Grady v. Amrep, Inc.

• Citation: 139 S.W.3d 585
• Decision Date: 27 April 2004
• Docket Number: No. ED 76176.,ED 76176.
• Parties: Evelyn GRADY, Appellant, v. AMREP, INC., James J. Dwyer, Jr., Noel Dwyer and Dean Burns, Respondents.
• Court: Court of Appeal of Missouri (US)

139 S.W.3d 585

Evelyn GRADY, Appellant, v. AMREP, INC., James J. Dwyer, Jr., Noel Dwyer and Dean Burns, Respondents.

No. ED 76176.

Missouri Court of Appeals, Eastern District, Division One.

April 27, 2004.

Motion for Rehearing and/or Transfer to Supreme Court Denied June 7, 2004.

Application for Transfer Denied August 24, 2004.

Appeal from the Circuit Court, City of St. Louis, Robert H. Dierker, Jr., J Evelyn Grady, St. Charles, pro se.

Riezman Berger, P.C., Randall D. Grady, Norbert Glassl, St. Louis, MO, for respondent.

GARY M. GAERTNER, SR., Presiding Judge.

Appellant, Evelyn Grady ("Plaintiff"), appeals from the judgment of the Circuit Court of the City of St. Louis granting summary judgment in favor of respondents, Amrep, Inc., James J. Dwyer, Noel Dwyer, and Dean Burns ("Defendants").¹ We affirm.

Plaintiff leased space on North Euclid Avenue in the City of St. Louis to operate a clothing store. She was exposed to Limo Sol, a turpentine-like chemical stripper, on June 3, 1989. Limo Sol, which is made by Amrep, was being applied to a tile floor in a space adjacent to her store. As a result of her exposure, she went to see Dr. Hiatt on June 9, 1989.

Plaintiff claimed one of the injuries resulting from her exposure was a sensitivity to certain chemicals. However, she also suffered numerous other maladies including, among numerous others, dizziness, nausea, hallucinations, kidney and lung infections, and depression.

On June 2, 1994, Plaintiff filed suit against Amrep for injuries caused by her exposure to Limo Sol. In a deposition taken April 15, 1995, Plaintiff testified that on June 3, 1989 she saw the product seeping into her store and could smell the vapors. She had an immediate reaction after her exposure to the product. On June 9, 1989, Dr. Hiatt said that she was having symptoms typical of persons who have been exposed to toxic chemicals. Plaintiff also stated that her continuing allergies to certain chemicals, depression, exhaustion, chemical sensitivity, intermittent joint pain, and swollen glands all began on the date of her exposure.

Plaintiff dismissed her June 2, 1994 suit without prejudice. The dismissal pleading has two circuit clerk file stamps on it: one dated December 14, 1995 and one dated January 22, 1996. The certificate of service states that a copy of the pleading was mailed to Defendants on December 13, 1995.

Plaintiff re-filed her action on January 21, 1997. She alleged essentially the same injuries as in her previous petition. However, she specifically asked for damages for injury and permanent loss of health.

Amrep argued the affirmative defense of the statute of limitations in its answer and filed a motion for summary judgment. Amrep argued the undisputed facts showed that the five-year statute of limitations began on June 3, 1989, when Plaintiff's injuries were sustained and when Plaintiff had ascertained the cause. Amrep also stated that, at the very latest, the statute of limitations commenced on June 9, 1989, when Dr. Hiatt told Plaintiff the cause of her symptoms. Further, Amrep argued Plaintiff's second action was not filed within one-year of her dismissal, as required by the savings statute.

Dean Burns filed a motion to dismiss the re-filed action, alleging it was prohibited by the statute of limitations. Burns also argued that the re-filed petition failed to state a claim upon which relief can be granted and he "incorporat[ed] into his motion to dismiss all documents filed by [Amrep and Dwyer] in their motions to dismiss and for summary judgment."

Plaintiff argued her cause of action did not accrue until April 6, 1995, when she was diagnosed with Chemical Sensitivities Syndrome. Therefore, her second action was within the five-year statute of limitations. In the alternative, Plaintiffs maintained her second action was filed within the one-year savings period after her dismissal.

The trial court found that the statute of limitations began to run on June 3, 1989, the day the damage to Plaintiff was ascertainable. Thus, the statute of limitations ran on June 3, 1994, and the second action, filed January 21, 1997, was not filed within the limitations period. The court also found that the second action was not filed within the one-year savings period because the original action was dismissed on December 14, 1995. As a result, the trial court granted Amrep's motion for summary judgment and Burns' motion to dismiss.

When reviewing a grant of summary judgment, we view the record in the light most favorable to the party against whom judgment was entered. ITT Commercial Finance v. Mid-Am. Marine, 854 S.W.2d 371, 376 (Mo.banc 1993). Our review is essentially de novo. Id. We will uphold the trial court's judgment if there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. at 381. The moving party has the burden to show it has a right to judgment as a matter of law and that there is no genuine issue of material fact. Id. at 378.

In her first point on appeal, Plaintiff argues the trial court erred in granting summary judgment in favor of Defendants because there was a genuine issue of fact as to the date Plaintiff's damages were sustained and were capable of ascertainment.

The statute of limitations for actions involving injury to a person is five years. Section 516.120.² Actions for injuries under this statute of limitations shall be deemed to have accrued "when the damage resulting therefrom is sustained and is capable of ascertainment, and, if more than one item of damage, then the last item, so that all resulting damage may be recovered, and full and complete relief obtained." Section 516.100. For the purposes of this statute, damages are capable of being ascertained when a plaintiff having a recognized theory of recovery sustains compensable damages. Wallace v. Helbig, 963 S.W.2d 360, 360 (Mo.App. E.D.1998). Damages are ascertained when the fact of damage appears rather than when the extent or amount of damage occurs. Kennedy v. Microsurgery and Brain Research, 18 S.W.3d 39, 42 (Mo.App. E.D.2000).

Our colleagues have held that damages were ascertainable at the moment a man was shot, even though the man only later discovered that he sustained permanent paralysis of certain nerves in his stomach, which compelled him to bring suit. Newton v. BPS Guard Services, Inc., 833 S.W.2d 14, 16 (Mo.App. W.D.1992). As a result, this man's suit was barred by the statute of limitations, which began running when he was shot. Id.

Similarly, we held the statute of limitations barred a suit brought six years after a man was struck in the face with a steel bar. Allison v. Missouri Power & Light Co., 59 S.W.2d 771, 773 (Mo.App.St.L.Dist.1933). We found that although the complete extent and character of the disability was not immediately known when the man was struck, everything pleaded by the plaintiff in an attempt to avoid the statute of limitations was "after all but aggravating circumstances enhancing the legal injury already inflicted, and constituting mere developments of such injury, and were not of a character to delay the accrual of the cause of action." Id.

Plaintiff argues that she had a sensitivity to certain chemicals after her exposure to Limo Sol, but she was not diagnosed with Chemical Sensitivities Syndrome until April 6, 1995. As a result, she argues her injury was not ascertainable until April 6, 1995. In support of this contention, Plaintiff argues her original petition only asked for damages for loss of earning capacity and loss of business while her re-filed petition asks for damages for injury and permanent loss of health. The re-filed petition also listed further injuries detailing the permanent damage to Plaintiff's health.

Plaintiff relies on Reasons v. Union Pacific R., 886 S.W.2d 104 (Mo.App. E.D.1994). In that case, which was filed under the Federal Employers' Liability Act ("FELA"), the plaintiff was exposed to "asbestos, strong odors from diesel engines, cleaning agents, chemicals, spray paint, dust particles, fumes and black smoke created by welding around motor grease and other engine oils" over the course of several years. Id. at 106. This exposure caused his chest to tighten, his eyes to water, his nose to run, his throat to ache, and his breathing to be difficult while he was at work, but as soon as he left his work place, he felt fine. Id. Eventually, plaintiff was diagnosed with occupational asthma as a result of his work environment. Id. at 107. We found that the plaintiff could bring his claim because the statute of limitations did not begin running until he was diagnosed. Id. at 109. The statute of limitations for claims under FELA begins when a claimant knows or has reason to know that he has been injured and knows or has reason to know the cause of his injury. Id. In Reasons, the plaintiff testified that he thought his symptoms were only temporary reactions and were similar to symptoms anyone under those circumstances would experience. Id. at 109.

Plaintiff also relies on Elmore v. Owens-Illinois, Inc., 673 S.W.2d 434, 436 (Mo.banc 1984), which involved an occupational disease, asbestosis. In Elmore, the plaintiff worked with asbestos from 1943 to 1976, but he did not begin to experience shortness of breath until 1973. Id. at 435-36. In that case, the diagnosis of asbestosis triggered the statute of limitations because the character of the plaintiff's condition first came together with its cause upon diagnosis. Id.

In Reasons, the plaintiff "felt fine" when he was not at work. Reasons, 886 S.W.2d at 106. In this case, Plaintiff's condition seemed to improve at times, but some symptoms manifested later and she never completely recovered from the exposure. In Reasons, the plaintiff only speculated that his work environment was triggering his reaction. However, in this case, Plaintiff knew immediately that she was exposed to Limo Sol and that it caused her reactions.

In this...