Emefiena v. Park College

682 S.W.2d 8, 22 Educ. L. Rep. 613, 1984 Mo. App. LEXIS 4377
CourtMissouri Court of Appeals
DecidedSeptember 25, 1984
DocketNo. WD 35549
StatusPublished
Cited by2 cases

This text of 682 S.W.2d 8 (Emefiena v. Park College) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Emefiena v. Park College, 682 S.W.2d 8, 22 Educ. L. Rep. 613, 1984 Mo. App. LEXIS 4377 (Mo. Ct. App. 1984).

Opinion

KENNEDY, Presiding Judge.

This is an appeal by plaintiff from the trial court’s dismissal of plaintiff’s petition for damages against Park College, on the ground that plaintiff’s claim was barred by the statute of limitations. We affirm the judgment.

The petition alleged that an agent of the defendant college in undertaking to collect $1,200 owed by plaintiff to the college had threatened to shoot him or to have the police shoot him. This threat, according to the petition, induced such emotional distress upon plaintiff, a Nigerian exchange student, that he was hospitalized for mental ailments for a two-week period and continued after that to suffer emotional problems. The tort was alleged to have occurred in June 1977, sometime before the 24th day thereof.

The present suit was commenced by filing a petition in Platte County Circuit Court on August 8, 1983, well beyond the five-year statute of limitations, § 516.120, RSMo 1969. The statute of limitations would have run its course on June 24, 1982.

Plaintiff says, however, that the statute of limitations period was extended first by a period of “insanity”, during which he was a patient at Tri-County Mental Health Center in North Kansas City, Missouri, § 516.-170, RSMo 1969; and second, by a period of the pendency of an abortive lawsuit filed in Jackson County, filed on July 8, 1982, and voluntarily dismissed by plaintiff on September 16 of the same year (plus one year), § 516.230, RSMo 1969. If both extensions contended for by plaintiff are available to him, the statute of limitations would extend to September 16, 1982. As noted above, the plaintiff’s lawsuit was commenced on August 8, 1983.

We will assume that the petition sufficiently alleges, as against a motion to dismiss for failure to state a cause of action, that he became “insane” as a result of defendant’s alleged wrongful act, and that the 14-day period of his alleged insanity extended the statute of limitations by that length of time. See 54 C.J.S. Limitation of Actions § 242 (1948); Jaime v. Neurological Association of Kansas City, 488 S.W.2d 641, 643-44 (Mo.1973). Making that assumption, the original lawsuit, filed on July 8, 1982, was filed in time, i.e., within five years plus the 14-day period of insanity.

The next and dispositive question is whether the statute of limitations was extended by the period of the pendency of the abortive Jackson County lawsuit, plus one year. The statute upon which plaintiff relies, § 516.230, RSMo 1969, provides as follows:

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....

Plaintiff says he comes within that statute. He filed his ease in the wrong forum — in Jackson County, Missouri, where [10]*10there was no venue; he “suffered a non-suit” on September 16, 1982; therefore, he had one additional year — until September 16, 1983 — in which to file his lawsuit within the limitations period.

Defendant counters that plaintiff was negligent in filing his lawsuit in the wrong forum, and that a plaintiff who negligently filed his lawsuit in the wrong forum may not take advantage of the extension provided by said section 516.230.

Since the trial court considered matters outside the face of the pleadings, we treat the defendant’s motion to dismiss as a motion for summary judgment and we treat the court’s order of dismissal as a summary judgment in defendant’s favor. Rule 55.27(b).

We take from plaintiff’s brief his explanation for the mistaken filing of his original lawsuit in Jackson County:

Certain things should be said on behalf of Plaintiff’s attorney in this case concerning this allegation that Plaintiff was negligent in not filing this case in Platte County, Missouri were (sic) proper venue lies on this case. First of all, Platte County is a county of a county that is contiguous or very close to Jackson County, Missouri. Plaintiff’s attorney was frankly unaware that Park College was located in Platte County, Missouri. Second, when Plaintiff came to Plaintiff’s attorney to request that Plaintiff’s attorney file this current lawsuit on behalf of the Plaintiff, Plaintiff came to see Plaintiff’s attorney after July 1, 1982, and Plaintiff’s attorney in researching the Statute of Limitations in Missouri on this case knew that the lawsuit had to be filed on or before July 8, 1982, or Plaintiff’s lawsuit was subject to being dismissed for failing to comply with Missouri’s Statute of Limitations under Section 516.120. [Emphasis in original.]
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It is the contention of the Plaintiff and Plaintiff’s attorney that the Plaintiff acted in good faith in filing this action in that Platte County, Missouri, is contiguous and/or very close to Jackson County, Missouri, and thus is somewhat similar to the Wente case, supra. Plaintiff’s attorney was under a time limitation in that he knew that he had to file this lawsuit within just a few days of Plaintiff coming to Plaintiff’s attorney to hire Plaintiff’s attorney to represent Plaintiff in this action. Plaintiff’s attorney states that he did act in good faith and really thought that Park College was located in Jackson County, Missouri. Plaintiff’s attorney did not have time to make inquiry that he would otherwise have made as to what county Park College was located in. Plaintiff’s attorney did not even have time to find out who the Defendant’s Service Agent was in Missouri.
Furthermore, Defendant, if the Defendant had wanted to do so, could have defended the action in Jackson County, Missouri, since the Jackson County, Missouri, Circuit Court would have jurisdiction to hear the case. Plaintiff’s cause of action against the Defendant was a good cause of action and not a void cause of action as in Mertens case, supra. Because of the time limitations on the Plaintiffs attorney and the fact that Park College was located in a county contiguous to Jackson County, Missouri, and very near Jackson County, Missouri, Plaintiff states that he has made an innocent mistake and has acted in good faith in filing the action originally in Jackson County, Missouri, and thus he should be granted the benefit of the tolling statute of Section 516.230.

We reject plaintiff’s argument as excusing his failure to ascertain that Jackson County was not the proper venue, and hold as a matter of law that plaintiff’s negligence in filing his original lawsuit in Jackson County, rather than in Platte County, deprived him of the time extension provided by Section 516.230. We quote the appli[11]*11cable criterion from Phillips v. Whittom, 354 Mo. 964, 192 S.W.2d 856 (1946):

The rule announced in the Wente case is that if the plaintiff makes an “innocent mistake” in filing his previous action he will not be denied the benefit of the tolling provision of the statute. And a New York decision ... is cited, which makes the criterion “good faith” ....

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Cite This Page — Counsel Stack

Bluebook (online)
682 S.W.2d 8, 22 Educ. L. Rep. 613, 1984 Mo. App. LEXIS 4377, Counsel Stack Legal Research, https://law.counselstack.com/opinion/emefiena-v-park-college-moctapp-1984.