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Stichler v. Jesiolowski

Court of Appeals of Missouri, Western District

April 17, 2018

DAVID STICHLER, HEIR AT LAW OF MICKEY STICHLER AND AS HEIR AT LAW OF UNBORN CHILD OF MICKEY STICHLER, Appellant,
v.
CHAZ DAVID JESIOLOWSKI AND FANG-PIAU KAO, Respondents.

          Appeal from the Circuit Court of Miller County, Missouri The Honorable Kenneth M. Hayden, Judge

          Before Division Three: Gary D. Witt, Presiding Judge, Lisa White Hardwick, Judge and Edward R. Ardini, Jr., Judge

          OPINION

          Gary D. Witt, Judge

         Appellant David Stichler ("Stichler") appeals the judgment of the Circuit Court of Miller County granting Chaz Jesiolowski's ("Jesiolowski") and Fang-Piau Kao's ("Kao") Motion to Dismiss for Failure to State a Claim as to Stichler's Second Amended Petition for wrongful death. Stichler raises fourteen points on appeal. We affirm.

         Background

         This wrongful death case stems from a motor vehicle accident which occurred on July 7, 2015. At the time of the accident, Mickey Stichler ("Mickey")[1] was a passenger in a vehicle operated by Jesiolowski. Mickey was also pregnant. Stichler alleges that Jesiolowski violated a stop sign at the intersection of Cave Drive and U.S. Highway 54, pulling onto the highway without stopping. Jesiolowski's vehicle was then struck by a vehicle operated by Kao who was allegedly speeding. As a result of the accident, both Mickey and her unborn child ("Child") were killed.

         Stichler is Mickey's father. Acting as her heir-at-law, he brought claims for her wrongful death against Jesiolowski and Kao. These claims were settled and the settlement approved by the court.

         At issue in this case, is Stichler's Amended Petition, filed March 15, 2016 ("Amended Petition") seeking to recover from Jesiolowski and Kao for the wrongful death of Child. Stichler separately sought to be appointed plaintiff ad litem for Child alleging that Child's natural father was unknown. On April 20, 2016, Jesiolowski filed a cross-petition against Kao for the wrongful death of Child ("Cross-Petition"), alleging that he was the natural father of Child. On April 21, 2016, Jesiolowski then moved for the court to dismiss Stichler's Amended Petition for lack of jurisdiction and failure to state a claim upon which relief could be granted. As the natural father, Jesiolowski argued that he had the sole right to bring a wrongful death claim on behalf of Child. Kao separately opposed Stichler's request to be appointed plaintiff ad litem and moved for the Amended Petition to be dismissed.

         On June 14, 2016, the court held a hearing on Stichler's motion to be appointed plaintiff ad litem and Jesiolowski and Kao's motions to dismiss the Amended Petition based on the allegation that, because Jesiolowski was Child's natural father, Stichler had no standing to bring the Amended Petition. All parties agreed that the paternity determination was necessary to decide the proper plaintiff in the case.[2] Over Stichler's objection, the court held that it would decide the issue of Child's paternity based on affidavits.

         Jesiolowski filed an affidavit from Michelle who stated that Mickey had informed her that Jesiolowski was Child's father. Michelle did not believe that Mickey had any other sexual partners who could have been the father of Child. Prior to the accident Jesiolowski represented to Michelle and her family that he was the father of Child. Michelle stated that Mickey intended to name Child Stella Noel Jesiolowski. Michelle included the name Stella Noel Jesiolowski on Mickey's headstone and alleged that the headstone was approved by Stichler. The affidavit of Leah Stichler ("Leah"), Mickey's sister, stated that she was aware Mickey and Jesiolowski were trying to conceive a child. Additionally, Jesiolowski also submitted the affidavits of Joanna Engelmeyer ("Engelmeyer"), a close friend of Mickey's since childhood. Engelmeyer stated that Jesiolowski was Mickey's fiancé, they had been trying to conceive a child, and were successful. Further, Engelmeyer noted that Jesiolowski was actively involved in caring for Mickey and Child during the pregnancy. Jesiolowski also submitted the affidavit of Daphne Waters, Medical Records Custodian for the University of Missouri Health Systems, to authenticate medical records which identified Jesiolowski as the Child's father from prenatal care visits. Finally, Jesiolowski included his own affidavit also alleging that he was Child's father, had held himself out as such to Mickey's family, and was caring for Mickey and Child at the time of their death. Stichler raised various objections to these affidavits.

         Stichler's sole affidavit in support of his motion to be appointed plaintiff ad litem was his own affidavit which did not refute any of the facts presented in the other affidavits but merely stated that "the identity of the father of Mickey Stichler's unborn child is unknown."

         On October 6, 2016, the court denied Stichler's objections to the affidavits and any corresponding exhibits. The court then made a factual determination that Jesiolowski was the natural father of Child and as such was a proper party to bring a wrongful death claim on Child's behalf. The court granted Jesiolowski and Kao's motions to dismiss Stichler and the Amended Petition. The case proceeded on the Cross-Petition.

         On December 2, 2016, Jesiolowski and Kao filed a motion for approval of the settlement of the claims by Jesiolowski against Kao as a result of the death of Child. Although he had already been dismissed from the case, Stickler objected on the basis that he was the proper party to bring the claims on behalf of Child. He also objected to the settlement as violating an agreement between Jesiolowski and Stichler regarding apportionment of settlement proceeds. The court ruled Stichler was not a party to the case and denied Stichler's ...


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