Thorson v. Connelly, No. 27873 (Mo. App. 5/11/2007)
| Decision Date | 11 May 2007 |
| Docket Number | No. 27873.,27873. |
| Parties | Eleanore Thorson, Appellant, v. Elizabeth Connelly, Ronald Palmer and Betty Palmer, Respondents. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Dent County, Hon. Sanborn N. Ball.
Stephen K. Paulus, Counsel for Appellant.
Mark Turley & Conway L. Hawn and John J. Garrabrant & Dan L. Birdsong, Counsel for Respondent.
Before: Bates, C.J., and Lynch, J.
Eleanore Thorson ("Appellant") appeals the trial court's grant of respective summary judgments in favor of Respondent Elizabeth Connelly ("Ms. Connelly") and Respondents Ronald and Betty Palmer ("the Palmers") (collectively "Respondents"), arising from a wrongful death suit filed by Appellant on August 25, 2005, against Respondents in relation to the death of Appellant's deceased granddaughter, Heather Thorson ("Heather").1 Appellant alleges two points of trial court error. We affirm the judgment of the trial court.
On August 25, 2005, Appellant filed her "Petition for Wrongful Death" ("the petition") against Respondents. The caption of the petition set out that Appellant was bringing her action as "plaintiff ad litem," and in the introductory paragraph to Count I she set out that she was bringing her action as "plaintiff ad litem." However, Appellant had not, in fact, been duly appointed as a plaintiff ad litem by the trial court.2 See section 537.080.1(3).3
On January 10, 2006, the Palmers filed a motion for summary judgment in which they asserted that because Appellant had not been appointed as a plaintiff ad litem pursuant to section 537.080, she "lack[ed] standing to bring this action for the [wrongful] death of Heather]."4 On January 18, 2006, Ms. Connelly filed a similar motion for summary judgment.
Subsequent to Respondents' filing of their motions for summary judgment, Appellant, on January 30, 2006, filed a "Petition for Appointment of Plaintiff Ad Litem" in which she requested, pursuant to section 537.080, to be appointed to "represent the interests of all persons entitled to share in the proceeds of this case." In her petition, Appellant also set out that the wrongful death suit "especially the provisions wherein [Appellant] prays to proceed as plaintiff ad litem constitutes her application to proceed as plaintiff ad litem and that this petition simply restates her application to proceed in that capacity." Appellant further requested "that said order [granting her request to be appointed as plaintiff ad litem] be made retroactive to the date of filing, as the issued service of summons and the case progressed as if a formal order had in fact been issued." At this juncture the three year statute of limitation governing actions under section 537.080 had run. See section 537.100; Denton v. Soonattrukal, 149 S.W.3d 517, 521 (Mo.App. 2004).
On April 26, 2006, a hearing was held on the aforementioned motions for summary judgment. On July 5, 2006, the trial court granted both motions for summary judgment and found "that there is no genuine issue as to any material fact; that [Appellant] has no standing to bring this action; that this court lacks jurisdiction over any substantive issues; and that [Respondents] are entitled to judgment as a matter of law." Accordingly, the trial court dismissed Appellant's wrongful death action "with prejudice as to all [Respondents]." This appeal followed.
In her first point relied on Appellant asserts the trial court erred as a matter of law in finding that she lacked standing thus [depriving] the court of jurisdiction in that the action was timely commenced within three years of [Heather's] death because [Appellant] timely instituted suit as plaintiff ad litem and sought recovery of damages for the benefit of [Heather's] heirs and not herself individually and thus had standing to initiate the suit.
In her second point relied on Appellant maintains the trial court erred as a matter of law in dismissing the case with prejudice and in failing to enter "its order formally appointing a plaintiff ad litem retroactively to the date of filing" because her "petition and her second `Petition to Appoint Plaintiff ad Litem' constituted an application under [section] 537.080 to be appointed in such capacity because [section] 537.080 requires such appointment upon application." As Appellant's points are interrelated, we have chosen to address them together.
In reviewing appeals from the grant of a motion for summary judgment, this Court reviews "the record in the light most favorable to the party against whom judgment was entered." Reese v. Ryan's Family Steakhouses, Inc., 19 S.W.3d 749, 751 (Mo.App. 2000). "Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the motion." Id. Since the standard of appellate review on a motion for summary judgment is no different than that employed by the trial court in determining the propriety of sustaining the initial motion, our review is essentially de novo. ITT Comm'l Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).
"`[T]he key to a summary judgment is the undisputed right to a judgment as a matter of law; not simply the absence of a fact question.'" Birdsong v. Christians, 6 S.W.3d 218, 223 (Mo.App. 1999) (quoting Southard v. Buccaneer Homes Corp., 904 S.W.2d 525, 530 (Mo.App. 1995)). As such, a grant of summary judgment is appropriate "[w]hen a moving party makes a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to a judgment as a matter of law . . . ." McAninch v. Robinson, 942 S.W.2d 452, 456 (Mo.App. 1997). "Where the facts underlying this right to judgment are beyond dispute, summary judgment is proper." ITT Comm'l Fin. Corp., 854 S.W.2d at 381.
"`Missouri does not recognize a common law cause of action for wrongful death.'" Denton, 149 S.W.3d at 520 (quoting Sullivan v. Carlisle, 851 S.W.2d 510, 516 (Mo. banc 1993)). "'Wrongful death is a statutory cause of action.'" Id. (quoting Sullivan, 851 S.W.2d at 512). Subject to certain exceptions, "'[e]very action instituted under section 537.080 shall be commenced within three years after the cause of action shall accrue . . . .'" Denton, 149 S.W.3d at 521 (quoting section 537.100). "The wrongful death action was designed to compensate specifically designated relatives for the loss of the decedent's economic support." Sullivan, 851 S.W.2d at 513. Section 537.080.1 specifically prescribes the statutory framework relating to who may bring a cause of action for wrongful death. Section 537.080.1 sets out:
Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who . . . would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured, which damages may be sued for:
(1) By the spouse or children or the surviving lineal descendants of any deceased children, natural or adopted, legitimate or illegitimate, or by the father or mother of the deceased, natural or adoptive;
(2) If there be no persons in class (1) entitled to bring the action, then by the brother or sister of the deceased, or their descendants, who can establish his or her right to those damages set out in section 537.090 because of the death;
(3) If there be no persons in class (1) or (2) entitled to bring the action, then by a plaintiff ad litem. Such plaintiff ad litem shall be appointed by the court having jurisdiction over the action for damages provided in this section upon application of some person entitled to share in the proceeds of such action. Such plaintiff ad litem shall be some suitable person competent to prosecute such action and whose appointment is requested on behalf of those persons entitled to share in the proceeds of such action. Such court may, in its discretion, require that such plaintiff ad litem give bond for the faithful performance of his duties.5
(Emphasis added.)
The crux of this appeal centers around section 537.080.1(3) as applied to the facts of this case. This Court finds Henderson v. Fields, 68 S.W.3d 455 (Mo.App. 2001), to be particularly persuasive authority. In Henderson, the grandparents of a child killed in an automobile accident brought a wrongful death suit against the driver of the other vehicle. Id. at 463. The jury returned a verdict in favor of the grandparents in the amount of $4.5 million dollars. Id. at 463-64. Following entry of the verdict, the driver of the vehicle filed a "Motion for Judgment Notwithstanding the Verdict alleging that [the grandparents] were not the proper parties under [section] 537.080 to bring an action for the wrongful death of [their grandchild]," because they brought suit in their individual capacities and not as plaintiffs ad litem. Id. at 464. The trial court denied the driver's motion and instead entered a nunc pro tunc order at the request of the grandparents in which the trial court appointed the grandparents as plaintiffs ad litem and "stated that those appointments should relate back to the filing of the petition in that case." Id.
The Henderson driver appealed and argued the grandparents Henderson, 68 S.W.3d at 464-65.
The grandparents responded by "acknowled[ging] they were not entitled to bring a wrongful death action for [their granddaughter's] death in their individual capacities and could only bring the action under the plaintiff ad litem provisions."...
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