Mello v. Giliberto
| Decision Date | 05 February 2002 |
| Docket Number | No. ED 79491.,ED 79491. |
| Citation | 73 S.W.3d 669 |
| Parties | Susan MELLO, Individually and as Personal Representative for the Estate of Patricia Mello, Plaintiff/Appellant, v. James GILIBERTO, Jr., Do, Milton Gibson, MD, Paul Guentert, MD, John Lynch, MD, St. Joseph's Medical Center, Barnes-Jewish Hospital and Washington University, Defendants/Respondents. |
| Court | Missouri Court of Appeals |
Susan H. Mello, Clayton, MO, acting pro se.
Philip L. Willman, Robyn G. Fox, Catherine Vale Jochens, Moser & Marsalek, P.C., St. Louis, MO, for respondents Giliberto & Gibson.
Kevin F. O'Malley, Weldon N. Johnson, Monica J. Gunn, The O'Malley Law Firm, St. Louis, MO, for respondent Guentert.
Robert T. Haar, Monica J. Allen, Haar & Woods, LLP, St. Louis, MO, for respondents Lynch & Washington University.
Robert A. Wulff, Mark F. Mueller, Amelung, Wulff & Willenbrock, P.C., St. Louis, MO, for respondent St. Joseph's Medical Ctr.
Kenneth W. Bean, Charles G. Schierer, Sandberg, Phoenix & Von Gontard, P.C., St. Louis, MO, for respondent Barnes-Jewish Hospital.
This is an appeal from the dismissal of a medical malpractice action. According to the allegations of the petition, Patricia Mello (patient) entered St. Joseph's Medical Center (SJMC) in South Bend, Indiana, on December 19, 1996 for elective femoral bypass surgery. She was treated at SJMC by Dr. James Giliberto, an osteopathic surgeon, Dr. Milton Gibson, a cardiologist and Dr. Paul Guentert, a critical care specialist. SJMC, Dr. Giliberto, Dr. Gibson, and Dr. Guentert (collectively, "the Indiana defendants") were each residents of Indiana at the time of the surgery and alleged harm. The petition alleged that the Indiana defendants were negligent and breached the standard of care in pressuring patient to undergo the surgery and in providing post-operative care, which, among other conditions, resulted in a drug-induced coma, high fever, and pneumonia. On January 1, 1997 plaintiff brought in new physicians to treat patient. On January 14, 1997 patient was transferred to Barnes Jewish Hospital (BJH) in St. Louis, Missouri, which is part of the Washington University Medical Center (University). At BJH, patient was treated by Dr. John Lynch. The petition alleged that BJH, University, and Dr. Lynch (collectively, "the Missouri defendants") committed additional acts of malpractice on patient. Patient died at BJH on February 6, 1997.
Plaintiff, Susan Mello1, patient's daughter and personal representative, filed a medical malpractice action in the Circuit Court of the City of St. Louis against the Indiana and Missouri defendants to recover damages for personal injuries, lost chance of recovery, battery/lack of informed consent, wrongful death and violations of various state and federal policies on the care and treatment of the elderly. The Indiana defendants separately moved to dismiss on the ground that Missouri lacked personal jurisdiction, which motions were granted on October 5, 2000. The Missouri defendants separately moved to dismiss on the ground that plaintiff failed to file a health care affidavit, which motions were granted on December 28, 2000. The trial court denied all of plaintiff's post-judgment motions.
On appeal plaintiff challenges the dismissal of the Indiana defendants for lack of jurisdiction and the dismissal of her claims against the Missouri defendants for failure to file a health care affidavit. We affirm.
Before addressing the merits of this appeal, we take up defendants' motions to strike plaintiff's brief or dismiss the appeal for failure to comply with the appellate rules of the Missouri Rules of Civil Procedure. The motions are well-taken. The statement of facts violates Rule 84.04(c), which requires a fair and concise statement of the facts relevant to the questions presented for determination without argument, and Rule 84.04(i) which requires that all facts be supported by references to the legal file. Plaintiff's page-long points fail to follow the format or contain the content directed by Rule 84.04(d). In addition, the points are not restated at the beginning of the section of the argument discussing the point, as required by Rule 84.04(e), but are replaced by one-sentence contentions.
Violations of Rule 84.04 are grounds for this court to dismiss the appeal. Shochet v. Allen, 987 S.W.2d 516, 518 (Mo.App.1999); Faith Baptist Church of Berkeley, Inc. v. Heffner, 956 S.W.2d 425, 426 (Mo.App.1997). However, in this case we exercise our discretion to ex gratia review plaintiff's claims in order to render a decision on the merits. Accordingly, we will address those claims of error raised in the points relied on which are supported and further developed in the argument. We will not address arguments in the brief not fairly encompassed in the points relied on or issues raised in the points which are not properly supported because they are not preserved for review. Rule 84.04(e); Shochet, 987 S.W.2d at 518; Chancellor Dev. Co. v. Brand, 896 S.W.2d 672, 678 (Mo.App.1995).
For her first two points, plaintiff asserts that the trial court erred in dismissing the Indiana defendants for lack of personal jurisdiction. She first argues that the court committed a number of procedural errors in disposing of the motion, which resulted in a denial of due process. She next contends that the Indiana defendants were subject to the Missouri long arm statute, Section 506.500 RSMo 20002, because they committed a tort or transacted business in Missouri.
In her first point plaintiff contends the trial court denied her due process in granting the motions to dismiss for lack of personal jurisdiction because (1) SJMC's motion to dismiss is not in the court file; (2) the trial court failed to grant a stay in the proceedings in order to allow discovery; (3) the trial court failed to provide notice that it would consider the affidavits of Dr. Guentert, Dr. Gibson and Dr. Giliberto "as if on a motion for summary judgment;" and (4) the court failed to consider the facts in the plaintiff's affidavit or "take the ultimate facts." None of these contentions has merit.
Plaintiff first argues that SJMC's motion to dismiss was not in the court file. This argument has no merit. The record on appeal contains a copy of SJMC's motion to dismiss for lack of personal jurisdiction which was file-stamped by the Clerk of the Circuit Court of the City of St. Louis on July 26, 2000. Although the motion bears the cause number of plaintiff's original case3, it was before the trial court when it decided the motions to dismiss. In its order dismissing the Indiana defendants, the trial court recited that SJMC filed its original challenge to jurisdiction on July 26, 2000 and that it had the SJMC motion before it.
Plaintiff next contends that the trial court should have stayed the proceedings in order to allow her time to conduct discovery. She argues that due process requires discovery on jurisdictional issues.
Plaintiff filed a memorandum in opposition to the motions to dismiss for lack of personal jurisdiction, in which she requested a stay in order to conduct discovery on the Indiana defendants' motions to dismiss. In its order dismissing the Indiana defendants, the trial court found that "[p]laintiff, in asking for time for further discovery, did not articulate any valid basis for personal jurisdiction over the Indiana defendants and the Court does not believe that it would be appropriate to delay a ruling on the defendants' motions."
The trial court is vested with wide discretion in administering the rules of discovery. Wilkerson v. Prelutsky, 943 S.W.2d 643, 647 (Mo. banc 1997). A trial court abuses its discretion when its ruling is "`clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.'" Id. ().
In order to be entitled to discovery, plaintiff is required to have alleged facts in the petition which, if true, establish jurisdiction. State ex rel. Scott v. Marsh, 661 S.W.2d 601, 603 (Mo.App.1983)(citing State ex rel. Deere & Co. v. Pinnell, 454 S.W.2d 889, 893 (Mo. banc 1970)). In the absence of such alleged facts, plaintiff is not entitled to discovery. Id.
The trial court found that plaintiff did not allege any facts to support jurisdiction in her amended petition, but instead alleged legal conclusions of agency, joint liability, and actionable consequences. In her brief under this subpoint, plaintiff does not argue that she alleged jurisdictional facts, or explain why the trial court erred in concluding that her allegations were legal conclusions. Instead she only maintains that she has a due process right to discovery. Plaintiff has not shown that the trial court abused its discretion in denying her motion for discovery.
Plaintiff next argues that the trial court should not have granted the motions to dismiss because the court did not treat the motions as motions for summary judgment and provide notice that it would consider the affidavits of Dr. Guentert, Dr. Gibson, and Dr. Giliberto. Plaintiff's contention and its underlying premises are without merit. Although plaintiff does not cite it, the only rule that provides for a motion to dismiss to be treated as a motion for summary judgment is Rule 55.27. That rule applies only to motions to dismiss for failure to state a claim.
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