Richie ex rel. Laususe v. Laususe

GERALD M. SMITH, Judge. This is an appeal by Kelli Richie (Kelli) from the trial court’s dismissal of her paternity petition for lack of personal jurisdiction. Because Kelli failed to join the proper party, the trial court did not have personal jurisdiction over the putative father. Where the trial court is without jurisdiction, this court lacks jurisdiction and the appeal must be dismissed.1 In March 1988, Michael Laususe (Michael) died in an automobile accident. Michael’s widow, Valiere Laususe, and their daughter, Ashley, filed a wrongful death action against Normandy Osteopathic Hospital (Hospital). In June 1993, Valiere and Ashley reached an agreement to settle the wrongful death action with the hospital. They then sought court approval of the wrongful death action. Prior to the court’s ruling on the settlement, Kelli Richie (Kelli) filed an entry of appearance in the wrongful death action claiming to be Michael’s minor illegitimate daughter. About the same time she filed the entry of appearance, Kelli filed a paternity action styled Richie by and through Richie v. Laususe seeldng to establish a parent-child relationship between herself and Michael under the Uniform Parentage Act (UPA). Kelli named Michael as the sole defendant in that paternity action. The trial eourt dismissed Kelli’s paternity action for lack of jurisdiction. In Richie By and Through Richie v. Laususe, 892 S.W.2d 746 (Mo.App.1994)(Richie I), this eourt dismissed Kelli’s appeal, holding a trial eourt lacks personal jurisdiction over a party that is deceased. Because Michael was the only named defendant, this court recognized the trial court was without personal jurisdiction over him. Richie I, 892 S.W.2d at 748. Following the trial court’s decision in Richie I, Valiere and Ashley filed a petition for approval of the wrongful death settlement. The trial court approved the settlement and granted their motion for summary judgment against Kelli. Kelli appealed that grant of summary judgment in Laususe v. Normandy Osteopathic Hospital, 918 S.W.2d 953 (Mo.App.1996). After filing her appeal in Laususe, Kelli filed a second paternity action, which is the case now before this court (Richie II). This time Kelli named her natural mother, Denise Brown (Brown), and Michael as defendants. Kelli then sought to substitute a party for Michael in accord with Rule 52.13(a)(1). Relying on § 210.826.3 RSMo of the UPA which permits the child of an alleged father to bring an action to establish the father-child relationship, Kelli sought to substitute Michael’s father for Michael. Valiere and Ashley filed a motion seeking to intervene in the paternity action. While the Rule 52.13(a)(1) motion was still pending, this eourt reversed the trial court’s grant of summary judgment in favor of Vali-ere and Ashley in Laususe. This court rec [513] ognized, “[A] proposed wrongful death settlement should be held in abeyance until any issue as to the paternity of an alleged illegitimate child wrongful death claimant is determined in accordance with the UPA.” Laususe, 918 S.W.2d at 956. We then explained “the [wrongful death] settlement should be held in abeyance until the pending paternity proceeding is resolved.” Id. Immediately following the Laususe decision, the Richie II trial court denied Kelli’s Rule 52.13 motion to substitute a party and denied Valiere and Ashley’s motion to intervene. Thereafter, the trial court denied Kelli’s petition to determine a father-child relationship, finding it was without jurisdiction to enter an order of paternity. Kelli appeals the trial court’s dismissal of her paternity petition and its denial of her motion to substitute a party. Valiere and Ashley filed a motion with this court to intervene and to be granted status as respondents in Kelli’s appeal. This court granted that motion. The respondents argue the trial court erred in denying their motion to intervene and in not awarding attorney’s fees.2 In the instant case the trial court dismissed Kelli’s petition for lack of jurisdiction. Because a circuit court has subject matter jurisdiction to determine an issue of paternity, Poole Truck Lines, Inc. v. Coates, 833 S.W.2d 876 (Mo.App.1992)[1], the trial court must have dismissed Kelli’s petition for lack of personal jurisdiction. Although neither side has raised the issue of whether this appeal is properly before this court, it is our duty to first examine whether we have jurisdiction, even if we must do so sua sponte. Quelle Quiche v. Roland Glass Foods, 926 S.W.2d 211 (Mo.App.1996)[1,2], Because the trial court did not state Kelli’s petition was dismissed with prejudice, such dismissal is deemed to have been without prejudice. Id.; Rule 67.03. Where a petition has been dismissed for lack of personal jurisdiction without prejudice, this court has recognized such an action is not appealable because it is not a final judgment. Dillaplain v. Lite Industries, Inc., 788 S.W.2d 530 (Mo.App.1990)[4]; Abbate v. Tortolano, 782 S.W.2d 810 (Mo.App.1990)[9]; State ex rel. Degeere v. Appelquist, 748 S.W.2d 855 (Mo.App.1988)[3]; Schwenker v. St. Louis County Nat. Bank, 682 S.W.2d 868 (Mo.App.1984)[3,4]. A dismissal for lack of personal jurisdiction is properly challenged by extraordinary writ. Schwenker, supra at [3,4]; Dillaplain, supra at [4]; Abbate, supra at [9]. Kelli did not seek an extraordinary writ in the instant case but instead sought a review on appeal. The courts have recognized that where the ruling of the trial court decides the ultimate question of jurisdiction so that refiling the petition would be futile, appeal properly lies. Quelle Quiche, supra at [3]; Dillaplain, supra at [4], We believe this is such an instance as will be demonstrated infra. Kelli’s Appeal Kelli argues the trial court improperly denied her motion to substitute Michael’s father for Michael under Rule 52.13(a)(1). Because § 210.826.3 RSMo permits a parent of an alleged father to bring an action to determine a father-child relationship, Kelli reasons the parent of an alleged father should be a party against whom an action for paternity could be brought. Kelli cites no legal authority for her proposition. The respondents contend this court has held the putative father’s personal representative is the only proper party against whom a paternity action may be brought where the alleged father has died. In support of this argument, respondents cite Travis v. Contico International, Inc., 928 S.W.2d 367 (Mo.App.1996), Roberts v. Roberts, 920 S.W.2d 144 (Mo.App.1996) and Reed v. Liszewski, 873 S.W.2d 942 (Mo.App.1994). [514] The UPA constitutes the exclusive procedure for determining parentage.3 Poole Truck Lines, Inc., supra at [1]; Snead by Snead v. Cordes by Golding, 811 S.W.2d 391 (Mo.App.1991)[10,11]. Kelli has no presumed father under the statute. § 210.822 RSMo 1994. The UPA dictates the child, the natural mother, each presumed father and each man alleged to be the natural father must be parties to the paternity action. § 210.830 RSMo. In the instant case, those parties were joined. But because Michael had died, it was necessary to either substitute a party for him under Rule 52.13(a)(1) or join a proper party. If a proper party is not substituted or joined, the action against the deceased party should be dismissed for lack of personal jurisdiction. See Richie I at [2]. The UPA is silent as to who is the proper party in the event the putative father dies. In Reed v. Liszewski 873 S.W.2d 942 (Mo.App.1994), this court first inferred from the UPA that the personal representative of the alleged father’s estate was the proper party when the putative father has died. Citing § 210.829.4 RSMo which pertains to the proper jurisdiction and venue in which a paternity action may be brought, the Reed court reasoned that because the UPA permits paternity proceedings in the county “in which proceedings of [the alleged father’s] estate [has] been or could have been commenced,” the personal representative is the proper party in place of the deceased father. Reed at [l.c.943]. Subsequent decisions of this court have adopted Reed’s analysis. In Roberts v. Roberts, 920 S.W.2d 144 (Mo.App.1996)[5], this court reiterated Reed’s reasoning and remanded that case to the trial court when plaintiff failed to name the alleged father or his estate in her paternity petition. In Travis v. Contico International, Inc., 928 S.W.2d 367 (Mo.App.1996) this court held unequivocally that “the proper party to represent a deceased putative father against an action for paternity is the personal representative of the decedent’s estate.” Id. at [13,14], In the instant case Travis is controlling. Michael’s personal representative is the only proper party in place of Michael. The trial court correctly overruled Kelli’s motion to substitute Michael’s father for Michael. Furthermore, because the proper party had not been joined, the trial court correctly held it was without jurisdiction to determine paternity since personal jurisdiction had not attached as to the putative father. Richie I at [2]; § 210.830 RSMo. Kelli cites to Jones v. Jones, 891 S.W.2d 551 (Mo.App.1995) for the proposition that the natural mother is the only proper party that need be joined in a paternity action. To the extent Jones is contrary to § 210.830 RSMo and the Roberts and Reed decisions, we decline to follow it. In her brief and at oral arguments Kelli argued that if this court holds the personal representative is the only proper party against whom a paternity action can be brought when the putative father dies, such a declaration would severely limit the time period in which to bring a paternity action. Kelli contends the UPA’s statute of limitations for bringing a paternity action would be reduced significantly by the Uniform Probate Code’s requirement that an estate be opened within one year of death. § 473.070 RSMo 1994. Section 210.828.3 of the Parentage Act provides: 3. Sections 210.826 and 210.828 do not extend the time within which a right of inheritance or a right to a succession may be asserted beyond the time provided by law relating to distribution and closing of decedent’s estates or to the determination of heirship, or otherwise. Kelli’s opportunities to establish a father-child relationship may be substantially shortened because her putative father is deceased. Many types of time limits are shortened by death and, when a party or a potential party has died, statutes governing substitution of that party and appointment of a personal representative take precedence. See State v. Reese, 920 S.W.2d 94 (Mo.banc 1996). [515] The dissent relies heavily upon In the Matter of Nocita, supra. There the statute of limitations provided by the UPA had run, but the estate of the putative father was open. The court held that because the Probate Code authorized an alternative means to determine paternity for probate purposes, the UPA statute of limitations did not preclude determination of heirship in the probate proceeding. Nocita did not hold that the limitation for opening estates in the Probate Code was overridden by the limitation restrictions of the UPA. It was necessary here that the suit for determination of parentage be brought against the personal representative. The time restraints of the Probate Code apply to appointment of that person. Respondents’ Appeal In their cross-appeal, respondents premise error on the trial court’s failure to award attorney’s fees and in denying their motion to intervene. Assuming that a party who was not granted status as an intervenor in the trial court could be awarded attorney’s fees, which we doubt, the award of such fees is discretionary under the statute. Section 210.482 RSMo 1994. We find no abuse of discretion. In view of our finding that the trial court lacked jurisdiction over Kelli’s petition, the denial of intervention is moot. Appeal dismissed. CRANE, P.J., concurs. PUDLOWSKI, J., dissents in separate dissenting opinion. Footnotes [1] The facts reviewed mirror those set forth in Laususe v. Normandy Osteopathic Hosp., 918 S.W.2d 953 (Mo.App.1996). For the sake of simplicity, the appeal in the instant case will be referred to as Richie II. [2] Kelli’s appeal from the trial court’s denial of her motion to substitute a party (Appeal No. 70952), along with the respondents’ appeal from the trial court’s denial of their motion to intervene (Appeal No. 70964), have been consolidated with Kelli’s appeal from the trial court’s dismissal of her paternity petition for lack of personal jurisdiction (Appeal No. 70879). This opinion addresses all three appeals. [3] In a probate proceeding, parentage can also be determined under the Probate Code. In the Matter of Nocita, 914 S.W.2d 358 (Mo.banc 1996). This is not a probate proceeding.