STATE ex rel. DR. PATRICK GOLDSWORTHY, DR. ASTON GOLDSWORTHY, DR. PATRICK GOLDSWORTHY, D.C., P.C., Relators,
THE HONORABLE JAMES F. KANATZAR, Respondent.
ORIGINAL PROCEEDING IN PROHIBITION
Patricia Breckenridge, Judge.
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 because the suit was filed after
the three-year statute of limitations lapsed and the
statute's savings provision is not applicable.
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
and Procedural Background
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.
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. 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.
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'
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
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 . . . .
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
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 ...