Kingsley v. McDonald

• Decision Date: 24 June 2014
• Docket Number: No. WD 76783.,WD 76783.
• Citation: 432 S.W.3d 266
• Parties: Mary KINGSLEY, Appellant, v. Richard McDONALD, Respondent.
• Court: Missouri Court of Appeals

432 S.W.3d 266

Mary KINGSLEY, Appellant,

v.Richard McDONALD, Respondent.

No. WD 76783.

Missouri Court of Appeals, Western District.

April 29, 2014.

Application for Transfer to Supreme Court Denied May 27, 2014.

Application for Transfer Denied June 24, 2014.

Prior Version Recognized as Unconstitutional

V.A.M.S. § 516.200

Glenn E. Bradford, Kansas City, MO, for appellant.

Brian M. Bartalos, Kansas City, MO, for respondent.

Before Division Two: VICTOR C. HOWARD, P.J., and ALOK AHUJA and GARY D. WITT, JJ.

ALOK AHUJA, Judge.

Appellant Mary Kingsley and Respondent Richard McDonald were involved in an automobile accident. Kingsley filed suit to recover for her personal injuries shortly before the five-year statute of limitations expired. Her petition originally named James McDonald, owner of the vehicle Richard McDonald was driving, as the defendant, rather than Richard McDonald. Kingsley amended her petition to name Richard McDonald as the defendant outside the limitations period. The trial court dismissed the amended petition with prejudice, finding that Kingsley's claims against Richard McDonald were time-barred. Kingsley appeals. Because we conclude that Kingsley's amended petition naming Richard McDonald relates back to the date on which she filed her original petition, we reverse.

Factual Background

On January 3, 2008, Kingsley and Richard McDonald were driving separate vehicles, and were involved in an automobile accident in which Kingsley was injured. Kingsley filed suit in the Circuit Court of Jackson County to recover for personal injuries she sustained in the accident. Kingsley filed her lawsuit on December 28, 2012, less than a week before the running of the five-year statute of limitations. § 516.120, RSMo.

Although Richard McDonald was the driver of the vehicle involved in the collision with Kingsley, her original petition names James McDonald as the sole defendant, and makes no reference to Richard McDonald. James McDonald was the vehicle's owner. At the time of the accident, Richard and James ¹ lived in the same residence, and both were listed as named insureds on a State Farm policy insuring the vehicle.

The substantive allegations in Kingsley's original petition make clear that she intended to sue the individual who was operating the vehicle with which her vehicle collided. Although the original petition names James McDonald as the defendant, it makes no reference to his status as the vehicle's owner. Instead, the petition alleges that, “[o]n January 3, 2008, [Kingsley] and [James] were involved in an automobile accident” in which Kingsley's “car was struck by the vehicle driven by [James].” The petition alleges that “[t]he collision was caused by the negligence of [James] in failing to stop at a stop sign and failing to yield the right-of-way,” and that “[a]s a result of the negligence of [James], [Kingsley] was injured.”

A summons was issued on January 3, 2013, which was returned non est on February 2. While service was pending, Kingsley apparently realized that the case had been captioned incorrectly. On January 19, she filed an amended petition substituting Richard McDonald as the defendant. James McDonald was never served with process.

State Farm, the insurance carrier for both Richard and James, had been involved in efforts to adjust Kingsley's claim. State Farm discovered that Kingsley had filed suit during a case.net search in late January 2013. On January 25, 2013, a State Farm representative called James, and informed him that a lawsuit had been filed naming him as the defendant, but that it had since been amended to name Richard instead. James called Richard (who was residing in Florida at this time) on the same day. James informed Richard of the lawsuit, and that Kingsley's petition had been amended to name Richard as the sole defendant.

At the time the amended petition was filed on January 19, 2013, Kingsley also filed a motion for appointment of a special process server, which was granted. The special process server was unsuccessful in attempting to locate Richard in Florida, and the summons was returned non est on March 12, 2013. On March 22, 2013, Kingsley hired a private investigator, who located Richard in Fairway, Kansas. An alias summons was issued, and served on Richard in Fairway on April 20, 2013.

Richard filed a motion to dismiss, claiming that the lawsuit was barred by the five-year statute of limitations found in § 516.120, RSMo. The trial court granted the motion, and entered a judgment dismissing the case with prejudice on July 25, 2013. Kingsley appeals.

Analysis

Kingsley argues that her lawsuit against Richard McDonald is timely, and that dismissal of her petition was therefore unwarranted.Kingsley contends that, under Supreme Court Rule 55.33(c), the January 19, 2013 amendment of her petition (which correctly named Richard as the defendant) relates back to the date on which she filed her original petition, within the five-year limitations period. We agree.

“The dismissal of a claim as barred by the statute of limitations raises a question of law that this court reviews on a de novo basis.” Molder v. Trammell Crow Servs., Inc., 309 S.W.3d 837, 840 (Mo.App.W.D.2010).

Rule 55.33(c) provides:

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.

Rule 55.33(c) is “a remedy for a mistake in identity, and the remedy is a change in party.” State ex rel. Hilker v. Sweeney, 877 S.W.2d 624, 628 (Mo. banc 1994) (original emphasis). “For Rule 55.33(c) to apply, plaintiff must have made a mistake in selecting the proper party to sue, i.e., the plaintiff must have brought an action against the wrong party.” State ex rel. Holzum v. Schneider, 342 S.W.3d 313, 316 (Mo. banc 2011) (quoting Windscheffel v. Benoit, 646 S.W.2d 354, 357 (Mo. banc 1983) (internal quotation marks omitted)). “Rule 55.33(c) is to be liberally applied, and is based on the concept of whether a defendant has been given notice sufficient to defend against claims relating to a particular transaction or occurrence.” Overlap, Inc. v. A.G. Edwards & Sons, Inc., 318 S.W.3d 219, 229 (Mo.App.W.D.2010) (citation and internal quotation marks omitted).

Rule 55.33(c) only applies where the correct defendant receives notice of the action “within the time allowed for service.” Holzum, 342 S.W.3d at 317.

The time allowed for service may extend beyond the statute of limitations period for filing the lawsuit but only to the extent described in Rule 54.01(c), which requires that service be made “promptly.” This means that the plaintiff must exercise due diligence in effecting service.

Id. (citation omitted).

The circumstances here fall squarely within Rule 55.33(c)'s relation-back rule. The amended petition (which correctly names Richard McDonald) “arose out of the conduct, transaction, or occurrence set forth ... in the original pleading”; in fact, other than changing the defendant's name, the amended petition is substantively identical to the original petition. It is undisputed that Richard McDonald received notice of the institution of the action on January 25, 2013, less than thirty days after suit was filed, and less than thirty days after the expiration of the five-year limitations period. Richard does not dispute that January 25, 2013, was “within the period provided by law for ... serving notice of the action.” Indeed, Richard has not disputed that the actual service of the amended petition on him three months later,on April 20, 2013, was “prompt” within the meaning of Rule 54.01(c).² Nor has Richard contended that the timing of his notice of the lawsuit prejudiced his ability to defend the action on the merits.

Rule 55.33(c)(2) requires that, within the time allowed for service, Richard “knew or should have known that, but for a mistake ..., the action would have been brought against [him].” This requirement is also undeniably satisfied here. Richard has admitted that, during their January 25, 2013 phone call, James told Richard not only that the action had been filed, but that Kingsley had filed an amended petition naming Richard as the sole defendant. Thus, within the time allowed for service, Richard knew not only that the lawsuit should have been brought against him, but that it had been brought against him by the filing of an amended petition.³

Thus, Richard received actual notice of this lawsuit, and of the fact that he had been named as a defendant in this lawsuit, within the time period during which a timely petition could have been served upon him; and he does not claim that his defense of the action has been in any way prejudiced by the delay in naming him as a defendant. In these circumstances, dismissing this case based on Kingsley's error in originally identifying the defendant would exalt form over substance. But as the Missouri Supreme Court has explained,

Statutes of limitation were never intended to be used as swords. Rather, they are shields, primarily designed to assure fairness to defendants by prohibiting stale claims which tend to undermine the truth finding process.

Thorson v. Connelly, 248 S.W.3d 592, 596 (Mo. banc 2008) (citation and internal quotation marks omitted). As in Thorson, in this case “[t]he...