Court of Appeals of Missouri, Southern District, First Division
BRENDA K. CYRUS, as Personal Representative of the Estate of Maxine Cyrus, Plaintiff-Appellant,
LAKE REGIONAL HEALTH SYSTEM, LAKE REGIONAL MEDICAL MANAGEMENT, INC., and JAMES J. JUNGELS, D.O., Defendants-Respondents.
FROM THE CIRCUIT COURT OF CAMDEN COUNTY, Honorable Stan
K. Cyrus ("Plaintiff") appeals the dismissal of her
negligence claims against Lake Regional Health System, Lake
Regional Medical Management, Inc., and James J. Jungels, D.O.
(collectively, "Defendants"). Plaintiff, as
personal representative of the estate of Maxine Cyrus
("Patient"), filed her petition ("the
petition") nearly five years after Defendants'
allegedly negligent conduct, and the trial court dismissed it
based upon an application of the two-year statute of
limitations set forth in section 516.105.
Plaintiff's sole point on appeal claims that the acts
alleged in the petition are subject to a five-year statute of
limitation instead of the two-year limit under section
516.105. Finding no merit in this argument, we
of the Judgment
every appeal, this court must determine, sua sponte,
whether a final judgment exists. Ndegwa v. KSSO,
LLC, 371 S.W.3d 798, 801 (Mo. banc 2012). Here, the
trial court dismissed the petition without prejudice.
Ordinarily, such a dismissal would not constitute a final
judgment from which an appeal may be taken. Basye v.
Fayette R-III Sch. Dist. Bd. of Educ., 150 S.W.3d 111,
114 (Mo. App. W.D. 2004). However, where the dismissal
effectively dismisses the cause of action, and not merely the
petition, such that any attempt to refile would be a futile
act, then the dismissal constitutes a final, appealable
judgment. Id. Thus, our first task is to determine
"whether the dismissal is merely the dismissal of the
petition or whether it dismissed the action itself."
of Plaintiff's claims under a two-year statute of
limitation effectively bars Plaintiff's claims against
Defendants and does not merely challenge the sufficiency of
the petition to properly plead those causes of action.
Because any attempt to refile Plaintiff's negligence
claims against Defendants would be a futile act, see
id., the dismissal here constitutes a final, appealable
judgment, and we will proceed to a review of the merits of
Standard of Review
proper standard of review for a trial court's grant of a
motion to dismiss a petition is de novo."
In re Estate of Austin, 389 S.W.3d 168, 171 (Mo.
banc 2013). The determination of which statute of limitation
applies in a particular case is also a question of law that
we review de novo. D.A.N. Joint Venture, III v.
Clark, 218 S.W.3d 455, 457 (Mo. App. W.D. 2006).
"In reviewing the dismissal of a petition, reviewing
courts must allow the pleading its broadest intendment,
treating all facts alleged as true and construing the
petition's allegations favorably to the plaintiff."
H.R.B. v. J.L.G., 913 S.W.2d 92, 96 (Mo. App. E.D.
1995). When an affirmative defense is raised, such as a bar
based on the expiration of the applicable statute of
limitation, a petition cannot be dismissed unless the face of
the petition clearly establishes, without exception, that the
petition is time-barred. Sheehan v. Sheehan, 901
S.W.2d 57, 59 (Mo. banc 1995). "When, as in this case,
the circuit court does not specify reasons for dismissing a
petition, an appellate court presumes that the circuit
court's judgment is based on one of the reasons stated in
the motion to dismiss." Avery Contracting, LLC v.
Niehaus, 492 S.W.3d 159, 162 (Mo. banc 2016).
Petition and Defendants' Motion to Dismiss
filed the petition on July 24, 2015. It alleged, based upon
the same set of facts, one count of negligence against each
of the Defendants. The petition contained the following
averments. Defendants owned, maintained, and operated Lake
Regional Clinic ("the Clinic") in Camden County.
This ownership included medical equipment inside the Clinic,
including examination tables. On or about August 26, 2010,
Defendants "provided medical treatment" to Patient
at the Clinic. Patient was being treated in one of
Defendant's examination rooms when she leaned against an
examination table that "unexpectedly slid and/or rolled
away from her and caused her to lose her balance and
violently fall to the ground." Patient sustained a
fractured left hip, left hip pain, left hip swelling, left
hip rotation, and severe pain and trauma. Patient was injured
due to Defendants' negligent failure to lock the wheels
on the examination table or warn Patient that the examination
table was not secured. Defendants "knew or should have
known that patients commonly lean on, support themselves, or
[lie] on examination tables and that an examination table
with unlocked wheels would likely move and pose a substantial
risk of injury to patients[.]"
motion to dismiss the petition argued that Plaintiff's
claims were time-barred by the two-year statute of limitation
set forth in section 516.105. Defendants calculated that the
two-year statute ran on or about August 26, 2012, and the
petition was not filed until July 24, 2015. After the trial
court sustained Defendants' motion, this appeal timely
claims the trial court erred in granting Defendants'
motion to dismiss because the petition "created a valid
cause of action for negligence which was not related to
health care and therefore should not be time barred[.]"
We disagree. ...