Brown v. Wyatt

202 S.W.3d 555, 89 Ark. App. 306

• Court: Court of Appeals of Arkansas
• Decided: February 9, 2005
• Docket: CA 04-487
• Status: Published

Opinions

Wendell L. Griffen, Judge.

Hugh Brown appeals from summary judgment entered in Pulaski County Circuit Court in favor of appellees Dr. Richard Wyatt and the Arkansas Women’s Center. He argues that the trial court erroneously granted appellees’ motion for summary judgment and dismissed his tort action for negligence and outrage because Ark. Code Ann. § 9-10-202 (Repl. 2002) creates a statutory duty upon doctors to obtain the written consent of the husband before using artificial insemination to impregnate his wife. Appellant also argues that the doctrine of collateral estoppel does not bar him from pursuing actions for negligence and outrage against appellees for artificially inseminating his now ex-wife, Kathy Brown, knowing that appellant was not in favor of the procedure. We hold that collateral estoppel did not preclude appellant from litigating this case. However, we hold that appellant’s suit is, in effect, for wrongful birth, which is not actionable in the State of Arkansas. Thus, we affirm.

Appellant and Kathy Brown were married in 1991. Appellant had a vasectomy prior to the marriage; however, the vasectomy was reversed to relieve his epidymitis. Tests in February 2000 revealed that his sperm were dead. At that time, appellant had no intention of getting his wife pregnant even though they had discussed having children in the past. Ms. Brown contacted California Cryobank and wanted to discuss the possibility of artificial insemination. She did not tell appellant that she was actually inseminated until after the fact, and he learned that she was pregnant in early April 2000. Appellant was displeased because he considered artificial insemination a violation of his Christian principles and because he did not like the thought of Ms. Brown being pregnant by another man. Ms. Brown gave birth to healthy twin girls in October 2000. Appellant was aware that the girls were given his last name and that he was listed as the father on the birth certificates. Appellant also accompanied Ms. Brown to the doctor twice, was concerned about the health of the girls, and supported Ms. Brown.

Ms. Brown filed for divorce on November 4, 2002. In the divorce suit, appellant contested the paternity of the children. Ms. Brown testified that appellant was willing to raise the girls while the marriage was happy, but that once she decided to divorce him, he wanted nothing to do with the girls and did not want to be financially responsible for them. Ms. Brown also testified in the divorce proceedings that she assumed appellant consented to the artificial-insemination procedure because he signed the papers, he never told her not to undergo the procedure, he never asked her to have an abortion after she became pregnant, and he supported the girls and held them out as his own. In its December 19, 2002 divorce decree, the trial court stated that the agreement that appellant and Ms. Brown signed with California Cryobank did not constitute written consent required by Ark. Code Ann. § 9-10-201(a) (Repl. 2002).¹ However, the trial court found appellant was estopped from denying that the children were his and ordered him to pay $157 per week in child support. We affirmed the decision. See Brown v. Brown, 83 Ark. App. 217, 125 S.W.3d 840 (2003).

On February 4, 2003, appellant filed the present action against appellees for the torts of negligence and outrage based on the artificial insemination of his ex-wife without his written consent. Appellees admitted the factual allegations in the complaint but denied liability. On June 20, 2003, appellees filed for summary judgment, and in an August 4, 2003 order, the trial court granted their motion to the extent that appellant’s complaint alleged an action for medical injury due to the elapsed statute of limitations and denied summary judgment on all other grounds. On September 30, 2003, appellees again filed for summary judgment, arguing that appellant was collaterally estopped from arguing that he did not consent to the procedure, that appellees had no duty to appellant, and that there was no proof appellees’ conduct was extreme or outrageous. The court granted the motion for summary judgment, stating that appellant was collaterally estopped from relitigating the fact that he knew the artificial insemination procedure was going to be performed and that he acted as if he agreed to the procedure, and that by applying those facts to this case, appellant was barred from prosecuting his negligence and outrage claims.

The standard of review for appeals from a grant of summary judgment is well-established:

[S]ummary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable men might reach different conclusions from those undisputed facts.

Hisaw v. State Farm Mut. Auto Ins. Co., 353 Ark. 668, 676, 122 S.W.3d 1, 4 (2003) (quoting Fields v. Southern Farm Bureau Cas. Ins. Co., 350 Ark. 75, 80, 87 S.W.3d 224, 226 (2002)).

The doctrine of collateral estoppel (or issue preclusion) “precludes further litigation in connection with a certain issue and is limited to those matters previously at issue, which were directly and necessarily adjudicated.” Brinker v. Forrest City Sch. Dist. No. 7, 344 Ark. 171, 175, 40 S.W.3d 265, 268 (2001). Collateral estoppel requires four elements before a determination is conclusive in a subsequent proceeding: (1) the issue sought to be precluded must be the same as that involved in the prior litigation, (2) the issue must have been actually litigated, (3) the issue must have been determined by a valid and final judgment, and (4) the determination must have been essential to the judgment. State Office of Child Support Enforcement v. Willis, 347 Ark. 6, 59 S.W.3d 438 (2001). Collateral estoppel may be used by someone who was a stranger to the prior suit; however, “the party against whom it is asserted must have been a party to the earlier action and must have had a full and fair opportunity to litigate the issue in the first proceeding.” Id. at 15, 59 S.W.3d at 444 (citing 47 Am. Jur. 2d Judgments §§ 645, 650). Collateral estoppel precludes relitigation of facts as well as issues of law. See Van Curen v. Arkansas Professional Bail Bondsman Licensing Bd., 79 Ark. App. 43, 84 S.W.3d 47 (2002).

In granting the motion for summary judgment, the trial court relied on the doctrine of collateral estoppel and our disposition of Brown v. Brown. However, the issue in the divorce suit was not whether appellant consented to the artificial insemination procedure. Rather, the parties to the divorce litigated the issue of paternity, and final disposition of the case was made without analysis of the artificial insemination consent statute. See Brown, 83 Ark. App. at 221, 125 S.W.3d at 843 (“despite the fact that the husband’s consent was not in writing ... , he is estopped as a matter of law to deny that these children are his because of his conduct.”).² Whether appellees obtained appellant’s written consent was not essential to the disposition in Brown v. Brown, nor was the issue of the written consent fully litigated. Consequently, the divorce proceeding did not preclude appellant from litigating the consent issue raised in the present case. To the extent that summary judgment was granted on this ground, the trial court was in error.

Next, we address whether summary judgment was properly granted on appellant’s outrage claim. Our supreme court has described Arkansas’s approach to the tort:

To establish an outrage claim, a plaintiff must demonstrate the following elements: (1) the actor intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was “extreme and outrageous,” was “beyond all possible bounds of decency,” and was “utterly intolerable in a civilized community”; (3) the actions of the defendant were the cause of the plaintiff s distress; and (4) the emotional distress sustained by the plaintiff was so severe that no reasonable person could be expected to endure it. Angle v. Alexander, 328 Ark. 714, 945 S.W.3d 933 (1997). The type of conduct that meets the standard for outrage must be determined on a case-by-case basis. Hollomon v. Keadle, 326 Ark. 168, 931 S.W.2d 413 (1996). This court gives a narrow view to the tort of outrage, and requires clear-cut proof to establish the elements in outrage cases. Croom v. Younts, 323 Ark. 288, 914 S.W.2d 306 (1996). Clear-cut proof, however, does not mean proof greater than a preponderance of the evidence. Croom, 323 Ark. 95, 913 S.W.2d 283.

McQuay v. Guntharp, 331 Ark. 466, 470-71, 963 S.W.2d 583, 585 (1998). With the possible exception of causation (which we do not decide), appellant’s claim fails on every element. While appellees failed to comply with § 9-10-202, they did not know, or should have known, that emotional distress was likely to result. Second, appellees’ conduct was not extreme and outrageous. In his brief, appellant argues, “The actions of the doctor here were in direct contravention of Mr. Brown’s wishes, resulted in the birth of children he did not want, contributed to his divorce and has saddled Mr. Brown with child support payments for eighteen years so that every month for those eighteen years he will be re-reminded of the callous and willful acts of the doctor.” These “damages” are not recoverable. Appellees’ actions may have produced children appellant did not want, but he cannot recover the cost of raising those children from appellees. In Wilbur v. Kerr, 275 Ark. 239, 628 S.W.2d 568 (1982), a father sought damages for raising a child after a doctor performed an unsuccessful vasectomy, resulting in the birth of a healthy baby girl. Our supreme court gave a detailed discussion of actions for “wrongful birth” and determined that a claim for expenses in rearing a child, even as a result of an unwanted pregnancy, must be denied as against public policy.³ Even if a wrongful-birth suit were cognizable under Arkansas law, appellant is paying child support not because appellees inseminated his ex-wife, but because he accepted the children as his own and was estopped from denying paternity. Accordingly, we affirm the grant of summary judgment in favor of appellees on appellant’s outrage claim.⁴

Finally, we must determine if appellant has a cause of action against appellees for negligence. Appellant argues that Ark. Code Ann. § 9-10-202(b) provides a statutory duty owed by doctors in favor of husbands.⁵ However, there is no need to determine whether the statute creates such a duty. Appellant is asking the appellees to reimburse him the cost of raising two children. As damages for “wrongful birth,” they are not recoverable under Arkansas law. Because appellant cannot recover damages, appellees were entitled to summary judgment in their favor.⁶

Affirmed.

Vaught, J., agrees. Crabtree, J., concurs.

1 Ark. Code Ann. § 9-10-201(a) states:

Any child born to a married woman by means of artificial insemination shall be deemed the legitimate natural child of the woman and the woman’s husband if the husband consents in writing to the artificial insemination.

2 The court recounted the facts estopping appellant from denying paternity:

(1) that appellant knew appellee was going to get the sperm; (2) that appellant never said he would not consent to the procedure being performed and he signed the documents that were placed in front of him; (3) that appellant helped pick out the donor for the sperm; (4) that he allowed his name to be used on the birth certificate; (5) that after the children were born, he recognized them as his children; (6) that it was only after appellee began to talk about divorce that he decided he should not be responsible for the children.

Brown, 83 Ark. App. at 222, 125 S.W.3d at 843.

3 The supreme court did say, however, that a doctor in such a case would be Hable for damages connected with the operation and connected with the pregnancy.

4 Appellant also blames appellees for causing a strain on his marriage; however, with divorce rates as high as they are inArkansas (approximately 17,100 divorces in 2001 according to U.S. Census Bureau, Statistical Abstract of the United States: 2002), we would be opening the floodgates if we allowed lawsuits for any third party who mdirecdy caused the breakup of a marriage.

5 The statute reads as follows:

Prior to conducting the artificial insemination, the supervising physician shall obtain from the woman and her husband or the donor of the semen a written statement attesting to the agreement to the artificial insemination, and the physician shall certify their signatures and the date of the insemination.

6 We are affirming the judgment even though the trial court reached the proper result using the wrong reasoning. Hudson v. Hilo, 88 Ark.App. 317, 198 S.W.3d 569 (2004).