McMillan v. Pilot Travel Ctrs., LLC

• Decision Date: 15 November 2016
• Docket Number: No. ED 104321,ED 104321
• Parties: Portia MCMILLAN, Plaintiff/Appellant, v. PILOT TRAVEL CENTERS, LLC, Defendant/Respondent.
• Court: Missouri Court of Appeals

515 S.W.3d 699

Portia MCMILLAN, Plaintiff/Appellant,
v.
PILOT TRAVEL CENTERS, LLC, Defendant/Respondent.

No. ED 104321

Missouri Court of Appeals, Eastern District.

FILED: November 15, 2016
Application for Transfer to Supreme Court Denied January 10, 2017
Application for Transfer Denied May 2, 2017

515 S.W.3d 701

Tom P. Mendelson, St. Louis, MO, Douglas B. Salsbury, Eureka, MO, for Appellant.

Chad E. Blomberg, Kansas City, MO,

OPINION

Lisa Van Amburg, Judge

Portia McMillan appeals the judgment of the trial court dismissing her tort action as untimely. We reverse and remand.

Background

This lawsuit involves an action filed by Appellant Portia McMillan for injuries she allegedly sustained on October 23, 2013 in Louisiana. McMillan's first action was filed in Missouri on June 13, 2014, within the Louisiana one-year statute of limitations.¹ On November 16, 2015, McMillan voluntarily dismissed her first lawsuit without prejudice in accordance with R.S.MO. § 516.230, commonly referred to as the Missouri saving statute, which allows a plaintiff to re-file her lawsuit within one year after voluntary dismissal. On December 14, 2015, McMillan re-filed her lawsuit. This re-filed lawsuit is the subject of this appeal.

Pilot Travel Centers, LLC (Pilot) filed a motion to dismiss arguing that McMillan's re-filed lawsuit was time-barred under the Louisiana statute of limitations and relevant tolling provisions. Pilot argued that Louisiana law required a plaintiff who voluntarily dismissed her lawsuit without prejudice to re-file her action within the Louisiana one-year statute of limitations. McMillan failed to do so, which Pilot argued barred her re-filed action under Louisiana law. The trial court agreed and granted the motion to dismiss. We reverse the trial court's judgment for the reasons set forth below and remand the matter for further proceedings.

Standard of Review

Appellate review of a trial court's grant of a motion to dismiss is de novo. Summer Chase Second Addition Subdivision Homeowners Ass'n v. Taylor–Morley , 146 S.W.3d 411, 415 (Mo. App. E.D. 2004). In reviewing the trial court's dismissal of a petition, we view the facts in the light most favorable to the plaintiff, treating the facts alleged as true, to determine whether the facts pleaded and the inferences reasonably drawn therefrom state any ground for relief. K.G. v. R.T.R. , 918 S.W.2d 795, 797 (Mo. banc 1996). If it appears from the petition that the cause of action is barred by the statute of limitations, a motion to dismiss on that ground is properly sustained. Klemme v. Best , 941 S.W.2d 493, 497 (Mo. banc 1997). The determination of whether a statute of limitations applies to bar a cause of action is a question of law. Harris–Laboy v. Blessing Hosp., Inc. , 972 S.W.2d 522, 524 (Mo. App. E.D. 1998).

Discussion

McMillan argues that the trial court erred when it granted Pilot's motion to dismiss because the plain language of Missouri's saving statute allowed her to voluntarily dismiss her first lawsuit without prejudice and re-file it within one year. McMillan relies on the precedent established by Christner v. Chicago, R. I. & P. Ry. Co. , 228 Mo.App. 220, 64 S.W.2d 752 (1933), Turner v. Missouri–Kansas–Texas R. Co. , 346 Mo. 28, 142 S.W.2d 455 (1940), and Toomes v. Continental Oil Co. , 402 S.W.2d 321 (Mo. 1966). McMillan argues these cases establish that when a foreign

515 S.W.3d 702

jurisdiction's statute of limitations is borrowed under the Missouri borrowing statute, the Missouri saving statute applies.

Pilot responds that under the Missouri borrowing statute and precedent established by Thompson v. Crawford , 833 S.W.2d 868 (Mo. 1992), a Missouri court must use Louisiana's statute of limitations and tolling provisions. Louisiana law does not provide plaintiffs with a grace period for re-filing a lawsuit or, in other words, Louisiana does not have a saving statute akin to that found in Missouri. Rather, when a plaintiff voluntarily dismisses her lawsuit, she must re-file her action within the original statute of limitations period or her action will be barred. See La. Civ. Code art. 3463. Therefore, Pilot argues the re-filed lawsuit was barred under Louisiana law and the Missouri saving statute did not apply to allow McMillan's re-filed lawsuit to proceed. We disagree with Pilot.

The legislative mandate of the Missouri borrowing statute is clear: "Whenever a cause of action has been fully barred by the laws of the state, territory or country in which it originated, said bar shall be a complete defense to any action thereon, brought in any of the courts of this state." R.S.Mo. § 516.190 (emphasis added). The Missouri saving statute is equally clear and provides: "If any action shall have been commenced within the times respectively prescribed in sections 516.010 to 516.370, and the plaintiff therein suffer[s] a nonsuit ... such plaintiff may commence a new action from time to time, within one year after such nonsuit suffered ..." R.S.Mo. § 516.230 (emphasis added). It is undisputed that the Louisiana one-year statute of limitations applies to McMillan's action. However, the parties dispute whether the plain language of the Missouri saving statute applies to "save" McMillan's re-filed cause of action, which was filed after McMillan voluntarily dismissed her first lawsuit without prejudice. McMillan argues the Missouri saving statute applies to her first lawsuit, which was timely filed, thereby allowing McMillan to voluntarily dismiss and re-file her lawsuit within one year.

Our primary task in interpreting a statute is to determine the intent of the legislature and to give effect to that intent. Fowler v. Dir. of Revenue , 823 S.W.2d 134, 135 (Mo. App. 1992). In determining this intent, words and phrases are to be given their plain and ordinary meaning. Martinez v. State , 24 S.W.3d 10, 16 (Mo. App. 2000). "It is not our place to construe the clear and unambiguous language of a statute." State v. Wilson , 55 S.W.3d 851, 856 (Mo. App. W.D. 2001). To determine if the language is clear and unambiguous, we look to whether the terms would be plain and clear to one of ordinary intelligence. Id. When the statute's language is unambiguous, a court must give effect to the legislature's chosen language. State ex rel. Young v. Wood , 254 S.W.3d 871, 873 (Mo. 2008). There is no need to resort to rules of construction if the language is plain and unambiguous. Martinez , 24 S.W.3d at 16.

The plain language of the Missouri saving statute unequivocally provides a one-year grace period to re-file a cause of action if that action is "commenced" within the times prescribed in sections 516.010 to 516.370. W. v. Dir. of Revenue , 996 S.W.2d 775, 777 (Mo. App. E.D. 1999). The Missouri borrowing statute, Section 516.190, is clearly included and referenced in the Missouri saving statute. Pilot argues McMillan's re-filed lawsuit was out of time, and therefore, it was barred under the plain language of the borrowing statute, which imposes a complete bar to actions barred in other states. However, Pilot ignores the fact that McMillan's first lawsuit was timely filed and was not barred by Louisiana law. In order for Section 516.230 to be

515 S.W.3d 703

invoked, the first action must be timely, that is, the action "shall have been commenced within the times respectively prescribed in sections 516.010 to 516.370." R.S.Mo. § 516.230 ; Muzingo v. Vaught , 887 S.W.2d 693, 697 (Mo. App. S.D. 1994). If an action is timely filed in Missouri under the borrowing statute, the saving statute will apply, with one exception not applicable in this case and discussed later in this opinion. McMillan's first lawsuit was timely "commenced" and, therefore, the Missouri saving statute attached to provide her a one-year grace period in which to re-file her action after voluntary dismissal.

The Court of Appeals for the Southern District of Missouri examined the application of the Missouri saving statute in circumstances similar to those present in this case. In McDonald v. Ward , 919 S.W.2d 251 (Mo. App. S.D. 1996), the plaintiff sought damages for the wrongful death of his son in a Missouri court. The Kansas wrongful death statute applied under the Missouri borrowing statute. The plaintiff voluntarily dismissed the first lawsuit without prejudice and re-filed less than one year later in accordance with the Missouri saving...