                                                       In the
                                  Missouri Court of Appeals
                                              Western District
REBECCA J. DAVISON,                                          )
                                                             )
                        Appellant,                           )    WD77151
                                                             )
v.                                                           )    OPINION FILED:
                                                             )    September 30, 2014
DAIRY FARMERS OF AMERICA,                                    )
INC.,                                                        )
                                                             )
                       Respondent.                           )

                      Appeal from the Circuit Court of Platte County, Missouri
                               The Honorable Dennis C. Eckold, Judge

Before Division Four: Alok Ahuja, Chief Judge, Presiding, Cynthia L. Martin, Judge and
                           David H. Miller, Special Judge


          Rebecca Davison ("Davison") appeals the dismissal of her age discrimination

lawsuit against Dairy Farmers of America, Inc. ("DFA"). Davison asserts that the trial

court erred in dismissing her action as time barred because the savings statute, section

516.230,1 permitted her suit to be re-filed within a year of its voluntary dismissal. We

affirm.



          1
              All statutory references are to RSMo 2000 as supplemented unless otherwise indicated.
                                    Factual and Procedural History

         On July 8, 2009, Davison, an employee of DFA, filed a charge with the Missouri

Commission on Human Rights ("Commission") claiming age discrimination and

retaliation. Davison claimed her age was a contributing factor to hostile treatment she

received from DFA management in the months leading up to her charge. She also

claimed the harassment was in retaliation for a complaint she made with the DFA

Compliance Hotline in March 2009.

         On July 17, 2009, Davison's employment with DFA was terminated. Davison

thereafter filed a second charge with the Commission, claiming she was discharged in

retaliation for filing the first charge. The Commission issued a notice of right to sue

letter in April 2010.

         In July 2010, Davison filed a lawsuit against DFA under the Missouri Human

Rights Act ("MHRA").2 In August 2012, Davison voluntarily dismissed her lawsuit.3

She re-filed her lawsuit in July 2013. DFA filed a motion to dismiss alleging that

Davison’s claims were barred by the statute of limitations for MHRA claims set forth in

section 213.111, and that the savings statute, section 516.230, does not apply to MHRA

claims. The trial court granted the motion to dismiss and entered a judgment dismissing

Davison's action with prejudice.

         Davison appeals.




         2
          Chapter 213, Section 213.010 et seq.
         3
          Davison alleges in her Brief that she voluntarily terminated her lawsuit because of personal and financial
issues she was facing.

                                                          2
                                    Standard of Review

        We review a trial court's grant of a motion to dismiss de novo. D.A.N. Joint

Venture, III v. Clark, 218 S.W.3d 455, 457 (Mo. App. W.D. 2006). Whether a statute of

limitations applies to a given cause of action is also reviewed de novo. Id.

                                          Analysis

        Davison raises four points on appeal, each of which requires us to determine

whether the savings statute, section 516.230, applies to statutory claims under the

MHRA. We address the points collectively.

        MHRA claims "shall be filed within ninety days from the date of the commission's

notification letter to the individual but no later than two years after the alleged cause

occurred or its reasonable discovery by the alleged injured party." Section 213.111.1. It

is undisputed that Davison's initial lawsuit was timely filed under this statute, but that

barring application of the savings statute, her re-filed lawsuit was not timely filed.

        Davison contends that the savings statute permitted her to re-file her lawsuit

within one year of its voluntary dismissal. Section 516.230 provides in pertinent part

that:

        If any action shall have been commenced within the times respectively
        prescribed in sections 516.010 to 516.370, and the plaintiff therein suffer a
        nonsuit . . . such plaintiff may commence a new action from time to time,
        within one year after such nonsuit suffered . . . .
"The term 'nonsuit,' as used in section 516.230, includes a voluntary dismissal without

prejudice of an action by a plaintiff." Garoutte v. Farmers Mut. Ins. Co. of Lawrence

Cnty., 823 S.W.2d 526, 530 (Mo. App. S.D. 1992). There is no dispute that Davison's


                                              3
initial lawsuit, which she voluntarily dismissed, suffered a nonsuit. Nor is there any

dispute that Davison's re-filed lawsuit is not barred by the statute of limitations prescribed

in section 213.111.1 if section 516.230 applied to "save" her MHRA claims. Thus, the

question we must resolve is purely a question of law: does the savings statute apply to

claims under the MHRA?

       Davison argues that section 516.230 applies to all civil actions, including statutory

causes of action. Davison thus argues that section 516.230 applies to MHRA claims,

even though the statute of limitations for an MHRA claim is not prescribed in sections

516.010 to 516.370, and is instead prescribed in section 213.111.1. She bases this

argument on section 516.100 which generally provides that "[c]ivil actions . . . can only

be commenced within the periods prescribed in the following sections . . . ."

       Contrary to Davison's argument, however, the Supreme Court has held that section

516.230 is not applicable to "all" civil actions. "[S]ection 516.230 is not a general

procedural statute. Its application is limited to causes of action, limitations for which are

prescribed by section 516.010 to section 516.370." Toomes v. Cont’l Oil Co., 402

S.W.2d 321, 324 (Mo. 1966) (rejecting application of the savings statute to a wrongful

death claim brought under the Kansas wrongful death statute). The statute of limitations

for MHRA claims is not prescribed by section 516.010 to section 516.370.                 It is

prescribed by section 213.111.1. Toomes requires the conclusion that section 516.230

does not apply to MHRA claims.

       Notwithstanding Toomes, Davison argues that sections 516.010 to 516.370

prescribe the statute of limitations for all civil actions, including statutory causes of

                                              4
action. Davison relies on section 516.300 which states that "[t]he provisions of sections

516.010 to 516.370 shall not extend to any action which is or shall be otherwise limited

by any statute; but such action shall be brought within the time limited by such statute."

(Emphasis added.) Davison contends that by directing the reader to a statute outside the

range of sections 516.010 to 516.370 to locate the limitations period for a statutory cause

of action, section 516.300 effectively "prescribes" a statute of limitations for statutory

causes of action.

       We do not agree with Davison's construction of section 516.300. Plainly, section

516.300 does not prescribe a statute of limitations for any statutory cause of action.

Rather, it makes clear that sections 516.010 to 516.370 have no bearing on the calculation

of the statute of limitations for a statutory cause of action, the antithesis of Davison's

premise. Were we to accept Davison's construction of section 516.300, the express

reference in section 516.230 to only those actions whose limitations periods are

prescribed by sections 516.010 to 516.370 would be rendered unnecessary and

superfluous, since section 516.230 would now apply to all causes of action, whether their

limitations periods were set forth in sections 516.010 to 516.370 or not.          We are

instructed to avoid such constructions of a statute. 801 Skinker Blvd. Corp. v. Director of

Revenue, 395 S.W.3d 1, 5 (Mo. banc 2013) (holding that we presume "that the legislature

did not insert idle verbiage or superfluous language in a statute") (citation omitted).

Moreover, were we to accept Davison's construction of section 516.300, we would be

ignoring the holding in Toomes in violation of the Missouri Constitution. Doe v. Roman

Catholic Diocese of St. Louis, 311 S.W.3d 818, 822-23 (Mo. App. E.D. 2010) (holding

                                            5
that intermediate appellate courts are "constitutionally without authority to overrule the

controlling decisions of the [Missouri] Supreme Court.") (citations omitted). Finally, the

plain language of section 516.300 belies Davison's construction. It provides that "[t]he

provisions of sections 516.010 to 516.370 shall not extend to any action . . . otherwise

limited by statute." (Emphasis added.) Section 516.230 is within the range of statutory

provisions that "shall not extend" to statutory causes of action. Substituting accordingly,

section 516.300 directs that "[t]he provisions of [section 516.230] shall not extend to any

action . . . otherwise limited by statute." (Emphasis added.) In fact, our courts have so

held. See Garoutte, 823 S.W.2d at 530 (Mo. App. S.D. 1992) (holding that section

516.230 does not apply to an action filed under a statute which carries its own statute of

limitations).

         We reject, therefore, Davison's contention that section 516.230 applies to MHRA

claims. In fact, though Davison's Brief characterizes this issue as a matter of first

impression, it is not. Earlier Missouri cases have reached the same conclusion, albeit

under different circumstances. See Hutcheson v. Elec. Data Access Techs., Inc., 327

S.W.3d 622 (Mo. App. E.D. 2010); O’Brien v. Blackwell-Baldwin, Inc., 819 S.W.2d 417

(Mo. App. S.D. 1991); Young v. Tri-State Water Treatment, Inc., 343 S.W.3d 695 (Mo.

App. E.D. 2011). Davison argues that these cases are non-binding as their discussion of

the relationship between section 516.230 and MHRA claims was obiter dicta.4 We

disagree.

         4
           "Obiter dicta, by definition, is a gratuitous opinion. Statements are obiter dicta if they are not essential to
the court's decision of the issue before it." Richardson v. QuikTrip Corp., 81 S.W.3d 54, 59 (Mo. App. W.D. 2002)
(quotations omitted).

                                                            6
       In Hutcheson, a trial court dismissed MHRA claims without prejudice and without

notice. 327 S.W.3d at 625. The appellant argued this was error because he was barred

from re-filing the action pursuant to section 213.211.1. Id. The Eastern District agreed,

noting that "[b]ecause the MHRA contains its own statute of limitations, the Missouri

Savings Statute, Section 516.230, does not apply, thus Hutcheson could only re-file his

action if he re-filed in the time allotted by Section 213.111.1." Id. The court thus found

the dismissal of Hutcheson's lawsuit without notice to be erroneous as it had the effect of

permanently terminating the litigation. Id. at 625-26. The holding that section 516.230

does not apply to "save" nonsuited MHRA claims was essential to the court's ruling, and

was not obiter dicta. Swisher v. Swisher, 124 S.W.3d 477, 482 (Mo. App. W.D. 2003)

(holding that statements are non-binding dicta if they are not essential to the court's

decision).

       Similarly, in O'Brien, a trial court dismissed MHRA claims without prejudice and

without notice. 819 S.W.2d at 419-21. The appellant claimed error because her claims

could not be re-filed pursuant to section 213.111.1. Id. at 420. The Southern District

concluded that the plain language of section 516.300 prevented the application of section

516.230 to actions otherwise limited by statute, including MHRA claims. Id. at 421. As

such, the trial court's dismissal was both appealable and erroneous, as the effect of the

dismissal was to permanently terminate the appellant's lawsuit. Id. at 420-22. The court's

determination that section 516.230 does not apply to save nonsuited MHRA claims was

essential to the court's holdings, and was not obiter dicta. Swisher, 124 S.W.3d at 482.



                                            7
         In Young, the appellant voluntarily dismissed a disability discrimination action,

and re-filed the same action nine days later. 343 S.W.3d at 696-97. The trial court

granted summary judgment in favor of the defendant because the statute of limitations

prescribed in section 213.111.1 had expired by the time the lawsuit was re-filed. Id. at

697. Young had filed an affirmative avoidance claiming the defendant was equitably

estopped to assert the defense of the statute of limitations because of assurances made

prior to the voluntary dismissal. Id. The Eastern District ruled that genuine issues of fact

regarding the affirmative avoidance of equitable estoppel prevented the entry of summary

judgment.5 Id. at 698. In the process, the court acknowledged that "[b]ecause the

Missouri Human Rights Act contains its own statute of limitations, the Missouri Savings

Statute, Section 516.230, does not apply." Id. 697 n.2 (citing Hutcheson, 327 S.W.3d at

622).

         Davison alternatively argues that we should disregard the aforesaid precedent

because section 213.101 provides that "[t]he provisions of this chapter shall be construed

to accomplish the purposes thereof and any law inconsistent with any provision of this

chapter shall not apply." Davison argues that even if section 516.230 does not apply to

other statutory causes of action, it cannot be construed to be inapplicable to MHRA

pursuant to section 213.101 as the effect would be inconsistent with the express purposes

of the MHRA to eliminate and prevent age discrimination,6 to discourage discrimination




         5
           Davison makes no similar estoppel claim here; her sole argument is that her re-filed action was timely by
operation of section 516.230.
         6
           Section 213.030.

                                                          8
against protected groups,7 and to provide an avenue for protected persons to bring a civil

action against employers who violate provisions of the MHRA.8

         We disagree. "[T]he primary rule of statutory interpretation is to give effect to

legislative intent as reflected in the plain language of the statute." State ex rel. Greufe v.

Davis, 407 S.W.3d 710, 712 (Mo. App. W.D. 2013). "Provisions not found plainly

written or necessarily implied from what is written will not be imparted or interpolated

therein . . ." Mo. Pub. Serv. Co. v. Platte-Clay Elec. Co-op., Inc., 407 S.W.2d 883, 891

(Mo. 1966) (citations and quotations omitted). "We are guided by what the legislature

says, and not by what we may think it meant to say." Id.

         While the MHRA has its own statute of limitations in section 213.111.1, the

MHRA does not contain a savings statute. We will not read a savings statute into the

MHRA where no such provision is written.9 Nor will we assume that the legislature

intended section 516.230 to apply to MHRA claims in the absence of a provision in the

MHRA to that effect. We do not impermissibly diminish the purpose of the MHRA

through enforcement of the plain language of sections 213.111.1, 516.230 and 516.300.

"'To the point that courts could achieve 'more' of the legislative objectives by adding to [a

statute's coverage], it is enough to respond that statutes have not only ends but also limits.

A court's job is to find and enforce stopping points no less than to implement other

legislative choices." Painter v. Missouri Comm'n on Human Rights, 251 S.W.3d 408,

         7
           Section 213.020.
         8
           Section 213.111.
         9
           The legislature has demonstrated its ability to expressly incorporate a savings provision in a statute
otherwise limiting a cause of action when that is its intent. See, e.g., section 537.100 (prescribing the statute of
limitations for wrongful death actions pursuant to section 537.080, and expressly providing for a one-year savings
period to re-file following a nonsuit).

                                                          9
413 (Mo. App. W.D. 2008) (quoting Edward Hines Lumber Co. v. Vulcan Materials Co.,

861 F.2d 155, 157 (7th Cir. 1988)).

       Because the savings statute, section 516.230, does not apply to MHRA claims,

Davison's re-filed lawsuit was time-barred pursuant to section 213.111.1. Accordingly,

the trial court's dismissal of her action with prejudice was proper.

       Davison's points on appeal are denied.

                                        Conclusion

       The trial court's judgment is affirmed.




                                           __________________________________
                                           Cynthia L. Martin, Judge


All concur




                                             10
