State ex rel. Beisly v. Perigo

• Decision Date: 18 August 2015
• Docket Number: No. SC 94030,SC 94030
• Citation: 469 S.W.3d 434
• Parties: State ex rel. Bob T. Beisly II, Relator, v. The Honorable Timothy Perigo, Respondent.
• Court: Missouri Supreme Court

469 S.W.3d 434

State ex rel. Bob T. Beisly II, Relator

v.The Honorable Timothy Perigo, Respondent.

No. SC 94030

Supreme Court of Missouri, en banc .

Opinion issued August 18, 2015

Rehearing Denied September 22, 2015

Beisly was represented by Mark E. Turley of Smith & Turley in Rolla, (573) 612-1408.

The mother was represented by Dane C. Martin, Todd P. Graves, Edward D. Greim and Ryan J. Parks of Graves Garrett LLC in Kansas City, (816) 256-3181.

Jeremy L. Maples of the Vernon County sheriff's office in Nevada represented himself.

ORIGINAL PROCEEDING IN PROHIBITION

George W. Draper III, Judge

Bob T. Beisly II (hereinafter, “Relator”), the defendant in the action below, seeks a writ of prohibition to prevent the circuit court from taking any further action in Wilma Jean Irwin's (hereinafter, “Irwin”) wrongful death suit, other than to dismiss it with prejudice. Relator contends Irwin's suit is time-barred by section 537.100, RSMo 2000.¹ This Court holds the circuit court did not abuse its discretion in overruling Relator's motion to dismiss because the doctrine of equitable estoppel forecloses Relator from relying on the statute of limitations as an affirmative defense due to the fraudulent concealment of his wrongdoing. The preliminary order in prohibition is quashed.

Factual and Procedural History

On July 15, 2009, Relator's estranged wife, Belinda Beisly (hereinafter, “the decedent”), was found dead inside her home from multiple gunshot wounds to her head and chest. Her death was ruled a homicide. Decedent's homicide remained unsolved until February 8, 2013, when the state charged Relator and Jeremy Maples (hereinafter, “Maples”) with the decedent's murder. The felony complaint alleged Maples committed first-degree murder by shooting decedent, and it charged Relator with aiding and encouraging Maples in committing the decedent's murder.

On February 13, 2013, Irwin, the decedent's mother, filed a wrongful death action against Relator and Maples. Irwin alleged Maples shot and killed the decedent in exchange for money received from Relator. Irwin's petition further alleged Maples and Relator kept their arrangement from being discovered from law enforcement and the decedent's family by: (1) disguising the nature of the decedent's death by staging it to look like a home invasion and using a weapon that could not be traced; (2) lying to law enforcement; (3) destroying evidence; and (4) denying their involvement in the decedent's death.

Relator filed a motion to dismiss Irwin's petition, arguing her claim was time-barred by section 537.100, the wrongful death statute of limitations, because it was filed more than three years after the decedent's death. Irwin filed suggestions in opposition, arguing Relator and Maples fraudulently concealed their wrongdoing as alleged in her petition. Irwin stated this conduct made it impossible for her to identify perpetrators and name defendants, which were prerequisites to maintaining a civil suit. Irwin also alleged Relator and Maples should be estopped from relying on the statute of limitations as a defense due to their fraudulent concealment of their wrongdoing.

The circuit court acknowledged the general rule that a wrongful death action accrues when the decedent dies. However, the circuit court found it should not construe the wrongful death statutes so strictly so as to avoid their purposes. The circuit court overruled Relator's motion, reasoning that to allow the wrongdoers to escape civil liability on the basis of the statute of limitations in this case was “shocking to the conscience.”

Relator sought a writ of prohibition in the court of appeals. After opinion by that court, this Court granted transfer pursuant to Mo. Const. art V, sec. 10.

Standard of Review

This Court has jurisdiction to issue original remedial writs. Mo. Const. art. V, sec. 4. “Prohibition is a discretionary writ that only issues to prevent an abuse of judicial discretion, to avoid irreparable harm to a party, or to prevent exercise of extrajurisdictional power.” State ex rel. Schwarz Pharma, Inc. v. Dowd, 432 S.W.3d 764, 768 (Mo. banc 2014). A writ of prohibition “is the appropriate remedy to prevent a lower court from proceeding on an action barred by the statute of limitations.” State ex rel. Holzum, 342 S.W.3d 313, 315 (Mo. banc 2011).

Wrongful Death Statute of Limitations

Relator argues he is entitled to a writ of prohibition that will prohibit the circuit court from taking any further action in the underlying case other than to enter an order dismissing Irwin's suit with prejudice, because the action is time-barred by section 537.100. Relator claims none of the tolling provisions in section 537.100 apply to Irwin's cause of action.

Section 537.080.1 sets forth the cause of action for wrongful death and delineates who is entitled to sue for damages. Section 537.100 states that every action brought pursuant to section 537.080 “shall be commenced within three years after the cause of action shall accrue.” Section 537.100 contains explicit tolling exceptions: (1) if the plaintiff is unable to serve an absent defendant with service of process and (2) if the plaintiff files a voluntary non-suit or if the plaintiff's judgment is reversed and remanded on appeal. These exceptions do not apply to toll Irwin's cause of action.

Irwin argues Relator's success at concealing his wrongdoing caused the accrual of her wrongful death claim to be delayed. Irwin claims she was unable to file suit until she discovered who was responsible for the decedent's death, and this did not occur until Relator and Maples were arrested for the decedent's murder.

Accrual Distinct from Tolling

The terms “accrual” and “tolling” are distinct legal principles that often produce the same outcome. Generally, “[a] cause of action accrues ... when the right to sue arises.” Hunter v. Hunter, 361 Mo. 799, 237 S.W.2d 100, 103 (1951). Accrual also triggers the running of the statute of limitations. Id. Tolling, on the other hand, occurs when a party shows facts that act to remove or interrupt the bar of the statute of limitations to a cause of action. 2 Mo. Practice Series, Methods of Practice: Litigation Guide, § 5.9 (4th ed. 2002). Thus, while every cause of action has a time of accrual, not every cause of action is subject to tolling. Further, if a cause of action has not accrued, there is nothing to toll, because an event or circumstance cannot interrupt or remove that which has never started.

Accrual and Wrongful Death Actions

“In determining whether an applicable statute of limitation bars recovery, it is necessary to establish when that cause of action accrued.” Jepson v. Stubbs, 555 S.W.2d 307, 311 (Mo. banc 1977). Section 537.100 does not define “accrue” for purposes of the wrongful death statute of limitations. In Coover v. Moore, 31 Mo. 574, 576 (Mo.1862), this Court stated the cause of action under the wrongful death statute accrued “at the death.” In Kennedy v. Burrier, 36 Mo. 128 (Mo.1865), this Court explained more fully:

We think the cause of action accrued whenever the defendant's liability became perfect and complete. Whenever the defendant had done an act which made him liable in damages, and there was a person in esse to whom the damages ought to be paid and who might sue for and recover the same, then clearly the cause of action had accrued as against him. When, then, did this liability take place? Evidently at the death of [decedent] ... and the statute commenced running from that time.

Kennedy, 36 Mo. at 130. See also Cummins v. Kansas City Pub. Serv. Co., 334 Mo. 672, 66 S.W.2d 920, 929 (1933) (finding the statute provides for one cause of action that accrues at the time of death), and Nelms v. Bright, 299 S.W.2d 483, 487 (Mo. banc 1957) (accord).

This Court addressed the issue of whether a wrongful death cause of action accrued and caused the statute of limitations to begin to run at the time of death or upon the discovery of the identity of the alleged tortfeasor in Frazee v. Partney, 314 S.W.2d 915 (Mo.1958). In Frazee, a family was involved in an accident caused by another vehicle swerving into its lane when the driver fell asleep at the wheel in October 1954. There was no contact between the cars, but the family's car went down an embankment and overturned several times. The mother and one of the children died as a result of the accident. The other driver did not stop immediately and, when he did, he did not see anyone, so he continued on his way, unaware there had been an accident. The family did not learn the driver's identity until March 1956. Frazee, 314 S.W.2d at 917.

The family filed a wrongful death suit against the driver in September 1956. The petition alleged the defendant “fraudulently, intentionally, deliberately, willfully, maliciously, and of his spite absented himself and concealed his identity from the plaintiffs and all other persons ...” from the time of the accident until March 1956. The driver argued the family's suit was barred by the statute of limitations, which at that time was one year. This Court addressed two issues: (1) whether the driver's acts operated to toll or extend section 537.100's limitations period and (2) when the family's cause of action accrued. Id. at 917.

With respect to tolling, this Court determined the wrongful death statute contained a special statute of limitation. Accordingly, section 516.280's fraudulent concealment tolling provision did not apply. Id. at 919. This Court explained, “This [C]ourt has uniformly held that where a statute of limitation is a special one, not included in the general chapter on limitations, the running thereof cannot be tolled because of fraud, concealment or any other reason not provided in the statute itself.” Id. (quoting State ex rel. Bier v. Bigger, 352 Mo. 502, 178 S.W.2d 347, 351 (1944) ). In reaching this conclusion, this Court also examined the legislature's intent, including the fact that the legislature had twice enacted specific tolling exceptions...