Keys v. Nigro

• Decision Date: 23 January 1996
• Docket Number: No. WD,WD
• Citation: 913 S.W.2d 947
• Parties: Shawn and Barbara K. KEYS, Appellants, v. Lee NIGRO, Braham J. Geha, Christopher B. Geha, Ward Parkway Medical Group, and St. Joseph Health Center, Respondents. 50572.
• Court: Missouri Court of Appeals

Page 947

913 S.W.2d 947

Shawn and Barbara K. KEYS, Appellants, v. Lee NIGRO, Braham J. Geha, Christopher B. Geha, Ward Parkway

Medical Group, and St. Joseph Health Center, Respondents.

No. WD 50572.

Missouri Court of Appeals,

Western District.

Jan. 23, 1996.

David Greis, Kansas City, for appellants.

Kevin Murphy, J. Michael Schaffer, Gregory Forney, Timothy M. Aylward, Ted Osburn, Bradley Honnold, Kansas City, for respondents.

Before ELLIS, P.J., and HANNA and SPINDEN, JJ.

SPINDEN, Judge.

In 1993, Shawn and Barbara Keys sued Dr. Lee Nigro, Dr. Braham J. Geha, Dr. Christopher B. Geha, the Ward Parkway Medical Group and St. Joseph Health Center (respondents) for medical malpractice. The circuit court dismissed the Keyses' lawsuit on the ground that because they had not exercised sufficient diligence in obtaining service of process on the respondents, the statute of limitations barred their lawsuit. We reverse the circuit court's judgment as to Nigro, Braham Geha, and the Ward Parkway Medical Group and remand for further proceedings, but affirm as to Christopher Geha and St. Joseph Health Center.

The Keyses filed their lawsuit against the respondents on January 13, 1993. The Keyses alleged that Shawn Keys received health care services from the doctors before, on and after January 14, 1991. They also alleged that Shawn Keys last received medical treatment at Ward Parkway Medical Group on January 21, 1991, and at St. Joseph Health Center on January 4, 1991.

Nigro filed a motion for summary judgment on March 5, 1994, in which he contended that the last day he treated Shawn Keys was on January 10, 1991; therefore, the suit against him was time-barred. The Keyses responded with Shawn Keys' affidavit stating that the last day he received treatment from Nigro was on January 14, 1991. The circuit court denied Nigro's motion for summary judgment holding that the Keyses established that a genuine issue of material fact existed as to the last date Nigro rendered medical care to Shawn Keys.

Nigro, however, before the circuit court denied his motion for summary judgment, filed supplemental suggestions in support of his motion for summary judgment, alleging that the statute of limitations had expired because the Keyses failed to exercise sufficient diligence in serving him with process. The circuit court acknowledged in its order these supplemental suggestions and gave the Keyses time to respond. The Keyses did not respond, so, on December 6, 1994, the circuit court granted Nigro's motion for summary judgment on the ground that the Keyses had not been sufficiently diligent in serving process on Nigro.

On May 12, 1994, Braham Geha and the Ward Parkway Medical Group filed a motion to dismiss the Keyses' lawsuit in which they also asserted that the suit was time-barred because of a lack of sufficient diligence in serving them with process. On May 24, 1994, Christopher Geha moved to dismiss on the same grounds, and on June 10, 1994, St. Joseph Health Center did, too. The circuit court granted all these motions.

The Keyses argue that the circuit court erred in dismissing their lawsuit because due diligence is not required to toll the two-year limitation codified in § 516.105, RSMo 1994. We agree.

The doctrine of due diligence has no continuing vitality in Missouri after the Missouri Supreme Court's decision in Ostermueller v. Potter, 868 S.W.2d 110 (Mo. banc 1993). ¹ In that case, the plaintiff filed a negligence action within the statute of limitations, but was unsuccessful in three attempts to serve the defendant with process. The circuit court dismissed the case without prejudice for failure to prosecute. The plaintiff refiled within one year under the Missouri savings statute. The plaintiff served the defendant over five years after the alleged negligence action occurred and after the five-year statute of limitations had expired. The defendant argued that the plaintiff's failure to exercise sufficient diligence in serving process in the first action barred the action under the statute of limitations. The Missouri Supreme Court held that pursuant to the plain language of Rule 53.01 (as amended in 1972), the rule "requires only the filing of a petition with the court to commence an action." Id. at 111. The Court specifically rejected the ruling in U.S. Laminating Corporation v. Consolidated Freightways Corporation, 716 S.W.2d 847 (Mo.App.1986), which made diligence in serving process a requisite to invoking the savings statute.

The Supreme Court reaffirmed this holding in Bailey v. Innovative Management and Investment, Inc., 890 S.W.2d 648 (Mo. banc 1994). In that case, the court considered a lawsuit in which the plaintiff filed a petition before the expiration of the limitations period but did not serve process until after that date. The court reasoned that the statute of limitations is written in terms of when an action can be commenced and that Rule 53.01 provides that "[a] civil action is commenced by filing a petition with the court." Id. at 650. The Court acknowledged its holding in Ostermueller that "an action is commenced when filed regardless of whether service is obtained" and held that Ostermueller eliminated the requirement of diligence in serving process on a defendant. Id. The court said that "under Ostermueller, service is only required to avoid dismissal for failure to prosecute the claim and even if that occurs, if the other requirements are met, the action can be re-filed." Id. at 652.

Ostermueller is controlling. Diligence is not a factor in considering whether an action has been commenced within the statute of limitations. ² Because a genuine issue of material fact remains as to when Nigro last treated Shawn Keys, we cannot be certain that the Keyses' petition is barred by the statute of limitations. Further, because the alleged medical malpractice committed by Braham Geha and Ward Parkway Medical Group occurred within the two-year limitation, the Keyses' action against Geha and Ward Parkway Medical Group should not be dismissed.

Braham Geha and Ward Parkway Medical Group complain that § 506.110.2, RSMo 1994, and Rule 53.01 conflict concerning the requirement of "suing out of process" to commence a lawsuit. Geha and Ward Parkway Medical Group acknowledge that the Missouri Constitution ³ gives the Supreme Court authority to "establish rules relating to practice, procedure and pleading for all courts" provided that the rules do not change substantive rights. Geha and Ward Parkway Medical Group contend that substantive rights are involved with the due diligence requirement; thus, § 506.110.2 should be controlling. We disagree.

In Ostermueller, the Supreme Court said, "Supreme Court rules govern over contradictory statutes in procedural matters unless the General Assembly specifically annuls or amends the rules in a bill limited to that purpose." 868 S.W.2d at 111. Because the Ostermueller court concluded that diligence is not a factor in determining when an action is commenced, it necessarily concluded that the requirement of suing out of process imposed by § 506.110.2 was a procedural matter. Rule 53.01, therefore, governs.

Nigro complains that because the Keyses did not respond to his supplemental suggestions in support of his motion for summary judgment, the circuit court properly granted his motion for summary judgment. Summary judgment, however, is proper only if the court determines that the movant has made a prima facie showing of being entitled to judgment as a matter of law. Rule 74.04. Nigro did not make such a showing because diligence is not a factor in determining when an action is commenced. Hence, based upon the pleadings and Shawn Keys' affidavit, the circuit court could not enter summary judgment as a matter of law because a genuine issue of material fact as to when Nigro last treated Shawn Keys was in dispute.

Christopher Geha raises a similar argument in response to the trial court's granting his motion to dismiss for lack of sufficient diligence. Geha asserts that because the Keyses did not take a position on his motion to dismiss, they cannot now complain on appeal that the dismissal was improperly granted. Christopher Geha contends that the Keyses cannot raise the diligence argument on appeal because they did not raise it and preserve it for review in the circuit court. E.g., Estate of Munzert, 887 S.W.2d 764, 769 (Mo.App.1994). We disagree.

A court should not sustain a motion to dismiss contending expiration of the statute of limitations if the facts pleaded in the petition do not show that the statute of limitations bars the action. In re Brown Trust, 873...