Opinion
No. 69713
OPINION FILED: October 22, 1996
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS HONORABLE JAMES R. DOWD.
Before Clifford H. Ahrens, C.J., William H. Crandall, Jr., J. and Charles B. Blackmar, Sr. J.
ORDER
Plaintiffs appeal the trial court's dismissal of their action arising from defendants' alleged medical negligence. We have reviewed the record and no error of law appears. An opinion would have no precedential value. The parties have been furnished, for their use only, with a memorandum explaining the reasons for this decision.
The judgment of the trial court is affirmed. Rule 84.16(b).
MEMORANDUM SUPPLEMENTING ORDER AFFIRMING JUDGMENT PURSUANT TO RULE 84.16(b)
The memorandum is for the information of the parties and sets forth the reasons for the order affirming the judgment.
THIS STATEMENT DOES NOT CONSTITUTE A FORMAL OPINION OF THIS COURT. IT IS NOT UNIFORMLY AVAILABLE. IT SHALL NOT BE REPORTED, CITED, OR OTHERWISE USED IN UNRELATED CASES BEFORE THIS COURT OR ANY OTHER COURT. IN THE EVENT OF THE FILING OF A MOTION TO REHEAR OR TRANSFER TO THE SUPREME COURT, A COPY OF THIS MEMORANDUM SHALL BE ATTACHED TO ANY SUCH MOTION.
Plaintiffs appeal the trial court's dismissal of their wrongful death action arising from defendants' alleged medical negligence. The trial court's judgment is affirmed.
The following version of events is derived from plaintiffs' first amended petition. In the evening of September 9, 1989, Herbert Ivy went to the emergency room of Barnes Hospital ("Barnes"). Ivy showed symptoms of hepatitis, sepsis, hepatic failure and encephalopathy. Approximately eight hours later, Ivy was transferred to St. Louis Regional Medical Center ("Regional"). Three days later, Ivy was retransferred to Barnes. On September 20, 1989, Herbert Ivy died at Barnes.
Plaintiffs filed their wrongful death action on September 26, 1991. Named as plaintiffs were Christine Jackson, Ivy's mother, Cathy Combs, Ivy's "illegitimate spouse", Cierra Ivy, the "illegitimate" child of Ivy and Combs, Rhonda Smith, another "illegitimate spouse" and Courtney Ivy, the "illegitimate" child of Ivy and Smith. Plaintiffs alleged various acts of medical negligence by Barnes and Regional. Listed below is a portion of the proceedings which occurred after plaintiffs filed their original petition:
October 1, 1991: Plaintiffs file first amended petition. Christina Jackson appointed next friend for Cathy Combs, Rhonda Smith, Cierra Ivy and Courtney Ivy.
February 6, 1992: Plaintiffs voluntarily dismiss their action without prejudice.
February 4, 1993: Plaintiffs refile their action.
May 23, 1994: The trial court dismisses action without prejudice.
May 24, 1995: Plaintiffs refile their action. Christine Jackson appointed next friend for Cierra Ivy and Courtney Ivy.
July 3, 1995: Regional files motion to dismiss.
July 5, 1995: Barnes files motion to dismiss.
October 11, 1995: The trial court grants Barnes' and Regional's motions to dismiss with prejudice.
October 26, 1995: Plaintiffs file "MOTION FOR NEW TRIAL AND REHEARING WITH RESPECT TO DEFENDANTS' DISMISSAL MOTIONS."
December 11, 1995: The trial court overrules plaintiffs' new trial motion filed October 26, 1995.
December 21, 1995: Plaintiffs file notice of appeal.
We must first address whether, as Barnes suggests, this appeal should be dismissed as untimely. Rule 81.04(a) requires the notice of appeal be filed not later than ten days after the judgment becomes final. Rule 81.05(a) provides in part:
For the purpose of ascertaining the time within which an appeal may be taken, a judgment becomes final at the expiration of thirty days after the entry of such judgment, if no timely motion for new trial is filed . . . . In the event a motion for new trial is timely filed, the judgment becomes final at the expiration of ninety days after the filing of such motion or, if such motion is passed on at an earlier date, then at the later of thirty days after entry of judgment and the date of disposition of said motion.
Barnes relies on the October 11th order as the date to determine when the notice of appeal had to be filed. However, on October 26, 1995, plaintiffs filed a motion challenging the trial court's dismissal of the action. This motion raised alleged errors of fact and law made by the trial court and will be considered as a motion for new trial. Snelling v. Masonic Home of Missouri, 904 S.W.2d 251, 253 (Mo.App. 1995); Miller v. Enyeart, 893 S.W.2d 901, 903 (Mo.App. 1995). The trial court overruled the motion on December 11, 1995, and the judgment became final on this date. Rule 81.05(a). Plaintiffs timely filed their notice of appeal on December 21, 1995. Rule 81.04(a).
In their first point, plaintiffs argue their action was not barred by the applicable statute of limitations. Section 537.100, RSMo 1986, applies to a wrongful death action which is based on alleged medical malpractice. Wilson v. Jackson, 823 S.W.2d 512, 513 (Mo.App. 1992). This section provides for a three year statute of limitations for wrongful death actions. Id. Herbert Ivy died on September 20, 1989, and plaintiffs timely filed their original petition on September 26, 1991. Section 537.100 also provides that if any wrongful death action is commenced within the proper time, "and the plaintiff therein take or suffer a nonsuit . . . such plaintiff may commence a new action from time to time within one year after such nonsuit suffered . . . ." Plaintiffs voluntarily dismissed their action on February 6, 1992, and refiled on February 4, 1993. Under the above quoted savings provision of § 537.100, plaintiffs' refiling on February 4th was not barred.
On May 23, 1994, plaintiffs' action was dismissed for failure to comply with the affidavit requirement of § 538.225. A dismissal on these grounds constitutes a nonsuit for purposes of determining when a one year savings provision begins to run. See Korman v. Lefholz, 890 S.W.2d 771, 774 (Mo.App. 1995). Plaintiffs contend that their refiling of the action on May 24, 1995, fell within the savings provision of § 537.100. We disagree.
Our Supreme Court has interpreted the savings statute, § 516.230, which contains in pertinent part similar language to § 537.100 regarding the refiling of an action after a plaintiff suffers a nonsuit. Cady v. Harlan, 442 S.W.2d 517 (Mo. 1969). In Cady, the plaintiff sustained personal injuries in September 1956, and filed an action in August 1961, which was within the five year statute of limitations. The trial court "nonsuited" the action on July 21, 1964, and the following day the plaintiff refiled the action. The plaintiff voluntarily dismissed the action in July 1967, and refiled in September 1967. The trial court found the statute of limitations barred the plaintiff's September 1967 action and sustained the defendant's motion to dismiss. Id. at 518. In affirming the judgment, the Court held that § 516.230 gave rise to only one period of one year for an action to be brought after the original statute of limitations has run. Id. at 519-20. The Court recognized that the plaintiff may not suffer an indefinite number of nonsuits and institute an indefinite number of actions, even provided each successive new action was brought within one year of the preceding nonsuit. Id. (citation omitted).
The analysis in Cady is applicable to the present case. Here, after voluntarily dismissing the action on February 6, 1992, plaintiffs refiled on February 4, 1993. This refiling was not within the three year statute of limitations but was proper under the savings provision of § 537.100. But plaintiffs could not use the savings provision a second time when refiling the action on May 24, 1995, after dismissal on May 23, 1994. "[O]nce the provisions of § 516.230 are invoked, plaintiff has one year to file [the] action and the dismissal of an action so filed, does not give rise to any subsequent periods of grace." Id. at 519. Accordingly, the trial court did not err in dismissing plaintiffs' action filed on May 24, 1995, and their first point is denied.
In their third point, plaintiffs argue the statute of limitations for a wrongful death action does not start to run for Cathy Combs, Rhonda Lewis, Cierra Ivy and Courtney Ivy, until their twenty-first birthdays. This court has previously rejected plaintiffs' argument. Bregant v. Fink, 724 S.W.2d 337, 339 (Mo.App. 1987). Plaintiffs fail to give a compelling reason to reconsider Bregant, and their point is denied. Given our disposition of plaintiffs' other points, plaintiffs' argument in their second point that "illegitimate spouses" may maintain a wrongful death action is rendered moot.
The trial court's judgment is affirmed.