Joshi v. Ries, ED 94289.

• Citation: 330 S.W.3d 512
• Decision Date: 16 November 2010
• Docket Number: No. ED 94289.,ED 94289.
• Parties: Keshav S. JOSHI, M.D., Appellant,v.Jonathan RIES and Sandberg, Phoenix & Von Gontard, P.C., Respondents.
• Court: Court of Appeal of Missouri (US)

330 S.W.3d 512

Keshav S. JOSHI, M.D., Appellant,
v.
Jonathan RIES and Sandberg, Phoenix & Von Gontard, P.C., Respondents.

No. ED 94289.

Missouri Court of Appeals, Eastern District, Division Five.

Nov. 16, 2010.Motion for Rehearing and/or Transfer to

Supreme Court Denied Dec. 28, 2010. Application for Transfer Denied March 1, 2011.

[330 S.W.3d 513]

Naren Chaganti, Town & Country, MO, for appellant.Gerard T. Noce, St. Louis, MO, for respondents.PATRICIA L. COHEN, Judge.

Introduction

Keshav S. Joshi, M.D. (“Plaintiff”) appeals the judgment entered by the Circuit Court of St. Louis County in favor of defendants Jonathan Ries (“Ries”) and Sandberg, Phoenix & von Gontard, P.C. (“SPvG”) (collectively “Defendants”). In his first two points on appeal, Plaintiff claims that the Circuit Court of the City of St. Louis erred in denying Plaintiff's application for change of judge and granting Defendants' motion for transfer of venue to the Circuit Court of St. Louis County. In his third point on appeal, Plaintiff claims that the Circuit Court of St. Louis County erred in finding that his claims were barred by the statute of limitations and granting summary judgment for Defendants. We find that the Circuit Court of the City of St. Louis erred in denying the application for change of judge and lacked authority to proceed further other than to transfer the case. We reverse and remand with directions.¹

Factual and Procedural Background

On January 22, 1996, Plaintiff, an anesthesiologist, retained Defendants to represent him at a preliminary hearing regarding the summary suspension of his medical staff privileges at St. Luke's Hospital (“St. Luke's”). On February 7, 1996, Ries represented Plaintiff at the preliminary hearing before the St. Luke's Hospital Peer Review Panel. The peer review panel decided to continue Plaintiff's suspension pending a full hearing. On February 26, 1996, Ries requested a full hearing review on Plaintiff's behalf.

In March 1996, St. Luke's notified Plaintiff that the full hearing was scheduled for May 31, 1996. On May 17, 1996, Plaintiff tendered his resignation to St. Luke's and Ries sent St. Luke's a letter stating that there was no longer a reason to proceed with the full hearing.

In April 1999, Plaintiff filed suit against St. Luke's, the chief of St. Luke's department of anesthesiology, and St. Luke's president and chief executive officer seeking damages and injunctive and declaratory relief. ² Based on its finding that the St. Luke's defendants were entitled to immunity under the federal Health Care Quality and Improvement Act of 1986, the Circuit Court of St. Louis County granted summary judgment in favor of the St. Luke's defendants. This court affirmed. Joshi v. St. Luke's Episcopal–Presbyterian Hosp., 142 S.W.3d 862 (Mo.App. E.D.2004), cert. denied 544 U.S. 922, 125 S.Ct. 1646, 161 L.Ed.2d 479 (2005).

On July 13, 2005, approximately nine years after the February 1996 staff privileges hearing at which Defendants represented Plaintiff, Plaintiff filed a legal malpractice action against Defendants in the Circuit Court of the City of St. Louis. Plaintiff's amended petition alleged fraudulent concealment, breach of the duty of loyalty, breach of the duty against self-dealing, negligence, negligent misrepresentation, and violation of the Missouri Merchandising Practices Act. On June 16, 2008, following numerous discovery disputes,

[330 S.W.3d 514]

Judge David Dowd dismissed Plaintiff's action without prejudice. Plaintiff re-filed his petition in the Circuit Court of the City of St. Louis on September 4, 2008.

On September 8, 2008, Plaintiff filed an application for change of judge under Missouri Supreme Court Rule 51.05 requesting “a change of judge from Judge Honorable David L. Dowd to another judge in the instant matter.” ³ Plaintiff did not mail Defendants a copy of the application for change of judge. On September 12, 2008, Defendants filed a motion to transfer venue, arguing that venue was only proper in St. Louis County because Plaintiff's claimed injuries occurred at St. Luke's in St. Louis County. On October 7, 2008, Plaintiff re-filed the same application for a change of judge and mailed a copy to Defendants. On November 3, 2008, Judge Dowd heard arguments on Plaintiff's application for change of judge and Defendants' motion to transfer venue. Judge Dowd denied Plaintiff's application for change of judge and transferred the case to the Circuit Court of St. Louis County. ⁴

On September 16, 2009, Defendants filed a motion for summary judgment on the grounds that “the five-year statute of limitations contained in RSMo § 516.120 bars [P]laintiff's claims.” In their statement of uncontroverted material facts, Defendants alleged, inter alia: Plaintiff's allegations of negligence relating to Defendants' representation of Plaintiff during the staff privileges proceedings took place in 1996; in April 1999, Plaintiff retained separate counsel not from SPvG to pursue his claims against St. Luke's; Defendants showed their client files to Plaintiff's subsequent counsel; and, apart from the instant litigation, Defendants have had no contact with Plaintiff since 1997. Defendants argued that Missouri's five-year statute of limitation barred Plaintiff's claim because Plaintiff did not file his legal malpractice action until July 13, 2005, even though the alleged damages caused by Defendants' representation of Plaintiff at the staff privileges hearing “were sustained and capable of ascertainment in 1996.”

Plaintiff failed to timely respond to Defendants' motion for summary judgment as required by Rule 74.04(c)(2). On November 23, 2009, the trial court heard arguments on Defendants' motion for summary judgment and Plaintiff filed a hand-written motion for leave to file an out-of-time response to Defendants' motion for summary judgment.⁵ On December 16, 2009, the trial court heard arguments on Plaintiff's request for leave to respond to Defendants' motion for summary judgment. In its order and judgment of December 21, 2009, the trial court denied Plaintiff's motion to file a response out of time and, pursuant to Rule 74.04(c)(2), deemed admitted all assertions set forth in Defendants' statement of uncontroverted facts. The trial court proceeded to find that there were no genuine issues of material fact and that Defendants were entitled to judgment as a matter of law, and therefore granted summary judgment for Defendants.⁶ Plaintiff appeals.

Standard of Review

“Missouri Supreme Court rules are to be interpreted in the same fashion

[330 S.W.3d 515]

as statutes.” Dynamic Computer Solutions, Inc. v. Midwest Mktg. Ins. Agency, L.L.C., 91 S.W.3d 708, 713 (Mo.App. W.D.2002). Statutory interpretation is...