Webb v. Mayuga, 17886

• Decision Date: 13 August 1992
• Docket Number: No. 17886,17886
• Citation: 838 S.W.2d 96
• Parties: Shirley WEBB and William Webb, Appellants, v. Dr. Laureano G. MAYUGA and Dr. M. Hasan Choudhury, Respondents.
• Court: Missouri Court of Appeals

Page 96

838 S.W.2d 96

Shirley WEBB and William Webb, Appellants, v. Dr. Laureano G. MAYUGA and Dr. M. Hasan Choudhury, Respondents.

No. 17886.

Missouri Court of Appeals,

Southern District,

Division One.

Aug. 13, 1992.

Separate Motions of Respondents

for Rehearing or Transfer to

Supreme Court Denied Sept. 2, 1992.

Application to Transfer Denied Oct. 27, 1992.

Frederick H. Schwetye, Union, for appellants.

Bruce E. Hunt, Mann, Walter, Burkart, Weathers & Walter, Springfield, for respondent Mayuga.

Cynthia O. MacPherson, Mountain Grove, for respondent Choudhury.

CROW, Presiding Judge.

Appellants, Shirley Webb and William Webb (wife and husband), filed this suit April 17, 1991, against Respondents, Laureano G. Mayuga and M. Hasan Choudhury, seeking damages for alleged medical malpractice in performing a surgical procedure July 27, 1988, on Shirley Webb. Respondents moved for summary judgment, averring the suit was time-barred by § 516.105 ¹ which reads, in pertinent part:

All actions against physicians ... for damages for malpractice, negligence, error or mistake related to health care shall be brought within two years from the date of occurrence of the act of neglect complained of....

The trial court granted the motion. Appellants bring this appeal from that order.

Appellants concede the two-year limitation applies, but argue the suit is timely by reason of the "savings statute," § 516.230, which 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, ... such plaintiff may commence a new action from time to time, within one year after such nonsuit suffered....

Appellants' reliance on this statute is based on a suit filed November 6, 1989, in the Circuit Court of Franklin County ("the first suit").

The plaintiff in the first suit was Texas County Memorial Hospital ("Hospital"). The defendants in that suit were Shirley Webb and William Webb (Appellants here). By its petition, Hospital sought judgment against the Webbs for $1,285.09 for care and treatment allegedly provided by Hospital to Shirley Webb. An exhibit attached to Hospital's petition indicated the services were provided from July 16, 1988, to July 21, 1988.

On July 11, 1990, the Webbs filed two documents in the first suit. One was captioned, "Joinder of Counter-Defendants." It read:

Come now Defendants/Counter-Plaintiffs, Shirley and William Webb, pursuant to Rule 55.32 and Rule 52.05 of the Missouri Rules of Civil Procedure and hereby join Dr. Laureano G. Mayuga and Dr. M. Hasan Choudhury as Counterclaim Defendants.

The other document filed by the Webbs on July 11, 1990, in the first suit was captioned, "Counterclaim of Defendants Shirley Webb and William Webb." By that pleading, the Webbs demanded damages from Hospital, Mayuga and Choudhury for alleged negligence in performing the surgical procedure of July 27, 1988, on Shirley Webb. Summonses were issued to, and served on, "Counter-Defendants" Mayuga and Choudhury.

By an order filed December 12, 1990, in the first suit, the Circuit Court of Franklin County dismissed the Webbs' counterclaim against Hospital on the ground that Hospital is a political subdivision of the State and thus sovereignly immune from liability. The order declared Mayuga and Choudhury had challenged venue on the ground that they are residents of Texas County, and consequently not subject to suit in Franklin County. On that issue, the order stated:

If venue in Franklin County was ever proper against the Texas County Doctors, it was ancillary to the venue provided by the Hospital's suit against the Webbs in Franklin County. Dismissal of the Hospital severs the venue connection.

....

[T]he counterclaim is dismissed as to the Hospital and dismissed without prejudice as to Doctors Mayuga and Choudhury....

The Webbs appealed from the above order to the Eastern District of this Court, but voluntarily dismissed the appeal on or about April 16, 1991. As reported in the first sentence of this opinion, they filed the instant suit April 17, 1991.

Appellants maintain the instant suit is timely per § 516.230 in that they commenced it within one year after suffering a nonsuit of their counterclaim in the first suit.

A plaintiff suffers a nonsuit when a court order finally terminates the cause without prejudice. Gray v. Chrysler Corp., 715 S.W.2d 282, 285 (Mo.App.1986). Where a timely suit is filed and subsequently nonsuited, the plaintiff may thereafter refile the same cause of action within one year after the nonsuit. U.S. Laminating Corp. v. Consolidated Freightways Corp., 716 S.W.2d 847, 850 (Mo.App.1986); Seewald v. Gentry, 220 Mo.App. 367, 286 S.W. 445, 455 (1926).

Examination of Appellants' counterclaim in the first suit and their petition in the instant suit confirms--and Respondents tacitly concede--that those pleadings assert the same cause of action. The order of dismissal in the first suit (quoted earlier in pertinent part) specified the dismissal of the counterclaim against Mayuga and Choudhury was without prejudice.

Where a defendant is sued by a hospital for an unpaid bill, and the defendant files a counterclaim for malpractice against the hospital and the doctors who treated him, he is a "plaintiff" within the meaning of the savings statute, § 516.230. Cooper v. Bolin, 431 S.W.2d 69, 70-72 (Mo.1968). It therefore appears Appellants commenced the instant suit within the time allowed by § 516.230.

However, say Respondents, Appellants cannot invoke § 516.230 because, in Respondents' words:

The counterclaim filed by Appellants in the [first] suit and the attempted joinder of Respondents in that action as counter defendants were void and a nullity and did not toll the running of the statute of limitations ... [s] 516.105 ... because:

1. Appellants failed to obtain leave of court to file the aforesaid counterclaim and failed to obtain leave of court to have Respondents joined and served with service of process as counter defendants for which reasons their joinder was improper, void and a nullity, the service of process purportedly obtained upon Respondents was likewise improper, void and a nullity and the trial court never acquired personal jurisdiction over Respondents.

2. Joinder of Respondents was impermissible under Supreme Court Rule 52.05 ... since the claims made against them by Appellants did not arise out of the same transaction, occurrence or series of transactions or occurrences which was the basis of the underlying collection action.

3. Venue in Franklin County ... was improper and provided no basis for tolling of the two year statute of limitations.

We shall consider these contentions in the order presented.

In support of contention 1, Respondents declare it is a well known principle that in Missouri, leave of court must be obtained to assert a counterclaim against a non-party. However, the principle is evidently not too well known, as Respondents confess they can find no Missouri case establishing it.

Undaunted, Respondents insist federal cases interpreting the federal rule upon which Missouri Rule 52.06 ² is based confirm that leave of court must be obtained before filing a counterclaim against a non-party. Citing Kingsley v. Burack, 536 S.W.2d 7, 11 (Mo. banc 1976), Respondents assert that where Missouri and federal rules are essentially the same, it is appropriate to use federal precedents as a guide to the application of the Missouri rule.

Continuing, Respondents argue by analogy that in instances where a party cannot amend his pleading as a matter of right, Rule 55.33(a) requires that he obtain leave of court or written consent of the adverse party before amending. Respondents remind us of our holding in Houck by Houck v. Morrow, 786 S.W.2d 604, 606 (Mo.App.1990), that an amended pleading tendered for filing in violation of Rule 55.33(a) is "surplusage and without significance."

By the same logic, say Respondents, "[T]he effect of joining a non-party is surplusage and without significance when leave of court has never been obtained to join the non-party as a counter-defendant." Consequently, reason Respondents, "[T]he legal effect of such impermissible joinder is the same as though the counterclaim was never filed and never commenced."

If that be so, argue Respondents, the posture of the instant suit is identical to Jackson v. Whitaker, 386 S.W.2d 657 (Mo.App.1964). There, two plaintiffs attempted to invoke § 516.230, arguing their suits in Benton County were commenced within one year after suffering nonsuits in the same causes of action in Jackson County. There were two defendants in the Jackson County suits. One was a resident of Benton County; the other (an administrator de bonis non of a decedent's estate) was a resident of Jackson County. The first publication of notice of letters of administration of the decedent's estate had occurred almost five years before the plaintiffs instituted the Jackson County suits. Neither plaintiff had complied with the nine-month filing requirement of the probate non-claim statutes. Consequently, the Jackson County suits were barred as to the administrator. Therefore, he was not a "legitimate" defendant so as to render the co-defendant (the Benton County resident) subject to suit in Jackson County. 386 S.W.2d at 659. Accordingly, the Jackson County suits were dismissed.

Within a year, the plaintiffs commenced their Benton County suits, solely against the Benton County defendant. The trial court granted the defendant's motion for summary judgment. Affirming, the appellate court noted language in Phillips v. Whittom, 354 Mo. 964, 192 S.W.2d 856, 857 (1946), to the effect that if a plaintiff makes an innocent mistake in filing his previous action in the wrong forum, he will not be denied the benefit of the savings statute. Jackson, 386 S.W.2d at 660. However, held Jackson, the plaintiffs there knew or should have...