Kennedy v. Microsurgery & Brain Research Institute

18 S.W.3d 39, 2000 Mo. App. LEXIS 416, 2000 WL 290089
CourtMissouri Court of Appeals
DecidedMarch 21, 2000
DocketNo. ED 76513
StatusPublished
Cited by12 cases

This text of 18 S.W.3d 39 (Kennedy v. Microsurgery & Brain Research Institute) 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
Kennedy v. Microsurgery & Brain Research Institute, 18 S.W.3d 39, 2000 Mo. App. LEXIS 416, 2000 WL 290089 (Mo. Ct. App. 2000).

Opinion

MARY RHODES RUSSELL, Chief Judge.

David G. Kennedy, M.D. and David G. Kennedy, M.D., P.C. (collectively “Dr. Kennedy”) appeal the trial court’s judgment granting the motion to dismiss of Microsurgery and Brain Research Institute and Gregory J. Bailey, M.D. (collectively “Dr. Bailey”) in Dr. Kennedy’s action for slander, injurious falsehood, and injunctive relief. The trial court granted the motion on the basis that Dr. Kennedy’s action was barred by the statute of limitations. We find that Dr. Kennedy’s claim was filed less than two years after the damages were sustained and capable of ascertainment and, therefore, not barred, We reverse and remand.

Dr. Kennedy performed surgery on George Conway (“patient”) in March 1995, and continued to treat him until April 1996. In June 1996, patient’s wife informed Dr. Kennedy that patient was currently seeing another doctor because his insurance company would no longer pay for Dr. Kennedy’s medical services. Dr. Kennedy also spoke with patient, who reiterated the same explanation.

Dr. Kennedy heard nothing further until patient filed a medical malpractice lawsuit against Dr. Kennedy in October 1997. In his petition, patient alleged, inter alia, that the surgery Dr. Kennedy performed on him was unnecessary.

Patient’s wife, in a September 1998 deposition, testified that Dr. Bailey informed them between May 1 and September 15, 1996, that Dr. Kennedy had performed “unnecessary” surgery on patient. Dr. Bailey further stated that Dr. Kennedy had done so solely for “monetary” purposes.

Dr. Kennedy filed suit against Dr. Bailey, six weeks after learning of the statements. The suit filed in October 1998, alleged claims for slander, injurious falsehood, and injunctive relief. Dr. Bailey filed a motion to dismiss, alleging that Dr. Kennedy’s petition failed to state a cause of action, and that the claims were barred by the statute of limitations. The trial court dismissed Dr. Kennedy’s petition, basing its decision upon the statute of limitations issue. This appeal followed.

In his first point on appeal, Dr. Kennedy argues the trial court erred in dismissing his petition as untimely in that the facts demonstrate he instituted suit less than two years after his damages were ascertained which is within the limitations period provided in section 516.140 RSMo 1994.1

[42]*42Our review of the dismissal of a petition as being time-barred by the expiration of the applicable statute of limitations requires an examination of the pleadings, allowing them their broadest intendment, regarding all facts alleged as true, and construing the allegations in favor of the plaintiff. Dice v. Darling, 974 S.W.2d 641, 643 (Mo.App.1998). When an affirmative defense is asserted, such as a statute of limitations, the petition may not be dismissed unless it clearly establishes on its face, and without exception, that the action is barred. Id. For an affirmative defense to be sustained upon a bare motion to dismiss, the defense must be irrefutably established by the plaintiffs pleadings. Lehnig v. Bornhop, 859 S.W.2d 271, 272 (Mo.App.1993).

There is no dispute that the two-year statute of limitations provided in section 516.140 applies to Dr. Kennedy’s claim for slander. The issue is when that statute began to run.

In Missouri, a statute of limitations is generally triggered not by the discovery of damage, but by the commencement of the right to sue. Business Men’s Assur. Co. v. Graham, 984 S.W.2d 501, 507 (Mo. banc 1999). These two events do not necessarily coincide. Id. The triggering of the commencement of the right to sue is when the damage is sustained and becomes capable of ascertainment. Id. Damages are ascertained when the fact of damage appears, not when the extent or amount of damage is determined. Thurston v. Ballinger, 884 S.W.2d 22, 26 (Mo.App.1994).

Dr. Kennedy argues his damages were not ascertainable until September 1998 when he received a copy of patient’s wife’s deposition in which she had testified to Dr. Bailey’s allegedly defamatory statements. Until that time, Dr. Kennedy was prohibited from ascertaining his damage as patient and his wife gave misleading explanations as to why they switched doctors. Dr. Kennedy filed suit within six weeks of ascertaining his damage. Therefore, he concludes his claim is not time-barred.

Dr. Bailey counters that the statute of limitations for slander and libel claims begins to run at the time of publication, as that is when the damages are capable of ascertainment. Dr. Kennedy filed suit more than two years after the statements were made and failed to plead an exception that would toll the statute of limitations. Therefore, he maintains Dr. Kennedy’s claim is time-barred.

Both parties rely on Jones v. Pinkerton’s Inc., 700 S.W.2d 456 (Mo.App.1985). In Jones, the plaintiff was dismissed by his employer in November 1974 following the employer’s receipt of an investigative report compiled by Pinkerton’s. Jones asked for an explanation of his termination and was told his employment application was incomplete. He inquired again about his termination on two separate occasions but was given no further explanation. Finally, Jones received a service letter dated January 9, 1975, which revealed the fact of Pinkerton’s investigation and report. The report itself revealed that Pinkerton’s consciously sought to keep Jones from discovering its investigation. 700 S.W.2d at 457.

Jones sued Pinkerton’s on January 6, 1977, contending the report libeled him. Pinkerton’s moved for summary judgment arguing that the libel action was barred by the statute of limitations. It stated that the action accrued for statute of limitations purposes when the report was delivered to Jones’ employer sometime before his termination in November 1974. The trial court sustained the motion and entered judgment for Pinkerton’s. Id.

The appellate court reversed. The court acknowledged that a plaintiffs reputation interest is invaded at the time of publication of the allegedly defamatory statements and arguably that is the time when damage is sustained. Id. at 458. The analysis does not end there, however, as section 516.100 states that a cause of action shall be deemed to accrue “when the [43]*43damage resulting therefrom is sustained and is capable of ascertainment.” Id.

The Jones court concluded that the existence of the libel and any damage to his reputation were not ascertainable by Jones. The actions of his employer and Pinkerton’s prevented him from becoming aware of the report. Therefore, these actions erected an “intervening screen” hiding any wrong to Jones. Until he received the service letter dated January 9, 1975, Jones had no notice of his cause of action, and the statute of limitations was tolled until that notification. Id. at 459. The court emphasized it was not equating “capable of ascertainment” with a discovery test. Id.

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Bluebook (online)
18 S.W.3d 39, 2000 Mo. App. LEXIS 416, 2000 WL 290089, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kennedy-v-microsurgery-brain-research-institute-moctapp-2000.