Landoll by Landoll v. Dovell

• Decision Date: 12 September 1989
• Docket Number: No. 55517,55517
• Citation: 779 S.W.2d 621
• Parties: Nicholas LANDOLL, by his Next Friend, Karen LANDOLL, and Karen Landoll, individually, Plaintiffs-Respondents, v. William DOVELL, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 621

779 S.W.2d 621

Nicholas LANDOLL, by his Next Friend, Karen LANDOLL, and Karen Landoll, individually, Plaintiffs-Respondents, v.William DOVELL, Defendant-Appellant.

No. 55517.

Missouri Court of Appeals,

Eastern District,

Division Three.

Sept. 12, 1989.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Oct. 25, 1989.

Application to Transfer Denied Dec. 12, 1989.

Joseph G. Nassif, Coburn, Croft and Putzell, St. Louis, for plaintiffs-respondents.

Allan F. Stewart, Braun, Stewart and Anderson, Clayton, for defendant-appellant.

SIMON, Chief Judge.

Appellant, William Dovell(William), appeals from a summary judgment granted in favor of respondents, Nicholas Landoll(Nicholas), a minor, by his mother and next friend, Karen Landoll(Karen), and Karen, individually, declaring William to be the father of Nicholas and ordering William to pay temporary child support in the amount of $1200.00 per month.On appeal, William contends that the trial court erred in entering its order of summary judgment as to paternity and awarding temporary child support in that: (1) Missouri is not the proper forum for this action under the doctrine of forum non conveniens in that all parties reside outside Missouri, there is no legitimate interest in Missouri, and the maintenance of this action constitutes an undue burden on William; (2) genuine issues of material fact remain on the pleadings and affidavits; (3) all necessary parties were not joined; and (4) personal jurisdiction over William was lacking.We affirm in part and reverse and remand in part.

Initially, we note that William's request to strike Nicholas' and Karen's supplemental statement of facts is denied.Karen married John Richard Landoll("JR") on July 17, 1968.During the course of the marriage, Karen gave birth to three children: Christina Landoll(Christina), born April 3, 1978; John Landoll(John), born August 29, 1980; and Nicholas, the subject of this action, born May 8, 1985.

Karen worked for William at his Ohio motor company from September, 1976 to January, 1982.It was during that period of time that Christina and John were born.Karen and JR later moved to St. Louis, Missouri, where Nicholas was born.Subsequently, Karen, JR, and the children moved to another state.

On July 29, 1986, William, Karen, and the three minor children underwent blood tests at the American Red Cross in St. Louis, Missouri, in an effort to resolve a potential paternity dispute between the parties.A written agreement provided for the taking of blood tests and certain actions by the parties depending on the test results.The agreement was notarized in St. Louis, Missouri.William denies the execution of this agreement, and further contends that there was no consideration.The results of the blood tests indicated that a 99.96% probability exists that William is the father of Nicholas, and that 99.54% of falsely accused men would be excluded as the father of Nicholas based upon the tests.On June 30, 1987, JR also submitted to a blood test, the result of which positively excluded him from being the biological father of Nicholas.

On April 6, 1987, Nicholas and Karen filed a three count petition in the Circuit Court for the County of St. Louis, Missouri seeking a declaration of paternity: Count I requested the finding of a father-child relationship; Count II requested child support; and Count III requested specific performance of the written agreement.Following service with summons and petition in Ohio, William filed a special entry of appearance for the purpose of contesting jurisdiction on June 9, 1987.Subsequently, William filed a Motion to Quash Service of Summons or in the Alternative to Dismiss for Forum Non Conveniens.William's motions were denied.

Nicholas and Karen moved for summary judgment on the issue of paternity (Count I) and for specific performance of the written agreement (Count III).A copy of the agreement and the affidavit of the Paternity Testing Coordinator for the American Red Cross in St. Louis, Missouri setting forth the results of William's blood tests were attached as exhibits to the motion for summary judgment.Additionally, an award of temporary support was requested.William petitioned our court for a writ of prohibition for want of jurisdiction, which was denied.On that same day, the trial court proceeded on the previously filed motion for summary judgment and request for temporary support.Following a hearing on the motions, the trial court allowed William additional time in which to file any counter affidavits and income and property statements.William filed an answer to Nicholas' and Karen's petition admitting to engaging in sexual relations with Karen and to submitting to a blood test, but specifically denying the paternity of Nicholas, the time and place of the sexual relations, the existence of an agreement or contract, and the results of the blood tests.William also filed a second writ of prohibition in our court, which was denied.

On August 17, 1987, the trial court sustained the motion for summary judgment on the issue of paternity and ordered William to pay $1200.00 per month as child support pendente lite until final judgment.William appealed the summary judgment to our court.We dismissed for lack of a final appealable order.

William sought transfer to our Supreme Court and also filed a writ of prohibition with our Supreme Court on the grounds: (1) of forum non conveniens; (2) that the trial court lacked jurisdiction to proceed with the hearing on the motions for summary judgment and temporary support in that neither was ripe for adjudication, William not having had a sufficient time to file responsive pleadings; (3) material issues of fact exist rendering summary judgment inappropriate; and (4) that the trial court lacked the authority to enter an order for child support pendente lite in a paternity action.Our Supreme Court granted transfer and issued a preliminary rule for the purposes of determining the authority of the trial court to enter an order for support pendente lite in a paternity case and, if such authority exists, whether such an order is appealable upon entry.Upon finding that the trial court is without authority to enter a child support order pendente lite in a paternity action, our Supreme Court made its preliminary rule absolute and dismissed William's appeal as moot.Landoll by Landoll v. Dovell, 752 S.W.2d 323(Mo. banc 1988).

On July 26, 1988, Nicholas and Karen filed in the trial court a motion for final judgment of paternity pursuant to Rule 74.01(b).On September 1, 1988, the trial court reentered its prior judgment of August 17, 1987 as final for purposes of appeal, stating that there is no just reason for delay pursuant to Rule 74.01(b).William appeals.

Turning to William's contentions of error, we shall address them in their most logical order.In his fourth point, William contends that the trial court erred in entering its order of summary judgment and awarding temporary child support because the trial court lacked personal jurisdiction over him.Initially, we note that "[w]hen the issue of personal jurisdiction over a non-resident defendant is raised, the burden is on the plaintiff seeking to avail himself of the long arm statute to establish a prima facie case for jurisdiction."Commercial Lithographing Co. v. Family Media, Inc., 695 S.W.2d 936, 938[1, 2](Mo.App.1985)."[I]n order for Missouri courts to exercise personal jurisdiction over a non-resident defendant, the defendant's acts must fall within one of the categories enumerated in the long-arm statute and must constitute sufficient minimum contacts with the state so that the exercise of jurisdiction by Missouri courts satisfies due process requirements."Medicine Shoppe International, Inc. v. J-Pral Corp., 662 S.W.2d 263, 271(Mo.App.1983)(emphasis omitted).The plaintiffs must state sufficient facts in their petition to support a reasonable inference that the defendant can be subjected to jurisdiction within the state.Institutional Food Marketing Associates, Ltd. v. Golden State Strawberries, Inc., 747 F.2d 448, 453(8th Cir.1984).See alsoAnderson Trucking Service, Inc. v. Ryan, 746 S.W.2d 647, 649-50[2, 3](Mo.App.1988).

Section 506.500.1 RSMo 1986(all further references shall be to RSMo 1986 unless otherwise noted), Missouri's long-arm statute, enumerates the necessary criteria for establishing personal jurisdiction and provides as follows:

1.Any person or firm, whether or not a citizen of this state, or any corporation, who in person or through an agent does any of the acts enumerated in this section, thereby submits such person, firm, or corporation, and, if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of such acts:

(1) The transaction of any business within this state;

(2) The making of any contract within this state;

(3) The commission of a tortious act within this state;

(4) The ownership, use, or possession of any real estate situated in this state;

(5) The contracting to insure any person, property or risk located within this state at the time of contracting;

(6) Engaging in an act of sexual intercourse within this state with the mother of a child on or near the probable period of conception of that child.

The petition alleges that Karen and William entered into a written agreement whereby blood tests were to be performed under the supervision of the American Red Cross in St. Louis, Missouri.The petition alleges that the agreement was signed by Karen and William and executed in Missouri.The petition further alleges that Karen and William engaged in sexual relations in St. Louis, Missouri in August of 1984, and, that as a result of said sexual relations, Karen gave birth to Nicholas in May of 1985.The petition clearly pleads sufficient facts to subject William to jurisdiction within...