              SUPREME COURT OF MISSOURI
                                        en banc

STATE ex rel. BOB T. BEISLY II,            )
                  Relator,                 )
                                           )
vs.                                        )      No. SC94030
                                           )
THE HONORABLE TIMOTHY                      )
PERIGO,                                    )
                                           )
                      Respondent.          )

                     ORIGINAL PROCEEDING IN PROHIBITION

                              Opinion issued August 18, 2015

         Bob T. Beisly II (hereinafter, “Relator”), the defendant in the action below, seeks

a writ of prohibition to prevent the circuit court from taking any further action in Wilma

Jean Irwin’s (hereinafter, “Irwin”) wrongful death suit, other than to dismiss it with

prejudice. Relator contends Irwin’s suit is time-barred by section 537.100, RSMo 2000. 1

This Court holds the circuit court did not abuse its discretion in overruling Relator’s

motion to dismiss because the doctrine of equitable estoppel forecloses Relator from

relying on the statute of limitations as an affirmative defense due to the fraudulent

concealment of his wrongdoing. The preliminary order in prohibition is quashed.




1
    All statutory references are to RSMo 2000.
                            Factual and Procedural History

       On July 15, 2009, Relator’s estranged wife, Belinda Beisly (hereinafter, “the

decedent”), was found dead inside her home from multiple gunshot wounds to her head

and chest. Her death was ruled a homicide. Decedent’s homicide remained unsolved

until February 8, 2013, when the state charged Relator and Jeremy Maples (hereinafter,

“Maples”) with the decedent’s murder. The felony complaint alleged Maples committed

first-degree murder by shooting decedent, and it charged Relator with aiding and

encouraging Maples in committing the decedent’s murder.

       On February 13, 2013, Irwin, the decedent’s mother, filed a wrongful death action

against Relator and Maples.     Irwin alleged Maples shot and killed the decedent in

exchange for money received from Relator. Irwin’s petition further alleged Maples and

Relator kept their arrangement from being discovered from law enforcement and the

decedent’s family by: (1) disguising the nature of the decedent’s death by staging it to

look like a home invasion and using a weapon that could not be traced; (2) lying to law

enforcement; (3) destroying evidence; and (4) denying their involvement in the

decedent’s death.

       Relator filed a motion to dismiss Irwin’s petition, arguing her claim was time-

barred by section 537.100, the wrongful death statute of limitations, because it was filed

more than three years after the decedent’s death. Irwin filed suggestions in opposition,

arguing Relator and Maples fraudulently concealed their wrongdoing as alleged in her

petition. Irwin stated this conduct made it impossible for her to identify perpetrators and

name defendants, which were prerequisites to maintaining a civil suit. Irwin also alleged
Relator and Maples should be estopped from relying on the statute of limitations as a

defense due to their fraudulent concealment of their wrongdoing.

       The circuit court acknowledged the general rule that a wrongful death action

accrues when the decedent dies. However, the circuit court found it should not construe

the wrongful death statutes so strictly so as to avoid their purposes. The circuit court

overruled Relator’s motion, reasoning that to allow the wrongdoers to escape civil

liability on the basis of the statute of limitations in this case was “shocking to the

conscience.”

       Relator sought a writ of prohibition in the court of appeals. After opinion by that

court, this Court granted transfer pursuant to Mo. Const. art V, sec. 10.

                                   Standard of Review

       This Court has jurisdiction to issue original remedial writs. Mo. Const. art. V, sec.

4. “Prohibition 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 appropriate remedy to prevent a lower

court from proceeding on an action barred by the statute of limitations.” State ex rel.

Holzum, 342 S.W.3d 313, 315 (Mo. banc 2011).

                         Wrongful Death Statute of Limitations

       Relator argues he is entitled to a writ of prohibition that will prohibit the circuit

court from taking any further action in the underlying case other than to enter an order

dismissing Irwin’s suit with prejudice, because the action is time-barred by section
                                             3
537.100. Relator claims none of the tolling provisions in section 537.100 apply to

Irwin’s cause of action.

       Section 537.080.1 sets forth the cause of action for wrongful death and delineates

who is entitled to sue for damages. Section 537.100 states that every action brought

pursuant to section 537.080 “shall be commenced within three years after the cause of

action shall accrue.” Section 537.100 contains explicit tolling exceptions: (1) if the

plaintiff is unable to serve an absent defendant with service of process and (2) if the

plaintiff files a voluntary non-suit or if the plaintiff’s judgment is reversed and remanded

on appeal. These exceptions do not apply to toll Irwin’s cause of action.

       Irwin argues Relator’s success at concealing his wrongdoing caused the accrual of

her wrongful death claim to be delayed. Irwin claims she was unable to file suit until she

discovered who was responsible for the decedent’s death, and this did not occur until

Relator and Maples were arrested for the decedent’s murder.

Accrual Distinct from Tolling

       The terms “accrual” and “tolling” are distinct legal principles that often produce

the same outcome. Generally, “[a] cause of action accrues … when the right to sue

arises.” Hunter v. Hunter, 237 S.W.2d 100, 103 (Mo. 1951). Accrual also triggers the

running of the statute of limitations. Id. Tolling, on the other hand, occurs when a party

shows facts that act to remove or interrupt the bar of the statute of limitations to a cause

of action. 2 Mo. Practice Series, Methods of Practice: Litigation Guide, §5.9 (4th ed.

2002). Thus, while every cause of action has a time of accrual, not every cause of action



                                             4
is subject to tolling. Further, if a cause of action has not accrued, there is nothing to toll,

because an event or circumstance cannot interrupt or remove that which has never started.

Accrual and Wrongful Death Actions

       “In determining whether an applicable statute of limitation bars recovery, it is

necessary to establish when that cause of action accrued.” Jepson v. Stubbs, 555 S.W.2d

307, 311 (Mo. banc 1977). Section 537.100 does not define “accrue” for purposes of the

wrongful death statute of limitations. In Coover v. Moore, 31 Mo. 574, 576 (Mo. 1862),

this Court stated the cause of action under the wrongful death statute accrued “at the

death.” In Kennedy v. Burrier, 36 Mo. 128 (Mo. 1865), this Court explained more fully:

       We think the cause of action accrued whenever the defendant’s liability
       became perfect and complete. Whenever the defendant had done an act
       which made him liable in damages, and there was a person in esse to whom
       the damages ought to be paid and who might sue for and recover the same,
       then clearly the cause of action had accrued as against him. When, then,
       did this liability take place? Evidently at the death of [decedent] … and the
       statute commenced running from that time.

Kennedy, 36 Mo. at 130. See also Cummins v. Kansas City Pub. Serv. Co., 66 S.W.2d

920, 929 (Mo. banc 1933) (finding the statute provides for one cause of action that

accrues at the time of death), and Nelms v. Bright, 299 S.W.2d 483, 487 (Mo. banc 1957)

(accord).

       This Court addressed the issue of whether a wrongful death cause of action

accrued and caused the statute of limitations to begin to run at the time of death or upon

the discovery of the identity of the alleged tortfeasor in Frazee v. Partney, 314 S.W.2d

915 (Mo. 1958). In Frazee, a family was involved in an accident caused by another

                                              5
vehicle swerving into its lane when the driver fell asleep at the wheel in October 1954.

There was no contact between the cars, but the family’s car went down an embankment

and overturned several times. The mother and one of the children died as a result of the

accident. The other driver did not stop immediately and, when he did, he did not see

anyone, so he continued on his way, unaware there had been an accident. The family did

not learn the driver’s identity until March 1956. Frazee, 314 S.W.2d at 917.

       The family filed a wrongful death suit against the driver in September 1956. The

petition alleged the defendant “fraudulently, intentionally, deliberately, willfully,

maliciously, and of his spite absented himself and concealed his identity from the

plaintiffs and all other persons …” from the time of the accident until March 1956. The

driver argued the family’s suit was barred by the statute of limitations, which at that time

was one year. This Court addressed two issues: (1) whether the driver’s acts operated to

toll or extend section 537.100’s limitations period and (2) when the family’s cause of

action accrued. Id. at 917.

       With respect to tolling, this Court determined the wrongful death statute contained

a special statute of limitation. Accordingly, section 516.280’s fraudulent concealment

tolling provision did not apply. Id. at 919. This Court explained, “This [C]ourt has

uniformly held that where a statute of limitation is a special one, not included in the

general chapter on limitations, the running thereof cannot be tolled because of fraud,

concealment or any other reason not provided in the statute itself.” Id. (quoting State ex

rel. Bier v. Bigger, 178 S.W.2d 347, 351 (Mo. banc 1944)). In reaching this conclusion,

this Court also examined the legislature’s intent, including the fact that the legislature had
                                              6
twice enacted specific tolling exceptions in the wrongful death statute, but those

exceptions did not extend to the driver’s fraudulent concealment conduct. Id. at 920.

       In addressing the family’s argument that its cause of action did not accrue until it

learned the identity of the wrongdoer, this Court recognized the case turned on an

inability to discover the identity of the defendant and not on the existence of a cause of

action. Id. While this Court was cognizant of the family’s difficulty in serving an

unknown defendant, this Court stated, “We are construing the positive terms of a statute

which starts the limitation in motion from the ‘accrual’ of the cause of action, not from

the time when one may be effectively commenced.” Id. at 921. This Court held that “the

cause of action for wrongful death accrues at the death.” Id. The family’s cause of

action accrued in October 1954 when the mother and child died. The petition filed in

September 1956 was time-barred.         The Court recognized its holding resulted in a

hardship after it was “forced to construe the cold, clear words of the statute.” Id.

       Relator contends Frazee is directly on point and disposes of this writ because

Irwin’s claim accrued when the decedent died, and there is no dispute her claim was filed

beyond the three-year statutory period. Irwin disagrees, maintaining Frazee was decided

wrongly and should no longer be followed because of holdings in two subsequent

wrongful death cases.

       In O’Grady v. Brown, 654 S.W.2d 904 (Mo. banc 1983), this Court held an

unborn, viable fetus was a “person” under the wrongful death statute. O’Grady, 654

S.W.2d at 906-07. This Court explained the wrongful death act was “designed to mend

the fabric of the common law, not to weaken it.” Id. at 908. This Court rejected the
                                              7
argument that the wrongful death statute had to be construed strictly and, instead, applied

the statute’s language “with a view to promoting the apparent object of the legislative

enactment.” Id. at 907-08 (quoting United Air Lines, Inc. v. State Tax Comm’n, 377

S.W.2d 444, 451 (Mo. banc 1964)). This Court recognized its duty “to perceive the

import of major legislative innovations and to interweave the new legislative policies

with the inherited body of common law principles.” Id. at 908 (quoting Moragne v.

States Marine Lines, Inc., 398 U.S. 375, 392, 90 S. Ct. 1772, 1783, 26 L.Ed.2d 339

(1970)). This Court also set forth three basic objectives the wrongful death statute was

enacted to achieve: (1) “to provide compensation to bereaved plaintiffs for their loss;”

(2) “to ensure that tortfeasors pay for the consequences of their actions;” and (3) “to deter

harmful conduct which might lead to death.” Id. at 909.

       In Howell v. Murphy, 844 S.W.2d 42 (Mo. App. W.D. 1992), the plaintiffs

appealed the dismissal of their wrongful death suits as time-barred against a man who

tortured and murdered their loved ones, then concealed evidence of his crimes for more

than five years after their deaths. Howell, 844 S.W.2d at 43-44. In reversing and

remanding the case, the court of appeals found O’Grady “announced a major shift in its

interpretation of Missouri’s wrongful death statute.” Id. at 46. After setting forth the

three-fold purpose of the wrongful death statute announced in O’Grady, the Western

District concluded, “The reasoning in Frazee is superseded by O’Grady.” Id. The court

distinguished Frazee’s finding that it was not concerned with the existence of a cause of

action but, rather, the inability to discover the identity of the wrongdoer. The Howell



                                             8
court stated it was “concerned with the question of the existence of the cause of action.”

Id.

       The Howell plaintiffs presented evidence that their loved ones were presumed

missing, but not dead, until their body parts were discovered or the defendant pleaded

guilty to causing their deaths and reported specific dates of death. Id. at 45. Thus, the

plaintiffs had no choice but to wait before asserting a wrongful death action because the

law contained a statutory presumption of life for missing persons. Accordingly, the

plaintiffs could not assert any action within a five-year period until they had facts to

overcome the statute’s presumption. Id. at 47. The Western District held that, given the

defendant’s concealment of the bodies and the statute’s presumption that the victims were

only missing and not dead, the wrongful death statute of limitations “was tolled until the

plaintiffs could, by reasonable diligence, ascertain they had an action.” Id.

       Irwin contends Howell’s reasoning is compelling and should control the outcome

here. Irwin argues that when Relator and Maples concealed their participation in the

decedent’s murder, they made it impossible for her to enforce her rights in a timely

manner.    Conversely, Relator maintains Howell is distinguishable and that Frazee

remains good law despite Howell’s statement to the contrary.

       While this Court agrees with Howell’s statement that O’Grady announced a major

shift in its interpretation of Missouri’s wrongful death statute, this Court finds Howell

erroneously determined this Court’s holding in O’Grady superceded Frazee. “Generally,

this Court presumes, absent a contrary showing, that an opinion of this Court has not

been overruled sub silentio.” State v. Honeycutt, 421 S.W.3d 410, 422 (Mo. banc 2013).
                                             9
“Sub silentio is defined as ‘without notice being taken or without making a particular

point of the matter in question.’”     Id. (quoting Webster’s Third New International

Dictionary 2279 (1976)). “If the majority chooses to overrule [a case] it is far preferable

to do so by the front door of reason rather than the amorphous back door of sub silentio.”

Id. (quoting Keller v. Marion Cnty. Ambulance Dist., 820 S.W.2d 301, 308 (Mo. banc

1991) (Holstein, J., dissenting)). O’Grady did not discuss the wrongful death statute of

limitations or cite Frazee for any proposition of law. Further, Frazee and O’Grady are

factually and legally dissimilar. O’Grady was concerned with the definition of “person”

for purposes of pursuing a wrongful death claim, while Frazee addressed whether the

wrongful death statute of limitation could be tolled. Frazee remains good law, and

Howell’s statement to the contrary should no longer be followed.

       Relator alleges Frazee controls the outcome here. In both Frazee and the instant

case, the parties had knowledge of the decedents’ deaths and the wrongfulness of the

deaths. What the aggrieved parties did not know was the identity of the tortfeasors.

What distinguishes Frazee from this case is Irwin’s claim that equitable estoppel

forecloses Relator from asserting the wrongful death statute of limitations as a defense to

her suit due to the fraudulent concealment of his wrongdoing.

                                   Equitable Estoppel

A basic common law maxim, deeply rooted in this country’s jurisprudence and older than

the country itself, is that no person shall take advantage of or benefit from his or her

wrong. Glus v. Brooklyn Eastern Dist. Terminal, 359 U.S. 231, 232, 79 S. Ct. 760, 762,

3 L.Ed.2d 770 (1959). “[T]his principle has been applied in many diverse classes of
                                            10
cases by both the law and equity courts and has frequently been employed to bar

inequitable reliance on statutes of limitations.” Id. at 232-33. The principle of equitable

estoppel was described in Glus:

        [W]here one party has by his representation or his conduct induced the other party
       to a transaction to give him an advantage which it would be against equity and
       good conscience for him to assert, he would not in a court of justice be permitted
       to avail himself of the advantage …. [T]he general doctrine is well understood and
       is applied by courts of law as well as equity where the technical advantage thus
       obtained is set up and relied on to defeat the ends of justice or establish a dishonest
       claim.

Glus, 359 U.S. at 234 (quoting Union Mut. Ins. Co. v. Wilkinson, 80 U.S. 222, 233, 20
                     2
L.Ed. 617 (1871)).

       “The purpose of the doctrine of equitable estoppel is to prevent a party from taking

inequitable advantage of a situation he or she has caused.” Weiss v. Rojanasathit, 975

S.W.2d 113, 120 (Mo. banc 1998).           “A party is estopped to plead the statute of


2
  Judge Russell’s dissenting opinion finds Glus distinguishable because the dissent
believes there was nothing in the legislative history of the federal statute to indicate
equitable estoppel would not be applicable, and counsel made no compelling argument to
the contrary. Judge’s Russell’s dissenting opinion then states the legislative history of
section 537.100 indicates the General Assembly’s intent to not include a fraudulent
concealment exception. The dissenting opinion strongly adheres to the concept of
legislative acquiescence or inaction to support its position. The dissenting opinion claims
that because the legislature has not amended section 537.100 to include any fraudulent
concealment exception after this Court’s decision in Frazee, the legislature’s inaction is
conclusive no matter what factual or legal scenario is presented later. This Court has held
that, while legislative inaction is “not conclusive of legislative approval, such inaction
can be considered.” South Metro. Fire Prot. Dist. v. City of Lee’s Summit, 278 S.W.3d
659, 669 n.11 (Mo. banc 2009). Further, this Court has cautioned, “it is speculative to
infer legislative approval from legislative inaction.” Med. Shoppe Int’l, Inc. v. Dir. of
Revenue, 156 S.W.3d 333, 334 (Mo. banc 2005).

                                             11
limitations only if that party made positive efforts to avoid the bringing of the suit against

her or misled the claimants.” Id. To apply the doctrine of equitable estoppel to bar a

defendant’s statute of limitations defense, the defendant must have acted affirmatively to

induce the plaintiff to delay bringing the action. Id. 3

       Several states have cited Glus’ equitable estoppel principles to prevent a defendant

from asserting the statute of limitations as an affirmative defense in wrongful death

actions when that defendant has committed fraud to conceal his or her actions. 4 See

Arbutina v. Bahuleyan, 75 A.D.2d 84, 86 (1980) (acknowledging the well-recognized

legal principle that, when a defendant, by a deception, has caused a plaintiff to delay suit

3
  Judge Russell’s dissenting opinion cites Weiss as an example of this Court’s judicial
restraint in strictly construing a statute of limitations by deferring to the legislature’s
pronouncement and rejecting an equitable estoppel argument. However, a close reading
of Weiss demonstrates this Court analyzed the merits of the plaintiff’s equitable estoppel
argument. While this Court ultimately rejected the plaintiff’s estoppel claim, it was
because there was no showing the doctor acted affirmatively to induce the plaintiff to
delay filing her lawsuit. Weiss, 975 S.W.2d at 121. Accordingly, it was the plaintiff’s
failure to plead the proper elements of equitable estoppel that caused her claim to fail, not
this Court’s unwillingness to apply equitable estoppel to statutes of limitation.
4
  Judge Russell’s dissenting opinion criticizes the principal opinion for relying upon
multiple cases from other jurisdictions, yet it relies upon a secondary source, THEODORE
SEDGWICK, A TREATISE ON THE RULES WHICH GOVERN THE INTERPRETATION AND
CONSTRUCTION OF STATUTORY AND CONSTITUTIONAL LAW, 277 (Pomeroy, ed., 2d ed.
1874, reprint 2012), as “considerable historical precedent” for the proposition that courts
have long rejected the creation of an equitable exception to the statute of limitations.
Sedgwick’s generic musings about this topic may be informative. However, they are
considerably less persuasive than Missouri’s sister states, that, under similar statutory
frameworks, have seen fit to apply the long-standing doctrine of equitable estoppel to
prevent a wrongdoer from benefiting from his or her own fraud, even when their statutes
do not contain an express exception.

                                              12
on a known cause of action until the statute of limitations has run, the courts will apply

the doctrine of estoppel to prevent an inequitable use of the statute as a defense); Krueger

v. St. Joseph’s Hosp., 305 N.W.2d 18, 25 (N.D. 1981) (finding estoppel could apply to

wrongful death actions because it operates to preclude one guilty of wrongdoing from

asserting the statute of limitations as a defense); First Interstate Bank of Fort Collins,

N.A. v. Piper Aircraft Corp., 744 P.2d 1197, 1200-01 (Colo. 1987) (recognizing the “long

history at common law of disapprobation of fraud” and holding wrongful death statute of

limitations does not begin to run in face of fraudulent concealment, stating, “To hold

otherwise would allow tortfeasors, by virtue of knowing and intentional fraudulent

conduct, to defeat the basic purpose of the wrongful death statute - protecting the

interests of those who, through no fault of their own, must ‘bear the burden of such tragic

events.’”); and Muller v. Thaut, 430 N.W.2d 884, 893 (Neb. 1988) (citing several cases

discussing the maxim that one may not assert the statute of limitations to take advantage

of one’s own wrongdoing and concluding that fraudulent concealment, if proved by the

plaintiff, estops the defendant from asserting the statute of limitations as a defense to

plaintiff’s wrongful death action).

       Other jurisdictions applied the common law maxim regarding fraud vitiating any

assertion of the statute of limitations in wrongful death actions, although without citation

to Glus. See, e.g., Geisz v. Greater Baltimore Med. Ctr., 545 A.2d 658, 668-69 (Md.

1988) (recognizing an “ancient maxim that no one should profit by his own conscious

wrong is too deeply imbedded in the framework of our law to be set aside by legalistic

distinction[s]” between statutes of limitation, and concluding estoppel based on
                                            13
fraudulent concealment could forestall the wrongful death statute of limitations if pleaded

and proven); DeCosse v. Armstrong Cork Co., 319 N.W.2d 45, 50-52 (Minn. 1982)

(acknowledging “a person should not be permitted to shield himself behind the statute of

limitations where his own fraud has placed him. He should not be permitted to profit by

his own wrong, and it would strike the moral sense strangely to permit him to do so ….

Fraud is bad, it should not be permitted to go unchecked anywhere, and justice should

always be able to penetrate its armor” and holding wrongful death actions are subject to

tolling where a cause of action is concealed fraudulently); Cox v. Upjohn Co., 913

S.W.2d 225, 231 (Tex. App. 1995) (explaining “fraud vitiates whatever it touches” and to

permit a defendant to invoke the wrongful death statute of limitations after concealing his

or her wrongdoing “would make the statute a means of encouraging rather than

preventing fraud”); Baker v. Beech Aircraft Corp., 39 Cal. App. 3d 315, 324, (Cal. Ct.

App. 1974) (stating, “To hold that by concealing fraud, or by committing fraud in such a

manner as to conceal it until after the party committing the fraud could plead the statute

of limitations to protect itself, is to make the law which was designed to prevent fraud the

means by which it is successful and secure.”); and Krevitz v. City of Philadelphia, 648

A.2d 353, 357 (Pa. 1994) (holding a defendant is estopped from invoking the bar of a

statute of limitations “[w]here, ‘through fraud or concealment, the defendant causes the

plaintiff to relax his vigilance or deviate from his right of inquiry’ ….”).

       Further, there are cases that specifically apply these common law maxims and

equitable estoppel to prevent defendants who have committed murders from relying on

the wrongful death statute of limitations as a defense when sued civilly. See Brookshire
                                              14
v. Burkhart, 283 P. 571, 578 (Okla. 1929) (finding fraudulent concealment was an

implied exception to the wrongful death statute of limitations against murder, explaining

a party who concealed material facts that prevented the discovery of the wrong or fact

that cause of action accrued is not allowed to take advantage of that wrong by pleading

the statute, the purpose of which is to prevent wrongdoing and fraud); Overstreet v.

Kentucky Cent. Life Ins. Co., 950 F.2d 931, 936 (4th Cir. 1991) (applying equitable

estoppel due to fraudulent concealment to Virginia’s wrongful death statute of limitations

because to do otherwise would lead to unjust results, such as “enabl[ing] a murderer to

escape civil liability by concealing his identity or the nature of his crime until the

expiration of the period of limitations.”); Friedland v. Gales, 509 S.E.2d 793, 798 (N.C.

Ct. App. 1998) (holding murderer’s intentional concealment of identity as perpetrator

equitably estopped him from asserting statute of limitations as a defense to wrongful

death action); and Bernoskie v. Zarinsky, 781 A.2d 52, 57 (N.J. Super. Ct. App. Div.

2001) (applying equitable tolling to a plaintiff’s wrongful death action filed forty years

after decedent’s death, finding “a murderer who escapes detection and apprehension has

no equitable claim to the repose from the threat of litigation that statutes of limitation are

designed to provide”). 5


5
  Irwin also cites Collins v. Sotka, 692 N.E.2d 581 (Ohio 1998), Fulton Cnty. Adm’r v.
Sullivan, 753 So.2d 549 (Fla. 1999), and Allred v. Chynoweth, 990 F.2d 527 (10th Cir.
1993) to support her equitable estoppel claim. None of these cases aid Irwin’s argument
because they applied either the discovery ruling or a tolling mechanism. In Collins, the
court applied the discovery rule, not fraudulent concealment or equitable tolling, to the
plaintiff’s action. Collins, 692 N.E.2d at 585. In Sullivan, although discussing the
inequities of permitting a wrongdoer to benefit from his or her own fraud, the court
ultimately relied on a Georgia statute that expressly tolled the wrongful death statute of
                                             15
         Relator argues this Court must reject Irwin’s argument because this Court lacks

the constitutional authority pursuant to the separation of powers provision contained in

Missouri Constitution article II, section 1 to create an equitable estoppel exception to the

wrongful death statute of limitations. 6 Relator cites cases wherein this Court held that

statutes of limitations may only be suspended or tolled by specific enactments of the

legislature, and the courts are not empowered to extend those exceptions. See, e.g.,

Sanders v. Ahmed, 364 S.W.3d 195, 205 (Mo. banc 2012) (holding only the legislature

can place limits on the causes of actions it creates and to do “otherwise would be to tell

the legislature it could not legislate”).

         Relator does not address any of the cases Irwin cited from other jurisdictions,

explaining that the common law maxim that one cannot benefit from his or her fraud is a

notion that is older than the country itself. Missouri’s adoption of these common law

maxims predates Glus. See Perry v. Strawbridge, 108 S.W. 641, 642-43 (Mo. 1908),

(reiterating the basic principle that “[n]o one shall be permitted to profit by his own fraud,

limitations for fraud. Sullivan, 753 So.2d at 552. In Allred, the court applied Utah law to
hold the “exceptional circumstances” version of the discovery rule tolled wrongful death
statute of limitations against a murderer who confessed to the crime ten years after the
death because “application of the general rule would be irrational or unjust” regardless of
any showing defendant prevented discovery of the cause of action. Allred, 990 F.2d at
532.
6
    Mo. Const. art. II, sec. 1 states:
        The powers of government shall be divided into three distinct departments
        – the legislative, executive and judicial – each of which shall be confided to
        a separate magistracy, and no person, or collection of persons, charged with
        the exercise of powers properly belonging to one of those departments,
        shall exercise any power properly belonging to either of the others, except
        in the instances in this constitution expressly directed or permitted.

                                              16
or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to

acquire property by his own crime. These maxims are adopted by public policy, and

have their foundation in universal law administered in all civilized countries.”) (quoting

Box v. Lanier, 79 S.W. 1042, 1045 (Tenn. 1904)). This Court acknowledged these

common law maxims were adopted expressly as Missouri law and later codified by

section 1.010, the common law reception statute. 7            Id. at 644.    The Perry court

considered, and ultimately rejected, the notion that these common law maxims were

“either expressly or impliedly changed or modified” by statute or that the common law

either repealed, changed or modified them. Id.

          Section 1.010 expressly provides that “all acts of the general assembly, or laws,

shall be liberally construed, so as to effectuate the true intent and meaning thereof.” This

comports with this Court’s instruction in O’Grady that the wrongful death act be

construed so as “to perceive the import of major legislative innovations and to interweave



7
    Section 1.010 provides:
          The common law of England and all statutes and acts of parliament made
          prior to the fourth year of the reign of James the First, of a general nature,
          which are not local to that kingdom and not repugnant to or inconsistent
          with the Constitution of the United States, the constitution of this state, or
          the statute laws in force for the time being, are the rule of action and
          decision in this state, any custom or usage to the contrary notwithstanding,
          but no act of the general assembly or law of this state shall be held to be
          invalid, or limited in its scope or effect by the courts of this state, for the
          reason that it is in derogation of, or in conflict with, the common law, or
          with such statutes or acts of parliament; but all acts of the general assembly,
          or laws, shall be liberally construed, so as to effectuate the true intent and
          meaning thereof.
                                                17
the new legislative policies with the inherited body of common law principles.”

O’Grady, 654 S.W.2d at 908.

          Relator argues certain statutory construction principles preclude this Court’s

application of the common law maxims and equitable estoppel to the wrongful death

statute of limitations.    Relator claims Missouri courts are prohibited from engrafting

exceptions onto special statutes of limitations that would toll the running thereof based on

fraud, concealment, or any other conduct not stated explicitly in the statute, citing Frazee.

However, tolling and accrual are distinct legal concepts from the application of

fraudulent concealment as a form of equitable estoppel, which forecloses a defendant

from pleading the statute of limitations as a defense.       The application of equitable

estoppel does nothing to engraft a tolling mechanism or otherwise extend the statute of

limitations beyond what is stated expressly in the statute. The cause of action still

accrues at the decedent’s death, and the statute of limitations begins to run at that time.

Equitable estoppel does not toll the running of the statute. Rather, it forecloses the

wrongdoer, who concealed his or her actions fraudulently, from asserting the defense.

Therefore, this Court has not run afoul of its constitutional duties by reaching this

holding.

          This Court holds the application of common law maxims precluding one from

benefitting from his or her own fraud and application of the doctrine of equitable estoppel

bars Relator from asserting the statute of limitations as a defense to Irwin’s cause of

action.     In so doing, this Court follows the dictates of O’Grady by interweaving

legislative policies with the inherited body of common law principles so as to reach a
                                             18
remedial purpose ensuring that tortfeasors be held liable for the consequences of their

actions and cannot benefit from their own fraud. This approach is supported by caselaw

from many other jurisdictions, which have addressed this precise issue.          Relator’s

interpretation of the wrongful death statute of limitations not only contravenes the

purposes set forth in O’Grady, it seeks to reward fraudulent concealment, the destruction

of evidence, and the very act of murder. This Court cannot fathom that the legislature’s

intent when enacting the wrongful death statute of limitations was to permit tortfeasors to

evade liability for causing wrongful deaths so long as the tortfeasor could conceal their

wrongdoing until the statute of limitations expired, while other torfeasors, guilty of the

same conduct, except for the fortuity that it merely caused injury instead of death, would

be held liable for damages. Such a reading of section 537.100 would lead to an absurd

and illogical result. 8

                                       Conclusion

       The circuit court did not abuse its discretion in overruling Relator’s motion to

dismiss Irwin’s wrongful death suit because the doctrine of equitable estoppel forecloses

Relator from relying on the statute of limitations as an affirmative defense due to his




8
 This Court recognizes the holding in this case differs from that in Boland v. Saint Luke’s
Health Sys., Inc., --- S.W.3d --- (No. SC93906) (Mo. banc 2015), handed down this same
day. Boland is predicated upon a civil factual pattern wherein the defendants filed a
motion to dismiss while Beisly is predicated upon a criminal factual pattern and seeks
writ relief.
                                            19
fraudulent concealment of his wrongdoing.        The preliminary order in prohibition is

quashed. 9

                                                 ______________________________
                                                   GEORGE W. DRAPER III, JUDGE

Stith and Teitelman, JJ., and Gabbert, Sp.J., concur; Fischer, J., dissents in separate
opinion filed; Russell, J., dissents in separate opinion filed; Fischer and Wilson, JJ.,
concur in opinion of Russell, J. Breckenridge, C.J., not participating.




9
  It should be noted that this Court’s historical treatment of special judges accords their
votes the same weight as the regular members of this Court. See Rule 11.02 (providing,
“A judge or commissioner so transferred, during the period designated, shall have the
same powers and responsibilities as a judge of the court or district to which he [or she] is
transferred”).




                                            20
             SUPREME COURT OF MISSOURI
                      en banc
STATE OF MISSOURI ex rel.                            )
BOB T. BEISLY II,                                    )
                                                     )
               Relator,                              )
                                                     )
v.                                                   )      No. SC94030
                                                     )
THE HONORABLE TIMOTHY PERIGO,                        )
                                                     )
               Respondent.                           )

                                  DISSENTING OPINION

       I concur in the dissenting opinion of the Honorable Mary Russell.                  I write

separately to explain regretfully that today the Supreme Court of Missouri has issued

conflicting opinions and my view of how this could have and should have been avoided.

       This Court granted transfer of State of Missouri ex rel. Bob T. Beisly II, v. The

Honorable Timothy Perigo and Sally Boland, et al. v. Saint Luke's Health System, Inc., et

al. on the same date. 1 Rule 83.04. Boland involves a direct appeal, and Beisly involves a

petition seeking a writ of prohibition, but the legal issues regarding the wrongful death




1
 The Southern District opinion in Beisly expressly recognized that it was in conflict with the
Western District's opinion in Boland. See attached Appendix A, pages 11-14.
statute of limitation are the same. The Honorable Patricia Breckenridge recused in this

case, and the Honorable Anthony Rex Gabbert was assigned as a special judge. 2

       In my view, this Court should not have issued the majority opinion in this case that

is contrary to the position taken by a majority of the regular members of this Court in

Boland, especially as the majority in this case was only possible with the assistance of a

special judge from the Court of Appeals, Western District. Rather, this Court should

have retransferred the case to the Court of Appeals, Southern District, whose previous

opinion in this case faithfully adhered to this Court's precedent and the position now

taken by a majority of this Court's regular members in Boland. The opinion from the

Court of Appeals, Southern District is attached as Appendix A to this opinion.

       The rules governing transfer of cases from the court of appeals after opinion are

84.04, 84.05 and 84.06. Rule 83.04 provides in pertinent part: "case may be transferred

by order of this Court on application of a party for any reasons specified in Rule 83.02 or

for the reason that the opinion filed is contrary to a previous decision of an appellate

court of this state."

       It is important to note that the Southern District's opinion in this case was not in

conflict with an opinion of this Court, but was in conflict with the opinion in Boland as

decided by the Court of Appeals, Western District. Because a majority of this Court's

regular members now have vacated and rejected the court of appeals' decision in Boland,




2
 Judge Breckenridge was not recused from Boland and, therefore, participated in that case.
Judge Gabbert is a judge on the Court of Appeals, Western District.
                                               2
there remains no reason for this Court to issue an opinion in this case which quashes a

writ of prohibition.

       In my view, there is no practical or legitimate reason to issue an opinion in Beisly

which is in conflict with Boland on the same day and that required a special judge to

garner a majority. As noted, the proper approach would have been to retransfer, which

requires a majority vote of the judges on the case.

       It is not lost on me that the majority opinion in this case ultimately quashes the

writ of prohibition issued by the Court of Appeals, Southern District. The quashing of

that writ does not foreclose the defendant from filing yet another motion to dismiss. It

will then be up to Honorable Timothy Perigo to decide the precedential value of these

conflicting opinions and, therefore, how the ultimate appeal of his decision in the

underlying wrongful death action would be resolved on appeal by the Court of Appeals,

Southern District, (which presumably will have original appellate jurisdiction) or by this

Court if transfer were granted.



                                                        ______________________
                                                        Zel M. Fischer, Judge




                                             3
Appendix A




    4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
             SUPREME COURT OF MISSOURI
                      en banc
STATE ex rel. BOB T. BEISLY II,                   )
                                                  )
              Relator,                            )
                                                  )
v.                                                )      No. SC94030
                                                  )
THE HONORABLE TIMOTHY PERIGO,                     )
                                                  )
              Respondent.                         )

                                DISSENTING OPINION

       While I am deeply troubled by the tragedy that occurred in this case, I must

respectfully dissent. In overruling the defendant’s motion to dismiss this case, the trial

court found that it was “shocking to the conscience” to construe the wrongful death

statutes in a manner that would allow a wrongdoer to escape civil liability merely by

successfully concealing his identity until the limitations period ran. While I agree that the

outcome I would reach here is regrettable, it is shocking to the legal conscience for this

Court to use its equity powers to countermand the clear dictates of the legislature. I

write separately because, as this Court stated in Boland v. Saint Luke’s Health Sys., Inc.,

the doctrine of equitable estoppel may not be used to preclude application of section
537.100, 1 Missouri’s special statute of limitations for wrongful death claims. See ---

S.W.3d --- (No. SC93906) (Mo. banc 2015).

         I agree with the majority that, because wrongful death is a purely statutory

creature, the statute of limitations provisions that apply to claims generally are not

applicable to a wrongful death claim. The fraudulent concealment exception set out in

section 516.280 may not be applied to a wrongful death claim because such claims are

governed by the special statute of limitations set out in section 537.100. Section 537.100

does not contain its own fraudulent concealment exception, and neither of its two tolling

exceptions apply to this case.

         I also agree with the majority that this Court’s decision in Frazee v. Partney, 314

S.W.2d 915 (Mo. 1958) remains good law and is directly on point here. That decision

found that a wrongful death claim accrues when the defendant’s liability is complete (i.e.,

at death) and there exists some person to whom the defendant is liable. Id. at 920-21.

The majority reaffirms that holding and rightly finds that in this case, as in Frazee, the

plaintiff’s cause of action accrued at the decedent’s death, regardless of the fact that in

both cases the identity of the defendant was unknown at the time of death.

         Frazee, however, also held that:

         [W]here a statute of limitations is a special one, not included in the general
         chapter on limitations, the running thereof cannot be tolled because of
         fraud, concealment or any other reason not provided in the statute itself. . . .
         No other exceptions whatever are engrafted on that statute, and it is not the
         duty or the right of the courts to write new provisions into the statute.




1
    Statutory references are to RSMo 2000 if not otherwise indicated.
                                                  2
Id. at 919 (internal citations omitted). It is here that I respectfully disagree with the

majority opinion insofar as it disregards this aspect of Frazee by holding that equitable

estoppel bars the defendant from asserting the statute of limitations as an affirmative

defense due to acts of fraudulent concealment. The majority claims that this holding does

not violate Frazee because:

       tolling and accrual are likewise distinct from the application of fraudulent
       concealment as a form of equitable estoppel, which forecloses a defendant
       from pleading the statute of limitations as a defense. The application of this
       doctrine does nothing to engraft a tolling mechanism or otherwise extend
       the statute of limitations beyond what is stated expressly in the statute. 2

As was held in Boland, this is a distinction without a real difference. While it is true that

equitable estoppel was not before this Court in Frazee, the phrase “[n]o other exceptions

whatever are engrafted on that statute” must mean something. Frazee at 919. Despite its

discussion of the difference between equitable tolling and equitable estoppel, the majority

neglects to mention that, in Frazee, this Court clearly stated that “[a] special statute of

limitations must carry its own exceptions and we may not engraft others upon it.” Id. at

919. And yet the majority unmistakably holds that equitable estoppel is now a de facto

exception to section 537.100. 3 There is no way to reconcile this with Frazee, and the

majority effectively overrules that opinion of this Court.


2
  In support of its point, the majority cites numerous decisions from foreign jurisdictions and
faults the relator here for failing to address these cases. However, because statutes of limitations
are purely statutory, decisions from other states are irrelevant to the interpretation and
application of section 537.100.
3
  The majority opinion premises its discussion of equitable estoppel on Glus v. Brooklyn E. Dist.
Terminal, 359 U.S. 231, 235 (1959), in which the Supreme Court of the United States held that
equitable estoppel could toll the limitations period for a claim under the Federal Employers’
Liability Act. Yet Glus was a federal case interpreting a federal statute. As such, it is not strictly
                                                  3
       As this Court stated in Boland, the legislative history of section 537.100 is

instructive. Prior to Frazee, the General Assembly twice amended section 537.100 to add

a tolling provision for absconders and a one year savings provision to allow a new suit

following dismissal without prejudice. 1905 Mo. Laws 137 (codified at section 2868,

RSMo 1906); 1909 Mo. Laws 463 (codified at section 5429, RSMo 1909). After Frazee

the General Assembly twice more amended section 537.100, first enlarging the limitations

period from one year to two in 1967 and then to three years in 1979. 1967 Mo. Laws 665;

1979 Mo. Laws 631. Yet the legislature has never seen fit to add a fraudulent

concealment provision to section 537.100, despite the fact that such a provision, currently

codified at section 516.280, has existed in Missouri for over 150 years. See Limitation:

art. 8, sec. 3, RSMo 1836.

       This Court is bound to consider these intentional legislative choices and refrain

from judicially amending section 537.100 even when, as here, the result is severe for the

plaintiff. It is the job of the legislature, not this Court, to address exceptions to a special

statute of limitations. And in the past when this Court has reached other harsh results in

interpreting statutes of limitations, the General Assembly has acted to ameliorate those


relevant to the interpretation of section 537.100. Moreover, in applying the doctrine of estoppel,
the Court in Glus noted that:
        We have been shown nothing in the language or history of the Federal Employers'
        Liability Act to indicate that this principle of law, older than the country itself,
        was not to apply in suits arising under that statute. Nor has counsel made any
        convincing arguments which might lead us to make an exception to the doctrine
        of estoppel in this case.
Id. at 234. Here, however, the legislative history of section 537.100 indicates the General
Assembly did not intend fraudulent concealment as an exception to the wrongful death
limitations period. Further, legislative deference as well as adherence to this Court’s decision in
Frazee are compelling arguments to decline to exercise equity powers in this case.
                                                 4
results. In Laughlin v. Forgrave, 432 S.W.2d 308 (Mo. banc 1968), this Court held that

the plaintiff’s medical malpractice action was barred by the statute of limitations despite

the claim that the injury – a foreign object left in the plaintiff’s back – could not have

been discovered within the limitations period. Id. at 313. In 1976, the General Assembly

amended the medical malpractice statute of limitations to add a discovery exception for

claims where the injury was a foreign object left inside the body. 1976 Mo. Laws 767

(codified as amended at section 516.105, RSMo 2000). In Weiss v. Rojanasathit, 975

S.W.2d 113, 120 (Mo. banc 1998), this Court again strictly construed the medical

malpractice statute of limitations and held that the discovery exception added in Laughlin

was inapplicable to the plaintiff’s claim of failure to notify of test results that would have

revealed the presence of cervical cancer. 4 During the next legislative session, the General

Assembly amended the medical malpractice statute of limitations and added a discovery

exception for cases where the act of negligence is “negligent failure to inform the patient

of the results of medical tests.” 1999 Mo. Laws 329.

       In rejecting the plaintiff’s argument for an extension of the discovery rule, this
Court stated in Weiss that:

       This argument is appealing and has some force, so far as justice is
       concerned; in that respect the conclusion we reach is distasteful to us. But,
       the legislative branch of the government has determined the policy of the
       state and clearly fixed the time when the limitation period begins to run
       against actions for malpractice. This argument addressed to the court
       properly should be addressed to the General Assembly. Our function is to
       interpret the law; it is not to disregard the law as written by the General
       Assembly.


4
 Notably, in Weiss, this Court considered and rejected the plaintiff’s theory that equitable
estoppel should preclude the defendant from asserting the statute of limitations. Id. at 120.
                                                5
Weiss, 975 S.W.2d at 121 (quoting Laughlin, 432 S.W.2d at 314). These cases reflect the

overarching precedent that the legislature is in the best position to set Missouri policy on

this issue. See Hunter v. Hunter, 237 S.W.2d 100, 104 (Mo. 1951) (exceptions to

statutes of limitations are matters of public policy for the General Assembly; exceptions
                                                                                                   5
are to be strictly construed and not enlarged by courts upon considerations of hardship.).

This result does not aim to reward fraudulent concealment. Rather, it merely recognizes

that it is this Court’s role to interpret the law, not rewrite it. In that regard, I believe the

plaintiff’s argument in this case is one better made to the General Assembly.

       Finally, and while I express no opinion about the doctrine of equitable estoppel’s

application in other contexts, it is my view that this Court should not deploy discretionary

equitable remedies in a manner contrary to a clear mandate of the legislature. As this

Court noted long ago:

       Equity Courts may not disregard a statutory provision, for where the
       Legislature has enacted a statute which governs and determines the rights
       of the parties under stated circumstances, equity courts equally with courts
       of law are bound thereby. Equity follows the law more circumspectly in the
       interpretation and application of statute law than otherwise.

Milgram v. Jiffy Equip. Co., 247 S.W.2d 668, 676-77 (Mo. 1952) (emphasis added)

(internal citations omitted). The notion that all equitable maxims become a part of all
5
  There is considerable historical precedent for this view:
        It was at one time held in regard to these [statutes of limitations], that where by
        reason of the defendant’s fraud the existence of a cause of action was concealed,
        it would furnish an equitable exception to the express language of the statute.
        [B]ut the idea that implied and equitable exceptions, which the Legislature has not
        made, are to be engrafted by the courts on a statute of limitations is now generally
        abandoned.
THEODORE SEDGWICK, A TREATISE ON THE RULES WHICH GOVERN THE INTERPRETATION AND
CONSTRUCTION OF STATUTORY AND CONSTITUTIONAL LAW, 277 (Pomeroy, ed., 2d ed. 1874,
reprint 2012).
                                                6
statutory schemes, unless expressly written out of the law by the legislature merely invites

future reexamination by courts of otherwise settled areas of statutory interpretation.

       In conclusion, despite the fact that the outcome is “shocking to the conscience,” I

would hold that the trial court abused its discretion in overruling the relator’s motion to

dismiss the plaintiff’s wrongful death suit.




                                                   Mary R. Russell, Judge




                                               7
