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State ex rel. Isselhard v. Dolan

Court of Appeals of Missouri, Eastern District, Writ First Division

July 7, 2015

STATE OF MISSOURI, ex rel., DONALD E. ISSELHARD, D.D.S., Relator,
v.
THE HONORABLE COLLEEN DOLAN, JUDGE OF THE 21ST JUDICIAL CIRCUIT COURT, Respondent

Writ of Mandamus. Circuit Court of St. Louis County. Cause No. 15SL-CC00133.

FOR RELATOR: Daniel E. Wilke, Steven J. McMahon (Co-Counsel), St. Louis, Missouri.

FOR RESPONDENT: Rodney Holmes, St. Louis, Missouri.

OPINION

Kurt S. Odenwald, J.

Introduction

Relator, Donald E. Isselhard, D.D.S. (Isselhard), seeks a writ of mandamus directing Respondent, the Hon. Colleen Dolan (Respondent) to enter an order accepting the date of filing of the petition against him as January 15, 2015, as originally reflected in the electronic filing system, Isselhard further requests that we direct Respondent to dismiss the cause of action against him with prejudice because the petition was filed outside the statute of limitations. Because the trial court properly exercised its discretion in having the record reflect the petition was filed on January 13, 2015, we deny the petition for writ of mandamus.

Facts and Procedural History

Plaintiff Barbara J. Perry (Plaintiff) was a patient of Isselhard and allegedly was injured by his negligence. On October 29, 2013, Plaintiff filed a " Complaint for Medical Negligence" against Isselhard alleging two counts. On January 14, 2014, Plaintiff voluntarily dismissed her lawsuit. On January 13, 2015, Plaintiff submitted another petition against Isselhard entitled " Complaint for Medical Negligence" for filing through the electronic filing system. The electronic filing system confirmed that the document (numbered EF2855761) was submitted for filing on January 13, 2015. On January 15, 2015, the petition was returned to Plaintiff due to " Missing/Incorrect Party(ies) -- All parties need to be added into the e-filing system prior to submission." Plaintiff then resubmitted the same petition along with the requested party information on January 15, 2015. The petition on file contains an electronic filing stamp of January 15, 2015.[1]

Under the savings statute, Plaintiff was required to re-file her petition within one year of the date of the voluntary dismissal. Section 516.230, RSMo. 2000. Because Plaintiff dismissed her previous petition on January 14, 2014, she was required to re-file her petition by January 13, 2015. Isselhard filed a motion to dismiss the petition alleging the petition was filed beyond the permissible time allowed. Respondent denied the motion to dismiss, concluding that the petition was deemed timely filed on January 13, 2015.

Isselhard contends that Plaintiff did not re-file her petition until January 15, 2015 when the petition was accepted by the clerk's office. Isselhard posits that Respondent lacks authority to change the date of filing to January 13, 2015, the date the petition was first submitted, but not accepted. Therefore, Isselhard requests this Court to issue a writ of mandamus directing Respondent to enter an order reflecting the date of filing of the petition as January 15, 2015, and to dismiss Plaintiff's cause of action against him with prejudice as the petition was filed outside the statute of limitations. Although we deny Relator's petition, we write this opinion to provide guidance upon the recurrence of this and similar issues with electronic filing.

Standard of Review

Our power to issue remedial writs derives from Article V, Section 4.1 of the Missouri Constitution. State ex rel. Dir. of Revenue v. Kinker, 209 S.W.3d 1, 2 (Mo. App. E.D. 2006) (citing State ex rel. Dir. of Revenue v. Mobley, 49 S.W.3d 178, 179 (Mo. banc 2001)). A writ of mandamus may issue under very limited circumstances as it is " a hard and fast unreasoning writ, and is reserved for extraordinary emergencies." Norval v. Whitesell, 605 S.W.2d 789, 791 (Mo. banc 1980), The function of the writ of mandamus is to enforce, not to establish, a claim or right; the office of the writ is to execute, not to adjudicate. State ex rel. Kiely v. Schmidli, 583 S.W.2d 236, 237 (Mo. App. W.D. 1979). To warrant control by mandamus, " there must be an existing, clear, unconditional legal right in relator, and a corresponding present, imperative, unconditional duty upon the fact of respondent, and a default by respondent therein." Id.

Discussion

Rules 103.06(e) and (1) explain the legal framework when a document is submitted to the court through the electronic filing system. Rule 103.06(e) provides that " [a] document is submitted for filing when the electronic filing system receives the document and sends a confirmation receipt to the filer." Rule 103.06(f) states that " [I]f the clerk accepts a document for filing, the date and time of filing entered into the case ...


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