Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Estate of Mickels

Supreme Court of Missouri, En Banc

January 16, 2018

IN THE ESTATE OF: JOSEPH B. MICKELS

         APPEAL FROM THE CIRCUIT COURT OF MARION COUNTY The Honorable John J. Jackson, Judge.

          PER CURIAM.

         Ruth Mickels applied to be appointed as personal representative of the estate of her late husband, Joseph Mickels, Sr., in light of this Court's decision in Mickels v. Danrad, 486 S.W.3d 327 (Mo. banc 2016) ("Mickles I"). The probate division denied her application as untimely under section 473.020, [1] which requires all applications be filed within one year of the decedent's death. Ms. Mickels seeks relief in this Court, arguing Mickels I announced a new cause of action previously unavailable in Missouri. She contends this Court should use its equitable powers to create a narrowly tailored exception allowing her an out-of-time appointment. Because this Court is obligated to follow the clearly articulated statute of limitations, it cannot exercise any equitable powers to provide relief here. Ms. Mickels's application for appointment as personal representative was time-barred by section 473.020. The probate division's judgment is affirmed.

         Background

         This case has a lengthy procedural history. This is the second time it is before this Court; the first was an appeal of summary judgment in a wrongful death suit brought by Mr. Mickels's family against the decedent's doctor, Dr. Danrad. Mickels I, 486 S.W.3d at 328.[2] The trial court entered summary judgment in favor of Dr. Danrad, who had reviewed Mr. Mickels's test results and had allegedly made an initial misdiagnosis. Id. Because Mr. Mickels's brain tumor was incurable and his death certain, regardless of the actions of Dr. Danrad, the plaintiffs could not prove facts establishing the alleged negligence had caused his death. Id. In reviewing the trial court's judgment, this Court stated, although Dr. Danrad's negligence did not cause Mickels's death, "it surely injured him by depriving him of the opportunity to delay his death for up to six months." Id. at 329. Id. The Court vacated the judgment and remanded the case upon finding the claims in the petition stated a negligence action "that would have been actionable under section 537.020" [3] if brought by Mr. Mickels's personal representative." Id. at 329.

         After remand, Ms. Mickels opened a probate matter and applied to be appointed personal representative of Mr. Mickels's estate. By the time the application was filed, he had been deceased for seven years. The probate division denied Ms. Mickels's application as untimely and barred by section 473.020, which provides that all petitions for personal representative "must be filed within one year after the date of death of the decedent." Section 473.020.2. This appeal follows.[4]

         Standard of Review

         The probate division's decision to dismiss Ms. Mickels's application for appointment as personal representative as untimely is analogous to the dismissal of a claim as barred by a statute of limitations. This is a question of law this Court reviews de novo. Bateman v. Platte Cnty., 363 S.W.3d 39, 42 (Mo. banc 2012).

         Analysis

         Ms. Mickels argues equity requires she be appointed personal representative of Mr. Mickels's estate. It is Ms. Mickels's position that this Court announced in Mickels I a new cause of action for the "deprivation of the opportunity to delay death" that had not been available at the time of the original wrongful death suit. She argues it would be a "perversion of justice" to deny her the ability to move forward with the claim, and so this Court should direct the probate division to exercise its "complete and unrestricted equitable powers in probate matters" and grant her application for appointment.

         This Court does not agree Mickels I announced a new cause of action. Though the claim had never before been classified in Missouri as the "deprivation of the opportunity to delay death, " a survivorship personal injury action has long been available under Missouri law. The cause of action was created in 1907, and the language of this original law tracks - almost verbatim - the language found in today's section 537.020:

Causes of action upon which suit has been or may hereafter be brought by the injured party for personal injuries, other than those resulting in death, whether such injuries be to the health or to the person of the injured party, shall not abate by reason of his death, nor by reason of the death of the person against whom such cause of action shall have accrued; but in case of the death of either or both such parties, such cause of action shall survive to the personal representative of such injured party, and against the person, receiver or corporation liable for such injuries and his legal representatives, and the liability and the measure of damages shall be the same as if such death or deaths had not occurred.

1907 Mo. Laws 252. Although the dissent characterizes Mickels I as an announcement of a cognizable cause of action and no reported Missouri case had yet outlined the scope of this claim, it has been available since 1907.[5] Mickels I simply articulated how this missed opportunity is indeed an actionable personal injury under this century-old statutory language. See Mickels I, 486 S.W.3d at 329-30. It did not announce a new cause of action.

         In arguing Mickels I broke new legal ground, Ms. Mickels directs this Court to a court of appeals decision - Morton v. Mutchnick, 904 S.W.2d 14, 17 (Mo. App. 1995) - in which this sort of claim was explicitly rejected. In Morton, parents of a decedent brought a negligence action against their son's doctors for failing to diagnose and treat their son for AIDS. Id. at 15. Their petition alleged, but for the negligence of the defendants, their son would have lived longer. Id. In affirming the dismissal of the plaintiffs' petition, the court of appeals stated: "It appears that plaintiffs are arguing they should be allowed to recover damages for [the decedent's] lost chance to have his life extended by an unknown period of time until his ultimate death …. Unfortunately, Missouri does not recognize such a cause of action." Id. at 17. This Court denied transfer.[6] But as this Court set out in Mickels I, a claim for an injury of this type is ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.