Thomas Smith Davis v. Kimberly Joyce Beat

Comes now Plaintiff, Thomas Smith Davis (hereinafter Tom Davis), by md through his attorney of record, Heather M. Cline, and for his cause of action against the Defendants, Kimberly Joyce Beal and Robert Dewayne Hartman (hereinafter Defendant Beal and Defendant Hartman), jointly and severally, alleges and states as follows:

I. The acts complained of herein occurred in Oklahoma and Clevelanc Counties, State of Oklahoma;

FIRST THEORY OF RECOVERY:

FRAUD

2. Plaintiff Tom Davis and Defendant Beal dated in 1996 and 1997. Defendant Beal led Tom Davis to believe the relationship was monogamous.

3. Defendant Beal conceived a child in 1997. Defendant Beal led Tom Davis to believe that the child Defendant Beal bore was Tom Davis' child, by making repeated staiments that Tom Davis was the father.

4. Defendant Beal's statements to Tom Davis that the child was Tom Davis' child were false statements given to induce Tom Davis into marriage.

5. Based upon Defendant Beal's fraud and deception, Tom Davis mairied Defendant Beal in Edmond, Oklahoma on the May 23, 1997. 6. A child, Tonic Elizabeth Davis, was born September 7, 1997, three months and fifteen days after the marriage.

7. Defendant Beal never admitted or advised Tom Davis that she had ;exual relations another man or men, or that there was any possibility that the baby was not that of Tom Davis.

8. Both Defendants Beal and Hartman knew or should have known that Defendant Hartman was the father of the Child based upon their sexual relations and the timing of the Child's birth.

9. Defendants Beal and Hartman intentionally and knowingly withheld the fact of their sexual relations and conception from Tom Davis for many years, allowing Tom Dav sand his family to believe that Tom Davis was the father of the child and develop deep emotional arid loving bonds with the child.

10. Unbeknownst to Tom Davis, Defendant Hartman visited with the child in the home of Defendant Beal's mother after the child's birth on multiple occasions.

11. On October 18, 2001, Defendant Beal divorced Tom Davis. In the divorce proceeding, Defendant Beal fraudulently and intentionally misrepresented to the Court that Tom Davis was the father of the Child. As a direct result of the fraud Defendant Beal con mitted upon the Court, Tom Davis was adjudicated as the Child's father. and legal obligations corn erning the child were ordered. Tom Davis and Defendant Beal were granted joint custody of thc child with equal rights and responsibilities and shared substantially equal time with the Child up until Defendant Beal disclosed her fraud to the child.

12. Based upon the fraud of Defendant Beal, the Court ordered Tom Divis to pay child support in the sum of$ 138.93 a month, 45% of work-related dayeare expenses, and 45% of medical insurance expenses, 45% of the child's uncovered medcial, opthamological and psychological expenses not covered by insurance, all commencing November 1, 2001. In further reliance on Defendant Beal's continued false representations, Tom Davis paid 50% of the child's expenses for sport, dance, school supplies, clothing, shoes and other expenses, in addition to th Court ordered obligations.

13. Unbeknownst to Tom Davis, Defendants Beal and Hartman had tie Child take a Waigreens DNA test, that verified that Robert Hartman was the biological father of the Child. Despite both Defendants Beal and Hartman knowing that Tom Davis was not the biological father of the Child, neither informed Tom Davis. Instead both Defendants continued to act as if Tom Davis was the biological father, allowing torn Davis to financially support the Child. Defendant Beal continued to collect child support and other financial obligations for Child from Ton Davis knowing that he was not the biological father of the Child and yet refusing to tell Tom Days.

14. Defendant Beal demanded that Tom Davis pay for a portion of the Child's orthodontic and eye expenses in early 2010, knowing that he was not the biological father and yet refusing to tell Tom Davis.

15. Unbeknownst to Tom Davis, in December, 2009, Defendants Beal and Hartman informed the Child (but not Tom Davis) that Defendant Hartman was her "real' father. These statements were made maliciously and with intent to injure the Child and Tom Davis' relationship.

16. In early 2010, Tom Davis spoke with Defendant Beal as a concerned parent, not knowing of any paternity issue, or anything about the DNA test or paternity results, and not knowing ofthe Child's involvement with Defendant Hartman. When Tom Davis inquired about the child not wanting to visit or stay with him, Defendant Beal responded: "I don't know what is wrong with her (referring to Child). She is just a typical teenage girl. Give her some time and space. Do not push her.” Defendant Beal did not reveal the truth that she had the Child take a DNA test, and that it showed that Tom Davis was not the father. Defendant Beal did not reveal thai the Child was associated with the alleged biological father and that Defendant Beal was encouragig and allowing a relationship between Defendant Hartman and the Child. Instead, Defendant Beal intentionally allowed Tom Davis to believe that nothing was wrong except what was to be expecwd by a "typical” teenage girl.

17. Tom Davis continued to believe he was the father of the Child untit March 2010 when Defendant Beal admitted the truth of the child's paternity to Tom Days.

18. In November, 2010, Defendant Beal petitioned the Court on behalf of the Child to change the Child's surname "Davis” to her alleged "real” father's surname of "i-Iartman”.

19. In the Petition for Name Change, which Defendant Beal verified under oath that Defendant 1-Iartman was the Child's biological father. Defendant Beal requested that the Child's surname and birth certificate to be changed to reflect the surname "Hartman'. Based upon Defendant Beal's representations, the Court ordered the name change and for the Child's surname to be changed.

20. In Defcndant Beal's Petition for Name Change of the Child. Defendant Beal never advised that Tom Davis was the joint custodial parent of the Child, or the fact that the Child was born during the marriage of Tom Davis and Defendant Beal, or the fact that torn Davis had conducted himself as the father to the Child since her birth, or the fact that Tom Davis had financially supported the Child since her birth, Defendant Beal again deceived a Co ml to obtain her desired outcome without regard for rights of Tom Davis.

21. Defendant Beal never provide personal notice to Tom Davis of her request of the court action to change the Child's surname. Tom Davis never agreed to or gave pe'mission for the name change. Defendant Beal opted to give notice of the name change petition through publication, despite knowing Tom Davis' actual address, telephone number and whereabouts, thereby denying Tom Davis due process under the law and again deceiving Tom Davis through false representations.

22. Tom Davis discovered Defendant Beal and 1-lartman's fraud and deceit in changing the child's surname without his knowledge or consent in January 2011, when the Child visited Tom Davis at his home, wearing a schoolj acket with the name "Hartman” instead of”Da is”. When Tom Davis inquired about the name, the Child admitted that Defendant Beal had the Child's name changed.

23. To determine the truth of the Child's paternity, Tom Davis had a paternity test performed by Sorenson Genomics through Identigene DNA Testing in December, 2011. The results of the paternity test showed that the paternity of Thomas Smith Davis and Torre ft Davis was excluded, and the conclusion of the laboratory on December 1, 2011, was as follo ws: "Tom S Davis is not the biological father of Torrie E Davis. Tom S. Davis does not carry paternally-derived DNA present in Torrie E Davis at multiple genetic systems. The Combined Parentage Index is 0”.

24. Tom Davis prays for judgment for actual damages in excess of Seventy-Five Thousand Dollars ($75,000) each.

25. The actions of the Defendants Beal and Hartman, were malicious, fiaudulent, and in had faith, and the Defendants Real and Hartman should be punished for the benefit of society and to make and example of them to deter simflar conduct of them and others in a sum in excess of Seventy-Five Thousand dollars ($75,000) each and each should be held jointly and severally liable.

SECOND THEORY OF RECOVERY:

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

26. Tom Davis incorporates paragraphs 1-24 herein as if full restated.

27. Tom Davis affirms each and every fact allegation made above and thows that the acts of Defendants Beal and Hartman crc extreme and outrageous and should not be tolerated in any civilized society. Tom Davis has suffered severe emotional distress and should be compensated for his emotional distress.

28. The Defendants Beal and Hartman committed a tort of intentional infliction of emotional distress upon Tom Davis.

29. Tom Davis should be awarded actual damages in a sum in excess f Seventy-Five Thousand dollars ($75,000.00) from Defendants Beal and Hartman each and each should be held jointly and severally liable.

THIRD THEORY OF RECOVERY:

QUANTUM MERIT

30. Tom Davis incorporates paragraphs 1-29 herein as if full restated.

31. Defendant Hartman had a legal obligation to support his biological child and knowingly and intentionally allowed Tom Davis to meet the Child's financial weds in lieu of Defendant llartman.

32. Defendants Real and Hartman intentionally hid the truth of the Child 's paternity from Tom Davis until March, 2010.

33. Defendants Beal and Hartman have been unjustly enriched by the sum of$138.93 per month since November 1, 2001.

34. Defendants Beal and Hartman have been further unjustly enriched by all of the moneys paid by Tom Davis on behalf of the Child, including but not limited to 45 % of work-related day care expenses paid by Tom Davis, 45 % of mcdical insurance and 45% of medical expenses, opthamologieal and psychological expenses not covered by medical insurance and 50% of the Child's expenses including but not limited to dance, clothing, and shoes, paid by] om Davis since November 1,2001.

35. Defendants Beal and I-Iartman should not be allowed to keep the fruits of their fraud and deceit, and the Court should enter relief which is equitable and proper in the circumstances.

36. The Court should order the return of any and all monies paid to Defendants on behalf of the Child, plus interest at the statutory rate, attorney's fees and costs of this action, and such other and further relief as maybe deemed just and equitable in the circumstances.

37. Tom Davis demands a Jury Trial. An attorney lien is claimed on any proceeds of this case.

WHEREFORE, Plaintiff, Thomas Smith Davis, by and though his attorney o record, Heather M. Cjine, respectfully prays for judgment against Defendants Beal and H&tnanjointly and severally, including a reasonable attorney's fees, costs ofthis action, and such other and Further relief as may be deemed equitable in the circumstances.

For Defendant Kimberly Joyce Beal's Answer to Plaintiffs Petition, she alleges and states as follows:

1) With regard to the allegations contained within Paragraph 1 of the Plaintiff's Petition, Defendant admits that jurisdiction and venue are proper in Oklahoma County, but Defendant denies any wrongful action towards Plaintiff ?nd Defendant denies all other afleaations contained. within. Paragraph I of Plaintiffs Petition and demands strict proof thereof.

2) With regard to the allegations contained within Paragraph 2 of the Plaintiffs Petition,. Defendant admits that she and Plalntiffdated in 1996 and t997, but Defendant denies alt Qther allegations- contained in Paragraph 2 & the Plaintiffs Petition and demands strict proof thereof.

3) With regard to the allegations contained within Paragraph 3, Defendant admits that she conceived a child in 1 97, but Defendant denies all other aflegations contained :fl Pare mph. 3 of the Plaintiffs Petition an.d demands strict proof thereof.

4) Defendant denies the allegations contained within Paragraphs 4 and 5 of the Plaintiffs Petition and demands strict proof thereof.

5) Defendant admits the allegations contained within Paragraph 6 of the Plaintiffs Petition.

6) Defendant denies th.e allegations contained within Paragrap.h 7,. 6.,. and -9 of Plaintiffs Petition and demands strict proof -thereof,

7) Defendant is without sufficient information to admit or deny the allegations contained in Paragraph 10 of the Plaintiffs Petition, so the same are denied and Defendant demands strict proof thereof..

8) With regard to the allegations contained in Paragraph 11 of the Plaintiffs Petition, Defendant admits that she and Plaintiff were divorced on October 18, 2001, but Defendant denies all other allegations contained within -Paragraph it of Plaintiffs Petition and demands strIct proof thereof.

9) Defendant denies the allegations contained in Paragraphs 12, 13, 141 15, 16, and 17 of the Plaintiffs Petition and demands strict proof thereof.

10) With regard to the allegations contained in Paragraph 18 of the Plaintiffs. Petition, Defendant admits that she filed a Petition on behalf of the minor child to change the child's last name from "Davis” to "Hartman”; but Defendant denies all other allegations contained in Paragraph 18 of the Plaintiffs Petition and demanth 'strict proof thereof:

11) Defendant admits the allegations contained in Paragraph 19 of the Plaintiff's Petition.

12) Defendant denies the allegations contained within Paragraphs 20, 21, and 22 of the Plaintiffs Petition and demands strict proof thereof.

13.) Defendant is without sufficient information to admit or deny the allegations contained in Paragraph 23 of the Plaintiffs Petition, so said allegations are denied and Defendant demands strict proof thereof.

14) Defendant denies the allegations contained within Paragraphs .24, 25., 26.,. 27, 28, 29, and 30 of the Plaintiff's Petition and demands strict proof thereoE

15) The allegations contained within Paragraph 31 of the.Plaintiff's Petition do not pertain to this answering Defendant,., but to the extent that they, do, said allegations are denied and Defendant demands strict proof thereof.

16) Defendant denies the allegations contained within Paragraphs 32, 33, 34, 6, and 36 of the Plaintiff's Petition and demands strict proof thereof.

17) The allegations contained within Paragraph 37 of the Plaintiffs Petition do not pertain to this answering Defendant, but to the extent that they do, said allegations are denied and Defendant demands strict proof thereof.

18) Defendant denies the allegations contained in the ad damnum clause of the Plaintiffs Petition and demands strict proof thereof.

AFFIRMATIVE DEFENSES

19) Defendant states- that all. allegationscontained within Plaintiffs Petition are generally and specifically denied unless expressly admitted herein.

20) Plaintiff has failed to state a claim upon which relief can be granted. 2-1) Pktnhlfl”s claims are barred bythe appit Ne statute o'f limitations.

22) Plaintiffs claims are barred by the doctrine of laches.

23) Defendant did not act with any actual intent to deceive and/or induce Plaintiff

24) Defendant did not act with sufficient intent to defraud, deceive, and/or induce Plaintiff.

25) Defendant did not breach any duty owed to Plaintiff, if such a duty was even owed.

26) Defendant did not mislead andIor defraud Plaintiff, in any manner or in any respect.

27) Defendant did not make any knowing, intentional, deceitful, and/or negligent misrepresentations to Plaintiff.

28) There has been no enrichment to another andor resulting injustice.

29) Plaintiff's claims are bared by the doctrine of claim preclusion.

30•} PiaintiWs cLaims are barr-ed-by thedoctrineofissue preclusion.

31) Defendant did not act intentionally and/or recklessly.

32.) Defendant's alleged conduct, which is expressly denied,. was not extreme and was not outrageous.

33) Defendant's alleged conduct, which is expressly denied, did not cause emotional distress of Plaintiff.

34) Defendant's alleged conduct which is expressly denied, did not cause Plaintiff to experience severe emotional distress.

35) Lack of causation.

36 Defendant denies that she acted. wmngfully in any way towards Plaintiff,

37) Defendant is not liable to Plaintiff in any manner or in any respect.

38) Plaintiff has failed to mitigate th damages..

39) Plaintiffs damages are inflated, if they exist at all.

40) Defendant did riot make any false, material representations to Plaintiff.

41) Defendant did not make any false and/or reckless assertions to Plaintiff.

42) Plaintiff did not rely upon Defendants alleged false representations which are expressly denied, ft• his detrirr.nt.

43) Defendant's alleged conduct, which is expressly denied, does not constitute intrinsic and/or extrinsic fraud.

44) Defendant reserves flue right to further plead additional affirmative defenses as they may become known during the course of discovery.

WHEREFORE, having fully answered, Defendant Kimberly Joyce Beal demands that Pl intiff take nothing by way of his Petition and that judgment be entered in favor of Defendant Kimberly Joyce Beal and against Plaintiff Thomas Smith Davis for all causes of action. Defendant also respectfully requests that she be awarded all of her attorney's fees and costs and all other relief that this Court deems 'to be just, equitable, and proper.

01-13-2014 CTFREE - 77097959 Jan 14 2014 2:46:55:023PM - $ 0.00 JUDGE PARRISH: CASE COMES ON FOR JURY TRIAL. PLAINTIFF APPEARS WITH TIMOTHY BEETS AND HEATHER CLINE. RICHARD SMALLLEY IV APPEARS WITH KIMBERLY JOYCE BEAL. BOTH SIDES ANNOUNCE READY. TWENTY-FIVE JURORS SWORN TO ANSWER QUESTIONS. NINETEEN CALLED TO THE BOX. CALLED TO THE BOX. PROSPECTIVE JURORS EXCUSED FOR CAUSE. JURY EXAMINATION BY PLAINTIFF AND DEFENDANT AND PASSED FOR CAUSE. PEREMPTORY CHALLENGES CALLED. THIRTEEN JURORS SWORN TO TRY CASE. COURT'S INSTRUCTION # 1. OPENING STATEMENTS BY PLAINTIFF AND DEFENDANT. WITNESS SWORN, TESTIMONY HEARD, EXHIBITS OFFERED. COURT ADMONISHES JURY AND RECESS UNTIL JANUARY 14, 2014 AT 10AM, KAREN TWYFORD COURT REPORTER 01-14-2014 CTFREE - 77123361 Jan 15 2014 3:33:14:887PM - $ 0.00 JUDGE PARRISH: DAY TWO OF JURY TRIAL - JURY TRIAL CONTINUES AFTER NIGHT'S RECESS. WITNESS SWORN, TESTIMONY HEARD, EXHIBITS OFFERED. COURT ADMONISHES JURY AND RECESS UNTIL JANUARY 15, 2014 AT 9AM, KAREN TWYFORD COURT REPORTER 01-15-2014 CTFREE - 77140943 Jan 16 2014 2:34:23:320PM - $ 0.00 JUDGE PARRISH: DAY THREE OF JURY TRIAL - JURYTRIAL CONTINUES AFTER NIGHT'S RECESS. WITNESS SWORN, TESTIMONY HEARD, EXHIBITS OFFERED. DEFENDANT RESTS. COURT ADMONISHES JURY AND RECESS UNTIL JANUARY 16, 2014 AT 9AM , KAREN TWYFORD COURT REPORTER 01-16-2014 DISPJP 1 Davis, Thomas Smith 77154324 Jan 16 2014 2:35:49:010PM - $ 0.00 JUDGE PARRISH: DAY FOUR OF JURY TRIAL - JURY TRIAL CONTINUES AFTER NIGHT'S RECESS. WITNESS SWORN, TESTIMONY HEARD, EXHIBITS OFFERED. PLAINTIFF CALLS WITNESSES, CROSS EXAMINATION, PLAINTIFF RESTS. DEMURRER OVERRULED. COURT INSTRUCTIONS TO THE JURY. CLOSING ARGUMENTS BY PLAINITIFF AND DEFENDANT. ALTERNATE JUROR EXCUSED. JURY RETIRES TO DELIBERATE AND RETURNS WITH VERDICT AND FINDS: JUDGMENT FOR PLAINTIFF IN THE AMOUNT OF $1.00. JURY DISCHARGED, CLERK DIRECTED TO FILE AND RECORD VERDICT ACCORDINGLY. KAREN TWYFORD COURT REPORTER

Judgment in favor of Plaintiff for $1.00.