from the Circuit Court of St. Louis County Hon. Michael T.
Van Amburg, Judge.
McMillan appeals the judgment of the trial court dismissing
her tort action as untimely. We reverse and remand.
lawsuit involves an action filed by Appellant Portia McMillan
for injuries she allegedly sustained on October 23, 2013 in
Louisiana. McMillan's first action was filed in Missouri
on June 13, 2014, within the Louisiana one-year statute of
limitations. On November 16, 2015,
McMillan voluntarily dismissed her first lawsuit without
prejudice in accordance with R.S.MO. § 516.230, commonly
referred to as the Missouri saving statute, which allows a
plaintiff to re-file her lawsuit within one year after
voluntary dismissal. On December 14, 2015, McMillan re-filed
her lawsuit. This re-filed lawsuit is the subject of this
Travel Centers, LLC (Pilot) filed a motion to dismiss arguing
that McMillan's re-filed lawsuit was time-barred under
the Louisiana statute of limitations and relevant tolling
provisions. Pilot argued that Louisiana law required a
plaintiff who voluntarily dismissed her lawsuit without
prejudice to re-file her action within the Louisiana one-year
statute of limitations. McMillan failed to do so, which Pilot
argued barred her re-filed action under Louisiana law. The
trial court agreed and granted the motion to dismiss. We
reverse the trial court's judgment for the reasons set
forth below and remand the matter for further proceedings.
review of a trial court's grant of a motion to dismiss is
de novo. Summer Chase Second Addition Subdivision
Homeowners Ass'n v. Taylor-Morley, 146 S.W.3d 411,
415 (Mo. App. E.D. 2004). In reviewing the trial court's
dismissal of a petition, we view the facts in the light most
favorable to the plaintiff, treating the facts alleged as
true, to determine whether the facts pleaded and the
inferences reasonably drawn therefrom state any ground for
relief. K.G. v. R.T.R., 918 S.W.2d 795, 797 (Mo.
banc 1996). If it appears from the petition that the cause of
action is barred by the statute of limitations, a motion to
dismiss on that ground is properly sustained. Klemme v.
Best, 941 S.W.2d 493, 497 (Mo. banc 1997). The
determination of whether a statute of limitations applies to
bar a cause of action is a question of law. Harris-Laboy
v. Blessing Hosp., Inc., 972 S.W.2d 522, 524 (Mo. App.
argues that the trial court erred when it granted Pilot's
motion to dismiss because the plain language of
Missouri's saving statute allowed her to voluntarily
dismiss her first lawsuit without prejudice and re-file it
within one year. McMillan relies on the precedent established
by Christner v. Chicago, R. I. & P. Ry. Co., 64
S.W.2d 752 (Mo. 1933), Turner v. Missouri-Kansas-
Texas R. Co., 142 S.W.2d 455 (Mo. 1940), and
Toomes v. Continental Oil Co., 402 S.W.2d 321 (Mo.
1966). McMillan argues these cases establish that when a
foreign jurisdiction's statute of limitations is borrowed
under the Missouri borrowing statute, the Missouri saving
responds that under the Missouri borrowing statute and
precedent established by Thompson v. Crawford, 833
S.W.2d 868 (Mo. 1992), a Missouri court must use
Louisiana's statute of limitations and tolling
provisions. Louisiana law does not provide plaintiffs with a
grace period for re-filing a lawsuit or, in other words,
Louisiana does not have a saving statute akin to that found
in Missouri. Rather, when a plaintiff voluntarily dismisses
her lawsuit, she must re-file her action within the original
statute of limitations period or her action will be barred.
See La. Civ. Code art. 3463. Therefore, Pilot argues
the re-filed lawsuit was barred under Louisiana law and the
Missouri saving statute did not apply to allow McMillan's
re-filed lawsuit to proceed. We disagree with Pilot.
legislative mandate of the Missouri borrowing statute is
clear: "Whenever a cause of action has been fully barred
by the laws of the state, territory or country in which it
originated, said bar shall be a complete defense to any
action thereon, brought in any of the courts of this
state." R.S.Mo. § 516.190 (emphasis added). The
Missouri saving statute is equally clear and provides:
"If any action shall have been commenced within
the times respectively prescribed in sections 516.010 to
516.370, and the plaintiff therein suffer[s] a nonsuit
… such plaintiff may commence a new action from time
to time, within one year after such nonsuit suffered
..." R.S.Mo. § 516.230 (emphasis added). It is
undisputed that the Louisiana one-year statute of limitations
applies to McMillan's action. However, the parties
dispute whether the plain language of the Missouri saving
statute applies to "save" McMillan's re-filed
cause of action, which was filed after McMillan voluntarily
dismissed her first lawsuit without prejudice. McMillan
argues the Missouri saving statute applies to her first
lawsuit, which was timely filed, thereby allowing McMillan to
voluntarily dismiss and re-file her lawsuit within one year.
primary task in interpreting a statute is to determine the
intent of the legislature and to give effect to that intent.
Fowler v. Dir. of Revenue, 823 S.W.2d 134, 135 (Mo.
App. 1992). In determining this intent, words and phrases are
to be given their plain and ordinary meaning. Martinez v.
State, 24 S.W.3d 10, 16 (Mo. App. 2000). "It is not
our place to construe the clear and unambiguous language of a
statute." State v. Wilson, 55 S.W.3d 851, 856
(Mo. App. W.D. 2001). To determine if the language is clear
and unambiguous, we look to whether the terms would be plain
and clear to one of ordinary intelligence. Id. When
the statute's language is unambiguous, a court must give
effect to the legislature's chosen language. State ex
rel. Young v. Wood, 254 S.W.3d 871, 873 (Mo. 2008).
There is no need to resort to rules of construction if the
language is plain and unambiguous. Martinez, 24
S.W.3d at 16.
plain language of the Missouri saving statute unequivocally
provides a one-year grace period to re-file a cause of action
if that action is "commenced" within the times
prescribed in sections 516.010 to 516.370. W. v. Dir. of
Revenue, 996 S.W.2d 775, 777 (Mo. App. E.D. 1999). The
Missouri borrowing statute, Section 516.190, is clearly
included and referenced in the Missouri saving statute. Pilot
argues McMillan's re-filed lawsuit was out of time, and
therefore, it was barred under the plain language of the
borrowing statute, which imposes a complete bar to actions
barred in other states. However, Pilot ignores the fact that
McMillan's first lawsuit was timely filed and
was not barred by Louisiana law. In order for Section 516.230
to be invoked, the first action must be timely, that is, the
action "shall have been commenced within the times
respectively prescribed in sections 516.010 to 516.370."
R.S.Mo. § 516.230; Muzingo v. Vaught, 887
S.W.2d 693, 697 (Mo. App. S.D. 1994). If an action is timely
filed in Missouri under the borrowing statute, the saving
statute will apply, with one exception not ...