                SUPREME COURT OF MISSOURI
                                           en banc
LONDA L. SOFIA, et al.,                          )      Opinion issued June 16, 2020
                                                 )
       Appellants,                               )
                                                 )
v.                                               )      No. SC97854
                                                 )
ROBERT W. DODSON, M.D., et al.,                  )
                                                 )
       Respondents.                              )

                       Appeal from the Circuit Court of Jasper County
                          The Honorable David B. Mouton, Judge

       The plaintiffs in this wrongful death action appeal the circuit court’s summary

judgment in favor of Mercy Hospital Joplin due to the expiration of the statute of

limitations. They concede the statute of limitations had run prior to filing their current

claim against Mercy Hospital but nonetheless argue they were entitled to the benefit of

the one-year savings statute that applies to nonsuits because they had taken a nonsuit

against Mercy Hospital less than one year before filing their present petition.

       The circuit court properly dismissed Mercy Hospital. A nonsuit is the termination

of a particular suit or cause of action. The plaintiffs did not suffer a nonsuit against

Mercy Hospital. Rather, with the court’s permission, they substituted Mercy Clinic

Joplin, LLC, in place of Mercy Hospital under Rule 55.33(c). They did so – and the
 circuit court allowed them to do so even though the limitations period already had

 expired – because they erroneously had identified Mercy Hospital as the defendant

 doctor’s employer and just had discovered Mercy Clinic was the doctor’s actual

 employer. The substitution of Mercy Clinic in place of Mercy Hospital, however, did not

 terminate the particular suit or cause of action. Indeed, the action continued against

 Mercy Clinic; the plaintiffs’ first amended petition was substantively identical to their

 original petition but for the substitution.

           The plaintiffs chose substitution under Rule 55.33(c) because they were not

 permitted to add party defendants once the limitations period expired. They cannot get

 around that limitation now by seeking to add Mercy Hospital to the suit in a second

 amended petition. The circuit court’s judgment in favor of Mercy Hospital is affirmed.

I.      FACTUAL AND PROCEDURAL BACKGROUND

           The facts of this case are not in dispute. Gladys Walker died April 10, 2011, four

     days after undergoing a gallbladder removal surgery performed by Dr. Robert W. Dodson

     at Mercy Hospital.     Londa L. Sofia, Gayla Woodcock, and Robin Frazier (“the

     plaintiffs”) are Ms. Walker’s daughters. On March 1, 2013, the plaintiffs timely filed

     their wrongful death action under section 537.080.1(1), 1 naming only Mercy Hospital and

 Dr. Dodson as defendants. The original petition incorrectly stated Dr. Dodson was the

 agent and employee of Mercy Hospital.

           Close to two years after the three-year statute of limitations expired on April 10,


 1
      All statutory citations are to RSMo 2000 unless otherwise noted.


                                                   2
2014, 2 the plaintiffs realized through review of discovery responses that Mercy Clinic,

not Mercy Hospital, employed Dr. Dodson and, in July 2016, filed a motion for leave to

amend their petition under Rule 55.33(c) to substitute Mercy Clinic “in place and instead

of” Mercy Hospital. Plaintiffs stated that, “but for the mistaken name of the Mercy entity

that employed Defendant Dodson, the action would have been brought against Mercy

Clinic” and, further, that “[t]he purpose of amending the petition is to substitute the

correct name of the Mercy entity employing Defendant Dodson so that substantial justice

can be done.”

       The circuit court sustained the plaintiffs’ motion, and the amended petition naming

Mercy Clinic and Dr. Dodson was filed on July 11, 2014. As the motion for substitution

had stated would be the case, the amended petition simply substituted the name of Mercy

Clinic for the name of Mercy Hospital but was otherwise substantively identical to the

original petition. Despite having substituted Mercy Clinic for Mercy Hospital so that

Mercy Hospital was replaced and no longer in the case, three days later, plaintiffs filed a

motion purporting to dismiss their cause of action against Mercy Hospital voluntarily,

without prejudice. Mercy Hospital, of course, by then was no longer in the case, a new

petition already having been filed substituting Mercy Clinic in its place.

       Two months later, in September 2016, Mercy Clinic filed a motion to dismiss,

claiming the action against it was time-barred because it was filed after the three-year


2
 § 537.100 (providing a three-year statute of limitations for wrongful death actions);
Boland v. Saint Luke’s Health Sys., Inc., 471 S.W.3d 703, 710 (Mo. banc 2015) (holding a
wrongful death action accrues at death).


                                                 3
limitations period expired. The plaintiffs opposed the motion, noting Mercy Clinic

simply had been substituted for Mercy Hospital under Rule 55.33(c) due to a mistake in

the identity of Dr. Dodson’s employer; therefore, the action was not time-barred because

an amendment substituting a party defendant will relate back under Rule 55.33(c):

       It is clear from the allegations of Paragraphs 26 and 28 of the original
       Petition that Plaintiffs intended to bring an action against Dr. Dodson’s
       employer, and but for the mistaken belief that the correct Mercy entity that
       employed Dr. Dodson was Mercy Hospital [], would have brought the
       action against Mercy Clinic.

       The plaintiffs further stated, “There is no prejudice to Mercy Clinic [] in that

Dr. Dodson, the employee who is alleged to have bene [sic] negligent, has been

represented at all stages of this case and his interests in defending the action are aligned

with Mercy Clinic.” The circuit court overruled the motion to dismiss, and the case

proceeded against Mercy Clinic and Dr. Dodson.

       In November 2016, four months after they were permitted to substitute Mercy

Clinic for Mercy Hospital, the plaintiffs sought leave for a second time to amend their

petition under Rule 55.33(c). This time, however, they did not seek to substitute a party

based on a mistake in identity; rather, they moved “for leave to amend their Amended

Petition in Damages pursuant to Missouri Rules of Civil Procedure, Rule 55.33(c), and

add party Defendant Mercy Hospital.” The plaintiffs thereby sought to add Mercy

Hospital even though they previously had replaced it with Mercy Clinic based on their

mistake regarding “the correct Mercy entity that employed Dr. Dodson.”

       The circuit court allowed the untimely addition of Mercy Hospital, and the second

amended petition naming as defendants Dr. Dodson, Mercy Clinic, and Mercy Hospital

                                                4
  was filed in January 2017. Mercy Hospital subsequently moved for summary judgment,

  arguing the action against it was time-barred because it was added to the suit long after

      the statute of limitations had expired. The circuit court agreed and entered judgment in

      favor of Mercy Hospital. It certified the judgment as final under Rule 74.01(b), expressly

      finding no just reason for delay. 3 The plaintiffs appealed. After opinion by the court of

      appeals, this Court granted transfer. Mo. Const. art. V, § 10.

II.      STANDARD OF REVIEW

             This Court’s review of summary judgment is essentially de novo.                ITT

  Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.

  banc 1993). “[T]he Court will review the record in the light most favorable to the party

  against whom judgment was entered … and accord the non-movant the benefit of all

  reasonable inferences from the record.” Id. (internal citation omitted). The criteria on

  appeal for testing the propriety of summary judgment are the same as those the circuit

  court employs to determine the propriety of sustaining the motion initially. Id. Summary

  judgment is proper when “the moving party has demonstrated, on the basis of facts as to

  which there is no genuine dispute, a right to judgment as a matter of law.” Id.; Rule


  3
    A judgment may be final even when, as here, it does not resolve all claims by and
  against all parties if it disposes of a “judicial unit” of claims and is certified for appeal
  under Rule 74.01(b). Wilson v. City of St. Louis, No. SC97544, 2020 WL 203137, *1, *4
  (Mo. banc Jan. 14, 2020). A judgment disposes of a judicial unit of claims by either
  (1) resolving all claims by or against one of multiple parties or (2) resolving one or more
  claims distinct from claims left pending. Id. at *6. Here, although the resolved claims
  are factually intertwined with the pending claims against Dr. Dodson and Mercy Clinic,
  the judgment was eligible for certification under Rule 74.01(b) because it resolved all
  claims in the lawsuit against Mercy Hospital. See id. at *4.


                                                       5
       74.04.

                “Statutory interpretation is an issue of law this Court reviews de novo.” State v.

       Johnson, 524 S.W.3d 505, 510 (Mo. banc 2017). Likewise, when the relevant facts are

       not in dispute, whether a statute of limitations applies to bar an action is an issue of law

       this Court reviews de novo. Powel v. Chaminade Coll. Preparatory, Inc., 197 S.W.3d

       576, 585 (Mo. banc 2006).

III.      SUBSTITUTION UNDER RULE 55.33(c) IS NOT A NONSUIT

                Whether the plaintiffs’ wrongful death suit is time-barred is governed by section

       537.100. That section establishes a three-year statute of limitations and additionally

       provides, in relevant part, that if a wrongful death 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[.]

       § 537.100.

                It is well-settled that “the saving[s] statute does not ‘save’ actions that are time-

       barred. Instead, the saving[s] statute provides a one-year grace period for actions that are

       [1] timely filed and [2] suffer a nonsuit.” McMillan v. Pilot Travel Ctrs., LLC, 515

       S.W.3d 699, 705 (Mo. App. 2016) (emphasis omitted).              It permits a plaintiff “to

       commence a new wrongful death action within one year after a nonsuit.” State ex rel.

       Goldsworthy v. Kanatzar, 543 S.W.3d 582, 585 (Mo. banc 2018).

                The single issue before the Court on appeal is whether the plaintiffs took a

       nonsuit, entitling them to the benefit of the one-year savings provision. They agree that,


                                                         6
four months prior to their November 2016 attempt to add Mercy Hospital as a party, they

filed a motion to substitute Mercy Clinic in place of Mercy Hospital as a defendant

pursuant to Rule 55.33(c). That rule provides:

       Relation Back of Amendments. Whenever the claim or defense asserted
       in the amended pleading arose out of the conduct, transaction, or
       occurrence set forth or attempted to be set forth in the original pleading, the
       amendment relates back to the date of the original pleading. An amendment
       changing the party against whom a claim is asserted relates back if the
       foregoing provision is satisfied and within the period provided by law for
       commencing the action against the party and serving notice of the action,
       the party to be brought in by amendment: (1) has received such notice of
       the institution of the action as will not prejudice the party in maintaining
       the party’s defense on the merits and (2) knew or should have known that,
       but for a mistake concerning the identity of the proper party, the action
       would have been brought against the party.

(Emphasis added). The circuit court granted leave. The plaintiffs then filed a first

amended petition in which they substituted Mercy Clinic for Mercy Hospital. At the

plaintiffs’ insistence, although the action and the claims remained identical, at that point

Mercy Hospital was no longer a party to the action, and any further order of the circuit

court was unnecessary. 4 Then, four months later, the plaintiffs sought to file a second

amended petition adding Mercy Hospital as a party. Their right to do so depends on

whether their prior substitution of Mercy Clinic as a party under Rule 55.33(c) is a form

of nonsuit.

       The taking of a nonsuit “is a final termination of the particular suit,” Rainwater v.




                                                 7
Wallace, 174 S.W.2d 835, 838 (Mo. 1943), or “action.” Cady v. Harlan, 442 S.W.2d 517,

519 (Mo. 1969). A nonsuit “means any judgment or discontinuance or dismissal whereby

the merits are left untouched. In other words, a nonsuit occurs when a court order

terminates a cause of action without prejudice.” Kanatzar, 543 S.W.3d at 585 n.3

(emphasis added) (internal citations and quotations omitted) (discussing a nonsuit

suffered when a cause of action was dismissed for failure to file required affidavits).

       While the plaintiffs argue the substitution of a party constitutes a termination of a

suit or cause of action against that party, this Court long ago in Lilly v. Tobbein, 15 S.W.

618, 620 (Mo. 1891), specifically distinguished substitution of a party from termination

of an action or the bringing of a new action or claim. In Lilly, the plaintiff sought to

substitute another, proper party as the plaintiff. Id. This Court permitted the substitution,

explaining that such “amendments may be allowed, rather than drive a party to a non-

suit, for the very purpose of saving the cause from the statute of limitations.”          Id.

(emphasis added).

       As was the case in Lilly, under the current Rule 55.33(c), a substitution is

permitted to relate back because the action is not “so changed by the amendment that it is

a different cause of action than the one timely filed.” Bailey v. Innovative Mgmt. & Inv.,

Inc., 890 S.W.2d 648, 650-51 (Mo. banc 1994); Lilly, 15 S.W. at 621 (“[T]here is a vast


4
  The plaintiffs claim they took a nonsuit when they voluntarily dismissed the action
against Mercy Hospital in July 2016. But their purported voluntary dismissal of Mercy
Hospital was a legal nullity and without effect as Mercy Hospital had already been
substituted out of the action three days earlier when the plaintiffs filed their amended
petition substituting Mercy Clinic for Mercy Hospital.


                                                 8
difference between substituting a competent for an incompetent plaintiff, and bringing in

a new defendant.”).

        The distinction between substituting a party under Rule 55.33(c) and either

adding a party or claim or dismissing a party (thereby adding or terminating a cause of

action) follows from the fact that Rule 55.33(c) does not permit a party to be added after

the statute of limitations has run, nor does it permit one party to be changed for another

after the statute of limitations has run simply because the plaintiff thereafter wishes to

have sued a different party. Rather:

       [F]or the Rule to apply, plaintiff must have made a mistake in selecting the
       proper party to sue, i.e., plaintiff must have brought an action against the
       wrong party. [Plaintiff] states that defendant was inadvertently omitted
       from the original petition which constitutes a mistake allowing the
       amendment to relate back to the original pleading. But Rule 55.33(c) is a
       remedy for a mistake in identity, and the remedy is a change in party.
       Plaintiff here made no mistake in identity nor does he argue any such
       mistake. Moreover, he does not seek to change parties; he seeks to add one.

Windscheffel v. Benoit, 646 S.W.2d 354, 357 (Mo. banc 1983); see also Shroyer v.

McCarthy, 769 S.W.2d 156, 159 (Mo. App. 1989) (finding Rule 55.33(c) inapplicable

because the appellant “attempted to add a second party, rather than change an existing

party to correct a mistake in its identity”).        Neither does the rule “authorize an

amendment which states an entirely new claim.” Caldwell v. Lester E. Cox Med. Ctrs.-

S., Inc., 943 S.W.2d 5, 8 (Mo. App. 1997). Rule 55.33(c) solely permits correction of a

mistake as to the identity of a proper defendant. It is precisely because such a mistake

does not create a new action that substitution is allowed.

       A similar distinction is drawn in Rule 52.06 regarding adding new plaintiffs. See


                                                 9
Union Ctr. Redevelopment Corp. v. Leslie, 733 S.W.2d 6, 8 (Mo. App. 1987) (finding a

new plaintiff may not be added after statute of limitations has run but a proper plaintiff

may be substituted for an improper one because “[t]he law in Missouri for nearly a

century is a new action is not commenced by substituting the party having the legal right

to sue instead of another party improperly named”); see also Lilly, 15 S.W. at 621. A

substitution is not a termination of the suit and so is not a nonsuit – rather, it is a way to

allow a particular suit to continue with a proper plaintiff or defendant.

       Federal courts, likewise, recognize: “A substitute defendant is one who takes the

place of another in the same suit or controversy, not one who is sued upon an entirely

different cause of action.” McCann v. Bentley Stores Corp., 34 F. Supp. 231, 233 (W.D.

Mo. 1940). The United States Supreme Court in Houston & T.C. Railway Co. v. Shirley,

111 U.S. 358, 360 (1884), similarly has stated that substitute defendants are parties to the

initial cause of action and not a new cause. The plaintiff in Houston sued a company that

later was sold; the plaintiff amended his pleadings to substitute the sold-out company’s

trustees as defendants. Id. at 359. The Supreme Court said:

       The proceeding to bring in the trustees of the sold-out company was not the
       commencement of a new suit, but the continuation of the old one. The
       trustees were nothing more than the legal representatives of the company
       that had been sold out, and took its place on the record as a party. The suit
       remained the same, but with the name of one of the parties changed.

Id. at 360.

       Though the facts may differ, the same basic principle is at play in this case as was

in Houston, McCann, and Lilly – the proper substitution of a party is not the

commencement of a new suit but a continuation of the old one. Indeed, this principle is

                                                 10
at the heart of Rule 55.33(c) upon which the plaintiffs relied to assert their claims against

Mercy Clinic after the statute of limitations had expired. Under Rule 55.33(c), Mercy

Clinic replaced Mercy Hospital in the same cause of action.

       Said differently, the action against the initially named Mercy Hospital was not

dismissed or terminated; it proceeded, just against the proper defendant, which was

substituted for the incorrectly sued Mercy Hospital. Indeed, that the plaintiffs mistakenly

thought Mercy Hospital was Dr. Dodson’s employer is the only reason they were

permitted to sue Mercy Clinic, Dr. Dodson’s actual employer. They could not add Mercy

Clinic as a defendant because the statute of limitations had run. But they could substitute

it as a defendant as the statute of limitations does not prohibit substitutions in the case of

mistaken identity. Nonetheless, the plaintiffs cannot get around the passage of the statute

of limitations by adding Mercy Hospital back in once Mercy Clinic was substituted for it.

That would allow them to bypass the prohibition against adding a new party after the

statute of limitations has run. The savings statute applies only to nonsuits, not to such

substitutions.

       The plaintiffs could have kept Mercy Hospital as a defendant in the action or could

have substituted Mercy Clinic for it. They could not sue both by adding one after the

statute of limitations had run. They may not, therefore, proceed with the action against

Mercy Hospital filed outside the statute of limitations. 5


5
  The Court notes another possible flaw in plaintiffs’ second amended petition. While
plaintiffs say it does not add in any new claim but simply seeks to reassert part of its
original claim against Mercy Hospital for the conduct of its nurses, the second amended


                                                 11
IV.      CONCLUSION

             The plaintiffs’ substitution of Mercy Clinic in place of Mercy Hospital was not a

      nonsuit entitling them to the benefit of the one-year savings provision. Because the

      savings statute does not apply, and because the action against Mercy Hospital was filed

      after the three-year statute of limitations expired, it is time-barred. The circuit court’s

      judgment is affirmed.


                                                       _________________________________
                                                             LAURA DENVIR STITH, JUDGE


      All concur.




      petition actually expands the scope of the claims considerably as compared to the original
      petition by asserting negligence by the nursing staff in failing “to contact Dr. Dodson or
      other physicians to inform him about decedent’s condition prior to discharge.” If this
      were determined to constitute a new cause of action, then the savings statute would not
      apply in any case. See Molder v. Trammell Crow Servs., Inc., 309 S.W.3d 837, 841 (Mo.
      App. 2010); Centerre Bank of Kan. City, Nat’l Ass’n v. Angle, 976 S.W.2d 608, 616 (Mo.
      App. 1998) (“For a second action to come within the savings statute, it thus must embody
      the issues set forth in the original action,” meaning “[t]he subject-matter must be the
      same.”).


                                                     12
