionally damaged.

Mother moved to dismiss Truong’s petition for failing to state a cognizable cause of action. Among her arguments for dismissal, Mother contended Truong failed to specify actual, recognizable damages in his petition. The circuit court agreed with Mother and dismissed Truong’s petition. Truong appealed. This court initially dismissed Truong’s appeal, finding the circuit court’s judgment was not in the form of an "order" and was not final for the purpose of an appeal. The circuit court then denominated the judgment as final. Truong now appeals from the final judgment.

Point on Appeal

In his sole point on appeal, Truong argues that the circuit court erred in dismissing his petition because he pleaded with particularity the elements of misrepresentation, negligent misrepresentation, and fraud.

Standard of Review

We review motions to dismiss de novo. Smith v. Humane Soc'y of the United States, 519 S.W.3d 789, 797 (Mo. banc 2017). "A motion to dismiss for failure to state a claim is solely a test of the adequacy of a plaintiff’s petition." Id. (internal quotations omitted). "[T]he facts contained in the petition are treated as true and they are construed liberally in favor of the plaintiff[ ]." Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008) ; see also Byrne & Jones Enters., Inc. v. Monroe City R-l Sch. Dist., 493 S.W.3d 847, 851 (Mo. banc 2016). We do not weigh the credibility and persuasiveness of the facts alleged. Bromwell v. Nixon, 361 S.W.3d 393, 398 (Mo. banc 2012). Rather, we review the petition "in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case." Smith, 519 S.W.3d at 798 (internal quotations omitted). We reverse the petition’s dismissal only "[i]f the petition sets forth any set of facts that, if proven, would entitle the plaintiff[ ] to relief[.]" Lynch, 260 S.W.3d at 836.


The issue presented by this appeal is whether a person may petition the court for emotional damages stemming from the misrepresentation of a child’s parentage under a claim of fraud, misrepresentation, or negligent misrepresentation when the complaining party does not seek to adjudicate parentage in the petition. Truong maintains that he adequately and properly pleaded the required elements for common-law fraud and misrepresentation; thus, the circuit court erred in dismissing his petition. Mother counters that Truong’s petition asserts a claim of paternity fraud, which is not recognized as a common law cause of action in Missouri, is contrary to public policy, and falls outside of the remedies provided by the Missouri Uniform Parentage Act (the "UPA").2

This appeal appears to be a case of first impression because Truong's petition asserts a common law claim of fraud intertwined with issues of paternity. Claims relating to paternity generally arise under the UPA and similar statutes which directly address issues of paternity. See Sections 210.817-854; Rule 74.06(b).3 Because Truong does not seek any determination of paternity or any change in his parental status of Father to Second Child in his petition, Truong maintains that he does not assert a claim of paternity fraud, but alleges simple common-law fraud causing him emotional damage. Truong emphasizes in his briefing before this Court that he does not seek to adjudicate his paternity and does not seek reimbursement of past financial contributions made in support of Second Child.

We have found no Missouri case addressing common-law fraud allegations involving facts similar to those alleged by Truong. Moreover, Missouri courts have not awarded damages based solely on allegations of emotional distress under the facts described in Truong's petition. We therefore analyze Truong's petition through a process of considering what causes of action may be applicable to the facts pled in his petition. See Smith, 519 S.W.3d at 798 (we review the petition academically "to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case.").

I. Rule 74.06(b)—Relief from Final Judgment

Our Supreme Court Rules provide one avenue of relief to an aggrieved person seeking to challenge a paternity judgment. Specifically, Rule 74.06(b) "provides relief from a judgment by allowing a party at any time to bring an independent action in equity to set aside a judgment that was obtained by extrinsic fraud against the court." T.B. v. N.B., 478 S.W.3d 504, 508 (Mo. App. E.D. 2015). We note that Truong, in his petition, does not seek a judgment determining his non-paternity of Second Child. Nor does his petition seek to set aside a prior judgment of paternity. Thus, a plain reading of Truong’s petition does not assert a claim for relief under Rule 74.06(b).

II. The Missouri Uniform Parentage Act (The "UPA")

We next consider Truong’s allegations and prayer for relief under the UPA. Sections 210.817-854. The Missouri legislature enacted the UPA to provide "a uniform method for determining paternity which would protect the rights of all parties involved, especially the children." State ex rel. Wade v. Frawley, 966 S.W.2d 405, 407 (Mo. App. E.D. 1998). Missouri recognizes the UPA as an authoritative, yet not exclusive, statute for proving and litigating parentage. Fry v. Fry, 108 S.W.3d 132, 136 (Mo. App. S.D. 2003). With the UPA’s underlying purpose in mind, the Southern District previously noted that "courts do well to mandate that the procedural requirements of the UPA be applied in cases where parentage is contested and where no provision for adjudicating that issue outside the UPA appears applicable." Id. Relying on this logic, Mother posits that the UPA governs issues of paternity and Truong has no remedies available to him outside the UPA.

A parent and child relationship exists between Truong and Second Child regardless of his past or current marital status to Mother as Section 210.818 provides that "[t]he parent and child relationship extends equally to every child and every parent, regardless of the marital status of the parents." The UPA acknowledges a presumption of paternity in various circumstances described by Section 210.822. Section 210.822 states that:

1. A man shall be presumed to be the natural father of a child if:
(1) He and the child’s natural mother are or have been married to each other and the child is born during the marriage ...; or
(2) Before the child’s birth, he and the child’s natural mother have attempted to marry each other ...; or
(3) After the child’s birth, he and the child’s natural mother have married or attempted to marry each other by a marriage solemnized in apparent compliance with law, although the marriage is or may be declared invalid, and:
(a) He has acknowledged his paternity of the child in writing filed with the bureau; or
(b) With his consent, he is named as the child’s father on the child’s birth certificate; ... or
(4) An expert concludes that the blood tests show that the alleged parent is not excluded and that the probability of paternity is ninety-eight percent or higher, using a prior probability of 0.5.
2. A presumption pursuant to this section may be rebutted in an appropriate action only by clear and convincing evidence.... If two or more presumptions arise which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. The presumption is rebutted by a court decree establishing the paternity of the child by another man.

Truong is prescribed to be Second...

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    ...the [Uniform Parentage Act] as an authoritative, yet not exclusive, statute for proving and litigating parentage." Truong v. Truong , 564 S.W.3d 761, 765 (Mo. App. 2018). Notably, the Uniform Parentage Act presumes a man to be the natural father of a child under certain circumstances, inclu......
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