Muzingo v. Vaught

• Decision Date: 17 October 1994
• Docket Number: No. 19454,19454
• Parties: Royce MUZINGO and Diantha Muzingo, Plaintiffs-Appellants, v. Jeffrey VAUGHT, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 693

887 S.W.2d 693

Royce MUZINGO and Diantha Muzingo, Plaintiffs-Appellants, v. Jeffrey VAUGHT, Defendant-Respondent.

No. 19454.

Missouri Court of Appeals,

Southern District,

Division One.

Oct. 17, 1994.

Motion for Rehearing or Transfer

Denied Nov. 8, 1994.

Application to Transfer Denied

Dec. 20, 1994.

Bruce C. Jackson, Jr., Yonke, Arnold, Newbold & Regan, P.C., Kansas City, for appellants.

Paul Hasty, Jr., Wallace, Saunders, Austin, Brown and Enochs, Chartered, Kansas City, for respondent.

FLANIGAN, Judge.

On September 6, 1987, a collision occurred between two motor boats on the Lake of the Ozarks in Camden County. One of the boats was operated by plaintiff Royce Muzingo, and plaintiff Diantha Muzingo, his wife, was a passenger in that boat. The other boat was operated by defendant Jeffrey Vaught.

On September 3, 1992, the Muzingos filed suit against Vaught in the District Court of Wyandotte County, Kansas, for personal injuries and property damage allegedly resulting from Vaught's negligent operation of his boat. Vaught moved to dismiss the Kansas action on the ground that it was barred by the Kansas two-year statute of limitations for tort actions. On February 26, 1993, the district court dismissed the Kansas action as untimely filed. On September 24, 1993, on appeal by the Muzingos, the Court of Appeals of Kansas affirmed the dismissal. Muzingo v. Vaught, 18 Kan.App.2d 823, 859 P.2d 977 (1993). The court said that the "sole issue on appeal" was whether Kansas's two-year statute of limitations or Missouri's five-year statute of limitations, § 516.120, ¹ applied to the action, and held that the Kansas statute applied.

On October 27, 1993, the Muzingos filed the instant action against Vaught in the Circuit Court of Camden County, seeking recovery on the same claims they asserted in the Kansas action. Vaught filed a motion to dismiss the action on the ground that it was barred by the five-year limitation contained in § 516.120. The trial court sustained the motion. Plaintiffs appeal.

Plaintiffs contend that the trial court erred in entering the order of dismissal because they filed the Missouri action within one year following dismissal of the Kansas action, the Kansas action was commenced within the five-year limitation contained in § 516.120, and they are entitled to the benefit of § 516.230, the Missouri "savings statute."

In reviewing the order of dismissal, this court must affirm if the dismissal can be sustained on any ground which is supported by the motion to dismiss, regardless of whether the trial court relied on that ground. Property Exchange & Sales, Inc. v. King, 822 S.W.2d 572, 573 (Mo.App.1992). "If it clearly appears from the petition that the cause of action is barred by limitations, a motion to dismiss is properly sustained." Hall v. Smith, 355 S.W.2d 52, 55 (Mo.1962).

For the reasons which follow, this court holds that this action was barred by the five-year limitation contained in § 516.120 and that plaintiffs are not entitled to the benefit of § 516.230, the savings statute, even though the Missouri action was filed within one year after the Kansas litigation ended. It is, accordingly, unnecessary to determine the validity of the alternate ground, res judicata, which defendant included in his motion.

Section 516.120, the five-year statute of limitations, provides, as applicable here, to "(4) [a]n action for ... injuring any ... chattels, ..., or for any other injury to the person ... of another, not arising on contract and not herein otherwise enumerated."

Section 516.230 reads, in pertinent part:

"If any action shall have been commenced within the times respectively prescribed in sections 516.010 to 516.370, and the plaintiff therein suffer a nonsuit, or, after a verdict for him, the judgment be arrested, or, after a judgment for him, the same be reversed on appeal or error, such plaintiff may commence a new action from time to time, within one year after such nonsuit suffered or such judgment arrested or reversed; ...."

Here there has been no verdict or judgment for plaintiffs. The Missouri action was filed more than five years after the boat collision which gave rise to plaintiffs' claims. In order for § 516.230 to be of avail to plaintiffs, it would be necessary for this court to find: (a) § 516.230 applies when the first action was filed in Kansas; (b) the first action was "commenced within the times respectively prescribed in sections 516.010 to 516.370"; (c) plaintiffs suffered nonsuit in the first action; ² (d) plaintiffs commenced a new action "from time to time, within one year after such nonsuit suffered." For the reasons which follow, this court holds that factor (a) does not exist. There is no need to determine whether the other factors are present.

The United States Court of Appeals for the Eighth Circuit has held, in actions based on Missouri law, that § 516.230 applies only when the first action was filed in Missouri and is not applicable where the first action is filed in another state. Mizokami Bros. of Ariz., Inc., v. Mobay Chemical Corp., 798 F.2d 1196, 1197-1198 (8th Cir.1986); King v. Nashua Corp., 763 F.2d 332, 334-335 (8th Cir.1985). In King, the court affirmed the holding of the trial court that § 516.230 did not apply to save a Missouri action from the bar of the statute of limitations where the first suit was filed in Illinois. The court said that the district court "was following the majority of states which have addressed the issue."

Although this court is not bound by decisions of the Eighth Circuit interpreting Missouri law, those decisions are entitled to respectful consideration. The holdings in Mizokami and King are in accord with the following decisions which hold that a plaintiff, seeking to invoke the savings statute of the forum in order to avoid the bar of the statute of limitations, may not rely upon a nonsuit in an earlier action brought in another state. Graham v. Ferguson, 593 F.2d 764, 766 (6th Cir.1979) (Tennessee law); Andrew v. Bendix Corp., 452 F.2d 961, 963-964 (6th Cir.1971), cert. denied, 406 U.S. 920, 92 S.Ct. 1773, 32 L.Ed.2d 119 (1972) (Ohio law); Riley v. Union Pacific Railroad, 182 F.2d 765, 767[1-2] (10th Cir.1950) (Wyoming law); C & L Rural Electric Cooperative Corp. v. Kincade, 175 F.Supp. 223, 227[5-6] (N.D.Miss.1959), aff'd, 276 F.2d 929 (5th Cir.1960) (Mississippi law); Ockerman v. Wise, 274 S.W.2d 385, 386-387[1-2] (Ky.1954); Baker v. Commercial Travelers Mutual Accident Association, 3 A.D.2d 265, 161 N.Y.S.2d 332, 334[1-4] (N.Y.App.Div.1957); Howard v. Allen, 30 Ohio St.2d 130, 283 N.E.2d 167 (1972); Morris v. Wise, 293 P.2d 547, 550-551[5-6] (Okla.1955); Royal-Globe Ins. Co. v. Hauck Manufacturing Co., 233 Pa.Super. 248, 335 A.2d 460, 462[2-3] (1975). See 51 Am.Jur.2d Lim. of Act. § 306; Ann: 55 A.L.R.2d 1038; 54 C.J.S. Lim. of Act. § 243.

In Graham the court said, at 766: "It is contrary to the policy effectuated by the statutes of limitations to permit plaintiffs to file suits wherever they choose, simply to preserve a claim."

Contrary to the foregoing authorities, the following cases hold that a savings statute of the forum state may be invoked where the first action, which resulted in a nonsuit, was brought in another state. Technical Consultant Services v. Lakewood Pipe, 861 F.2d 1357, 1361 (5th Cir.1988) (Texas law); Prince v. Leesona Corp., Inc., 720 F.2d 1166, 1169 (10th Cir.1983) (Kansas law); Long Island Trust Co. v. Dicker, 659 F.2d 641, 645-647 (5th Cir.1981) (Texas law); Allen v. Greyhound Lines, Inc., 656 F.2d 418, 423 (9th Cir.1981) (Montana law); Stare v. Pearcy, 617 F.2d 43, 44-46 (4th Cir.1980) (West Virginia law); Templer v. Zele, 166 Ariz. 390, 803 P.2d 111, 112 (App.1990); Nichols v. Canoga Industries, 83 Cal.App.3d 956, 148 Cal.Rptr. 459, 463 (1978); Cook v. Britt, 8 Ill.App.3d 674, 290 N.E.2d 908, 909 (1972). In Allen, at 420, the court said that the majority view is that savings statutes do not apply when the prior action was initiated in another state, "but a significant and growing minority adopt the more liberal interpretation."

Various arguments have been advanced in support of the minority view. They include:

Savings statutes are remedial in nature and require a liberal construction. Technical Consultant Services, at 1360; Long Island Trust Co., at 646-647; Cook, 290 N.E.2d at 910.

"Absent compelling precedent from a state, we see no reason to follow old dicta when virtually every state has a savings statute and no significant policy would be advanced by holding such a statute inapplicable to actions originally filed in sister states. Defendant here was put on notice of the action in a timely manner and there was no more delay involved than if the action had been filed in the forum state and dismissed there for procedural reasons. Nor would holding that a savings statute is inapplicable to actions filed in sister states further any policy of the forum state to protect its citizens from discrimination by other states." Prince, at 1169.

The savings statute involved [Texas] does not expressly limit its application to a prior action filed in Texas--it simply refers to a dismissal in the trial court. "[A]ccordingly, given its ordinary and most natural meaning, it must be taken to refer to any trial court." Long Island Trust, at 646.

"To the extent that forum shopping occurs, however, it is unlikely to be affected significantly by either interpretation of the saving statute." Allen, at 422.

"Of course, there would be a problem if the statute of limitations in the state of first filing was longer than that of the state of second filing and the period of the latter statute had run when the foreign action was first filed, but that is a problem which should be capable of resolution under principles of conflict of laws, or, more likely, by construing the savings statute as applying only when the first action was commenced within the period limited by the statute of the...