             SUPREME COURT OF MISSOURI
                                         en banc

SALLY BOLAND, SHERRI LYNN                      )     Opinion issued December 10, 2019
HARPER, DAVID GANN, JENNIRAE                   )
LITTRELL, and HELEN PITTMAN,                   )
                                               )
                              Appellants,      )
                                               )
v.                                             )    No. SC97412
                                               )
SAINT LUKE’S HEALTH SYSTEM,                    )
SAINT LUKE’S HOSPITAL OF                       )
CHILLICOTHE, and COMMUNITY                     )
HEALTH GROUP,                                  )
                                               )
                              Respondents.     )


      APPEAL FROM THE CIRCUIT COURT OF LIVINGSTON COUNTY
                  The Honorable Daren L. Adkins, Judge


       In October 2016, Sally Boland, Sherri Lynn Harper, David Gann, Jennirae Littrell,

and Helen Pittman (collectively, “Appellants”) filed five separate actions for fraudulent

concealment against Saint Luke’s Health System, Saint Luke’s Hospital of Chillicothe,

and Community Health Group (collectively, “Respondents”). Respondents filed motions

for summary judgment, arguing Appellants’ claims are barred by either the doctrine of

res judicata or the five-year statute of limitations for fraud claims set forth in section
516.120(5). 1 The circuit court granted judgment in favor of Respondents on both

grounds, and Appellants appealed. This Court has jurisdiction over this consolidated

appeal under article V, section 10 of the Missouri Constitution. The facts upon which

Appellants now rely to show fraud were discoverable by them in July 2010, October

2010, and January 2011, when Appellants filed their wrongful death petitions involving

the same conduct by Respondents. Accordingly, their present claims for fraudulent

concealment are barred by section 516.120(5).

                                          Background

        Litigation between these parties began in 2010 and 2011 when Appellants filed

five separate, but similar, wrongful death lawsuits against Respondents. 2 Those wrongful

death petitions alleged that Respondents were directly and vicariously liable for the

deaths of each of Appellants’ family members at Hedrick Medical Center between

February 2002 and April 2002. 3 Specifically, Appellants’ petitions alleged that Jennifer

Hall, a former respiratory therapist employed by Respondents, intentionally administered

lethal doses of succinylcholine and insulin to Appellants’ family members. Appellants




1
    All statutory references are to RSMo 2016 unless otherwise indicated.
2
  Appellants’ wrongful death lawsuits were not all filed on the same day. Jennirae Littrell and
Helen Pittman filed their wrongful death lawsuits July 14, 2010; Sherri Lynn Harper and David
Gann filed their wrongful death lawsuits October 4, 2010; and Sally Boland filed her wrongful
death lawsuit January 7, 2011.
3
   It is undisputed that Appellants were the statutorily authorized persons to bring the original
wrongful death lawsuits as provided by section 537.080. As a result, Appellants also are the
proper persons to bring the present fraud claims that Respondents’ fraudulent conduct prevented
Appellants from timely filing their wrongful death lawsuits.


                                                2
claimed Hall’s misconduct caused at least nine suspicious deaths and at least 18 other

medical emergencies at Hendrick Medical Center.

       In addition to claims that Respondents were negligent in hiring, retaining, and

supervising Ms. Hall, Appellants’ 2010 and 2011 wrongful death petitions claimed that

Respondents were directly liable for their family members’ deaths because Respondents

engaged in battery, negligent misrepresentation by concealment, civil conspiracy and

conspiracy to commit fraudulent concealment, and fraudulent misrepresentation. 4

Specifically, Appellants alleged Respondents failed to inform the necessary persons and

medical committees when Ms. Hall’s misconduct was discovered and threatened or

coerced hospital employees to conceal information regarding Ms. Hall’s misconduct.

Further, in order to prevent autopsies that would have revealed the decedents’ true causes

of death, Appellants alleged that Respondents instructed hospital employees to notify the

families that the decedents had died of natural causes. Finally, Appellants alleged

Respondents removed or altered the decedents’ medical records to prevent the patients’

physicians from accessing them, and Respondents impeded law enforcement’s

investigation of Ms. Hall by failing to investigate or monitor her activities when asked to

do so and by failing to preserve evidence relating to her misconduct.




4
   These particular claims were brought by Sally Boland, Sherri Lynn Harper, and David Gann
in their wrongful death petitions. Jeannirae Litrell and Helen Pittmann brought the following,
slightly different, set of claims in their wrongful death petitions: battery, negligence, negligent
hiring and supervision, intentional failure to supervise, and civil conspiracy, as well as a Civil
RICO (Racketeer Influenced and Corrupt Organizations) violation. The allegations regarding
Respondents’ conduct were substantially the same in all of the wrongful death petitions.


                                                  3
       Respondents filed motions for judgment on the pleadings, arguing Appellants’

2010 and 2011 wrongful death lawsuits were time-barred by the three-year statute of

limitations for a wrongful death cause of action under section 537.100. Because the

causes of actions began to accrue in 2002, when the decedents died, Respondents argued

that the wrongful death petitions had to have been filed no later than 2005. Appellants

argued that the three-year statute of limitations was tolled, i.e., did not begin to run, due

to Respondents’ intentional efforts to fraudulently conceal the true (and actionable)

nature of the decedents’ deaths. Even though this Court had held that the statute of

limitations for wrongful death is not tolled by fraud, concealment, or other improper acts,

in Frazee v. Partney, 314 S.W.2d 915, 921 (Mo. 1958), Appellants relied on a court of

appeals’ decision to the contrary, see Howell v. Murphey, 844 S.W.2d 42, 47 (Mo. App.

1992) (holding the statute of limitations for a wrongful death cause of action was tolled

due to the defendant’s fraudulent conduct “until the plaintiffs could, by reasonable

diligence, ascertain that they had [a cause of] action”).

       The circuit court granted Respondents’ motions for judgment on the pleadings and

dismissed Appellants’ wrongful death suits. Appellants appealed. In that consolidated

appeal, this Court affirmed the circuit court’s judgment, holding the court of appeals’

decision in “Howell [was] in error[,]” and this Court’s decision in Frazee controlled.

Boland v. Saint Luke’s Health Sys., Inc., 471 S.W.3d 703, 709 (Mo. banc 2015)

(“Boland I”).

       On October 18, 2016, after this Court’s decision in Boland I, Appellants filed five

separate (but almost identical) petitions alleging fraudulent concealment by Respondents.


                                               4
These petitions allege, by withholding and concealing knowledge of Ms. Hall’s wrongful

conduct in causing the decedents’ deaths in 2002, Respondents damaged Appellants by

causing them to lose their right to timely file wrongful death causes of action. Appellants

further allege this injury – i.e., Appellants’ inability to bring timely wrongful death

lawsuits − did not arise until this Court’s decision in Boland I.

       Respondents filed motions for summary judgment arguing Appellants’ claims are

barred either by the doctrine of res judicata or by the five-year statute of limitations for

fraud claims set forth in section 516.120(5). The circuit court found Appellants’ claims

against Respondents for fraudulent concealment are barred on both grounds and entered

judgment for Respondents. This consolidated appeal follows.

                                          Analysis

        “Whether summary judgment was proper is a question of law.” Turner v. Sch.

Dist. of Clayton, 318 S.W.3d 660, 664 (Mo. banc 2010). This Court reviews the grant of

summary judgment de novo and “will affirm … under any appropriate theory.” Id. “The

Court views the record in the light most favorable to the party against whom judgment

was entered and affords that party the benefit of all reasonable inferences.” Id. Here,

Appellants’ claims are barred by the five-year statute of limitations for fraud claims.

Because the circuit court’s judgment can be affirmed on that basis alone, this Court need

not (and, therefore, does not) address whether Appellants’ claims are also barred by the

doctrine of res judicata.

       Generally, section 516.120 sets forth a five-year statute of limitation for certain

causes of action. Subsection five of this statute provides that among those claims to


                                              5
which the five-year statute applies is: “An action for relief on the ground of fraud, the

cause of action in such case to be deemed not to have accrued until the discovery by the

aggrieved party, at any time within ten years, of the facts constituting the fraud.”

§ 516.120(5). Thus, a claim for fraud must be brought within five years from the date the

cause of action accrued, i.e., the date the facts constituting the fraud were discovered or,

with reasonable diligence, could have been discovered, but no longer than ten years after

they occurred. Id. See also Ellison v. Fry, 437 S.W.3d 762, 769 (Mo. banc 2014) (“[A]ll

fraud claims must be brought within five years from when the cause of action accrues,

which is … when the fraud is discovered ….”). 5

       Appellants each filed their current petitions against Respondents for fraudulent

concealment on October 18, 2016. Therefore, for these causes of action to have been


5
   Appellants argue that, in addition to section 516.120(5), section 516.100, the general provision
governing statutes of limitations, applies. Relevant to Appellants’ argument, section 516.100
provides, “[c]ivil actions … can only be commenced” upon the accrual of a cause of action that
“shall not be deemed to” occur until “the damage resulting therefrom is sustained and is capable
of ascertainment[.]” Appellants assert the requirements of section 516.100 and section 516.120
must be read in pari materia such that, in order for a fraud cause of action to accrue, “the facts
constituting the fraud” must be “discover[ed] by the aggrieved party,” section 516.120(5); and
“the damage resulting [from the fraud must be] sustained and … capable of ascertainment,”
section 516.100. As support for this proposition, Appellants rely on Rippe v. Sutter, 292 S.W.2d
86 (Mo. 1956). But this Court expressly held otherwise in Ellison, 437 S.W.3d at 769, when it
stated, “Under [section 516.120(5)], all fraud claims must be brought within five years from
when the cause of action accrues, which is … when the fraud is discovered ….” See also Hunter
v. Hunter, 50 Mo. 445, 452 (1872) (“Where the case is one of fraud, the statute in no case will
commence to run till the discovery of the fraud. … [Only when] a party is in possession of, or
has notice of, the main fact constituting the fraud, the statute will commence ….”). Additionally,
the court of appeals has consistently held the same. See, e.g., Saidawi v. Giovanni’s Little Place,
Inc., 987 S.W.2d 501, 506 (Mo. App. 1999); Judy v. Ark. Log Homes, Inc., 923 S.W.2d 409,
416-17 (Mo. App. 1996); Gilmore v. Chi. Title Ins. Co., 926 S.W.2d 695, 698 (Mo. App. 1996);
Lehnig v. Bornhop, 859 S.W.2d 271, 273 (Mo. App. 1993); Schwartz v. Lawson, 797 S.W.2d
828, 832 (Mo. App. 1990); Zero Mfg. Co. v. Husch, 743 S.W.2d 439, 442 (Mo. App. 1987). As
a result, to the extent Rippe v. Sutter holds otherwise, it should no longer be followed.


                                                6
timely filed under section 516.120(5), the facts constituting Respondents’ fraudulent

conduct must not have been discovered or reasonably discoverable more than five years

before that date, or October 18, 2011. But the very latest date on which Appellants had

discovered – or with reasonable diligence should have discovered – the facts underlying

their current fraudulent concealment claims was January 7, 2011, because that is the date

on which the last Appellant filed her wrongful death petition. 6 As evidenced by the

extensive allegations of fraud and fraudulent concealment (and claims of civil conspiracy,

fraudulent concealment, and fraudulent misrepresentation by concealment) in

Appellants’ wrongful death petitions that were filed in 2010 and January 2011,

Appellants claimed at that time to know that Respondents had engaged in fraudulent

conduct in connection with the deaths of Appellants’ family members and sought to

conceal the nature of their deaths from Appellants. To every meaningful degree,

Appellants made the very same allegations of fraudulent conduct by Respondents in their

wrongful death petitions filed in 2010 and 2011 as they do in their fraudulent

concealment petitions filed in 2016.

        Notably, the only material difference between the two sets of petitions (at least

with respect to the claims relating to Respondents’ fraud), is the injury Appellants claim

they suffered as a result of Respondents’ fraudulent conduct. 7 In the wrongful death


6
  Although some of the Appellants filed their actions in 2010, this opinion refers to all of the
Appellants collectively, and, for ease of reference, the Court uses the latest date upon which all
Appellants were deemed to have known the facts constituting fraud. Here, that date is January 7,
2011, when Sally Boland filed her wrongful death petition.
7
  “The elements of fraud are: 1) a representation; 2) its falsity; 3) its materiality; 4) the
speaker’s knowledge of its falsity, or his ignorance of its truth; 5) the speaker’s intent that it

                                                   7
petitions, Appellants alleged that the injury suffered was the death of decedents, but in

the 2016 fraudulent concealment petitions, Appellants allege their injury was the inability

to timely file their wrongful death lawsuits. Crucially, Appellants claim that – before this

Court handed down Boland I, on August 18, 2015 – they had not discovered (and

reasonably could not have discovered) that Respondents’ fraudulent conduct had

prevented them from timely filing their wrongful death lawsuits. 8

       But this cannot be. Appellants were well aware they were filing their wrongful

death lawsuits out of time when they filed their wrongful death lawsuits in 2010 and

2011. First, the decedents died in 2002; therefore, the three-year statute of limitations in

section 537.100 for wrongful death causes of action ran in 2005. Second, Appellants

knew of Respondents’ fraudulent conduct at the time they filed their wrongful death

lawsuits because those petitions contain materially the same allegations that are contained

in their 2016 petitions. Third, Appellants knew, or with reasonable diligence should have



should be acted on by the person and in the manner reasonably contemplated; 6) the hearer’s
ignorance of the falsity of the representation; 7) the hearer’s reliance on the representation being
true; 8) his right to rely thereon; and, 9) the hearer’s consequent and proximately caused injury.”
Heberer v. Shell Oil Co., 744 S.W.2d 441, 443 (Mo. banc 1988). Here, there is no debate that
Appellants knew of elements one through eight when they filed their wrongful death petitions in
2010 and 2011. As a result, the only issue was whether, when Appellants filed their wrongful
death petitions, they knew (or with reasonable diligence could have known) of element nine – the
injury suffered. Frazee and its holding with respect to section 537.100 were known to
Appellants (or, at the least, reasonably discoverable by them) when they filed their wrongful
death petitions.
8
   It is not at all clear that the continued validity of a nearly 60-year-old precedent from this
Court – and, consequently, the timeliness of Appellants’ wrongful death cases filed in 2010 and
2011 – are the sort of “facts constituting the fraud” that must be “discover[ed]” or reasonably
discoverable by Appellants before the statute of limitations on their 2016 fraudulent concealment
claims accrued under section 516.120(5). Nevertheless, the Court will assume that they are
because Appellants’ argument fails even if this is so.


                                                 8
known, that Respondents’ fraudulent conduct would not toll the three-year statute of

limitations for a wrongful death cause of action because this Court had specifically held

so in Frazee.

        Appellants argue that they did not know Frazee would control (and, therefore, that

their tolling argument would fail) until this Court’s decision in Boland I. That is

incorrect. Boland I did nothing extraordinary; it merely applied the most recent

controlling Supreme Court of Missouri precedent (i.e., Frazee) to the issue at hand. This

Court’s application of nearly 60-year-old precedent cannot be said to constitute a new

“fact,” let alone a “fact” that was not reasonably discoverable by Appellants prior to

reading this Court’s decision in Boland I. Instead, it was Appellants’ reliance on Howell

that was in error. 9 It is well settled that, unless “[t]he rulings made, and the legal

conclusions reached, by this [C]ourt,” have been “criticized, modified, or overruled by

this [C]ourt[,]” such rulings are controlling in all lower courts. State ex rel. Maclay v.

Cox, 10 S.W.2d 940, 946 (Mo. 1928) (emphasis added). Accord Mo. Const. art. V, § 2.

Thus, as this Court explained in Boland I, Howell wrongfully held O’Grady 10 overruled

Frazee because “Frazee was never referenced or cited by this Court in O’Grady[,]” or

other subsequent opinions. Boland I, 471 S.W.3d at 709.




9
   Of course, this Court is not suggesting Appellants were not entitled to argue this Court ought
to adopt the reasoning of Howell. And there is no doubt it was zealous advocacy that caused
Appellants and their counsel to advocate for such a change. But, in advancing the theory set
forth in Howell, Appellants were not relying on settled law − they were advocating for a change
in law.
10
     O’Grady v. Brown, 654 S.W.2d 904 (Mo. banc 1983).

                                                9
       In short, everything Appellants know now, they knew in 2011 when they filed the

last of their wrongful death petitions. They knew of Respondents’ fraudulent conduct

because it was set forth in those petitions, and they knew that fraud did not toll the

wrongful death statute of limitations because Frazee was the law in this state long before

the deaths of Appellants’ family members. Boland I did nothing to change that. Stated

differently, in bringing their wrongful death causes of action in 2010 and January 2011,

Appellants argued that this Court should reject Frazee, adopt the reasoning of Howell,

and hold the three-year statute of limitations for wrongful death is tolled by fraud,

concealment, or other improper acts. But, Appellants could have asserted fraudulent

concealment claims in 2010 and January 2011 and argued that – because of Frazee –

Respondents’ fraudulent conduct deprived them of the opportunity to file wrongful death

claims in a timely manner. Because that argument was available to them then, the

five-year statute of limitations in section 516.120(5) prevents them from asserting those

fraudulent concealment claims in October 2016.

                                        Conclusion

     For the reasons set forth above, the judgments of the circuit court are affirmed.


                                                       _____________________________
                                                       Paul C. Wilson, Judge

All concur.




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