Abbate v. Tortolano

• Decision Date: 16 January 1990
• Docket Number: No. WD,WD
• Citation: 782 S.W.2d 810
• Parties: Pete J. ABBATE, et al., Appellants, v. Anthony TORTOLANO, et al., Respondents. 41840.
• Court: Missouri Court of Appeals

Page 810

782 S.W.2d 810

Pete J. ABBATE, et al., Appellants, v. Anthony TORTOLANO, et al., Respondents.

No. WD 41840.

Missouri Court of Appeals,

Western District.

Jan. 16, 1990.

Rhonda S. Loeppke, Lee's Summit, for appellants.

Jeffrey Alan Burns, Kansas City, for respondents.

Before NUGENT, C.J., FENNER, J., and SOLBERT M. WASSERSTROM, Senior Judge.

FENNER, Judge.

The appellants herein are Peter J. Abbate and his wife Mary Abbate. This appeal arises from rulings by the trial court that appellants' action against Respondent Warfield Electric Company is barred by the applicable statute of limitations, § 516.120, RSMo 1986, and that appellants failed to comply with the requirements regarding substitution of a defendant following a filing of suggestion of death, Rule 52.13(a)(1), and failed to obtain personal jurisdiction over defendant Tortolano.

The underlying cause of action originates from an automobile accident occurring June 6, 1980, involving appellant Peter Abbate and Anthony Tortolano. ¹ Appellants' petition was filed May 23, 1985, approximately two weeks before the applicable five year statute of limitations was to run. Respondent Charles Mindermann was served June 13, 1985, after the time for commencement of the action had run.

The claim against Mindermann was based on vicarious liability arising out of his alleged status as Tortolano's employer. Mindermann moved to dismiss for lack of personal jurisdiction on October 24, 1985, filing a supporting affidavit stating that he was a co-employee with Tortolano at Warfield Electric Company (Warfield Electric). On March 12, 1986, appellants moved for leave to file an amended petition, substituting Warfield Electric as a party. The motion to file an amended petition was granted on March 28, 1986. Appellants' amended petition, naming Warfield Electric, was filed on July 29, 1986. Warfield Electric thereafter was granted summary judgment on its defense of the statute of limitations on December 22, 1986.

On May 4, 1988, Warfield Electric, as a former defendant and interested person, filed Suggestions of Death of a named, but unserved defendant, stating that Anthony Tortolano was then deceased and that service had never been procured upon him. Warfield Electric argued that the court did not have jurisdiction over Tortolano. On June 28, 1988, the court ruled that there was no jurisdiction over Tortolano. The court ruled that service of process was insufficient for failure to personally serve Tortolano with summons and petition, and that return of service had not been properly certified.

In their first point appellants argue that the trial court erred in granting summary judgment and ruling that their claim against Warfield Electric was barred by the statute of limitations. Appellants argue that their claim against Warfield Electric relates back to the date of filing of their claim against Charles Mindermann and that the issue of the statute of limitations is barred by res judicata due to an order of the court entered on March 28, 1986.

Appellate review of an order granting summary judgment is made in light of the entire record construed in a light most favorable to the party against whom summary judgment was entered. Roberts Fertilizer, Inc. v. Steinmeier, 748 S.W.2d 883, 886 (Mo.App.1988). The review is the same as an equity proceeding, and if, as a matter of law, the judgment is sustainable on any theory, the trial court will be sustained. Id.

Rule 55.33(c) addresses relation back of amended pleadings. When Warfield Electric was granted summary judgment on December 22, 1986, and at all relevant times herein, Rule 55.33(c), Missouri Rules of Court, 17th Edition, 1986 ², provided as follows:

(c) Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

Rule 55.33(c) establishes three requirements, each of which is required to be met if an amended pleading is to relate back. Home Building Corp. v. Ventura Corp., 568 S.W.2d 769, 771-72 (Mo. banc 1978). The first requirement, that the claim must arise out of the conduct or occurrence set forth in the original petition, is not in dispute. The second requirement is that the party to be brought in by amendment must have received such notice of the institution of the action within the period provided by law for commencing the action against him so that he will not be prejudiced in maintaining his defense on the merits. Id. at 772. The third requirement is that the party to be joined knew or should have known, within the period provided by law for commencing the action against him, that but for a mistake concerning the identity of the proper party, the action would have been brought against him. Id. at 772; Rule 55.33(c).

There is no evidence in the record that Warfield Electric received any notice of the institution of the action within the time provided for commencing the action by the applicable statute of limitations, § 516.120, RSMo 1986. Appellants explain that they initially sued Mindermann as Tortolano's employer and not Warfield Electric because Mindermann was listed on the accident report, by the police officer investigating the accident, as the owner of the vehicle driven by Tortolano. Appellants argue since Mindermann was actually Tortolano's supervisor at Warfield Electric that when Mindermann was sued Warfield Electric had notice of the action. Appellants argue further that since Warfield Electric and Mindermann had the same attorney this shows that Warfield Electric had notice of the action.

Controlling herein is that Mindermann was not served with notice of the action until after the period for commencing the action had expired. This did not affect the validity of service against Mindermann because a petition is not subject to dismissal upon statute of limitations grounds if it is filed within the statutory limitations period, even though summons is not served upon the defendant until after the expiration of the limitation period, as long as the plaintiff exercises due diligence in obtaining service of summons. Wriedt v. Charlton, 689 S.W.2d 788, 789 (Mo.App.1985). Even though service on Mindermann was valid it cannot relate back as against Warfield Electric pursuant to Rule 55.33(c) in this case.

On December 22, 1986, when the circuit court granted summary judgment in favor of Warfield Electric, Rule 55.33(c) was identical to Federal Rule of Civil Procedure 15(c). See Watson v. E.W. Bliss Co., 704 S.W.2d 667, 670 (Mo. banc 1986); Want v. Leve, 574 S.W.2d 700, 712 (Mo.App....