R.f v. M.m

• Decision Date: 19 October 2010
• Docket Number: No. 20100046.,20100046.
• Citation: 789 N.W.2d 723,2010 ND 195
• Parties: R.F., individually and as Personal Representative of the Estate of E.F., deceased, Plaintiff and Appellee v. M.M. and R.J.M., a minor child, by and through her guardian, M.M., Defendants M.M., Appellant.
• Court: North Dakota Supreme Court

789 N.W.2d 723

2010 ND 195

R.F., individually and as Personal Representative of the Estate of E.F., deceased, Plaintiff and Appellee

v. M.M. and R.J.M., a minor child, by and through her guardian, M.M., DefendantsM.M., Appellant.

No. 20100046.

Supreme Court of North Dakota.

Oct. 19, 2010.

Gregory William Liebl, Fargo, N.D., for plaintiff and appellee.

Stephen R. Dawson, Fargo, N.D., for appellant.

SANDSTROM, Justice.

[¶ 1] M.M., the mother, appeals from a judgment declaring E.F. the father of the child, R.J.M., and awarding grandparent visitation to R.F. We hold R.F. had standing to bring the paternity action and the court's decision to award grandparent visitation is not clearly erroneous. We affirm the judgment.

I

[¶ 2] A child, R.J.M., was born in early 2008. The mother and E.F. were never married, but had a sexual relationship before the child was born. E.F. died a few months after the child was born. The mother lived in North Dakota at the time of the child's birth, but she moved to South Carolina in December 2009. After the child's birth the mother started a new dating relationship and plans to marry M.C. R.F. is E.F.'s father, and he lives in Illinois.

[¶ 3] In March 2009, R.F. filed a paternity action on E.F.'s behalf and requested grandparent visitation. The mother moved to dismiss R.F.'s complaint, arguing he did not have standing to bring the paternity action. The district court denied the mother's motion, concluding R.F. had standing to pursue the paternity action as an alleged grandparent under the Uniform Parentage Act. The mother requested the court clarify its order denying her motion. R.F. moved to amend the complaint under N.D.R.Civ.P. 15 to further specify and distinguish the actions and parties involved in the suit. The court granted the motion to amend the complaint under N.D.R.Civ.P. 15 and 17(a). The complaint was amended, clarifying R.F. brought the suit individually and as a personal representative of E.F.'s estate. After a hearing on R.F.'s motion, E.F. was adjudicated the child's father, and the court granted R.F. visitation with the child.

[¶ 4] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.

II

[¶ 5] The mother argues the district court erred in denying her motion to dismiss because R.F. did not have standing to bring a paternity action under N.D.C.C. § 14-20-37.

[¶ 6] Section 14-20-37, N.D.C.C., provides a list of those who have standing to maintain a proceeding to adjudicate parentage:

1. The child;

2. The mother of the child;

3. A man whose paternity of the child is to be adjudicated;

4. The support enforcement agency;

5. An authorized adoption agency or licensed child-placing agency; or

6. A representative authorized by law to act for an individual who would otherwise be entitled to maintain a proceeding but who is deceased, incapacitated, or a minor.

Standing is a question of law, which we review de novo on appeal. Hagerott v. Morton County Bd. of Comm'rs, 2010 ND 32, ¶ 9, 778 N.W.2d 813.

[¶ 7] R.F. was appointed as a personal representative of E.F.'s estate on March 17, 2009. The mother was served with the summons and complaint in late February 2009, and she moved to dismiss on March 6, 2009. R.F. had not been appointed as a personal representative of E.F.'s estate at the time the suit began. We have said a party must have standing to start an action. B.H. v. K.D., 506 N.W.2d 368, 375 (N.D.1993). This case, however, is different from B.H.

[¶ 8] In B.H., 506 N.W.2d at 370, B.H. brought an action to dispute the paternity of a child born during the marriage of the child's mother to another man. We held B.H. did not have standing to dispute the child's paternity because the mother of the child was married at the time the child was born and her husband was presumed to be the child's father under the Uniform Parentage Act. Id. at 373-74. B.H. argued a genetic test could prove he is the child's father and would give him standing to rebut the presumption of paternity. Id. at 375. This Court said B.H. had to have standing when the action began, and therefore it would have been necessary for the genetic test results to have been in existence when the action was begun. Id. We said, “One cannot commence an action without standing, based only on the hope that standing may later materialize.” Id.

[¶ 9] Here R.F. was appointed as a personal representative of E.F.'s estate within days of bringing the action. Unlike the plaintiff in B.H., R.F. did not have to rely on the outcome of the proceedings to provide him with standing to bring the action. The mother concedes R.F. had standing to bring the paternity action after he was appointed as a personal representative. R.F. subsequently amended the complaint to clarify that he was bringing the action individually and as a personal representative of E.F.'s estate.

[¶ 10] A complaint may be amended under N.D.R.Civ.P. 15(a). Under N.D.R.Civ.P. 17(a) the real party in interest may ratify an action, or be joined or substituted as a party before the action can be dismissed for failing to prosecute the action in the name of the real party in interest:

Every action must be prosecuted in the name of the real party in interest. An executor, administrator ... may sue in that person's own name without joining the party for whose benefit the action is brought;.... No action may be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after the objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and the ratification, joinder, or substitution has the same effect as if the action had been commenced in the name of the real party in interest.

[¶ 11] Rule 17, N.D.R.Civ.P., is derived from Fed.R.Civ.P. 17, and federal court interpretation of the federal rule is persuasive in interpreting our rule. Goodleft v. Gullickson, 556 N.W.2d 303, 309 (N.D.1996). Federal courts have said the rule should be liberally applied to allow joinder or substitution of the real party in interest when the change is merely formal and does not alter the complaint's factual allegations as to the events or participants. Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 20 (2d Cir.1997).

[¶ 12] In Goodleft, 556 N.W.2d at 305, this Court reversed a district court's decision dismissing a wrongful death action brought by the deceased child's grandmother, who was also the personal representative of the child's estate. We held the grandmother was not the appropriate party to bring a wrongful death action under N.D.C.C. § 32-21-03, but the court failed to give her reasonable time to substitute the child's parents as plaintiffs or for their ratification of the action under N.D.R.Civ.P. 17. Goodleft, at 309-10. In other cases with facts similar to the facts in this case, courts have also held parties are entitled to substitute themselves, as a personal representative of an estate, under Rule 17, when the action is initially brought in an individual capacity and the opposing party claims the individual lacks standing. See Duckett v. District of Columbia, 654 A.2d 1288 (D.C.1995) (trial court erred in dismissing for lack of standing without allowing the plaintiff, who was the decedent's mother, to substitute herself, as plaintiff in her capacity as her son's personal representative under Rule 17); Brohan v. Volkswagen Mfg. Corp. of America, 97 F.R.D. 46 (E.D.N.Y.1983) (decedent's widow sued for wrongful death, court granted the plaintiff's motion to amend the complaint under Rule 17 and substitute herself as the plaintiff after defendants moved to dismiss, defendants claimed she lacked standing because wrongful death claims accrue only to the decedent's personal representative and plaintiff was not appointed as a personal representative until three years after the action began).

[¶ 13] R.F. was appointed as a personal representative of E.F.'s estate on March 17, 2009, which was a short time after he brought the action and the mother moved to dismiss. R.F.'s appointment as a personal representative gave him standing to bring a paternity action under N.D.C.C. § 14-20-37. The powers of a personal representative relate back in time and give acts by the person appointed that occur prior to the appointment and that benefit the estate the same effect as acts occurring after the appointment. N.D.C.C. § 30.1-18-01; see also N.D.R.Civ.P. 15(c); N.D.R.Civ.P. 17(a) (substitution has the same effect as if the action had been commenced in the name of the real party in interest). R.F.'s status as a personal representative relates back in time and gave him standing to bring a paternity action when this action began. See Hutchinson on Behalf of Baker v. Spink, 126 F.3d 895 (7th Cir.1997) (state court order appointing mother as special administrator of child's estate relates back to her commencement of federal civil rights suit on behalf of the estate to give her standing). R.F. amended the complaint to clarify that he was bringing the suit individually and as a personal representative of E.F.'s estate. The amendment was merely formal, the complaint's factual allegations about the events and participants did not change, R.F. could have brought the action again if the court had dismissed his complaint, and the mother was not prejudiced. The complaint was properly amended under N.D.R.Civ.P. 15 and 17.

[¶ 14] Moreover, R.F. also requested grandparent visitation under N.D.C.C. § 14-09-05.1. The mother moved to dismiss the action to determine parentage and argued parentage would have to be established to grant R.F.'s motion for grandparent visitation. The standing requirements for a paternity action under N.D.C.C. § 14-20-37 do not apply to a motion for...