Johnson v. Delmar Gardens West Inc.

• Decision Date: 08 March 2011
• Docket Number: No. ED 95317.,ED 95317.
• Parties: Carolyn JOHNSON, Plaintiff/Appellant,v.DELMAR GARDENS WEST, INC., Defendant,andDelmar Gardens of Chesterfield, LLC, d/b/a Delmar Gardens of Chesterfield,andDelmar Gardens of Chesterfield, Inc., Defendants/Respondents.
• Court: Missouri Court of Appeals

335 S.W.3d 83

Carolyn JOHNSON, Plaintiff/Appellant,

v.DELMAR GARDENS WEST, INC., Defendant,andDelmar Gardens of Chesterfield, LLC, d/b/a Delmar Gardens of Chesterfield,andDelmar Gardens of Chesterfield, Inc., Defendants/Respondents.

No. ED 95317.

Missouri Court of Appeals, Eastern District, Division Three.

March 8, 2011.

Andrew L. Mandel, St. Louis, for Plaintiff/Appellant.JoAnn Sandifer, Clayton, for Defendant Delmar Gardens West, Inc.Gregory J. Minana, Angela S. Quinn, Clayton, for Defendants/Respondents.SHERRI B. SULLIVAN, P.J.

Introduction

Carolyn Johnson (Plaintiff) appeals from the trial court's judgment granting the motion to dismiss of Delmar Gardens of Chesterfield, L.L.C., d/b/a Delmar Gardens of Chesterfield and Delmar Gardens of Chesterfield, Inc. (collectively the Chesterfield Defendants) and dismissing all claims against them with prejudice. We reverse and remand.

Factual and Procedural Background

On November 23, 2009, Plaintiff filed a petition against Delmar Gardens West (West) for damages for the wrongful death of her husband, Manuel Johnson (Decedent), on February 4, 2007. On March 23, 2010, West filed a Motion for Summary Judgment on the basis that there was no genuine dispute that Decedent was never a resident at West's facility and, therefore, West had no duty of care in the absence of a healthcare provider-patient relationship. The record indicates that the parties agreed to extend the proceedings on the Motion for Summary Judgment until the parties briefed the other issues presented in the case.

On April 2, 2010, Plaintiff filed her first amended petition adding the Chesterfield Defendants to her wrongful death suit. In the amended petition, Plaintiff alleged that in January 2007 Decedent was accepted as a resident into Chesterfield's nursing home and Decedent subsequently fell from his bed and sustained injuries which ultimately resulted in his death.

On May 3, 2010, the Chesterfield Defendants filed a Motion to Dismiss alleging that Plaintiff's claims were time barred. On May 26, 2010, Plaintiff filed a response to the Chesterfield Defendants' Motion to Dismiss. In her response, Plaintiff stated that during discovery, “it was determined that the proper name for the facility (“Delmar Gardens of Chesterfield”) that decedent resided in prior to his death was either Delmar Gardens of Chesterfield Operating L.L.C. or Delmar Gardens of Chesterfield, Inc.” Plaintiff acknowledged that the amended petition alleged that all three defendants operated skilled nursing facilities and provided care to Decedent but contended that the original petition makes clear that the Plaintiff intended to sue the entity that owned, controlled or managed the facility in which Decedent was a resident and that she is seeking only to name the correct facility. On July 2, 2010, the trial court entered its judgment and order granting the Chesterfield Defendants' Motion to Dismiss, dismissing all claims against them with prejudice.

On July 14, 2010, Plaintiff filed a Motion to Reconsider Dismissal of Chesterfield Defendants and/or alternatively Motion for Substitution of Parties. Plaintiff sought an order from the court vacating its order and judgment in favor of the Chesterfield Defendants or, in the alternative, granting Plaintiff leave to substitute the Chesterfield Defendants for West. On July 28, 2010, the Chesterfield Defendants filed their opposition to Plaintiff's Motion for Reconsideration, in which they urged that Plaintiff's request for substitution be denied. On July 30, 2010, the Court entered its Judgment and Order denying Plaintiff's Motion to Reconsider or, in the alternative, Substitution of Parties. This appeal follows.¹

Point Relied On

On appeal, Plaintiff contends the trial court erred in granting the Chesterfield Defendants' Motion to Dismiss, in that the amended petition relates back to the original petition because the joinder of the Chesterfield Defendants constitutes: (1) the correction of a misnomer under the first sentence of Rule 55.33(c) and/or (2) an amendment that relates back under the second sentence of Rule 55.33(c). Plaintiff also maintains that the Chesterfield Defendants waived their statute of limitations defense by not affirmatively pleading the specific statute on which they rely.

Standard of Review

“A motion to dismiss may raise the issue that a claim is barred by a statute of limitation where the petition shows upon its face that the action is barred.” Reed v. Rope, 817 S.W.2d 503, 507 (Mo.App. W.D.1991). Although the Chesterfield Defendants filed a motion to dismiss, both parties included exhibits in their filings on the motion to dismiss with the trial court and neither party objected to the admission of facts outside of the pleadings. “A motion to dismiss that properly raises that a statute of limitation bars a claim may be treated as a motion for summary judgment and ruled on at that time.” Id. Here, because both parties presented matters outside of the pleadings to the trial court, neither party objected to the admission of such evidence, and the parties continue to rely on this information on appeal, we find the motion was treated as one for summary judgment. Mitchell v. McEvoy, 237 S.W.3d 257, 259 (Mo.App. E.D.2007).

We review the trial court's grant of summary judgment essentially de novo. ITT Comm. Fin. Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We will uphold summary judgment on appeal only where there is no genuine issue of material fact and the moving is entitled to judgment as a matter of law. Id. The record is viewed in the light most favorable to the party against whom judgment was entered. Citibrook II, L.L.C. v. Morgan's Foods of Missouri, Inc., 239 S.W.3d 631, 634 (Mo.App. E.D.2007).

Discussion

Plaintiff is seeking damages for Decedent's alleged wrongful death pursuant to Section 537.080.² An action for wrongful death brought under this Section must be commenced within three years after the cause of action accrues. Section 537.100. The parties agree that the statute of limitations ran on February 4, 2010, three years after the Decedent's death. Plaintiff filed her original petition against West within the statutory time limit but did not join the Chesterfield Defendants until after the statute of limitations had run.

“Rule 55.33(c) allows amended pleadings filed out of time to relate back to the original pleading in certain situations.” Goodkin v. 8182 Maryland Associates Ltd. Partnership, 80 S.W.3d 484, 487–89 (Mo.App. E.D.2002). Rule 55.33 ³ provides 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 the party and serving notice of the action, the party to be brought in by amendment: (1) has received such notice of the institution of the action as will not prejudice the party in maintaining the party's 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 the party.Historically, this rule has allowed relation back in cases involving the correction of a misnomer and changes made due to a mistake concerning the identity of the proper party. Tyson v. Dixon, 859 S.W.2d 758, 761 (Mo.App. W.D.1993). Plaintiff contends the joinder of the Chesterfield Defendants in her first amended petition falls under both categories.

First, Plaintiff contends that this case involves a misnomer. A misnomer is a misdescription or a mistake in some aspect of a party's name. Bailey v. Innovative Management & Inv., Inc., 890 S.W.2d 648, 651 (Mo. banc 1994). It occurs where a summons is served on the right party but with the wrong name. P & K Heating & Air Conditioning, Inc. v. Tusten Townhomes Redevelopment Corp., 877 S.W.2d 121, 125–26 (Mo.App. E.D.1994).

As a misdescription, a correction of a misnomer is not considered to be a change in party requiring the plaintiff to meet the specific notice requirements of Rule 55.33. Bailey, 890 S.W.2d at 651. A misnomer does not destroy the effectiveness of a petition, and its correction relates back to the date of the filing of the petition when it is clear that the proper party received notice. Watson v. E.W. Bliss Co., 704 S.W.2d 667, 669–70 (Mo. banc 1986).

Plaintiff argues that she mistakenly identified West as a defendant and that the joinder of the Chesterfield Defendants should relate back because it was done only to remedy the mistake in identifying the specific entity of the Delmar Gardens enterprise that accepted Decedent as a resident into its nursing home.

This, however, is not a case of misnomer where a plaintiff sued the correct party but misdescribed the party in the petition. Plaintiff was not simply mistaken as to some aspect of the correct party's name but was mistaken as to the identity of the party and sued the wrong entity. Plaintiff freely admits that she did not sue the correct party; therefore, Plaintiff's joinder of the Chesterfield Defendants does not relate back as a misnomer.

Next, Plaintiff argues that even if joining the Chesterfield Defendants was a change in a party, the amendment relates back to the filing of the original petition pursuant to Rule 55.33(c).

“Rule 55.33(c) applies only to amendments changing the party against whom a claim is asserted.” Windscheffel v. Benoit, 646 S.W.2d 354, 356 (Mo. banc 1983). “[F]or the rule to apply, plaintiff must have made a mistake in selecting the proper party to sue, i.e., plaintiff must have brought an action against the wrong party.” Id.

The Missouri Supreme Court has previously...