Johnson ex rel. Wilken v. Jones

• Decision Date: 05 February 2002
• Docket Number: No. WD 59992.,WD 59992.
• Citation: 67 S.W.3d 702
• Parties: Roger JOHNSON, Jr., a Minor, and Patricia L. Johnson, a Minor, by Next Friend Barbara WILKEN, Appellants, v. Sharon L. JONES and Tracy Lynn Weisner, Respondents.
• Court: Missouri Court of Appeals

67 S.W.3d 702

Roger JOHNSON, Jr., a Minor, and Patricia L. Johnson, a Minor, by Next Friend Barbara WILKEN, Appellants, v. Sharon L. JONES and Tracy Lynn Weisner, Respondents.

No. WD 59992.

Missouri Court of Appeals, Western District.

February 5, 2002.

Karen M. Hunt, Sedalia for appellants.

Kenneth J. Berra, Sedalia, for respondent Sharon L. Jones.

James C. Spangler, Sedalia, for respondent Tracy Lynn Weisner.

Before BRECKENRIDGE, P.J., ELLIS, J., and MARTIN, S.J.

PATRICIA BRECKENRIDGE, Judge.

Roger and Patricia Johnson appeal the dismissal of their wrongful death claim. The decedent was their sister, Tammy Salmons. Tammy, a twelve-year-old child, died after an automobile struck the bicycle she was riding. Roger and Patricia brought a wrongful death action against the driver of the automobile, Tracy Weisner, and the owner of the bicycle, Sharon Jones. The two defendants filed motions to dismiss, claiming that Roger and Patricia could not maintain their action under the wrongful death statute, § 537.080, RSMo 2000,¹ because the petition failed to allege that Tammy was not survived by a biological parent. The circuit court granted the defendants' motions to dismiss, with prejudice. On appeal, Roger and Patricia assert that Tammy was not survived by a biological parent entitled to bring a wrongful death action since Tammy's biological mother did not have contact with Tammy, effectively abandoning her, and she executed a consent for the termination of her parental rights. The facts alleged in Roger and Patricia's petition do not demonstrate that they are entitled to bring a wrongful death action because Tammy's biological mother is a person in a prior category entitled to sue under § 537.080.

Therefore, the judgment of the circuit court is affirmed.

Factual and Procedural Background

On August 4, 2000, Tammy Salmons, a twelve-year-old child, was riding a bicycle owned by Sharon Jones when an automobile driven by Tracy Weisner struck her. She died the next day. Tammy's biological mother was Carla Limback. Ms. Limback was not married at the time of Tammy's birth. The identity and whereabouts of Tammy's biological father are unknown and have not been legally determined.² At the time of her death, Tammy was living with foster parents, Carl and Barbara Wilken, after being removed from her mother's custody by the juvenile court due to abuse and neglect. She had been living with the Wilkens continuously for seven years. Tammy's brother and sister, Roger and Patricia, were also living with the Wilkens. Ms. Limback did not have contact with Tammy during the last seven years she lived with the Wilkens. Over a year prior to Tammy's death, Ms. Limback signed a consent to termination of parental rights and consent to adoption form.

After Tammy's death, Roger and Patricia brought a wrongful death action against Ms. Weisner and Ms. Jones.³ In separate motions to dismiss, Ms. Weisner and Ms. Jones alleged that Roger and Patricia were barred from bringing a wrongful death action under § 537.080, because Tammy was survived by a biological parent. Roger and Patricia countered that they were the proper plaintiffs, because even if Tammy was survived by her mother, Ms. Limback was not "entitled to bring the action." They alleged in their petition that Ms. Limback had effectively abandoned Tammy, and Ms. Limback signed a consent to termination of parental rights and consent to adoption form. Roger and Patricia attached a copy of this form to their petition. On the back of the form, there is a section for a judge to sign indicating that a judge has reviewed, accepted and approved the consent to termination of parental rights. This section is blank on the form that Ms. Limback signed. There also was no allegation that any court has reviewed, accepted and approved the termination of parental rights or that a court has entered a judgment terminating Ms. Limback's parental rights.⁴

After considering Ms. Weisner's and Ms. Jones' motions to dismiss, the court concluded that Ms. Limback is the proper plaintiff under the wrongful death statute. The court, therefore, granted Ms. Weisner's and Ms. Jones' motions to dismiss. This appeal followed.

Standard of Review

In reviewing a motion to dismiss for failure to state a claim upon which relief can be granted, this standard of review applies:

A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiff's petition. It assumes that all of plaintiff's averments are true, and liberally grants to plaintiff all reasonable inferences therefrom. No attempt is made to weigh any facts alleged as to whether they are credible or persuasive. Instead, the petition is reviewed in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case.

Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993) (internal citations omitted). To state a wrongful death claim, the facts alleged in the petition must demonstrate that the plaintiffs "are authorized to bring an action under the wrongful death statute." Call v. Heard, 925 S.W.2d 840, 850 (Mo. banc 1996).

Biological Mother is the Proper Plaintiff Under Wrongful Death Statute

In their sole point on appeal, Roger and Patricia argue that the circuit court erred when it granted Ms. Weisner's and Ms. Jones' motions to dismiss. Roger and Patricia claim that the petition pled facts proving that Ms. Limback is not entitled to bring a wrongful death action because she abandoned Tammy by providing no support and having no contact with her, and because she signed a termination of parental rights and consent to adoption form. Roger and Patricia contend that they are the proper plaintiffs to bring the wrongful death action.

In Missouri, no cause of action for wrongful death existed at common law. See State ex rel. Griffin v. Belt, 941 S.W.2d 570, 572 (Mo.App.1997). Therefore, wrongful death actions are purely statutory. Sullivan v. Carlisle, 851 S.W.2d 510, 512 (Mo. banc 1993). Missouri's wrongful death statute, § 537.080, provides:

1. Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who, or the corporation which, would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured, which damages may be sued for:

(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;

(2) If there be no persons in class (1) entitled to bring the action, then by the brother or sister of the deceased, or their descendants, who can establish his or her right to those damages set out in section 537.090 because of the death;

(3) If there be no persons in class (1) or (2) entitled to bring the action, then by a plaintiff ad litem. Such plaintiff ad litem shall be appointed by the court having jurisdiction over the action for damages provided in this section upon application of some person entitled to share in the proceeds of such action. Such plaintiff ad litem shall be some suitable person competent to prosecute such action and whose appointment is requested on behalf of those persons entitled to share in the proceeds of such action. Such court may, in its discretion, require that such plaintiff ad litem give bond for the faithful performance of his duties.

2. Only one action may be brought under this section against any one defendant for the death of any one person.

This statutory scheme creates a hierarchy for entitlement to bring a wrongful death action. First, individuals in category one are entitled to bring the action. If there are no individuals in category one entitled to sue, individuals in category two are entitled to bring the action. If there are no individuals in category one or two entitled to bring the action, individuals in category three are entitled to bring the action. "A person in any authorized category may bring a wrongful death suit only if there are no persons in a prior category entitled to bring the action." Sims v. Arvin Indus., 770 S.W.2d 711, 712 (Mo.App. 1989). Therefore, this court must first determine whether there are class one beneficiaries who are entitled to sue in this case. Griffin, 941 S.W.2d at 572.

Ms. Weisner and Ms. Jones asserted in their motions to dismiss that Roger and Patricia failed to plead that Tammy was not survived by a biological parent. Ms. Weisner and Ms. Jones argue that Roger and Patricia's allegations do not establish that they were entitled to bring the action, because the existence of Ms. Limback, as a member of the first category, precludes the action by Roger and Patricia, who as siblings are members of category two. In response, Roger and Patricia assert that Ms. Limback is not entitled to sue under the wrongful death statute because she abandoned, neglected and failed to have contact with Tammy. Roger and Patricia also assert that Ms. Limback is precluded from suing under the wrongful death statute since ...