Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of St. Louis County Cause No.
17SL-CC02341 Honorable Nancy Watkins McLaughlin
COLLEEN DOLAN, JUDGE
Ferrill ("Mrs. Ferrill") and Pete Ferrill
("Mr. Ferrill") (collectively,
"Appellants") appeal the trial court's
dismissal of Appellants' third filing of their medical
malpractice suit. The trial court concluded that
Appellants' third filing was time-barred under
§§ 516.105 and 516.230 after Appellants' first
filing was voluntarily dismissed as a nonsuit and their
second filing was dismissed without prejudice for failure to
comply with statutory filing requirements. In their sole
point on appeal, Appellants argue that the trial court erred
in dismissing their suit because § 516.230
"saved" their third filing from being time-barred
and because they filed their third filing with a corrected
pleading the day after their second filing was dismissed
without prejudice, as permitted by Rule 67.01. Finding that the
trial court did not err in dismissing Appellants' third
filing because it was time-barred, we affirm the judgment of
the trial court.
Factual and Procedural Background
following facts are derived from the parties' pleadings
and responses submitted to the trial court. On April 24,
2013, Mrs. Ferrill was admitted to SSM St. Mary's Health
Center ("St. Mary's") under the care of Dr.
Patrick Yeung, M.D. ("Dr. Yeung"), a physician
employed by SLUCare Physician Group ("SLUCare"). On
that date, Dr. Yeung and Dr. Ricardo Bolanos, M.D. ("Dr.
Bolanos"), another physician employed by SLUCare,
performed several surgical procedures on Mrs. Ferrill,
including a(n): diagnostic laparoscopy, excision of
endometriosis with carbon dioxide laser, left oophorectomy,
total hysterectomy with bilateral salpingectomy, right
ovarian conservation, cystoscopy with hydrodistension,
bilateral ureterolysis, and lysis of adhesions. Following
these procedures, Mrs. Ferrill developed abdominal pain, and
after a CT scan was performed, it was discovered that Mrs.
Ferrill had suffered a bowel perforation. Mrs. Ferrill
subsequently developed a condition known as abdominal fecal
peritonitis, which required another surgical procedure (known
as a low anterior bowel resection with colostomy) that was
performed on April 27, 2013. Mrs. Ferrill then spent nine
days in the hospital and required six weeks of home health
services, including the administration of intravenous
antibiotics, and currently continues to suffer from the
complications of the surgical procedures performed by Dr.
Yeung and Dr. Bolanos.
April 20, 2015, Appellants timely filed suit against St.
Mary's, SLUCare, Dr. Yeung, and Dr. Bolanos
(collectively, "Respondents"), alleging medical
malpractice. On April 14, 2016, Appellants voluntarily
dismissed their action without prejudice. Pursuant to §
516.230, Appellants timely refiled their medical malpractice
suit on November 16, 2016-approximately seven months from the
date of the nonsuit resulting from Appellants' voluntary
dismissal. On May 16, 2017, Respondents filed a motion to
dismiss Appellants' suit for failure to file medical
affidavits for their medical malpractice action, as required
by § 538.225. In response, Appellants stated that their
attorney filed "or verily believes he had filed"
the required affidavits and notice of filing via
Missouri's electronic filing system and had served a copy
of the affidavits on Respondents' counsel; Appellants
attributed the failure to file the affidavits to a
technological error. On June 27, 2017, the trial court
granted Respondents' motion and dismissed Appellants'
action without prejudice for failure to file the required
very next day, June 28, 2017, Appellants refiled their
medical malpractice suit (their third filing) with the
required affidavits. Respondents thereafter filed another
motion to dismiss, arguing that Appellants' third filing
was time-barred because it was filed after the two-year
statute of limitations and the one-year savings period for
the medical malpractice action had expired. Appellants
countered that, because their second filing was filed within
the time allotted by the statute of limitations and savings
statute combined and was dismissed without prejudice, they
were entitled to file a corrected third filing with the
required affidavits. Appellants further argued that, because
they only "consumed seven months and two days" of
their one-year savings period by filing their second filing
in that time, the balance of that savings period (just short
of five months) should be afforded to them as time to file
their third filing. After hearing argument on the issue, the
trial court granted Respondents' motion to dismiss the
action-this time with prejudice-reasoning that
Appellants' third filing was time-barred under
§§ 516.105 and 516.230. Appellants appealed the
trial court's dismissal to this Court; we dismissed that
appeal without prejudice because the trial court's order
was not denominated a "judgment," and was therefore
not a final, appealable judgment pursuant to Rule 74.01(a).
The trial court entered a corrected dismissal order that
complied with Rule 74.01(a) on October 27, 2018.
Standard of Review
review a trial court's grant of a motion to dismiss
de novo. Lang v. Goldsworthy, 470 S.W.3d
748, 750 (Mo. banc 2015). "In determining the
appropriateness of the trial court's dismissal of a
petition, an appellate court reviews the grounds raised in
the defendant's motion to dismiss." In re Estate
of Austin, 389 S.W.3d 168, 171 (Mo. banc 2013). "If
the statute of limitations is asserted in a motion to
dismiss, the cause of action should not be dismissed unless
the petition clearly establishes on its face and without
exception that the cause is time barred." Warren
Cnty. Concrete, L.L.C. v. Peoples Bank & Trust Co.,
340 S.W.3d 289, 290 (Mo. App. E.D. 2011).
Appellants' sole point on appeal, they argue that the
trial court erred in granting Respondents' motion to
dismiss Appellants' third filing because it was
time-barred pursuant to §§ 516.105 and 516.230.
Specifically, Appellants argue that their third filing was
not time-barred because those statutes, combined with Rule
67.01, allowed Appellants to file their suit a third time, as
Appellants only "consumed seven months and two
days" of their one-year savings period by filing their
second filing in that time. Appellants therefore argue that
the balance of that savings period (just short of five
months) should be afforded to them as time to file their suit
for a third time. While we are sympathetic to Appellants'
circumstances, we must reject their argument as a matter of
law, and deny their point on appeal.
516.105, which governs medical malpractice actions against
healthcare providers like Appellants', provides that such
claims "shall be brought within two years from the date
of occurrence of the act of neglect complained of," with
only limited exceptions that do not apply in this case.
Appellants clearly filed their action for the first time
within the two-year statute of limitations for medical
malpractice actions on April 20, 2015, as it is undisputed
that the negligent acts of which Appellants complain occurred
on April 24, 2013. Appellants' first action resulted in a
nonsuit after they voluntarily dismissed the case without
prejudice on April 14, 2016. See Zinke v. Orskog,
422 S.W.3d 422, 425 (Mo. App. W.D. 2013) ("A dismissal
without prejudice is a [form of] nonsuit and permits a party
to bring another civil action for the same cause.")
(quoting Molder v. Trammell Crow Servs., Inc., 309
S.W.3d 837, 841 (Mo. App. W.D. 2010)); Rule 67.02(c).
516.230 states that, "[i]f any action shall have been
commenced within the times respectively prescribed in
sections 516.010 to 516.370, and the plaintiff therein suffer
a nonsuit … such plaintiff may commence a new action
from time to time, within one year after such nonsuit
suffered…." Appellants undoubtedly refiled their
medical malpractice action following a nonsuit within the
time allotted by § 516.230, as they refiled the suit on
November 16, 2016- seven months and two days from when they
voluntarily dismissed their first action. The trial court
granted Respondents' motion to dismiss Appellants'