Opinion
No. 27873
May 11, 2007
Appeal from the Circuit Court of Dent County, Missouri, Honorable Sanborn N. Ball, Judge.
Stephen K. Paulus, Appellant's attorney.
Mark Turley Conway L. Hawn, Palmer's attorneys.
John J. Garrabrant Dan L. Birdsong, Connelly's attorneys.
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"). Appellant alleges two points of trial court error. We affirm the judgment of the trial court.
By our use of deceased's first name we mean no disrespect. Based on the issues raised in this appeal, it is not necessary for this Court to recite the facts relating to Heather's death except to note that Heather, who was sixteen years old at the time, died on August 29, 2002, as the result of a gunshot wound. Appellant's "Petition for Wrongful Death" alleged causes of action for negligence and battery against all Respondents as well as negligence against the Palmers separately. Appellant "voluntarily dismissed without prejudice" the battery claim and the separate negligence claim against the Palmers.
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. See § 537.080.1(3).
It appears that Heather's parents were both deceased at the time of her death and Appellant was acting as her guardian and conservator.
Statutory references are to RSMo 2000, unless otherwise set out.
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]." On January 18, 2006, Ms. Connelly filed a similar motion for summary judgment.
"'Standing to sue is an interest in the subject of the suit, which if valid, gives that person a right to relief.'" State ex rel Tang v. Steelman , 897 S.W.2d 202, 203 n. 1 (Mo.App. 1995) (quoting Earls v. King , 785 S.W.2d 741, 743 (Mo.App. 1990)).
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 § 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 § 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.
In the instant matter, it is clear that no claimants with a vested interest exist under section 537.080.1(1) and (2).
(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 "were not authorized under [section 537.080] to bring an action for [their granddaughter's] death and, therefore, lacked standing to sue. [The driver] contend[ed] that because the action was not brought by a properly appointed plaintiff ad litem the trial court should have entered judgment notwithstanding the verdict." 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." However, they asserted the nunc pro tunc order, which retroactively appointed them as plaintiffs ad litem, "properly related back to the filing of the action and remedied any problems that existed with regard to their standing to bring the action." Id. at 465.
The Western District of this Court determined the trial court's nunc pro tunc order "clearly exceeded [its] authority . . .;" thus, it determined the trial court erred in granting the grandparents' request for a nunc pro tunc order. Id. The Henderson court also set out that:
[s]ection 537.080(3) plainly states that if there are no members of the first two statutory classes entitled to bring an action in their individual capacity, the action may only be pursued by a duly appointed plaintiff ad litem. . . .
[The grandparents] were certainly persons entitled to share in the proceeds under [section] 537.095.2. Indeed, since [their granddaughter] had no surviving children, parents, or siblings, [the grandparents] were among her primary heirs under our laws of descent and distribution. Therefore, the trial court had the authority under [section] 537.080 to appoint [the grandparents] as plaintiffs ad litem to prosecute an action for [their granddaughter's] death once [the grandparents] requested that appointment. But [the grandparents] did not make such application until after judgment was entered in the case. Thus, the real issue is whether the appointment of [the grandparents] as plaintiffs ad litem can be deemed to relate back to the time the original petition was filed and serve to substitute the plaintiffs ad litem as the plaintiffs in the action.
Section 537.095.2 sets out:
When any settlement is made, or recovery had, by any plaintiff ad litem, the persons entitled to share in the proceeds thereof shall be determined according to the laws of descent, and any settlement or recovery by such plaintiff ad litem shall likewise be distributed according to the laws of descent unless special circumstances indicate that such a distribution would be inequitable, in which case the court shall apportion the settlement or recovery in proportion to the losses suffered by each person or party entitled to share in the proceeds. . . .
***
[R]egardless of the fact that amendment [of the wrongful death petition] was attempted subsequent to the entry of judgment, the trial court's appointment of plaintiffs ad litem in this case could not be deemed to relate back to the original petition. 'An amendment will relate back to the original petition . . . only when the original plaintiff had the legal right to sue and stated a cause of action at the time the suit was filed.' 'Where the original plaintiff has, under the wrongful death statute, a right to institute an action or is a proper and legally authorized party under the strict provisions of the statute to do so, an amendment substituting a proper party or adding additional parties will relate back to the original petition; but where the original party plaintiff has no right to maintain an action, has no standing to sue under the statute and is not a party authorized to sue under the strict wording of the statute, an amendment which adds or substitutes a proper party does not relate back to the original petition so as to save the action from the running of the statute of limitations.'
[The grandparents] as individuals and [the grandparents] serving in their capacity as plaintiffs ad litem are separate legal entities. [The grandparents] as plaintiffs ad litem are, in legal effect, strangers to the action. It does not matter that [the grandparents] in their individual capacity may have a beneficial interest in the cause of action asserted.
* * *
At the time the original petition was filed by [the grandparents], they did not have standing under the wrongful death statute to bring an action for [their granddaughter's] death. They were not authorized to pursue an action in their individual capacities, and they had not been appointed plaintiffs ad litem. Consequently, they lacked standing to bring suit and failed to state a claim for which relief could be granted. Since [the grandparents] lacked the legal capacity to file the original action at the time it was filed, there can be no relation back. . . .
The cause of action related to [the grandchild's] death was filed by [the grandparents] in their individual capacity, the case was tried by them in that capacity, and judgment was awarded to them in that capacity.'
Id. at 466-67. The Henderson court cautioned that
'[i]t is imperative, in order to state a claim, that the plaintiffs both plead and prove that they are authorized to bring an action under the wrongful death statute. This is a component of the claim no less than any other component.' Since [the grandparents] lacked the statutory authority to bring a wrongful death cause of action for [their granddaughter's] death, they failed to plead and prove their cause of action, and the trial court erred in failing to grant [the driver's] motion for judgment notwithstanding the verdict. Therefore, the judgment entered on the cause of action related to [the grandchild's] death must be reversed.
Id. at 467-68 (internal citations omitted) (emphasis added).
Appellant, however, argues the instant matter is unlike Henderson because here the "action has been properly plead as plaintiff ad litem" and, thus, she has standing to sue. We disagree.
While the body of the pleading, not the caption, determines the parties necessary to the prosecution of the action, Mikesic v. Trinity Lutheran Hosp. , 980 S.W.2d 68, 71 (Mo.App. 1998), we fail to see how Appellant's original petition can be read to include a request for Appellant's appointment as plaintiff ad litem. Although Appellant did, indeed, place the term "plaintiff ad litem" in the caption of her petition underneath her name, she did not seek to be appointed as plaintiff ad litem as section 537.080.1(3) specifically requires.
In her petition Appellant sets out she "was the natural grandparent of [Heather] and has been [Heather's] guardian and conservator until the time of [her] death and pursuant to [section 537.080.1(3)] can adequately represent the interests of all persons entitled to share in the proceeds of this case." Additionally, in the notary block of her verified petition Appellant sets out: "Comes now the Plaintiff and Plaintiff ad litem, [Appellant]. . . ." This latter assertion appears to run contrary to Appellant's argument that "the pleadings demonstrate that [Appellant] is preceding only as plaintiff ad litem and not in her individual capacity."
Appellant seeks solace in Mikesic , 980 S.W.2d at 73; Asmus v. Capital Region Fam. Practice , 115 S.W.3d 427 (Mo.App. 2003); Rotella v. Joseph , 615 S.W.2d 616 (Mo.App. 1981); and Forehand v. Hall , 355 S.W.2d 940 (Mo. 1962). She argues she has standing to sue in the present matter because her attempted appointment as plaintiff ad litem could relate back to the time the original petition was filed and serve to substitute the plaintiff ad litem as the plaintiff in this action in her stead. Unfortunately, the foregoing cases are distinguishable on their facts and the law from the instant matter. Mikesic , 980 S.W.2d at 70, was not a wrongful death action, but involved a malpractice action. Likewise, Asmus , 115 S.W.3d at 430, also involved a medical malpractice petition to amend pleadings to add a bankruptcy trustee as plaintiff. None involved the appointment of a plaintiff ad litem. Additionally, Rotella , 615 S.W.2d at 618 and Forehand , 355 S.W.2d at 943 implicate different versions of section 537.080, which lack provisions relating to the appointment of a plaintiff ad litem as a prerequisite to the filing of a wrongful death action. Furthermore, in our analysis of Forehand , the last controlling decision of the Supreme Court of Missouri relating to this particular issue, it is our view that our high court's determination in Forehand does not support Appellant's analysis and argument.
In Forehand , 335 S.W.2d at 942, Arthur R. Cobb ("Mr. Cobb") died "leaving surviving him a wife [("the widow")] . . . and a minor child. . . ." Under the version of section 537.080 then in effect, the widow was entitled to sue in her own name within six months, "'then by the minor child or children of the deceased. . . .'" Id. at 943 (quoting § 537.080 RSMo 1959). However, the widow did not file within the six months period of time. Id. Subsequent to six months but within a year of Mr. Cobb's death and within the one year statute of limitations in place at that time, the widow instituted suit in her capacity as administratrix of the estate. Id. at 942-43. After a year, the widow resigned as administratrix and an amended petition was filed by an appointed administrator alleging "the same cause of action in the same words and figures as in the original petition." Id. at 942. Shortly thereafter, the administrator filed a motion for permission to withdraw as plaintiff so that the widow in her capacity as the natural mother and next friend of Mr. Cobb's minor son could be "substituted as plaintiff . . . and that [the minor son] be allowed to file an amended petition." Id. at 943. The high court observed:
To avail himself of his cause of action minor child . . . was 'required to file suit within one year from date of death of deceased.' This he did not do. The statute of limitations therefore ran on the minor child's cause of action. . . . The institution of the suit by [the widow] as administratrix . . . did not prevent the running of the one year statute of limitations. At that date no cause of action existed in the surviving wife as a widow, she not having sued within the six-month period following the accrual of her cause of action. At that date no cause of action existed in the surviving wife as administratix, since deceased left surviving him a wife and minor child. An administrator or executor has a cause of action for wrongful death only '[i]f there be no husband, wife, minor child or minor children . . .' The administratrix as such never had any legal or beneficial interest in the subject matter of the action.
Id. at 944 (internal citations omitted).
As stated in State ex rel. Jewish Hospital of St. Louis v. Buder , 540 S.W.2d 100, 107 (Mo.App. 1976),
[f]rom an examination and analysis of the authorities it may be said that in those decisions where an amendment related back to the original petition so as to save the action from the operation of the statute of limitations, the original plaintiff who instituted the action for wrongful death had at the time a legal right to sue therefor, stated a cause of action and was in fact a properly authorized party to maintain suit. But in all the decisions which did not allow an amendment to relate back to the original petition, thus saving the action from the operation of the statute of limitations, the original plaintiff had no right or authority to maintain the action in the first instance and did not bring himself within the strict language of the wrongful death statute as one who had the right and authority to sue.
"While subsequent changes to the wrongful death statute have changed the designation of who may properly bring a claim under the statute, the principles of Buder still apply." Henderson , 68 S.W.3d at 467.
(Emphasis added.)
Here, while Appellant, individually, may have facially been "entitled to share in the proceeds," of any recovery pursuant to section 537.080.1(3), Appellant as plaintiff and Appellant serving in her capacity as plaintiff ad litem are separate legal entities. Henderson , 68 S.W.3d at 464; Caldwell v. Lester E. Cox Med. Ctrs.-South, Inc. , 943 S.W.2d 5, 8 (Mo.App. 1997); State ex rel. Tang , 897 S.W.2d at 203; Buder , 540 S.W.2d at 105.
It is well-settled that the "principles of statutory interpretation require us to ascertain the legislative intent from the language of the act, considering the words used in their plain and ordinary meaning, and to give effect to that intent whenever possible." Sullivan , 851 S.W.2d at 512. Reiterating, section 537.080.1(3) sets out that if there is no one under section 537.080.1(1) or (2) who can bring suit on the deceased's behalf, then suit may be brought by a plaintiff ad litem. However, the statute clearly sets out that "[s]uch plaintiff ad litem shall be appointed by the court having jurisdiction over the action . . . upon application of some person entitled to share in the proceeds of such action." § 537.080.1(3) (emphasis added). Under the plain and ordinary meaning of section 537.080.1(3), Appellant did not file an "application" or seek to "be appointed" as plaintiff ad litem until after Respondents' motions for summary judgment were filed and the statute of limitations had run. See § 537.100.
We cannot add to a statute provisions which do not appear explicitly or by implication from the words in the relevant statutory provisions. Dep't of Soc. Servs., v. Brundage , 85 S.W.3d 43, 49 (Mo.App. 2002). At the time Appellant's original petition was filed, Appellant had not been appointed as plaintiff ad litem. She was not authorized to pursue an action in her individual capacity. She did not have standing under section 537.080 to bring an action for Heather's death. See Henderson , 68 S.W.3d at 467. "'It is imperative, in order to state a claim, that the plaintiff[ ] both plead and prove that [she is] authorized to bring an action under the wrongful death statute. This is a component of the claim no less than any other component.'" Id. at 467-68 (quoting Call v. Heard , 925 S.W.2d 840, 850 (Mo. banc 1996)) (emphasis added). "Consequently, [Appellant] lacked standing to bring suit. . . ." Id. at 467.
Respondents made "a prima facie showing that there are no genuine issues of material fact and that [they were] entitled to a judgment as a matter of law. . . ." McAninch , 942 S.W.2d at 456. The trial court did not err in its determination that Appellant did not have standing to sue nor did it err in granting Respondents' motions for summary judgment. Points One and Two are denied.
The judgment of the trial court is affirmed.
Robert S. Barney, Judge
BATES, C.J. — Concurs
LYNCH, J. — Concurs