In re S.M.

387 So.3d 1084

EX PARTE S.M. and H.M.

(In re: T.H.

v.S.M. and H.M.)

SC-2022-0956

Supreme Court of Alabama.

July 14, 2023

Petition for Writ of Mandamus (Etowah Juvenile Court: CS-22-900004); Willis H. Clay, J.

Stewart E. Burns of Burns Garner Law Firm, Gadsden, for petitioners.

Thomas A. King, Gadsden, for respondent.

PER CURIAM.

PETITION DENIED. NO OPINION.

Parker, C.J., and Shaw, Wise, Mendheim, Stewart, and Mitchell, JJ., concur.

Bryan, J., dissents.

Cook, J., dissents, with opinion, which Sellers, J., joins.

COOK, Justice (dissenting).

This is a paternity action. T.H. ("the mother") filed this action in the Etowah Juvenile Court against C.M. ("the alleged father"). C.M. is deceased; therefore, the mother named C.M.’s parents, S.M. and H.M., as his representatives. S.M. and H.M. filed a motion to dismiss, which the juvenile court denied, and the juvenile court then ordered them to submit to genetic testing. S.M. and H.M. ("the petitioners") responded by filing this petition for a writ of mandamus. The petitioners ask this Court to direct the juvenile court to enter an order either dismissing the mother’s paternity action in its entirety or, alternatively, dismissing them from the mother’s action because, they say, the juvenile court lacked subject-matter jurisdiction over the action. For the reasons stated below, I respectfully dissent from denying the petition.

According to the mother, she and the alleged father were involved in a brief sexual relationship that she claims resulted in her becoming pregnant and later giving birth to M.D.R. ("the child"). In 2015, the alleged father died without ever being informed of the mother’s pregnancy and without the paternity of the child ever being established through genetic testing. Nearly six years after the alleged father died, the mother commenced the paternity action against "[the alleged father], deceased[,] by and through his parents, [the petitioners]," in which she sought to establish that the alleged father was the child’s biological father by compelling the petitioners to submit to genetic testing.

The petitioners appeared in the mother’s action for the limited purpose of filing a motion to dismiss on the basis that the juvenile court lacked subject-matter jurisdiction. According to the petitioners, because the mother brought the paternity action against a dead person, the action was a legal nullity and, therefore, was due to be dismissed. A referee appointed by the juvenile court denied the petitioners’ motion, noting that, under § 43-8-48, Ala. Code 1975, "paternity can be established after the death of the alleged father." The petitioners filed an objection to the referee’s findings and renewed their motion to dismiss. Following a hearing, on August 15, 2022, the juvenile court denied their motion and ordered the petitioners to submit to genetic testing.

The petitioners then filed a petition for the writ of mandamus in the Court of Civil Appeals in which they apparently challenged the juvenile court’s subject-matter jurisdiction over the mother’s paternity action against the alleged father.¹ The petitioners allege that the Court of Civil Appeals denied that petition.² The petitioners then filed the present mandamus petition with this Court; we subsequently ordered answers and briefs.

The petitioners contend that they have a clear legal right to the dismissal of the mother’s paternity action because, they say, under Alabama law a claim filed against a deceased person is a legal nullity and does not invoke the jurisdiction of the trial court.³ Relying on the Court of Civil Appeals’ decision in A.E. v. M.C., 100 So. 3d 587 (Ala. Civ. App. 2012), the petitioners further argue that, because the jurisdiction of the juvenile court was never invoked, all orders issued in the action --including the order denying their motion to dismiss -- are void.

The mother argues, however, that Alabama law permits the establishment of paternity after the presumed father has died. Specifically, she contends that the Alabama Uniform Parentage Act ("the AUPA"), § 26-17-101 et seq., Ala. Code 1975, allows a court to order the genetic testing of a deceased person for good cause shown. See § 26-17-509, Ala. Code 1975.⁴ Therefore, the mother contends, she is entitled to proceed with her paternity action.

The petitioners point out that the Court of Civil Appeals has held as follows:

"A deceased person lacks the capacity to be sued in an action such as the one initiated by the father, and, therefore, we conclude that the father, in asserting his custody claim [against the deceased mother], failed to invoke the subject-matter jurisdiction of the trial court. See 67A C.J.S. Parties § 54 (2002) (‘The capacity to be sued exists only in persons in being and so, does not exist in the case of persons deceased, and a suit filed against a dead person does not invoke the jurisdiction of the court.’ (footnotes omitted))."

A.E., 100 So. 3d at 594-95. See also Maclin v. Congo, 106 So. 3d 405, 408 (Ala. Civ. App. 2012) ("Proceedings instituted against an individual who is deceased at the time the action is filed are a nullity and do not invoke the trial court’s jurisdiction."). This Court has held that ‘[t]he absence of subject-matter jurisdiction renders void any judgment entered in the action." Moore v. John Hancock Life Ins. Co., 876 So. 2d 443, 448 (Ala. 2003).

The petitioners do not argue that an action seeking to establish the alleged father’s paternity of the child can never be brought; instead, they contend that any such action must be brought in a legally viable manner under Alabama law. Citing Ex parte L.F.B., 599 So. 2d 1179, 1182 (Ala. 1992), the petitioners state that this Court has held that a claim seeking to establish paternity is an equitable claim and that, under § 6-5-464, Ala. Code 1975,⁵ equitable claims may be asserted against the personal representative, heir, or successor of a decedent if such claims could have been enforced against the decedent before his or her death.

Thus, the petitioners contend that an estate for the alleged father must be opened in a probate court and that a paternity claim must be asserted against the personal representative of the estate. In other words, the petitioners contend both that subject-matter jurisdiction is lacking and that the personal representative of the alleged father’s estate is a necessary party. This argument is consistent with § 43-2-833(c), Ala. Code 1975, which provides, in relevant part: "[A] personal representative of a decedent domiciled in this state at death has the same standing to sue and be sued in the courts of this state and the courts of any other jurisdiction as the decedent had immediately prior to death." See also Ex parte Advanced Disposal Servs. South, LLC, 280 So. 3d 356 (Ala. 2018) (granting a petition for a writ of mandamus and requiring a trial court to join a city as a necessary party to the action).

The mother has not named the alleged father’s estate or the personal representative of the estate as a defendant in this action. In fact, she states: "This is not a case involving an estate." The mother’s brief at 13. Further, none of the exhibits attached to the mandamus petition indicate that an estate has been opened for the alleged father or whether, if one has been opened, a personal representative has been appointed (and the mother does not allege either in her "petition for paternity" or in her appellate briefing that an estate exists). Not only did the mother not plead that she was suing the petitioners as representatives of the alleged father’s estate (that is, as administrators or executors), she pled the opposite (suing them in a different representative capacity).⁶

The mother does not cite a single case holding that a dead person can be sued through a representative -- other than a properly appointed administrator or executor after an estate has been opened. " ‘The plaintiff has the burden of proving that the trial court has personal jurisdiction over the defendant.’ " Ex parte Excelsior Fin., Inc., 42 So. 3d 96, 103 (Ala. 2010) (quoting J.C. Duke & Assocs. Gen. Contractors, Inc. v. West, 991 So. 2d 194, 196 (Ala. 2008), citing in turn Ex parte Covington Pike Dodge, Inc., 904 So. 2d 226 (Ala. 2004)).

Further, the mother may not force the petitioners to be the representatives of their deceased adult child. Again, the mother does not cite a single case supporting the imposition of involuntary representative status (particularly for a dead person).⁷ A court simply has no subject-matter jurisdiction when a dead person is sued for relief -- even if the plaintiff purports to involuntarily name a "representative" on behalf of the dead person.

The mother, however, relies on § 43-8-48(2)b. to argue that the Legislature intended to extend the right to establish paternity after the death of a putative father.⁸ She also relies on § 26-17-508(a), Ala Code 1975, a part of the AUPA, which provides, in relevant part:

"[I]f a genetic-testing specimen is not available from an individual who may be the mother or the father of a child, for good cause and under circumstances the court considers to be just, the court may order the following individuals to submit specimens for genetic testing:

"(1) the parents of the individual …."

The mother contends that this Court and the Court of Civil Appeals have previously allowed cases to proceed in which a party sought to establish a deceased putative father’s paternity of a child. For example, she notes that, in Cotton v. Terry, 495 So. 2d 1077, 1079 (Ala. 1986), this Court concluded it was clear from the plain language of § 43-8-48(2)b. "that paternity of an illegitimate child may be established after the death of the father through an adjudication supported by clear and convincing evidence." She also relies on Wheeler v. Marvin, 350 So. 3d 302 (Ala. 2021) (plurality opinion); Clemons v. Howard, 124 So. 3d 738 (Ala. Civ. App. 2013); and Free v. Free, 507 So. 2d 930 (Ala. Civ. App. ...