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Date: 04-05-2019

Case Style:

Bryan Keith Martin and Mary Elizabeth Martin vs. Carolyn Summers, et al

Case Number: WD82024

Judge: Gary D. Witt


Plaintiff's Attorney: Daniel R. Dunham

Defendant's Attorney: C. Zachary Vaughn


The relevant and somewhat tortured legal history of this case began in 1999. In
September 1999, the Cole County Circuit Court appointed Mary Martin to be the legal
guardian of DeBrodie, who was then thirteen years old and considered a special needs
child. In the guardianship judgment, that court found that DeBrodie's biological mother,
Summers, was "severely intellectually, psychologically, socially, and occupationally
impaired" and that both she and DeBrodie's biological father2 were unable or unfit to
assume the duties of guardianship. The court found that grounds existed to terminate the
parental rights of DeBrodie's mother as to DeBrodie and his younger sister, but found that
termination would not be in the children's best interest. Mary Martin continued to serve as
DeBrodie's legal guardian until 2004 when he turned eighteen and he lived with the
Martin's in their home. At some point after DeBrodie turned 18, the Callaway County

1 "When this Court reviews the dismissal of a petition for failure to state a claim, the facts contained in the petition are treated as true and they are construed liberally in favor of the plaintiffs." Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008). 2 DeBrodie's biological father is now deceased.

Circuit Court adjudged DeBrodie to be an incapacitated and disabled adult. DeBrodie
became a ward of the Public Administrator of Callaway County and a new legal guardian
was appointed.
In 2011, the Martins sought to legally adopt DeBrodie as an incapacitated and
disabled adult. In re DeBrodie, 400 S.W.3d 881, 883 (Mo. App. W.D. 2013) ("In re
DeBrodie I"); In re DeBrodie, 452 S.W.3d 644 (Mo. App. W.D. 2014) ("In re DeBrodie
II").3 The adoption was initially denied by the circuit court due to DeBrodie's inability to
consent to the adoption. This Court reversed and remanded that judgment finding, under
the circumstances, DeBrodie's consent was not statutorily required. In re DeBrodie I, 400
S.W.3d at 889. On remand, the circuit court heard additional evidence and, thereafter,
denied the Martins' petition for adoption on the grounds that they failed to establish by
clear and convincing evidence the fitness or propriety of the adoption, or that the welfare
of DeBrodie demanded that the adoption be granted. This Court affirmed the judgment, in
part based on a consideration of the familial ties between DeBrodie and his mother that
would be severed by such an adoption. In re DeBrodie II, 452 S.W.3d at 648-51.
DeBrodie's father was deceased but DeBrodie received a monthly monetary death benefit
through his father, although it was unclear how much it was or where the benefit derived.
Id. at 653. DeBrodie maintained a close relationship with his mother who:
visited him at least once a month, more if transportation allowed, and engaged in weekly telephone conversations with [DeBrodie]. [DeBrodie] references his mother as "Momma." [DeBrodie] and his mother share an undisputed affectionate bond. [DeBrodie] exhibits excitement when his

3 Portions of the facts are quoted from the opinion in In re DeBrodie I and In re DeBrodie II, without further attribution.

mother is scheduled to call or visit and asks for his hair to be done or to put on special clothing. He cries when she is unable to visit.

In re DeBrodie II, 452 S.W.3d at 648. This Court found that "mentally incapacitated adults
have a significant liberty interest in protecting their intact familial ties from interference
by a third party." Id. Further, although there was certainly some evidence that DeBrodie
would benefit from being adopted by the Martins, the circuit court's finding to the contrary
was not against the weight of the evidence. Id. at 656.
In 2017, DeBrodie was a resident of Second Chance Homes. Second Chance Homes
reported DeBrodie missing on April 17, 2017. On April 24, 2017, DeBrodie's body was
found encased in concrete inside a locked storage unit in Fulton.
The Martins filed their Petition on April 9, 2018. The Petition named as defendants
Summers and Samson as well as Second Chance Homes, and the unknown parties
responsible for DeBrodie's death. The Petition sought a declaration that the Martins were
entitled to sue for wrongful death pursuant to section 537.0804 as the equitable adoptive
parents of DeBrodie. The Petition also sought declarations that the Martins were entitled
to recover from all defendants--other than Summers and Sampson--compensatory and
aggravated damages in the amount of twenty-one million dollars for the negligent death of
DeBrodie and twenty-one million dollars for the intentional torts which caused the
wrongful death of DeBrodie.
On May 21, 2018, Summers and Samson filed a joint Motion to Dismiss ("Motion
to Dismiss") alleging the Martins lacked the legal capacity to sue, citing to Rule

4 All statutory citations are to RSMo 2016 as currently supplemented unless otherwise noted.

55.27(a)(3).5 Second Chance Homes filed a separate Motion to Dismiss or in the
Alternative Motion for Judgment on the Pleadings on June 22, 2018. The circuit court held
a hearing on both motions and entered judgment dismissing the Petition on July 17, 20186
("Judgment"). The Court dismissed the Petition for four stated reasons: (1) the Martins
lacked standing to bring a wrongful death claim pursuant to section 537.080 because they
were not the natural or adoptive parents of DeBrodie; (2) the Martins' claims are barred by
res judicata, in that their attempt at equitable adoption has already been adjudicated and
rejected in other proceedings (referencing the Martins' previous adoption proceedings); (3)
Missouri does not recognize a right for "equitable parents" to recover on behalf of a
deceased child; and (4) only one action may be brought under section 537.080 for the death
of DeBrodie and there is an existing previously filed lawsuit that bars the current action.
The Judgment dismissed all claims and all defendants.7 This appeal followed.8
Motion to Dismiss
After the conclusion of the briefing in this matter, the Martins filed a Motion to
Dismiss this appeal as to Second Chance Homes. The Martins alleged in that motion that
on December 5, 2018, a judgment was entered under seal in a wrongful death case
regarding the death of DeBrodie brought by the Defendants in the United States District
Court for the Western District of Missouri ("Federal Judgment"). According to the

5 All rule references are to Missouri Supreme Court Rules (2018). 6 The Judgment was originally entered on July 2, 2018, as a docket entry followed by typed initials. The Judgment was reissued on July 17, 2018, as a separate document denominated a judgment and signed by the judge. 7 The Petition made various allegations against other unknown parties who may have been responsible for DeBrodie's death. These additional defendants were dismissed by Martins without prejudice on July 12, 2018, after the Judgment was entered. 8 The Defendants have not filed a Brief in this proceeding.

Martins, the Federal Judgment releases Second Chance Homes from all further liability for
the death of DeBrodie and as such, renders this appeal moot as to Second Chance Homes.
Second Chance Homes filed Suggestions in Opposition which did not dispute that the
Federal Judgment renders this appeal moot as to Second Chance Homes but contends that
the appeal is now moot in its entirety. The Defendants filed no response to that motion.
The Martins argue that the appeal, as to the Defendants, still presents a live controversy
because it seeks a declaration that the Martins are equitable parents of DeBrodie who have
standing to bring a wrongful death claim against other tortfeasors in later actions.
A copy of the Federal Judgment was not filed with this Court. We have no ability
to determine what affect the Federal Judgment might have on the rights and liabilities of
the Defendants. It does not appear based solely on the Motion to Dismiss and Suggestions
in Opposition that the question of whether the Martins may bring a claim for wrongful
death based on their position as alleged equitable parents of DeBrodie was addressed by
the federal court. Because the Martins and Second Chance Homes are in mutual agreement
that the appeal is moot as to Second Chance Homes we may dismiss that portion of this
appeal without the benefit of knowing the terms of the Federal Judgment. The Martins,
however, still allege that there exists a live controversy as to their claims against the
Defendants and we cannot determine otherwise without reviewing the Federal Judgment.
The Martins' Motion to Dismiss Second Chance Homes is granted and Second
Chance Homes is dismissed from this appeal. We proceed with the appeal only as to the


Standard of Review
"The standard of review for a trial court's grant of a motion to dismiss is de novo."
Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008). "When this Court reviews the
dismissal of a petition for failure to state a claim, the facts contained in the petition are
treated as true and they are construed liberally in favor of the plaintiffs." Id.
The Martins raise seven points of error on appeal. As we find their fourth point on
appeal dispositive we begin there. The Martins allege that the circuit court erred in granting
Defendant's Motion to Dismiss for lack of standing to sue for the wrongful death of
DeBrodie because the Legislature intended equitable parents to have standing as first class
beneficiaries under section 537.080.
The Martins' Petition sought a declaration from the circuit court recognizing "their
rights and interests as persons entitled to sue for wrongful death of Carl Lee DeBrodie
under Missouri statutes and law, specifically including [the Martins'] standing and status
as persons, parents of Carl Lee DeBrodie, entitled to sue for the death of Carl Lee DeBrodie
under [537.080] RSMo. . . ." The Martins did not seek a declaration of equitable adoption
beyond the scope of granting them standing to bring a wrongful death action. They are
further not requesting that Summers' parental rights be terminated or a declaration that
Summers is not a proper party to bring a wrongful death action on DeBrodie's behalf. In
fact, the Martins only seek to share in any wrongful death recovery with Summers as
additional First Class plaintiffs under section 537.080 in any wrongful death action.
Because of the dismissal of the other defendants, this request for declaration of equitable

adoption remains as the only live controversy in the Petition. Thus, if such a declaration
of equitable adoption is made and the Martins still lack standing to bring a claim under
section 537.080 then the circuit court did not err in finding that their Petition failed to state
a claim upon which relief could be granted. This Court then need not answer the question
of whether the Martins should be declared as equitable adoptive parents of DeBrodie, or
even if such a declaration could be made given this Court's prior holdings in In re DeBrodie
I and In re DeBrodie II. We must therefore first address the question of whether equitably
adopted parents have standing as first class litigants under Section 537.080.1(1) to bring a
cause of action for wrongful death.
"Standing is a question of law that we review de novo." Borges v. Mo. Pub. Entity
Risk Mgmt. Fund, 358 S.W.3d 177, 180 (Mo. App. W.D. 2012). "We consider the petition
along with any other non-contested facts to determine whether the petition should be
dismissed due to Petitioners' lack of standing." Id. Courts have a duty to determine if a
party has standing prior to addressing the substantive issues of the case. Farmer v. Kinder,
89 S.W.3d 447, 451 (Mo. banc 2002). "A party seeking relief has the burden to establish
that it has standing to maintain its claim." Brannum v. City of Poplar Bluff, 439 S.W.3d
825, 829 (Mo. App. S.D. 2014) (citing Borges, 358 S.W.3d at 181).
Section 537.080.1 governs who has standing to bring a claim for wrongful death.
The Missouri legislature created three classes of parties who may bring suit for wrongful
death. Section 537.080.1. As relevant to this case, parents of a decedent are included in
the first class. Section 537.080.1(1). The first class includes "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." Section
537.080.1(1). If there is no person listed in the first class then the statute directs that one
looks to the second class. Section 537.080.1(2). Siblings and descendants of siblings are
in the second class. Section 537.080.1(2). Then, only if there are no persons provided for
in class one or two, the court is allowed to appoint a plaintiff ad litem to bring the claim
under the third class. Section 537.080.1(3).
The Martins allege that they are the "equitable" adoptive parents of DeBrodie and
seek a declaration that "equitable" adoptive parents are first-class litigants under section
537.080.1(1) the same as legally adoptive parents. In support of this contention they first
argue that the terms "natural" and "adoptive" in section 537.080 are ambiguous and leave
open the question of whether equitably adoptive parents may have standing to bring an
action and to recover damages as first class beneficiaries. For further support the Martins
cite to Taylor v. General Motors Corp., 715 S.W.2d 925 (Mo. banc 1986). In Taylor, an
aunt9 brought an action for wrongful death of her niece, whom she alleged she had
"equitably adopted." Id. at 926. A motion to dismiss was brought and the circuit court
ruled that a separate trial on the issue of whether there had been an equitable adoption was
necessary. Id. The circuit court ruled that there was insufficient evidence to support a
declaration of equitable adoption. Id. The Supreme Court affirmed the holding of the
circuit court on the question of the equitable adoption and found that, under the
circumstances, "[t]he question whether the doctrine of equitable adoption should be applied

9 The Court in Taylor used the terms "aunt" and "niece" to refer to the plaintiff and her deceased relatives although the findings of fact were that the deceased was the daughter of the plaintiff's cousin. Id. at 926. For clarity of discussion we adopt the same terms as the Court.

to allow an 'adoptive parent' to bring an action for the wrongful death of an 'equitably
adopted child' is not ripe for determination in the absence of an appropriate and definitive
decree of equitable adoption." Id. at 927.
The Court in Taylor did not hold that the aunt could recover as the equitable
adoptive parent of her niece but merely that the issue was not ripe for determination. The
issue was, however, squarely decided by this Court six years later in Halterman v.
Halterman, 867 S.W.2d 559 (Mo. App. W.D. 1993). In Halterman, a father filed a
wrongful death action for the death of his daughter. Id. at 559. Father's former wife, who
was not the child's biological mother, filed a motion to intervene on the ground that she
was the adopted mother of daughter by equitable adoption. Id. The Court held that the
doctrine of equitable adoption "is solely for the benefit of a child" and as such not available
for an alleged equitable parent seeking to recover damages for the death of a child. Id. at
560. As explained by this Court in Halterman, "equitable adoption was developed because
the court was not willing to allow the failure of a party to properly execute and record a
deed to work an irreparable harm on the child." Id. The Court found that doctrine of
equitable adoption was "developed solely to benefit the child." Id. (citing Drake v. Drake,
43 S.W.2d 556 (Mo. banc 1931). This original intent was supported by Rumans v.
Lighthizer, 249 S.W.2d 397 (Mo. 1952) in which the Missouri Supreme Court held that
equitable adoption could not be used to establish heirship for the purposes of an alleged
"adopted" parent inheriting from a child who was alleged to have been equitably adopted.
Id.; See also Sarazin v. Union R. Co., 55 S.W. 92 (Mo. 1900) (declining to consider
equitable adoption in a wrongful death case brought by "adoptive" parents after the

adoption agreement was found to be deficient and the adoption void, noting that such
doctrine was for the benefit of the child).
The Martins seek to challenge the validity of Halterman finding fault that the
opinion failed to cite to O'Grady v. Brown, 654 S.W.2d 904 (Mo. banc 1983). O'Grady
construed the wrongful death statute broadly to find that the term "person" as used in
section 537.080 included a viable human fetus. Id. at 910. The Court found that a narrow
reading of the statute would be contrary to its purpose to allow recovery not previously
available under the common-law. Id. at 909. While certainly O'Grady makes a case for a
broad interpretation, O'Grady itself notes that a contrary finding would result in a tortfeasor
who causes a prenatal death being treated more favorably than one who merely causes a
prenatal injury. Id. at 909-10. While certainly the discussion of O'Grady may speak to the
issues in Halterman and deal with the same underlying statute, the considerations of this
Court in Halterman were not so similar to that in O'Grady that we can find fault with this
Court for failing to cite to the prior decision in its analysis or to find it controlling of the
issues presented in that later case.
Neither does this Court's failure cite to Holt v. Burlington N. R.R. Co., 685 S.W.2d
851 (Mo. App. W.D. 1984) call into question Halterman's validity. Holt held that a child,
declared equitably adopted by his aunt six months after aunt's death, could bring an action
against the railroad whose train struck and killed his aunt. Id. Halterman does not conflict
with the holding in Holt because the equitable adoption and subsequent wrongful death suit
was brought for the benefit of the equitably adopted child. See accord, Coon v. Am.
Compress Steel, Inc., 207 S.W.3d 629 (Mo. App. W.D. 2007) (affirming the validity of the

equitable adoption of a child after adoptive mother's death in a car accident and affirming
child as a proper plaintiff to prosecute a wrongful death claim on adoptive mother's behalf).
The Martins cite to no Missouri case law, nor can we find any, in which postmortem
equitable adoption of a child has been permitted to allow an equitable parent to recover
damages for the child's death. The Martins ask that we overrule Halterman or, in the
alternative, distinguish the holding of Halterman from the present case. The Martins argue
that public policy dictates that we should liberally construe section 537.080 in favor of a
greater number of grieving persons being granted standing. In seeking such an outcome,
the Martins analogize the present case to cases of child custody disputes in which Missouri
courts have found that a recognition of non-familial relationships may be in the best
interests of a child. See Bowers v. Bowers, 543 S.W.3d 608 (Mo. banc 2018); Cotton v.
Wise, 977 S.W.2d 263 (Mo. banc 1998). These cases are inapposite. As with Coon and
Holt, these cases recognize non-familial relationships for the benefit of a child. We find
no basis for extending the holdings of these cases to create a legal benefit for the alleged
parent to proceed with a cause of action for damages. As noted by this Court in Halterman,
courts will not punish a child for an adult's failure to timely and properly formalize an
adoption. The same justification does not operate in reverse to benefit an adult who
controls whether or not a legal relationship with a child is formalized.10 The reasoning in
Halterman was and remains sound. The doctrine of equitable adoption is for the benefit
of a child not so that the "adoptive" parent may recover damages for the wrongful death of

10 We recognize that the Martins did seek to legally adopt DeBrodie before his death. However, a final judgment affirmed by this Court denied that adoption. That decision does not act as support for later recognizing an equitable adoption contrary to a final judgment denying an actual adoption.

a child.11 To the extent that the Martins are correct that the language of section 537.080
might allow for the doctrine of equitable adoption, the courts have made clear that the
statute only allows for recovery of damages by an equitably adopted child and not by
equitably adopted parents.
We recognize that the Martins shared a close familial like relationship with
DeBrodie and viewed their role as his de facto parents. They took him into their home and
raised him through most of his formative years and clearly cared deeply for him. We also
do not doubt that the Martins sincerely grieve the loss of DeBrodie. Missouri's wrongful
death statute does not, however, encompass all parties who grieve the loss of an individual.
The statute only confers on certain parties the authority to bring and recover damages from
a wrongful death suit and sound precedent holds that equitable adoptive parents are not
parties given the authority to sue for damages under section 537.080.1(1). Halterman, 867
S.W.2d at 560. As such, the circuit court did not err in granting the Defendant's Motion to

11 Additionally, the Martins contend that section 537.080 should be construed to allow for equitable adoption so that the person who raised the child may bring suit if the child's parents are dead. Section 537.080 already allows for such a situation where, should a person not have a representative in the first or second class, a court may appoint a third party to bring an action on behalf of the deceased. 12 The Martins mention briefly within the argument for their fourth point on appeal that the Petition argued that interpreting section 537.080 as not allowing "equitably adopted" parents to be considered first-class beneficiaries would be "unconstitutional in violation of their rights to due process, equal rights, open courts, and right and just remedies administered without denial pursuant to Article I, Sections 2, 10, and 14 of the Missouri Constitution and the 14th Amendment to the U.S. Constitution." The constitutionality of section 537.080 was not raised in the trial court or in the point relied on and thus is not properly before this Court. Eltiste v. Ford Motor Co., 167 S.W.3d 742, 750 (Mo. App. E.D. 2005). Even were we to gratuitously review such an argument, the Martins fail to provide this Court with any substantive legal analysis and merely make the conclusory statement that the present interpretation of section 537.080 is unconstitutional. "If a party does not support contentions with relevant authority or argument beyond conclusory statements, the point is deemed abandoned." Kuenz v. Walker, 244 S.W.3d 191, 194 (Mo. App. E.D. 2007) (citing Houston v. Weisman, 197 S.W.3d 204, 206 (Mo. App. E.D. 2006)).

The circuit court did not err in finding that, even if declared to be equitable adoptive
parents of DeBrodie, the Martins had no right to bring a wrongful death claim under section
537.080. Equitable adoption was the sole theory by which the Martins sought to bring an
action under section 537.080. As such, the circuit court's finding that such a theory was
invalid was dispositive of the entirety of the Petition.13

Outcome: The circuit court did not err in finding that, even were the Martins to be deemed the
equitable adoptive parents of DeBrodie, they would not have had standing to bring a
wrongful death action under section 537.080. As such, the circuit court did not err in
dismissing the Petition for failure to state a claim upon which relief could be granted as to
the Defendants. We grant the Martins' motion to dismiss Second Chance Homes from this
appeal and affirm the Judgment of the circuit court as to the Defendants.

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