Brown v. VA Second LP

• Decision Date: 03 August 2021
• Docket Number: WD 84077
• Citation: 630 S.W.3d 789
• Parties: Angela BROWN, Appellant, v. VA SECOND LP, Respondent.
• Court: Missouri Court of Appeals

630 S.W.3d 789

Angela BROWN, Appellant,

v.VA SECOND LP, Respondent.

WD 84077

Missouri Court of Appeals, Western District.

OPINION FILED: AUGUST 3, 2021

Stacy Lynn Shaw, Kansas City, MO, Counsel for Appellant.

Thomas J. Golson, Kansas City, MO, Counsel for Respondent.

Before Division One: Anthony Rex Gabbert, Presiding Judge, Edward R. Ardini, Jr., Judge, Thomas N. Chapman, Judge

Anthony Rex Gabbert, Judge

Angela Brown appeals the circuit court's Judgment dismissing Brown's First Amended Petition for Damages against VA Second LP. Brown contends on appeal that the circuit court erred in dismissing her petition because Brown's voluntary dismissal of Victoria Arms Apartment Limited Partnership ("VAALP") cured Brown's defective pleading which added VA Second LP as a defendant, and Brown's Amended Petition and Voluntary Dismissal and Substitution of Parties acted together to substitute VA Second LP for VAALP, thereby making application of the relation back doctrine under Rule 55.33(c) appropriate in this case. We affirm.

Background and Procedural Information

On February 1, 2018, Brown filed suit (Case No. 1816-CV02835) against VAALP alleging that on February 22, 2013, Brown was visiting a tenant who lived in the Victoria Arms Apartments located at 6311 Woodland Avenue in Kansas City, a property "controlled and operated" by VAALP. Brown alleged that, on that date, she slipped on unseen ice and suffered permanent and progressive injury to her body, and that such injuries were a direct and proximate result of VAALP's negligent acts and omissions. The court issued a summons for VAALP on April 2, 2018. On October 3, 2018, the court entered an order dismissing Brown's action without prejudice for "want of prosecution." The court noted that VAALP had yet to be served and that "this case was filed in February and there has been no attempts for service shown in the file since April."

On December 19, 2018, Brown refiled her petition. Although filed outside of the five-year statute of limitations for personal injury actions ( Section 516.120(4), RSMo 2016 ), Brown relied on Missouri's savings statute, Section 516.230, RSMo 2016, contending that the statute allowed her to refile within one year of voluntarily dismissing her initial, timely petition.

On September 22, 2019, Brown filed a Motion for Leave to File an Amended Petition to add VA Second LP as a Defendant in the cause. Brown advised the court that "Counsel for the owner of Victoria Arms Apartments informed Petitioner that the owner of the property at the time of the incident was VA Second LP." The court granted leave and Brown filed her First Amended Petition for Damages on September 26, 2019, naming both VAALP and VA Second LP as defendants, praying "for a Judgment in her favor and against Defendants, jointly and severally[.]"

On October 10, 2019, VA Second LP moved to dismiss Brown's petition with prejudice on the grounds that the applicable statute of limitations had run. VA Second LP argued in its Suggestions in Support that Section 516.120(4) provides that a five-year statute of limitations applies to "an action for ... injury to the person," that Brown's fall occurred on February 22, 2013, and that the five-year period in which Brown could have filed her cause of action against VA Second LP expired February 22, 2018. VA Second LP argued that, as Brown's First Amended Petition for Damages against VA Second LP was filed September 26, 2019, Brown's claim was time-barred.

On October 28, 2019, Brown voluntarily dismissed her claim against VAALP. In opposing the motion to dismiss, Brown argued that, though "inartfully drafted" her addition of VA Second LP, and dismissal of VAALP in the refiled suit amounted to a substitution of parties and that the "relation back doctrine" (Rule 55.33) and Missouri's savings statute ( Section 516.230 ) authorized Brown to voluntarily dismiss her action and refile it within one year of the voluntary dismissal. VA Second LP argued that the relation back doctrine was inapplicable to parties (such as VA Second LP) added to the refiled suit.

On September 23, 2020, the trial court ultimately granted VA Second LP's motion to dismiss¹ , finding that the statute of limitations for Brown's claims against VA Second LP expired on February 22, 2018, and that "the relation back doctrine of Rule 55.33(c) [was] not applicable in this case." This appeal follows.

Standard of Review

"The standard of review for a trial court's grant of a motion to dismiss is de novo. " Lynch v. Lynch , 260 S.W.3d 834, 836 (Mo. banc 2008). We view the facts as true and in the light most favorable to the plaintiff. Id. "If the petition sets forth any set of facts that, if proven, would entitle the plaintiffs to relief, then the petition states a claim." Id. We will affirm the dismissal if it was appropriate on any ground supported by the motion to dismiss. Reid v. Steelman , 210 S.W.3d 273, 279 (Mo. App. 2006).

Point on Appeal

Brown contends on appeal that the circuit court erred in dismissing her petition because Brown's voluntary dismissal of defendant VAALP cured Brown's defective pleading which added VA Second LP as a defendant, and Brown's Amended Petition and Voluntary Dismissal and Substitution of Parties acted together to substitute VA Second LP for VAALP, thereby making application of the relation back doctrine under Rule 55.33(c) appropriate in this case.² Brown argues that reliance on Hartman is misplaced because the plaintiffs in Hartman never dismissed any of the original defendants to allow the new defendants to take their place. Brown contends that, "[w]hile unartfully done using two separate pleadings, Plaintiff effectively substituted original defendant [VAALP] with VA Second LP." We find no error.

Hartman involved plaintiffs involved in real estate investment who sued approximately one hundred unnamed, "Fictitious Defendants" for allegedly publishing defamatory statements about their business on the internet. 602 S.W.3d at 830. Thereafter, the plaintiffs filed an amended petition adding two defendants, Ken Logan and Quentin Kearney ("Named Defendants"), alleging that these individuals were also engaged in the real estate business and were Plaintiffs’ former business associates and current competitors. Id. at 831. Further, that when the defamatory statements were published online in 2015, the Named Defendants operated several businesses at an address in Blue Springs with a Comcast account containing a specific IP address. Id. This IP address was allegedly associated with an email address that included the name, "Russel Harrington," a screen name used to make the alleged defamatory statements. Id.

The Named Defendants in Hartman moved to dismiss the amended petition, contending among other things that the claims were time barred and the Amended Petition did not relate back to the original petition because the Named Defendants did not have notice of the original petition. Id. The circuit court in Hartman granted the Named Defendant's Motion to Dismiss, without explanation. Id. at 833.

In affirming the trial court's dismissal, in Hartman , we concluded:

‘Rule 55.33(c) is "[the] remedy for a mistake in identity, and the remedy is a change in party." ’ Kingsley v. McDonald , 432 S.W.3d 266, 270 (Mo. App. W.D. 2014) (quoting State ex rel. Hilker v. Sweeney , 877 S.W.2d 624, 628 (Mo. banc 1994) ). In other words, Rule 55.33(c) applies if the ‘plaintiff ... made a mistake in selecting the proper party to sue, i.e., the plaintiff must have brought an action against the wrong party.’ Id. (quoting State ex rel. Holzum v. Schneider , 342 S.W.3d 313, 316 (Mo. banc 2011) ). Rule 55.33(c) does not apply, however, ‘where the plaintiff seeks to add an entirely new defendant to the case,’ as the " ‘[t]he law distinguishes between the substitution of parties" -- where relation back may be available—and the addition of parties," where it is not.’ Id. at 272-73 (quoting Johnson v. Delmar Gardens W., Inc. , 335 S.W.3d 83, 88 (Mo. App. E.D. 2011) ).

Here, the Original Petition named John Doe, individually, and Does 1 through 100 as defendants. The Amended Petition also named John Doe, individually and Does 1 through 100 as defendants.

The Amended Petition did not add Logan or Kearney as defendants to the case caption, but merely added additional factual allegations in the pleading which specifically addressed Logan and Kearney. In all material respects, the allegations in the Amended Petition addressing the conduct of the ‘Doe’ defendants remained unchanged from the Original Petition. The Amended Petition did not substitute Logan and Kearney for any of the previously named Fictitious Defendants, and instead added Logan and Kearney as additional defendants. As such, the Amended Petition added new party-defendants after the expiration of the statute of limitations, and the relation back doctrine set forth in Rule 55.33(c) is not applicable. See , e.g.,Schultz by Schultz v. Romanace , 906 S.W.2d 393, 396 (Mo. App. S.D. 1995) (holding that when plaintiff filed amended petition and named specific, new defendants, but did not substitute them for previously named ‘Doe’ defendants, the amended petition added new parties, and was not eligible for relation back); cf. State ex rel. Holzum , 342 S.W.3d at 315-16 (where court examined the specificity of the allegations in original petition naming ‘Doe’ defendants to see if identity of person being referred to could be ascertained as to permit relation back, but only after noting that the amended petition expressly substituted the newly named defendants for previously named ‘Doe’ defendants); Maddux v. Gardner , 192 S.W.2d 14, 17-18 (Mo. App. 1945) (holding that relation back applied where original petition named ‘Doe’ defendants and identified them as the engineer and the fireman who were on an identified train that ran over the decedent because the later filed amended petition substituted the named engineer and fireman for the previously named ‘Doe’ defe

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