                 In the Missouri Court of Appeals
                         Eastern District
                                     DIVISION FIVE

KATHRYN LOVE and                                  )       No. ED103690
DELORES HENRY                                     )
                                                  )
       Plaintiffs/Appellants,                     )
                                                  )       Appeal from the Circuit Court of
       vs.                                        )       the City of St. Louis
                                                  )
PAUL PIATCHEK, et al.                             )
                                                  )       Honorable David L. Dowd
       Defendants/Respondents.                    )
                                                  )       Filed: November 08, 2016

                                         OPINION

       Kathryn Love (Mother) and Delores Henry (Grandmother) appeal from the trial

court’s judgment dismissing as untimely their wrongful death lawsuit against the St.

Louis Board of Police Commissioners and certain St. Louis police officers after Mother’s

son, Darrell Williams, Jr., was shot and killed by two officers. We affirm.

                                       Background

       On November 18, 2009, Darrell Williams was riding in a car with friends when

the police gave chase and ultimately stopped the vehicle using tire spikes, causing the

vehicle to spin out of control and flip over. The officers then approached the vehicle and

discharged their firearms, killing Darrell and one of his friends.

       In January 2010, Grandmother, describing herself as “next of kin,” filed a

wrongful death suit alleging that the Respondent officers opened fire on the occupants of
the vehicle without cause and with excessive force. Grandmother’s petition did not

mention either of Darrell’s parents, who were both incarcerated at the time. Respondents

answered the petition, and the parties began discovery. Jury trial dates were set and

continued successively from 2011 until 2014. In April 2014, one week before trial,

Grandmother dismissed her suit without prejudice.

       In August 2014, Mother filed her own wrongful death suit on the same facts. The

case was removed to federal court in October and remanded to the state trial court in

December. In March 2015, Respondents moved to dismiss Mother’s suit for untimeliness,

asserting that the statute of limitations expired in November 2012, three years after

Darrell’s death. Grandmother moved to intervene, and the trial court granted that motion.

Respondents renewed their motion to dismiss, asserting that Grandmother’s addition as a

plaintiff failed to save Mother’s petition from untimeliness under the saving statute

(§537.100). The trial court granted Respondents’ motion to dismiss, reasoning that

Grandmother’s original petition was invalid because she was not an eligible plaintiff in

the first instance, so there was nothing for the saving statute to save. This appeal

followed.

                                    Standard of Review

       We review the trial court’s grant of a motion to dismiss de novo. Grace v. St.

Louis County, 348 S.W.3d 120, 124 (Mo. App. E.D. 2011). When reviewing the

dismissal of a petition for failure to state a claim, we treat the facts contained in the

petition as true and construe them liberally in favor of the plaintiffs, granting the

plaintiffs all reasonable inferences therefrom. Id.




                                              2
                                   Wrongful Death Statute

        Section 537.080, creating a cause of action for wrongful death, entitles the

following classes of plaintiffs to file the suit:

        (1) The spouse or children or the surviving lineal descendants of any
        deceased children, natural or adopted, legitimate or illegitimate, or by the
        father or mother of the deceased, natural or adoptive;
        (2) If there be no persons in class (1) entitled to bring the action, then the
        brother or sister of the deceased, or their descendants […];
        (3) If there be no persons in class (1) or (2) entitled to bring the action,
        then a plaintiff ad litem appointed by the court. […] Such plaintiff ad
        litem shall be some suitable person competent to prosecute such action and
        whose appointment is requested on behalf of those persons entitled to
        share in the proceeds of such action.

        Section 537.100 imposes a three-year statute of limitations but, in the event of a

non-suit, allows an additional year for the filing of a new action. This provision, the

saving statute, states:

        [I]f any such action shall have been commenced within the time
        prescribed in this section, and the plaintiff therein take or suffer a nonsuit,
        or after a verdict for him the judgment be arrested, or after a judgment for
        him the same be reversed on appeal or error, such plaintiff may commence
        a new action from time to time within one year after such nonsuit suffered
        or such judgment arrested or reversed.

                                           Discussion

        The parties dispute whether Grandmother had standing under §537.080 to bring

the original action, i.e., whether her petition was valid in the first instance, which

determines whether Mother’s subsequent petition can relate back under the saving statute.

        By naming herself “next of kin,” Grandmother evidently attempted to invoke

standing as a member of the third plaintiff class. Although Grandmother failed to request

appointment as plaintiff ad litem, this particular defect is not necessarily fatal. In Thorson

v. Connelly, 248 S.W.3d 592 (Mo. 2008), a grandmother brought a wrongful death suit as



                                                3
plaintiff ad litem but failed to file a formal application for appointment in that capacity

until after the statute of limitations had lapsed. The Supreme Court of Missouri held that

Thorson’s appointment could relate back to the original petition because, in the absence

of superior plaintiffs, she was a proper third-class plaintiff.

        Consistent with Thorson, it is well settled that the re-filing by one proper plaintiff

after dismissal by another, or the substitution or joinder of one proper plaintiff with

another, after expiration of the statute of limitations but before judgment, relates back to

the original petition. See e.g., Denton v. Soonattrukal, 149 S.W.3d 517 (Mo. App. S.D.

2004) (daughter’s action timely under saving statute after dismissal of first action by

other daughter), and State ex rel. Stephens v. Henson, 772 S.W.2d 706 (Mo. App. S.D.

1989) (children added as co-plaintiffs in widow’s second suit filed under saving statute).

Conversely, it is also well settled that, if the party filing the original petition is a “stranger

to the suit” and lacks a legal or beneficial interest in the cause of action, then substitution

of the proper plaintiff after expirtion of the statute of limitations will not relate back.

Thorson, 248 S.W.3d at 595; Forehand v. Hall, 355 S.W.2d 940 (Mo. banc 1962).

        The foregoing precedent dictates the result here. Given that Darrell’s surviving

parents were superior plaintiffs as members of the first class under §537.080,

Grandmother was not an eligible third-class plaintiff, so her petition was never viable.

Consequently, Mother’s subsequent petition cannot relate back to Grandmother’s petition




                                                4
under the saving statute, and the trial court’s judgment must be affirmed.




                                             ____________________
                                             Mary K. Hoff, Judge


Lisa Van Amburg, Presiding Judge, concurs in a separate opinion.

Coleen Dolan, Judge concurs in opinion of Judge Mary K. Hoff and concurring
opinion of Judge Lisa Van Amburg.




                                             5
                  In the Missouri Court of Appeals
                          Eastern District
                                       DIVISION FIVE

KATHRYN LOVE and                                     )       No. ED103690
DELORES HENRY                                        )
                                                     )
        Plaintiffs/Appellants,                       )
                                                     )       Appeal from the Circuit Court of
        vs.                                          )       the City of St. Louis
                                                     )
PAUL PIATCHEK, et al.                                )
                                                     )       Honorable David L. Dowd ∗
        Defendants/Respondents.                      )
                                                     )       Filed: November 08, 2016

                                 CONCURRING OPINION

        I concur in the holding of the majority, as legal precedent requires, but write

separately to shed light on the fact that Mother’s claim would have been timely but for

apparent systemic and collective failures in the original case. 1

        The legislative mandate of the wrongful death statute is clear: “Any settlement or

recovery by suit shall be for the use and benefit of those who sue or join, or who are

entitled to sue or join, and of whom the court has actual written notice.” §537.095.

Though Grandmother was not an eligible plaintiff under the statute, the deceased’s father



∗
  Though Judge Dowd signed the final appealable order of dismissal in the present case, this
concurring opinion concerns only the original case that preceded it.
1
  The original case cannot be revived for further prosecution at this juncture because the judgment
became final after Grandmother dismissed her petition. A party may collaterally attack a final
judgment only through Rule 74.06.
was, and he attempted to assert a claim as a first-class plaintiff in the original case well

before the statute of limitations expired. In August 2010, Darrell Williams, Sr. (Father),

acting pro se from a federal penitentiary, 2 revealed his status and inquired about the case.

As chronicled in the attached appendix, the docket sheet contains multiple filings by

Father stating his legal and beneficial interest in the case, several of which expressly

assert his claim by seeking intervention as a party plaintiff.

        Specifically, in November 2010, Father filed letters asking to be named a plaintiff

and requesting copies of various documents in the court file. The trial court sent the

documents but did not address Father’s request to be named a plaintiff. Then in May

2011, Father filed a formal motion to be added as a party plaintiff, but the trial court

never ruled on it. Father was entitled to intervene as a matter of right under Rule

52.12(a). 3 A first-class plaintiff has an absolute right to intervene in a wrongful death

suit. Martin v. Busch, 360 S.W.3d 854, 856 (Mo. App. E.D. 2011). “When a statute

confers an unconditional right of intervention, the proposed intervenor is entitled to

intervene as a matter of right, the right to intervene is absolute, and the motion must be

approved.” Id. citing State ex rel. Nixon v. American Tobacco Co., Inc., 34 S.W.3d 122,

127 (Mo. 2000). (emphasis added)

        Had the trial court granted Father’s motion to intervene as was Father’s right,

Mother’s subsequent petition would have been timely under the saving statute. §537.100;


2
  Father, now 50 years old, remains incarcerated on felony drug charges and is scheduled for
release in 2026.
3
  Rule 52.12(a), titled Intervention of Right, states: “Upon timely application anyone shall be
permitted to intervene in an action: (1) when a statute of this state confers an unconditional right
to intervene or (2) when the applicant claims an interest relating to the property or transaction that
is the subject of the action and the applicant is so situated that the disposition of the action may as
a practical matter impair or impede the applicant's ability to protect that interest, unless the
applicant's interest is adequately represented by existing parties.” (emphasis added)


                                                  2
Denton v. Soonattrukal, 149 S.W.3d 517, 523 (Mo. App. S.D. 2004). Instead, the record

in the original case leaves the impression that the justice system turned a deaf ear to

Father’s timely and persistent pleas because of his pro se status and incarceration.

        The record reflects that Father properly filed a timely motion to intervene but

failed to notify Respondents pursuant to Rule 52.12(c). Father also did not “call up” the

motion for a hearing, but I am not persuaded that a hearing was necessary given that he

was entitled to intervene as a matter of right. It is well-settled that pro se parties are not

entitled to indulgences they would not have received if represented by counsel. Manning

v. Fedotin, 64 S.W.3d 841, 846 (Mo. App. W.D. 2002). This principle “is necessitated by

the requirement of judicial impartiality, judicial economy, and fairness to all parties.” Id.

Here, however, the failure to acknowledge Father’s pleadings offends those very ideals.

Addressing Father’s motion would not have constituted an “indulgence” unavailable to

represented parties. Quite the contrary, had Father been represented by counsel, the court

could not have ignored his motion. Moreover, court clerks routinely assist new lawyers

and pro se litigants appearing in person with procedural mechanics such as notifying

parties and calling up motions. Here, however, Father’s “civil death” 4 proved fatal to

both parents’ wrongful death claim. Father’s pro se status and incarceration should not

have dictated the outcome of his motion and ultimately the dismissal of Mother’s case.




4
  Under ancient common law, a convicted felon was, by operation of law, placed in a state of
attainder, incident to which the felon lost all legal rights including the right to sue. Fidelity &
Deposit Co. of Maryland v. Boundy, 158 S.W.2d 243 (Mo. App. 1942). Missouri’s “civil death
statute” codified this aspect of the common law by specifically barring civil suits by prisoners.
§222.010 RSMo 1969. The statute was repealed in 1979. For a tutorial on the English origins and
American evolution of civil death, see Gabriel J. Chin, The New Civil Death: Rethinking
Punishment in the Era of Mass Conviction, 160 U. Pa. L.Rev. 1789, 1790-1798 (2012).


                                                3
          Equally disturbing is the role of the parties and their respective attorneys in

excluding Father in contravention of the wrongful death statute. 5 No one disputes

Father’s status as Darrell’s natural father. Section 537.095 directs petitioners to

“diligently attempt to notify all parties having a cause of action” thereunder. §537.095.1.

The record lacks any insight into the circumstances behind Grandmother’s omission of

both parents from the original cause (naming herself “next of kin”) or whether she

notified them as required by §537.095, though her petition contains no such assurance.

The record shows that Grandmother’s lawyer was aware of Father’s attempts to join the

action, yet counsel forged ahead with an unviable plaintiff and then withdrew from the

case after the statute of limitations had lapsed.

          Respondents, for their part, claim to have lacked notice of Father’s motion as

directed under Rule 52.12(c), but Father’s oversight in this regard supplies Respondents

no valid excuse on the present record. “A party has a continuing duty to monitor a case

from the filing of the case to final judgment.” Manning v. Fedotin, 64 S.W.3d 841, 846

(Mo. App. W.D. 2002). Generally, a party who has been properly summoned is charged

with notice of all subsequent proceedings in the case even if no actual notice was

received. Courtin v. McGraw Const. Co., 639 S.W.2d 286, 288 (Mo. App. E.D. 1982);

Meadowbrook Country Club v. Davis, 384 S.W.2d 611 (Mo. 1964). As detailed in the

appendix, the trial court minutes contain thirteen separate entries related to Father. Even

absent formal notice pursuant Rule 52.12(c), Respondents had undeniable constructive

notice through Father’s multiple, unambiguous, and conspicuous filings. Moreover, as a

practical matter, the notion that Respondents failed to ascertain the status of Darrell’s

parents over the course of four years of discovery simply defies belief. On both sides,
5
    Mother’s counsel in the present case was not involved in the original action.


                                                   4
counsel could not credibly claim that they neglected to inquire of the deceased’s parents

at any point in the development of the case.

        Despite Father’s repeated attempts to assert his rights as a first-class plaintiff in

the original case, the trial court and the parties and their counsel continued to accept

Grandmother’s deficient standing for four years of pre-trial litigation. Respondents

pivoted to reject her standing only after the statute of limitations expired. “Statutes of

limitation were never intended to be used as swords.” Thorson, 248 S.W.3d at 596.

        In 2009 - the year Darrell Williams, Jr. was fatally shot by the Respondent

officers - Chief Justice Stith articulated a strategic mission of our legal system: to

enhance the public’s trust and confidence in the justice system and the whole

government. 6 Again this year, Chief Justice Breckenridge reiterated the mandate that

citizens “must have faith and trust that, in our courts, they will be treated respectfully and

fairly, and that their cases will be decided impartially according to the law.” 7 These

aspirations cannot be reconciled with the underlying record in the original case.




                                                                                                 _
                                        _____________________________________
                                        Lisa Van Amburg, Presiding Judge


6
 Laura Stith, Chief Justice of the Supreme Court of Missouri, State of the Judiciary Address,
Missouri State Capitol (January 28, 2009) (transcript available at
http://www.courts.mo.gov/page.jsp?id=28987).
7
 Patricia Breckenridge, Chief Justice of the Supreme Court of Missouri, State of the Judiciary
Address, Missouri State Capitol (January 27, 2016) (transcript available at
http://www.courts.mo.gov/page.jsp?id=96693).


                                                5
                                         APPENDIX

Trial court minute entries referring to Father in the original case:

Event                                               Content
Father’s filing       Dear Clerk: My child (Darrell H. Williams, Jr.) was shot and killed by a
7/29/2010             St. Louis City police officer Nov. 18, 2009. I would like to know if a
                      complaint has been filed with this court in regards to my child’s (Darrell
                      H. Williams, Jr.) death. If so, will you please forward me a copy of the
                      docket sheet. Your reply will be appreciated.
Docket entry          Offender Mail Received. 8 Legal mail received from Darrell William, Sr.,
8/20/2010             United State Penitentiary, Coleman, FL, requesting a copy of the docket
                      sheet. Sent to Certified Copy, original letter is in the legal file.
Docket entry          Judge/Clerk Note. Docket sheets sent to Darrell Williams USP-2 26008
8/30/2010             044 PO Box 1034 Coleman, FL
Father’s filing       Dear Clerk: Please provide me with a copy of the docket sheet regarding
11/7/2010             the above cause #. Also please provide me with the address and phone # of
                      attorney MacArthur Moten of St. Louis, MO, who represents the case.
                      Your reply will be appreciated.
Docket entry          Offender Mail Received. Letter from inmate Mr. Darrell Williams, Sr.,
11/12/2010            U.S.P., Post Office Box 1000, Lewisburg PA 17837 requesting a copy of
                      the docket sheet. Sent to Certified Copy.
Docket entry          Judge/Clerk Note. Photocopy of the docket sheet was processed and sent
11/15/2010            to defendant.
Father’s filing       Dear Mr. Favazza: The above mention cause no. is in regards to a
11/18/2010            wrongful death suit regarding my son (Darrell Williams, Jr.). I am
                      currently incarcerated in PA in federal prison. I have attempted to become
                      a plaintiff on the suit, but everything is being kept a secret to me. Sir,
                      how can I become a plaintiff and proceed pro se? Also, will you please
                      send me a copy of the following:
                          1.   Petition filed 01-20-10
                          2.   All exhibits, including crime scene picture, filed with petition
                          3.   Defendants answer to plaintiff’s petition, dated 03-16-10
                          4.   Propose protective order filed by Defendants, dated 07-08-10
                      Your reply and assistance will be appreciated.
Docket entry          Offender Mail Received. Letter from inmate Mr. Darrell Williams, Sr.,
11/22/2010            U.S.P., Post Office Box 1000, Lewisburg, PA 17837 requesting to be a
                      plaintiff on the case (Pro se). Request for a copy of the petition filed on
                      January 20, 2010, all exhibits including the crime scene pictures filed with
                      the petition, defendant’s answer to the plaintiff’s petition dated March 16,
                      2010 and a copy of the protective order filed by the defendant’s dated July
                      8, 2010. Sent to Judge Dowd and Certified Copy.

8
  Regrettably, although this is a civil case in which Father sought recourse for the alleged
wrongful death of his own son, the clerk’s minutes repeatedly refer to Father as “offender,”
“defendant,” and “inmate.”


                                                6
Docket entry           Judge/Clerk Note. Copies mailed to Darrell Williams USP 26008-044 PO
11/24/2010             Box 1000 Lewisburg PA 17837
Father’s filing     Dear Judge Neill or Judge Dowd: 9 I am writing to you concerning the
11/20/10            above cause # in which my son (Darrell Williams, Jr.) was shot and killed.
                    I am currently incarcerated, and both sides of the family are keeping
Rec’d 11/29/10
                    everything a secret to me. I have attempted to become a plaintiff on this
No    corresponding
                    petition, which has been to no avail. As a father, I should be allowed to
docket entry
                    be a plaintiff. I request that I be listed a “pro se” plaintiff on this
                    petition. Also, I request that I be provided with the following:
                            1.   Petition filed 01-20-2010, including exhibits.
                            2.   Defendant’s answer to plaintiff petition, dated 03-16-2010
                            3.   Plaintiff request to produce to M. Karnowski, dated 04-16-10
                            4.   Motion to compel, dated 04-16-10
                            5.   Proposed protective order, dated 06-24-10
                            6.   Motion for protective order, dated 07-13-10
                            7.   Motion for sanction, dated 07-13-10
                            8.   Filed motion, dated 07-16-10
                       Your reply will be appreciated.
Father’s filing        Dear Clerk: Will              you   please   send    me     the    following
12/12/10               information/documents:
                            1.   Summons issued to all defendants under the above cause #
                            2.   Corporation served to all defendants under the above cause #
                            3.   All motions filed on 04-19-10 under the above cause #
                            4.   05-12-10 court order
                            5.   07-20-10 court order
                            6.   08-04-10 filing
                            7.   Procedures for filing a petition
                            8.   Docket sheet
Docket entry           Offender Mail Received. A letter from the defendant requesting a copy of
12/16/10               the summons issued to the defendants, motion dated 4/19/10, court order
                       dated 5/12/10, motion dated 8/4/10 and the docket sheet. Sent to Certified
                       Copy.
Docket entry           Judge/Clerk Note. Request for copy of pleadings and docket sheets
12/29/10               prepared for Darrell Williams, Register Number 26008-044, U.S.
                       Penitentiary, P.O. Box 1000, Lewisburg, PA 17837
Father’s filing        Dear Clerk: Will you please send me a docket sheet regarding the above
2/20/11                case #. Your reply will be appreciated.
Docket entry           Offender Mail Received. Letter from the defendant requesting docket
2/24/11                sheet.

9
  Though only two judges are named in the court minutes around the time of Father’s letters, a
total of eight different judges appear in the trial court’s minutes corresponding to various orders
and trial settings over the four-year period that the original case was pending, undoubtedly due to
the 22nd circuit’s docketing system under local rule 1.2. The record does not always reflect
whether Father’s requests and pleadings were brought to the attention of the judge to which the
case was then assigned. Regardless, vis-à-vis the public, the court is a single institution.


                                                 7
Docket entry             Judge/Clerk Note. Letter received from defendant February 25, 2011
2/28/11                  requesting copy of documents in files. Letter sent to file CC
Father’s filing          Dear Clerk: Enclosed is a motion that I would like to file with this court.
5/10/11                  Also please send me the local court rule for filing a law suit. Also please
                         send me a court docket sheet of cause #1022-CC00155.
                         Comes now plaintiff Darrell Williams, pro se, requesting to become a
                         plaintiff in cause #1022-CC00155, for the following reason:
                             1. Plaintiff Darrell Williams, Sr., is the father of the deceased
                                Darrell Williams, Jr.
                         Wherefore Plaintiff requests that this motion be granted.
                         Certificate of Service. I certify that a true and correct copy of the enclosed
                         motion was mailed postage prepaid to the court clerk on this 10th day of
                         May, 2011. 10
Docket entry             Offender Mail Received. A letter from Darrell Williams was received
5/16/11                  requesting a copy of the docket sheet. The letter was filed in the legal file
                         and a post card was sent to the Darrell Williams with instructions for
                         copies from the legal file.
                         Motion Filed. Mr. Darrell Williams Sr. motion to be added as a party
                         plaintiff.
Father’s filing          Dear Clerk: Will you please send me a copy of the docket sheet regarding
7/12/11                  the above cause #. I am currently confined in the state of PA and I don’t
                         have access to internet.
Docket entry             Judge/Clerk Note. A postcard with the number of pages requested and the
7/26/11                  amount due for copies was mailed to Darrell Williams. 11




10
   Father attempted to format his motion in compliance with procedural rules by including a
certificate of service but obviously misunderstood its purpose, i.e., to ensure notice to other
parties.
11
  After a full year of repeated attempts to participate in the case, all to no avail, Father evidently
threw up his hands, as docket sheet contains no other references to Father after July 2011.


                                                   8
