This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-00-2157

 

Jesse B. Pike, III,

Appellant,

 

vs.

 

Angela J. Mendez, et al.,

Respondents,

 

Steele County Child Support

Collections Unit,

Respondent.

 

Filed June 5, 2001

Affirmed
Klaphake, Judge

 

Steele County District Court

File No. F80050257

 

Jonathan S. Braden, W. Bradley Frago, J. Scott Braden & Associates, 415 Second Ave. N.W., P.O. Box 861, Faribault, MN 55021 (for appellant)

 

Caren L. Schurhammer, Schurhammer & Johnson, P.A., 315 Central Avenue, Faribault, MN 55021 (for respondent Mendez)

 

Douglas L. Ruth, Steele County Attorney, Christine Anne Long, Assistant County Attorney, 303 South Cedar, P.O. Box 616, Owatonna, MN 55060 (for respondent Steele County)

 

            Considered and decided by Willis, Presiding Judge, Klaphake, Judge, and Amundson, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Jesse B. Pike, III, brought this action to vacate a 1995 recognition of parentage in which he acknowledged that he was the father of respondent Angela J. Mendez’s child.  See Minn. Stat. § 257.75, subd. 4 (2000) (action to vacate recognition of parentage).  He appeals from the district court’s denial of his motion to compel respondent and the child to undergo blood or genetic testing.  Because appellant has failed to establish a prima facie case of fraud or duress, we affirm.[1]

D E C I S I O N

            The burden of proof in an action to vacate a recognition of parentage is on the moving party, who must request the vacation on the basis of fraud, duress, or material mistake of fact.  Minn. Stat. § 257.75, subd. 4(b).  If the court finds a prima facie basis exists for vacating the recognition, the court shall order the parties to submit to blood tests.  Minn. Stat. § 257.75, subd. 4(a).  Thus, to compel respondent and the child to submit to blood testing, appellant must prove a prima facie case of fraud or duress.

            1.         Fraud

            Appellant alleges that when he signed the recognition of parentage, he was relying on respondent’s representations that she would live with him, that they would raise the child together, and that she would permanently terminate all other romantic relationships.  Appellant acknowledges, however, that both he and respondent knew that he was not the child’s father, because he had had no sexual contact with respondent during the six-month period prior to conception.

            The party seeking to establish a prima facie case of fraud must make an initial showing of all the elements of fraud.  See Tousignant v. St. Louis County, 615 N.W.2d 53, 59 (Minn. 2000).  Minnesota “case law establishes a high threshold of proof for such a claim.” Martens v. Minnesota Min. & Mfg. Co., 616 N.W.2d 732, 747 (Minn. 2000).

It must be pled with specificity that there was a false representation regarding a past or present fact, the fact was material and susceptible of knowledge, the representer knew it was false or asserted it as his or her own knowledge without knowing whether it was true or false, the representer intended to induce the claimant to act or justify the claimant in acting, the claimant was induced to act or justified in acting in reliance on the representation, the claimant suffered damages, and the representation was the proximate cause of the damages.

 

 Id. (citations omitted); see also Minn. R. Civ. P. 9.02 (“circumstances constituting fraud * * * shall be stated with particularity” in pleadings).

            “It is a well-settled rule that a representation or expectation as to future acts is not a sufficient basis to support an action for fraud merely because the represented act or event did not take place.”  Vandeputte v. Soderholm, 298 Minn. 505, 508, 216 N.W.2d 144, 147 (1974).  Where a representation regarding a future event is alleged, as here, the party alleging fraud must affirmatively prove that the other party had no present intention of performing.  Martens, 616 N.W.2d at 747.

            Appellant concedes that the district court properly rejected, as a basis for fraud, respondent’s representation that she would cohabit with appellant because it was a representation as to a future event.  He also concedes that the court properly rejected the paternity representation as a basis for fraud because appellant knew he was not the father and could not have been misled.  He focuses instead on respondent’s representation that she would terminate her prior relationships.

            Appellant has failed to show that respondent had no intention of terminating her prior relationships at the time she made the promise.  To the contrary, she and appellant lived together for approximately two years after the child was born, and appellant was apparently the one who decided to end the relationship.  Thus, appellant has failed to establish a prima facie case of fraud.

            2.         Duress

            Appellant alleges that he executed the recognition under duress, because respondent threatened to terminate their relationship and move out if he did not sign the form.  Duress is “coercion by means of physical force or unlawful threats which destroys the victim’s free will and compels him to comply with some demand of the party exerting the coercion.”  Wise v. Midtown Motors, Inc., 231 Minn. 46, 51, 42 N.W.2d 404, 407 (1950).  Even if we take appellant’s allegations as true, respondent’s threats were not unlawful and did not compel appellant to execute the recognition of parentage, destroy his free will, or override his legal rights.  Appellant has therefore failed to make a prima facie case of duress.

            3.         Public Policy Argument

            Appellant argues that the recognition of parentage is void as contrary to public policy, because signing the form circumvents adoption statutes.  He insists that what occurred in this case was clearly an attempt to confer parental rights and obligations upon him, even though the parties knew that he was not the child’s biological father.  Appellant fails to explain, however, how public policy or the child’s best interests are not served by maintaining appellant’s established paternity, particularly where there are no competing paternity interests and no evidence that another party wishes to adopt the child.

            4.         Attorney Fees

            In her appellate brief, respondent requests an award of attorney fees on appeal, citing Minn. Stat. § 549.21, subd. 2 (1996).  Minn. Stat. § 549.21 was repealed and essentially replaced with Minn. Stat. § 549.211 (2000).  See 1997 Minn. Laws ch. 213. A motion for sanctions under Minn. Stat. § 549.211 “must be made separately from other motions or requests and describe the specific conduct alleged to violate subdivision 2.”  Minn. Stat. § 549.211, subd. 4(a) (2000).  Because respondent has not satisfied these procedural requirements, we deny her request for fees.  See Whalen ex rel. Whalen v. Whalen, 594 N.W.2d 277, 282 (Minn. App. 1999).

            Affirmed.

 



[1] We do not address the issue of whether this action is barred because not brought within one year after the execution of the recognition of parentage.  See Minn. Stat. § 257.75, subd. 4 (2000) (action to vacate must be brought “within one year of the execution of the recognition or within six months after the person bringing the action obtains the results of blood or genetic tests that indicate that the man who executed the recognition is not the father of the child.”).  Although respondent alluded to this issue below, the district court did not address it and respondent has not raised it on appeal.  We “will not consider the applicability of the statute of limitations on appeal, even though the question was raised below, if it was not passed on by the trial court.”  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (quotation omitted).