State ex rel. Reddy v. Dunlap

839 S.W.2d 374, 1992 Mo. App. LEXIS 1622, 1992 WL 301795
CourtMissouri Court of Appeals
DecidedOctober 22, 1992
DocketNo. 18171
StatusPublished
Cited by3 cases

This text of 839 S.W.2d 374 (State ex rel. Reddy v. Dunlap) 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
State ex rel. Reddy v. Dunlap, 839 S.W.2d 374, 1992 Mo. App. LEXIS 1622, 1992 WL 301795 (Mo. Ct. App. 1992).

Opinion

SHRUM, Judge.

In this original proceeding in prohibition, the relator is a defendant in cause No. CV391-134CC, Charles Watson v. A.N. Reddy, M.D., et al., now pending in the circuit court of Howell County, Missouri, a suit to recover damages for the alleged wrongful death of Watson’s wife.

The petition in prohibition presented the issue of whether the respondent circuit judge would exceed his jurisdiction by proceeding in cause No. CV391-134CC absent Watson’s compliance with a notification requirement of the wrongful death statute. In his petition, the relator referred to Watson’s deposition testimony that “he had not notified his three children and his wife’s mother of his institution of the underlying suit.”1

After examining the petition and the respondent’s suggestions in opposition, filed on his behalf by Watson’s attorney, we issued our preliminary order in prohibition on June 17, 1992.

Watson’s attorney, on behalf of the respondent, filed an answer on June 30, 1992, contending the issue raised in the petition was rendered moot by Watson’s subsequent compliance with the statutory notification requirement. Attached to the answer were Exhibit 1, copies of letters from Watson’s attorney to the decedent’s two daughters, son, and mother, and Exhibit 2, an affidavit of Watson’s attorney. According to the answer, copies of Exhibits 1 and 2 were contemporaneously filed with the circuit court of Howell County with copies provided directly to the respondent judge.

In the affidavit, Watson’s attorney stated, in part:

3.That the undersigned has been informed by Charles Watson, the surviving spouse of Elsie L. Watson, that the Decedent was survived by the following members of the class of plaintiffs as set forth and provided in § 537.080(1):2
[376]*376Ms. Diana Louise Barker, daughter of the Decedent;
Ms. Debra Lee Bailey, daughter of the Decedent;
Mr. Charles Richard Watson, Jr., son
of the Decedent; and
Mrs. Alberta Ribeau, mother of the Decedent.
4. That the Plaintiff has informed the undersigned that there are no other persons who survived the Decedent who bear a relationship to the Decedent as described in R.S.Mo. § 537.080(1).
5. That the undersigned provided written notice to those persons enumerated hereinabove by regular and certified mail dated June 29,1992, a copy of which written notification with regard to each person is attached hereto and incorporated herein by reference.3

The Exhibit 1 letters were identical in content; in each, Watson’s attorney stated:

This office represents Mr. Charles Watson with regard to a lawsuit pending in the Circuit Court of Howell County, Missouri, against Dr. A.N. Reddy, Dr. Thomas Stubbs and Ozark Medical Center, Case No. CV391-134CC. The purpose of this letter is to provide you with notice, pursuant to Missouri Statute 537.-095, of the intention of Mr. Watson to maintain and prosecute this cause of action regarding the wrongful death of Elsie L. Watson.
It is the intention of Mr. Watson to comply with the laws of the state of Missouri pertaining to actions for wrongful death and in that regard, any settlement or recovery by suit shall be for the use and benefit of those who are entitled to sue, subject to the approval of an appropriate Circuit Court of the state of Missouri.

In his brief, the relator argues that the question of Watson’s compliance with the wrongful death action notification requirement is not moot because the June 29 letters failed to satisfy the statute in that Watson “did not personally sign and send the letters” and the letters were “insufficient in content.” We conclude the relator’s arguments have no merit; we quash the preliminary order in prohibition and dismiss the relator’s petition.

DISCUSSION AND DECISION

Initially the relator urges that Watson failed to comply with § 537.095.1 because the notification letters were signed and sent by his attorney and not by Watson personally. Without citation to authority and with no elaboration, the relator asserts, “The giving of the required notice, according to the statute[,] must be done by the one who brings the suit[,] not by anyone else.” We do not glean from the language of § 537.095.1 any support for what we take to be a “plain meaning” argument.

We surmise the relator is arguing that it is the statute’s use of the pronoun he in the clause “that he has diligently attempted to notify all parties having a cause of action under section 537.080” that requires Watson’s personal notification. We note, however, the relator does not argue that use of the words claimant and petitioner in the immediately preceding clause, “that the claimant or petitioner shall satisfy the court,” requires Watson, personally, to “satisfy the court” and to provide the court with “actual written notice.”

Use of nouns such as party, claimant, or petitioner is common in court rules and statutes. See, e.g., Rules 55.07, 55.08, and 55.10, all derived from the 1943 Civil Code of Missouri and codified, respectively, as §§ 509.080, 509.090, and 509.110, RSMo 1986. Despite their wording, these rules concerning pleadings do not require that a party who is represented by counsel, must, nevertheless, personally perform the specified acts.

The relator supports his assertion that Watson, personally, must give the § 537.-095.1 notification by arguing that the “giving of the required notice extends to the [377]*377very subject matter of Watson’s cause of action in the underlying action.” He cites Southwestern Bell Telephone Co. v. Roussin, 534 S.W.2d 273 (Mo.App.1976), Robinson v. DeWeese, 379 S.W.2d 831 (Mo.App.1964), and Sudekum v. Fasnacht’s Estate, 236 Mo.App. 455, 157 S.W.2d 264 (1942), as authority for the proposition that “an attorney’s authority, broad as it may be, cannot properly extend to the very subject matter of the client’s cause of action.”

As the relator acknowledges, Roussin, Robinson, and Sudekum are not directly on point. Nevertheless, he argues, “all three announced a principle clearly established in the law; that being that the authority of an attorney, implied or apparent, is limited to those matters relating solely to procedure or remedy and not to matters involving the subject matter of the client’s cause of action.”4

However, the relator develops no argument that the principle drawn from Rous-sin, Robinson, and Sudekum has any applicability to this case. He does not explain in what way the notification requirement of § 537.095.1 is not a matter of procedure or remedy, nor does he support or explain his bald assertion that the statutorily mandated notification to other potential plaintiffs “extends to the very subject matter of Watson’s cause of action....” We find nothing in the relator’s trio of cases, or elsewhere, that supports his position.

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Bluebook (online)
839 S.W.2d 374, 1992 Mo. App. LEXIS 1622, 1992 WL 301795, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-reddy-v-dunlap-moctapp-1992.