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State ex rel. Goldsworthy v. Kanatzar

Supreme Court of Missouri, En Banc

April 3, 2018

STATE ex rel. DR. PATRICK GOLDSWORTHY, DR. ASTON GOLDSWORTHY, DR. PATRICK GOLDSWORTHY, D.C., P.C., Relators,
v.
THE HONORABLE JAMES F. KANATZAR, Respondent.

          ORIGINAL PROCEEDING IN PROHIBITION

          Patricia Breckenridge, Judge.

         Relators Dr. Patrick Goldsworthy, Dr. Aston Goldsworthy and Patrick Goldsworthy D.C., P.C., ("doctors") seek a writ from this Court prohibiting the respondent, the Honorable James F. Kanatzar, from taking any action other than granting their motion to dismiss the underlying wrongful death suit as barred by the statute of limitations. Specifically, the doctors assert the plaintiffs' wrongful death claims are time-barred by section 537.100[1] because the suit was filed after the three-year statute of limitations lapsed and the statute's savings provision is not applicable.

         This Court granted a preliminary writ. The savings provision in section 537.100 provides a one-year savings period following the nonsuit of an action filed within the limitations period. It does not provide for an additional savings period following the nonsuit of an action filed within the savings period. Here, after voluntarily dismissing their timely filed first action, the plaintiffs utilized the savings provision in section 537.100 to file a second action. After the second action was dismissed without prejudice, the plaintiffs filed a third action within one year of the nonsuit of the second action, but not within one year of the nonsuit of the first action. Because the third action was not filed within one year of the nonsuit of the first action - the only action filed within the limitations period - the savings provision does not apply and the third suit is time-barred. The doctors are entitled to have the suit against them dismissed with prejudice. The preliminary writ of prohibition is made permanent.

         Factual and Procedural Background

         Plaintiffs Paul Lang and Allison Boyer are the children of Michael Lang, who died December 7, 2009. The plaintiffs timely filed their initial action for wrongful death against the doctors on December 21, 2010, claiming his death was caused by the doctors' negligent chiropractic treatment. This was the only action the plaintiffs filed within the three-year statute of limitations in section 537.100.

         The plaintiffs voluntarily dismissed on March 22, 2013. As permitted by the savings provision in section 537.100, the plaintiffs filed a second action March 19, 2014, within one year of the nonsuit of the first action. The circuit court dismissed their second action without prejudice on December 29, 2014, because the plaintiffs failed to file a health care affidavit within 180 days, as required by section 538.225[2]. The plaintiffs appealed the dismissal to this Court, asserting this statute's requirement for a health care affidavit violated their constitutional rights to access to the courts and to a jury trial. Lang v. Goldsworthy, 470 S.W.3d 748, (Mo. banc 2015). This Court affirmed the circuit court's dismissal without reaching their constitutional claims. Id.

         The plaintiffs filed their third action December 1, 2015. The doctors filed a motion to dismiss on the ground the claims were time-barred by the three-year statute of limitations in section 537.100 and the savings provision was not applicable. After the circuit court overruled their motion to dismiss, the doctors filed a petition for a writ of prohibition in this Court seeking to prevent the circuit court from taking any action other than to dismiss the plaintiffs' petition.

         Standard of Review

         "Prohibition is a discretionary writ that only issues to prevent an abuse of judicial discretion, to avoid irreparable harm to a party, or to prevent exercise of extrajurisdictional power." State ex rel. Schwarz Pharma, Inc. v. Dowd, 432 S.W.3d 764, 768 (Mo. banc 2014). A writ of prohibition is the proper "remedy to prevent a lower court from proceeding on [a claim] barred by the statute of limitations." State ex rel. Holzum, 342 S.W.3d 313, 315 (Mo. banc 2011). "[P]rohibition will lie if plaintiff's petition 'does not state a viable theory of recovery, and relator was entitled to be dismissed from the suit as a matter of law.'" State ex rel. Union Elec. Co. v. Dolan, 256 S.W.3d 77, 81 (Mo. banc 2008) (internal quotations omitted).

         Analysis

         The plaintiffs' wrongful death claims are governed by section 537.100, which establishes a three-year statute of limitation. Section 537.100 also contains a "savings provision" allowing a plaintiff, in specified circumstances, to commence a new wrongful death action within one year after a nonsuit. Section 537.100 provides:

Every action instituted under section 537.080 shall be commenced within three years after the cause of action shall accrue; provided . . . that if any such action shall have been commenced within the time prescribed in this section, and the plaintiff therein take or suffer a nonsuit, . . . such plaintiff may commence a new action from time to time within one year after such nonsuit suffered . . . .

         The issue raised by the doctors' writ petition is whether the savings provision of section 537.100 is limited to providing a single one-year period that follows the nonsuit of an action filed within the limitations period, or whether it also provides an additional one-year savings period that follows the nonsuit of an action filed within the savings period.

         A wrongful death cause of action accrues at the moment of death. Boland v. St.Luke's Health Sys., 471 S.W.3d 703, 708 (Mo. banc 2015). Michael Lang's death occurred December 7, 2009, so the three-year period for filing suit expired December 7, 2012. After voluntarily dismissing their initial action, the plaintiffs utilized the savings provision to file their second action more than three years after Michael Lang's death. The plaintiffs claim they may use the ...


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