LONDA L. SOFIA, et al.,                         )
                                                )
          Plaintiffs-Appellants,                )
                                                )
vs.                                             )
                                                )    No. SD35572
ROBERT W. DODSON, M.D., et al.,                 )
                                                )    Filed: March 27, 2019
          Defendants-Respondents.               )

                  APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY

                                      Honorable David B. Mouton

REVERSED AND REMANDED WITH INSTRUCTIONS

          Londa Sofia, Gayla Woodcock, and Robin Frazier (collectively "Appellants"),

surviving daughters of Gladys Walker ("Walker"), appeal the trial court's judgment

granting Mercy Hospital Joplin's ("Mercy Hospital") motion for summary judgment

("the motion"). In the motion, Mercy Hospital argued that the underlying wrongful

death action against it was barred by the statute of limitations and that the savings

clause found in § 537.1001 was inapplicable. The trial court granted the motion.

Appellants argue that the trial court erred as a matter of law by granting summary

judgment in that the lawsuit against Mercy Hospital was timely filed and re-filed within

the one-year savings period contained in § 537.100. We agree. The trial court's



1   All statutory citations are to RSMo 2000.
judgment is reversed and remanded for further proceedings consistent with this

opinion.

                                        Standard of Review

        This Court reviews an appeal of a motion for summary judgment on an

"essentially de novo" basis. Custer v. Wal-Mart Stores East I, LP, 492 S.W.3d 212,

214 (Mo. App. S.D. 2016) citing ITT Commercial Fin. Corp. v. Mid-Am. Marine

Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Whether a summary judgment

motion was properly granted is a question of law, and this Court "need not defer to the

trial court's order granting summary judgment." Id. "The application of a statute of

limitations is a question of law that this court reviews de novo." Mackey v. Smith,

438 S.W.3d 465, 471 (Mo. App. W.D. 2014).

                                   Background and Timeline

        Appellants' mother died on April 10, 2011, four days after undergoing gallbladder

removal surgery. Appellants filed an action against Dr. Robert W. Dodson ("Dr.

Dodson"), who performed the surgery, and his presumed employer Mercy Hospital, on

March 1, 2013. Appellants later learned that Dr. Dodson's employer was actually Mercy

Clinic Joplin ("Mercy Clinic"), not Mercy Hospital.2 On July 11, 2016, Appellants were

granted leave to file and filed an amended petition ("First Amended Petition")

substituting Mercy Clinic in place of Mercy Hospital.3 Appellants voluntarily dismissed

Mercy Hospital on July 14, 2016, without prejudice. Appellants then sought, and were


2Both parties agree that Dr. Dodson's Answer, filed in 2013, denied the employment relationship between
Dr. Dodson and Mercy Hospital, and that Dr. Dodson stated in a deposition on March 25, 2015, that he
was employed by the predecessor to Mercy Clinic when he performed the surgery. For purposes of this
appeal, the distinction between the two dates is not significant because the relevant date is July 11, 2016,
when the trial court granted Appellants' motion to file their First Amended Petition.
3 Mercy Clinic moved to dismiss the First Amended Petition as barred by the statute of limitations. After

hearing, the trial court overruled Mercy Clinic's motion to dismiss.

                                                     2
granted, leave to file a second amended petition ("Second Amended Petition") on

January 4, 2017. This Second Amended Petition named three defendants: Dr. Dodson,

Mercy Clinic, and Mercy Hospital.

        The following timeline describes the sequence of events:

    DATE:        ACTION:
    4/10/11      Death of Walker.
                 Plaintiffs file Petition for Damages ("Original Petition") against Dr.
    3/1/13
                 Dodson and Mercy Hospital.
    4/10/14      Three-year anniversary of Walker's death.
                 Trial court grants Plaintiffs' Motion for Leave to Amend Petition "so as to
    7/11/16      substitute Mercy Clinic . . . in place and instead of Mercy Hospital Joplin"
                 pursuant to Rule 55.33(c).4

                 First Amended Petition filed against Dr. Dodson and Mercy Clinic.

    7/14/16  Plaintiffs file Voluntary Dismissal Without Prejudice of Defendant Mercy
             Hospital.
    11/14/16 Plaintiffs file Motion for Leave to file Second Amended Petition naming
             defendants Dr. Dodson, Mercy Clinic, and Mercy Hospital.
    1/4/17
             Court sustains Plaintiffs' Motion for Leave to Amend. Court orders Second
             Amended Petition filed.
    4/2/18       Court grants Mercy Hospital's Motion for Summary Judgment.5

        In the motion, Mercy Hospital argued that Appellants' Second Amended Petition

was filed outside of the statute of limitations and that the savings clause of § 537.100 did

not apply. Mercy Hospital also argued that neither § 537.100 nor Rule 67.02,



4 All Rule references are to Missouri Court Rules (2016).
5 A judgment may dispose of fewer than all claims against all parties. Rule 74.01(b). Such a judgment is
final for purposes of appeal if it disposes of at least one judicial unit and the circuit court expressly finds
there is no just reason for delay. Ndegwa v. KSSO, LLC, 371 S.W.3d 798, 801-02 (Mo. banc 2012).
Here, Mercy Hospital filed a motion to dismiss the appeal on the basis that the trial court's grant of
summary judgment to Mercy Hospital was not an appealable judgment. This Court denied the motion
because the amended judgment disposed of the claim against Mercy Hospital and contained the express
finding required by Rule 74.01(b).




                                                       3
addressing the effect of voluntary dismissals, could apply to "re-join the dropped entity

to the case later on." The trial court granted the motion. This appeal follows.

                                      Discussion

      This appeal does not address the merits of the underlying dispute, but rather,

whether Appellants' claim against Mercy Hospital is time-barred by the statute of

limitations. The applicable statute of limitations for wrongful death actions based on

§ 537.080 is three years. § 537.100.1. The statute of limitations in this case began

running at the moment of Walker's death. See State ex rel. Goldsworthy v.

Kanatzar, 543 S.W.3d, 582, 585 (Mo. banc 2018) ("A wrongful death cause of action

accrues at the moment of death.").

      Missouri law provides for an additional one-year extension of the statute of

limitations by § 537.100's savings clause. This savings clause provides in relevant part:

      [P]rovided, 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, or after a verdict for him the judgment be arrested, or
      after a judgment for him the same be reversed on appeal or error, such
      plaintiff may commence a new action from time to time within
      one year after such nonsuit suffered or such judgment arrested or
      reversed; and in determining whether such new action has been begun
      within the period so limited, the time during which such nonresident or
      absent defendant is so absent from the state shall not be deemed or taken
      as any part of such period of limitation.

§ 537.100.1 (emphasis added). Insofar as relevant here, the operation of the savings

clause has three elements: (1) the commencement of a wrongful death against the

defendant within three years after the decedent's death; (2) a voluntary nonsuit of the

wrongful death action against that defendant; and (3) the commencement of a new

wrongful death action against that defendant within one year after the voluntary

nonsuit. See Goldsworthy, 543 S.W.3d at 585; Boland v. Saint Luke's Health


                                            4
Sys., Inc., 471 S.W.3d 703, 707 (Mo. banc 2015). In the case at bar, all three

requirements were met.

A. Appellants' wrongful death action against Mercy Hospital was timely.

       "A civil action is commenced by filing a petition with the court." Rule 53.01;

Ostermueller v. Potter, 868 S.W.2d 110, 111 (Mo. banc 1993). Here, Mercy Hospital

was named in the Original Petition, which was timely filed within the three-year statute

of limitations under § 537.100. Mercy Hospital argues, however, that we should ignore

the filing of the Original Petition for two reasons, neither of which are persuasive.

       First, Mercy Hospital argues that either the First Amended Petition or the Second

Amended Petition are the "original action" for purposes of the savings clause analysis.

Under one theory, Mercy Hospital claims the First Amended Petition (that names Mercy

Clinic and Dr. Dodson only) is the correct pleading because it was "the operative

pleading in effect at the time" when Appellants brought Mercy Hospital back into the

case. It follows, Mercy Hospital contends, that since the First Amended Petition was

filed on July 11, 2016, over three years after Walker's death, the action against Mercy

Hospital was not timely.

       Second, Mercy Hospital argues that because Mercy Hospital was substituted out

of the case on July 11, 2016, on the basis of "mistake" as found in Rule 55.33(c), the

Original Petition filed against it has no legal effect.6 Rather, "[t]he effect was as if Mercy

Hospital had never been sued by Appellants." In other words, Mercy Hospital argues



6In support of its argument, Mercy Hospital cites to Kingsley v. McDonald, 432 S.W.3d 266 (Mo.
App. W.D. 2014), and Windscheffel v. Benoit, 646 S.W.2d 354 (Mo. banc 1983) for the idea that Rule
55.33(c)'s relation back only applies to amendments that change parties and not to amendments that add
parties. This argument, while relevant to the appropriateness of a Rule 55.33(c) substitution, is not
relevant to the application of § 537.100's savings clause to this case.



                                                  5
when an amended petition is filed, the former petition is abandoned. They cite to

McDonald v. City of Kansas City, 285 S.W.3d 773 (Mo. App. W.D. 2009)

(addressing abandoned pleadings in context of motion to dismiss) and to Adams v.

Lederle Labs., 569 F.Supp. 234 (W.D. Mo. 1983) (addressing abandoned pleadings in

context of diversity jurisdiction). These cases were not decided on the basis of any

savings clause and we are not persuaded by their applicability to the analysis of

§ 537.100. The fact remains that Mercy Hospital was named as a defendant in the

Original Petition filed in 2013 and remained a named defendant until the court granted

Appellants' Motion to file their First Amended Petition on July 11, 2016. Accordingly,

the Original Petition naming Mercy Hospital was timely filed.

B. Appellants suffered a nonsuit as to Mercy Hospital when their First
Amended Petition was filed.

       When the First Amended Petition was filed, Mercy Hospital was dropped from

the lawsuit as a defendant. We must determine whether that event constituted a

voluntary nonsuit of the wrongful death action against Mercy Hospital. See Boland,

471 S.W.3d at 707. "A nonsuit is a term broadly applied to a variety of terminations of

an action which do not adjudicate issues on the merits." State ex rel. Polaris

Indus., Inc. v. Journey, 505 S.W.3d 370, 375 (Mo. App. W.D. 2016) (quoting Zinke

v. Orskog, 422 S.W.3d 422, 425 (Mo. App. W.D. 2013) (internal quotations and

citations omitted)).

       Appellants argue that an amended petition omitting a previously-named

defendant has the effect of dismissing that defendant. We agree. Appellants "suffered a

nonsuit" as to Mercy Hospital when they filed their First Amended Petition because it




                                            6
had the effect of removing Mercy Hospital from the case without an adjudication on the

merits.7

        Mercy Hospital argues that § 537.100's savings clause only applies when an entire

action is dismissed, not just a party. We disagree for two reasons.

        First, to the extent Appellants' wrongful death lawsuit against Dr. Dodson and

Mercy Hospital contained two wrongful death actions, one per defendant,8 Mercy

Hospital's separate dismissal did dispose of an entire action.

        Second, the Supreme Court of Missouri has broadly defined "nonsuit" to include

various terminations of a cause of action that do not adjudicate the merits of the issues.

Polaris, 505 S.W.3d at 375. Here, a nonsuit occurred when Mercy Hospital was

substituted out of the case because, as to Mercy Hospital, this was an adjudication not

on the merits. Furthermore, as noted in Williams v. Southern Union Co., "[t]he

taking of a nonsuit amounts to, and has the effect of, a dismissal of the case as to one

or all the defendants. It is not a final disposition of the cause of action on the merits,

but is a final termination of the particular suit." 364 S.W.3d 228, 232 (Mo. App. W.D.

2011) (emphasis added) (quoting Rainwater v. Wallace, 174 S.W.2d 835, 838 (Mo.

1943)).

        In Anderson v. Asphalt Distributing Co., the plaintiff filed an action

against two defendants. 55 S.W.2d 688, 691-92 (Mo. 1932). She dismissed one

defendant without prejudice, then refiled a new action against that defendant. Id. at

7 Appellants argue, in the alternative, that the nonsuit occurred when they filed their voluntary dismissal
of Mercy Hospital. In this case, the distinction between these two dates has no practical significance as
they both lead to the result that the nonsuit occurred in July 2016. But as between these two dates, the
nonsuit occurred when the First Amended Petition was filed because at that moment, Mercy Hospital was
no longer a party to the case.
8 See Reese v. U.S. Fire Ins. Co., 173 S.W.3d 287, 293-94 (Mo. App. W.D. 2005); Manes v. Depew,

987 S.W.2d 527, 529 (Mo. App. E.D. 1999).


                                                     7
692. The Supreme Court of Missouri said the dismissal of the one defendant triggered

the applicable savings clause and was properly considered a "nonsuit." Id. As in

Anderson, Appellants "suffered a nonsuit" as to Mercy Hospital even while the lawsuit

against Mercy Clinic and Dr. Dodson was still pending. Here, the substitution of Mercy

Clinic for Mercy Hospital had the effect of dismissing the case as to Mercy Hospital and

was therefore properly considered a "nonsuit" for purposes of the savings clause.

C. Appellants commenced a new wrongful death action against Mercy
Hospital within one year of the nonsuit.

       The Second Amended Petition was filed within one year after the nonsuit of the

wrongful death action against Mercy Hospital. This pleading added Mercy Hospital as a

defendant and sought to recover damages for Walker's wrongful death. That constituted

the commencement of a new action against Mercy Hospital within the meaning of

§ 537.100.1. See Mackey, 438 S.W.3d at 472 (applying nearly identical language in

§ 516.230, the filing of an amended petition adding a defendant to a lawsuit after a prior

voluntary dismissal fell squarely within the savings clause).

D. This Court declines to apply principles of estoppel to its savings clause
analysis.

       Mercy Hospital argues that the principles of "judicial estoppel" or "equitable

estoppel" prevent this Court from finding in Appellants' favor. Specifically, Mercy

Hospital argues that this Court should not permit Appellants to maintain a cause of

action against Mercy Hospital after benefitting from the use of the Rule 55.33(c)

substitution to bring Mercy Clinic into this case after the statute of limitations had run.

The Supreme Court of Missouri has recently declined to read an equitable exception into

the plain language of § 537.100, and we decline to create a similar exception here. See

Boland, 471 S.W.3d at 713 (declining to create an exception to § 537.100 in cases of

                                             8
fraudulent concealment); but see State ex rel. Beisly v. Perigo, 469 S.W.3d 434,

445 (Mo. banc 2015) (holding that the doctrine of equitable estoppel prevented a

defendant from applying a statute of limitations defense under § 537.100 for actions

fraudulently concealed).

                                     Conclusion

      The trial court improperly granted summary judgment in favor of Mercy Hospital

by finding the savings clause in § 537.100 inapplicable and improperly removed Mercy

Hospital as a defendant in this case. We reverse and remand with instructions to

reinstate Mercy Hospital as a defendant under the Second Amended Petition.



MARY W. SHEFFIELD, J. – OPINION AUTHOR

DANIEL E. SCOTT, J. – CONCURS AND FILES SEPARATE CONCURRING OPINION

WILLIAM W. FRANCIS, JR., P.J. – CONCURS




                                           9
LONDA L. SOFIA, et al.,                     )
                                            )
       Plaintiffs-Appellants,               )
                                            )
vs.                                         )
                                            )       No. SD35572
ROBERT W. DODSON, M.D., et al.,             )
                                            )
       Defendants-Respondents.              )

                             CONCURRING OPINION
       Plaintiffs’ two-step tactic effectively circumvents Rule 55.33(c)’s “party in-
party out” limitation in seemingly legal fashion given current rules and statutes.1
If so, it is resourceful lawyering within the confines of existing law and ends our
inquiry because any resulting policy questions lie outside this court’s domain.
Wilder v. John Youngblood Motors, Inc., 534 S.W.3d 902, 913 & n.6
(Mo.App. 2017). I concur.

DANIEL E. SCOTT, J. – CONCURRING OPINION AUTHOR




1I find no support for Mercy’s judicial-estoppel plea. Viewing the record in hindsight,
one sees Plaintiffs’ counsel speaking carefully in arguing for Rule 55.33(c) substitution,
neither disclosing nor foreclosing a potential second step, and without crossing over into
sharp practice.
