Opinion
No. ED 80694
October 15, 2002
Appeal from the Circuit Court of the City of St. Louis, Honorable Margaret M. Neill.
Spencer E. Farris, 906 Olive Street, Suite 1150, St. Louis, Missouri, 63101, for Appellant.
Evans Dixon, Attorneys, Howard B. Becker Mary Anne Lindsey, 1100 Millennium Office Center, 515 Olive Street, St. Louis, MO, 63101, for Respondent.
Appellant, Robert LeSage (Putative Father) appeals the judgment of the trial court granting Respondent's, Dirt Cheap Cigarettes and Beer, Inc. (Dirt Cheap) motion to dismiss based on Putative Father's lack of standing to bring a wrongful death action. We transfer to the Missouri Supreme Court.
Brandi Roussin (Mother) and her unborn child were killed during the course of a robbery while she was employed by Dirt Cheap. Putative Father filed a wrongful death action against Dirt Cheap alleging he was the father of Mother's unborn child and that the death of the unborn child was caused by the negligence of Dirt Cheap in failing to provide adequate security to Mother and her unborn child. Dirt Cheap's response was to deny Putative Father's allegations that he was the father of Mother's unborn child and that it was negligent.
Thereafter, Putative Father filed a petition for determination of paternity and suggestions in support thereof. Putative Father also sought that the costs be assessed against Dirt Cheap. Putative Father alleged that Mother was five months pregnant with his child. Because he and Mother were not married, no man was presumed to be father of the child pursuant to Section 210.822 RSMo (2000). Putative Father filed an affidavit alleging he had had sexual intercourse with Mother during the possible time of conception and submitted a prenatal record wherein Putative Father is listed as the baby's father.
Unless otherwise noted all subsequent references are to RSMo (2000).
Dirt Cheap filed its suggestions in opposition to Putative Father's petition for a determination of paternity alleging that the Uniform Parentage Act (UPA) Sections 210.817 to 210.852 was the exclusive method to determine paternity in Missouri. Further, Dirt Cheap alleged that under the UPA the child and the alleged father were the appropriate parties to the action for paternity and that Dirt Cheap was not a proper party for the determination of Putative Father's status as the father of the unborn child. Dirt Cheap also alleged Putative Father's affidavit was self-serving and unsupported by scientific testing and that the prenatal record was inadmissible hearsay and speculation.
The trial court issued an order dismissing Putative Father's petition for determination of paternity for lack of jurisdiction. The trial court found that among the procedural requirements of the UPA was that the unborn child at issue be made a party to any paternity action brought thereunder. Specifically, the court found:
[T]he fetus at issue died before its birth, before any marriage or attempt to legitimate [Putative Father's] relationship with the child, and before any support obligation or relationship between [Putative Father] and the unborn child arose. The deceased fetus of [Mother] is not and cannot be represented through an estate, next friend, or guardian and therefore cannot be made a party to a paternity action in the context of the present action under the UPA.
In response, Putative Father filed his second petition for determination of paternity and suggestions in support. Putative Father alleged that by his next friend, the deceased unborn child was a party to the action for paternity, that all proper parties were before the court pursuant to Section 210.830 and that he was the father of the unborn child. Further, Putative Father asserted that an appointment of a next friend was necessary to bring the unborn child before the court as a party and that Lisa Sigmund, by virtue of her appointment by the court as next friend of the unborn child or as plaintiff ad litem, would bring all proper parties before the court. Shortly thereafter, Putative Father filed a motion to appoint her plaintiff/petitioner ad litem. Therein, Putative Father requested the appointment of Lisa Sigmund as the plaintiff/petitioner ad litem for the unborn child, a deceased individual. Putative Father also filed a petition for appointment of next friend, wherein he requested that the court appoint Lisa Sigmund as the unborn child's next friend for the purpose of commencing and prosecuting the wrongful death action.
Dirt Cheap then filed a motion to dismiss, alleging that Putative Father lacked standing to bring the instant wrongful death action.
The trial court granted Dirt Cheap's motion to dismiss, dismissing Putative Father's petition with prejudice for lack of standing. The trial court also denied Putative Father's petition for a determination of paternity and his motion to appoint a plaintiff/petitioner ad litem.
Putative Father appealed.
Other facts will be adduced as needed.
We review whether a plaintiff has standing de novo and do not defer to the order of the trial court. Switzer v. Hart, 957 S.W.2d 512, 514 (Mo.App.E.D. 1997). We determine standing as a matter of law on the basis of the plaintiff's petition and the undisputed facts. Home Builders Assn. of Greater St. Louis v. City of Wildwood, 32 S.W.3d 612, 614 (Mo.App.E.D. 2000).
Putative Father raises two points on appeal, however numerous issues are included in each point. We will separate each issue and address them in an order conducive to this opinion.
Putative Father alleges that the trial court erred in granting Dirt Cheap's motion to dismiss for lack of standing because Putative Father's petition alleged a proper basis for standing.
STANDING
The question of a person's standing does not touch the merits of the suit, but merely the authority of the court to entertain the action.City of Eureka v. Litz, 658 S.W.2d 519, 523 (Mo.App.E.D. 1983). Where a party is found to lack standing sufficient to maintain the action, the court does not have jurisdiction of the question presented and may not enter a judgment of that question for or against any of the parties.Bremen Bank Trust Co. of St. Louis v. Muskopf, 817 S.W.2d 602, 608 (Mo.App.E.D. 1991).
Standing requires that the party seeking relief have some legally cognizable interest in the subject matter and a threatened or actual injury. In order to possess standing, the party must have some actual, justiciable interest susceptible of protection through litigation.Shannon v. Hines, 21 S.W.3d 839, 841 (Mo.App.E.D. 1999).
STANDING UNDER THE WRONGFUL DEATH ACT
The underlying action at issue herein is one for wrongful death. Wrongful death is a statutory cause of action. Sullivan v. Carlisle, 851 S.W.2d 510, 512 (Mo.banc 1993). By enacting the Wrongful Death Act, the legislature declared the nature of the action, the conditions for the maintenance thereof, the damages recoverable, and the parties to sue thereunder. Campbell v. Callow, 876 S.W.2d 25, 28 (Mo.App.S.D. 1994). The manifest purpose of the Wrongful Death Act is to provide, for a limited class of survivors, compensation for the loss of the companionship, comfort, instruction, guidance, counsel and support of one who would have been alive but for the defendant's wrong. Section 537.090;O'Grady v. Brown, 654 S.W.2d 904, 908 (Mo.banc 1983).
A party suing under the wrongful death statute must bring himself in his pleadings and proof strictly within the statutory requirements. Call v. Heard, 925 S.W.2d 840, 850 (Mo.banc 1996). To state a wrongful death claim, the facts alleged in the petition must demonstrate that the plaintiff is authorized to bring an action under the statute. Id. Section 537.080.1 defines who may bring a wrongful death action.Sullivan v. Carlisle, 851 S.W.2d 510, 512 (Mo.banc 1993). It states that a wrongful death action may be brought:
(1) By the spouse or children or the surviving lineal descendants of any deceased children, natural or adopted, legitimate or illegitimate, or by the father or mother of the deceased, natural or adoptive. Section 537.080.1.
In 1995, the Missouri Supreme Court recognized that a non-viable child was a "person" for whose death a parent may state a claim under the wrongful death statute. Connor v. Monkem Co., Inc., 898 S.W.2d 89, 93 (Mo.banc 1995). In its analysis, the Supreme Court read Section 1.205.2 in pari materia with Section 537.080 and held that the legislature intended that Missouri courts interpret a "person" within the wrongful death statute to allow a natural parent to state a claim for the wrongful death of his or her unborn child, even prior to viability. Id. at 92. In a footnote to Connor, the Supreme Court observed that there was no requirement under Section 537.080(1) that the parents be married to bring a wrongful death claim, but declared that "an unmarried father must prove paternity." Connor, 898 S.W.2d at 90 n. 3. Connor did not address the question of how a putative father of a deceased child could posthumously establish paternity under the UPA so as to bring himself within the class of persons entitled to file suit for wrongful death under Section 537.080.
Therefore in the case at bar, Putative Father, in order to have standing under the Wrongful Death Act, must prove that he is the father of the deceased unborn child of Mother.
UNIFORM PARENTAGE ACT
The UPA is the exclusive procedure for adjudicating paternity in Missouri. Section 210.826; Akers v. Johnson, 10 S.W.3d 581, 582 (Mo.App.E.D. 2000). Section 210.826 states, in relevant part, that a man alleging himself to be the father of a child may bring an action for the purpose of declaring the existence of a father-child relationship. Section 210.826.1. If an action is brought before the birth of the child, all proceedings are to be stayed until after the birth, except the service of process and taking of depositions to perpetuate testimony. Section 210.826.4.
Section 210.830 states: The child shall be made a party to any action commenced under Sections 210.817 to 210.852.
Under the UPA, it is mandatory that the child be made a party to the paternity proceeding. See J.L. ex rel. G.L. v. C.D., 9 S.W.3d 733, 735 (Mo.App.S.D. 2000), wherein the failure to make the child a party to a paternity action brought under the UPA is reversible error.
The UPA contemplates that an action to determine paternity may be brought before the birth of the child in question. Section 210.826.4. If a paternity action is brought after the child is born and while the child is a minor, the child may be represented by a next friend appointed for him. Section 210.830. This provision contemplates the joinder of a live child, whether born or unborn. Further the UPA provides that a paternity action survives the death of the putative father or mother. Section 210.826.2. However, no provision of the UPA authorizes the bringing of an action to determine paternity after the death of the child. Neither Section 210.830, nor any other provision of the UPA, authorizes or permits the substitution for a child by a next friend, personal representative or plaintiff/petitioner ad litem if the child is deceased and a paternity action is filed subsequent to that child's death.
We conclude that if our legislature had intended that such a posthumous paternity action be brought, it could have included a provision to that effect when it adopted the UPA in our statutes. The legislature's failure to include such a provision, leads us to the conclusion that the legislature did not intend paternity actions to be initiated after the death of the child for whom a determination of paternity is sought. See generally, Frazier v. Treasurer of Missouri as Custodian of Second Injury Fund, 869 S.W.2d 152, 156 (Mo.App.E.D. 1993).
This conclusion is also consistent with the public policy underlying the enactment of the UPA in Missouri. The purpose of the UPA is to establish a uniform method for determining paternity that will protect the rights of all parties involved, especially the child. Piel v. Piel, 918 S.W.2d 373, 375 (Mo.App.E.D. 1996). The primary concern in a paternity case is the protection of the child's welfare; the best interests of the child are of utmost importance. State ex rel. S.O. v. S.O., 725 S.W.2d 601, 603 (Mo.App.E.D. 1986). Further, the UPA is intended to afford children born out of wedlock with the same welfare and support afforded to children born of a marriage. For this reason, the UPA permits the court to enter orders regarding the custody and support of the child once a determination of paternity is made. Section 210.841. When a unborn child dies before a paternity action is brought, the issues of custody and support become moot as no liability could attach to the putative father, and therefore a determination under those circumstances would not serve or advance any purpose for which the UPA was enacted.
INSTRUCTIVE CASE LAW
We find the ruling of the Washington Court of Appeals in Gonzales v. Cowen, 884 P.2d 19, 22 (Wa. App. 1994) is instructive. The issue before the Washington court was whether the deceased child's putative father was entitled to a one-half share of the child's intestate estate even though he did not establish paternity prior to the child's death. Id. at 21. The court found that the putative father was not so entitled in that the Washington UPA mandated that the child be made a party to any action to establish paternity. Id. at 22. Further, the UPA made no provision for a substitution for the child by a personal representative or similar party if the child was deceased. Id. Consequently because the deceased child could not be made a party to the paternity action, the putative father could not establish paternity after the child's death. Id.
CASE AT BAR
The analysis used in Gonzales similarly applies to the case at bar. Herein, Putative Father filed a wrongful death action, alleging he was the father of Mother's unborn child. By this allegation, Putative Father sought to place himself within the class of persons permitted to sue under Section 537.080.1(1). However, as Putative Father admitted he and Mother were not married at the time of her death, as a matter of law, Putative Father was not presumed to be the father of the unborn child. In an attempt to establish paternity, Putative Father filed multiple petitions for determination of paternity along with a motion to appoint plaintiff/petitioner ad litem and a petition for appointment of next friend. It is undisputed that the unborn child was never made a party to the paternity action, since the child died before Putative Father filed his determination of paternity. Pursuant to the UPA, the exclusive procedure for adjudicating paternity, the child who is the subject of a paternity action must be made a party to the case. There is no provision in the UPA allowing for the posthumous determination of paternity after the death of the unborn child. To permit Putative Father to secure a determination of paternity for the unborn child after its death would not and could not protect or advance any interest of that unborn child. Putative Father's sole purpose for a determination of paternity is to permit him to bring a wrongful death action to recover damages for the death of the unborn child. The UPA was not enacted for that purpose nor does it allow a putative parent to bring a paternity action after the death of the unborn child. As a result, Putative Father cannot establish he is the father of the unborn child under current Missouri law. Because this conclusion precludes Putative Father from bringing himself within the class of plaintiffs permitted to sue under the Wrongful Death Act, he has no standing to proceed. Point denied.
MOTION TO DISMISS
Putative Father alleges that the trial court erred in treating Dirt Cheap's motion to dismiss as one for summary judgment. We disagree and find that the trial court did not convert the motion to dismiss into a summary judgment ruling.
The trial court, herein relied on Switzer v. Hart, 957 S.W.2d 512, 514 (Mo.App.E.D. 1997), which found that when ascertaining whether a plaintiff has standing the court will "consider the petition, along with any additional non-contested facts which all parties accepted as true at the time of argument on the motion to dismiss." The court will then "engage in a summary judgment mode of analysis to determine whether standing is resolved as a matter of law on the basis of the undisputed facts." Id.
It is an undisputed fact that Putative Father placed the paternity of the unborn child in issue by filing his petitions for determination of paternity. It is an undisputed fact that the unborn child was not made a party to either Putative Father's original petition for determination of paternity or his second petition, as the UPA requires. Section 210.830. Given these undisputed facts, Putative Father could not establish his paternity as the father of the unborn child so as to bring himself within the class of persons entitled to file a wrongful death action under Section 537.080.
The trial court did not transform a motion to dismiss into a motion for summary judgment such to require notice to the parties under Rule 55.27(b). Rather the trial court correctly granted the motion to dismiss because she relied on the Switzer analysis to determine that based on the undisputed facts before it, Putative Father did not have standing to proceed with his wrongful death action. Point denied.
DISMISSAL WITH PREJUDICE
Putative Father alleges the trial court's dismissal with prejudice was overbroad and an abuse of discretion in that it bars all causes of action for the wrongful death of the unborn child against Dirt Cheap by all persons, contrary to the clear intent of Section 537.080.
The decision to dismiss a petition with or without prejudice rests within the sound discretion of the trial court. Saidawi v. Giovanni's Little Place, Inc., 987 S.W.2d 501, 505 (Mo.App.E.D. 1999). A determination that a plaintiff lacks standing to file a wrongful death action is not a ruling on the merits of the action, and therefore will not operate to preclude the prosecution of a subsequent wrongful death action by appropriate class members. See generally Gowen v. Cote, 875 S.W.2d 637, 639 n. 3 (Mo.App.S.D. 1994). Further, when the trial court concludes that the pleadings do not state a cause of action and when an adequate opportunity to amend has been provided, it is not error for the trial court to dismiss with prejudice. Williams v. City of Kansas City, 841 S.W.2d 193, 198 (Mo.App.W.D. 1992).
In the case at bar, Putative Father lacked standing to pursue an action under the Wrongful Death Act since he cannot demonstrate that he was the father of Mother's unborn child and place himself within the class of persons authorized to bring suit under Section 537.080. A determination that Putative Father lacked standing to file a wrongful death action was not a ruling on the merits of the action and therefore will not operate to preclude the prosecution of a subsequent wrongful death action by appropriate class members. Therefore, because Putative Father had the opportunity to amend his petition for determination of paternity and because he could not, as a matter of law, secure a posthumous determination of the paternity of the unborn child, the trial court did not err in dismissing his wrongful death action with prejudice. Point denied.
EQUAL PROTECTION CLAIM
Putative Father alleges the trial court violated his rights to equal protection of the law by denying his petition for determination of paternity and subsequently dismissing his petition for wrongful death. Putative Father suggest that it is inequitable to bestow automatic standing on a mother of an unborn child and not on a putative father under circumstances found in this case.
To preserve a constitutional question for appellate review, a litigant must: 1) raise the question at the first available opportunity; 2) designate specifically the constitutional provision claimed to be violated; 3) state the facts showing the violation; and 4) preserve the constitutional question throughout the proceedings. Lewis v. Department of Social Services, 61 S.W.3d 248, 254 (Mo.App.W.D. 2001). A constitutional question must be presented to and passed on by the trial court or it is not preserved for appeal. S.L.J. v. R.J., 778 S.W.2d 239, 242 (Mo.App.E.D. 1989). A constitutional question that is not properly raised is waived. Id.
Our review of the record demonstrates that Putative Father failed to raise an equal protection claim in his pleadings or to otherwise present this issue to the trial court. The trial court was never given the opportunity to determine the equal protection issue and no ruling was made in that regard. Because Putative Father failed to raise the constitutional issue before the trial court, he has waived that issue for appellate review. Point denied.
JOINDER OF PARTY
Putative Father alleges the trial court erred in failing to engage in a joinder analysis under Rule 52.04.
This exact issue was not presented to the trial court, however, "the issue of whether there has been a failure to join a necessary or indispensable party under Rule 52.04 is fundamental and jurisdictional and can be raised at any time, even on appeal." Wheeler v. McDonnell Douglas Corp., 999 S.W.2d 279, 283 (Mo.App.E.D. 1999).
Under the UPA, the exclusive method for determining paternity, the child shall be made a party to an action commenced thereunder and where the child is not joined as a party in a paternity action, the action must be dismissed. See Section 210.830; Richie By and Through Laususe v. Laususe, 950 S.W.2d 511, 515 (Mo.App.E.D. 1997).
"If a necessary person cannot be joined, then the case is examined to determine whether the action may proceed in the absence of the nonjoined person or is to be dismissed, the absent person thus being regarded as indispensable." Missouri Nat. Educ. Ass'n v. Missouri State Bd. of Educ., 34 S.W.3d 266, 277 (Mo.App.W.D. 2000). The factors to be considered include: (1) to what extent a judgment rendered in the person's absence might be prejudicial to that person or those already parties; (2) whether protective provisions in the judgment can be utilized to lessen or avoid the prejudice; (3) whether a judgment rendered in the person's absence will be adequate; and (4) whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. Id.; Rule 52.04(b).
In the case at bar, Putative Father argues that factor (4) controls and that he has no adequate remedy for the wrongful death of his unborn child. We find that under the UPA and relevant case law, the child was an indispensable party and because the underlying action in the case at bar is a wrongful death action, a statutorily created action, only the legislature can supply an adequate remedy. Under the current language of the UPA, there is no provision for a putative father to file a paternity action after the death of the unborn child at issue, therefore Putative Father cannot bring himself within the class of those entitled to sue under the Wrongful Death Act. We cannot create a remedy through Rule 52.04 where one does not exist under the relevant statutes. "It is not the Court's province to question the wisdom, social desirability or economic policy underlying a statute as these are matters for the legislature's determination." Greenlee v. Dukes Plastering Service, 75 S.W.3d 273, 277-78 (Mo. 2002). Point denied.
Because of the general interest and importance of the issue of whether a putative father of a deceased unborn child may file an action under the Wrongful Death Act and specifically in light of language in Connor,supra, we transfer to the Missouri Supreme Court pursuant to Rule 83.02.
Robert G. Dowd, Jr., Presiding Judge and George W. Draper III, Judge: Concur.