Vernon Johnson v. Grim-Smith Hospital

Eighth Circuit

Vernon Johnson v. Grim-Smith Hospital

453 F.2d 1253, 1972 U.S. App. LEXIS 11655

CourtCourt of Appeals for the Eighth Circuit

DecidedJanuary 25, 1972

Docket71-1311

StatusPublished

Cited by2 cases

This text of 453 F.2d 1253 (Vernon Johnson v. Grim-Smith Hospital) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Vernon Johnson v. Grim-Smith Hospital, 453 F.2d 1253, 1972 U.S. App. LEXIS 11655 (8th Cir. 1972).

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Opinion

PER CURIAM.

Plaintiff takes this timely appeal from final judgment dismissing his malpractice action on motion for summary judgment on the ground that the action is barred by the two-year statute of limitations governing malpractice actions. (§ 516.140 RSMol959, V.A.M.S.).

The facts and basis of decision are fairly set forth in Judge Wangelin’s opinion reported at 326 F.Supp. 537.

Plaintiff upon appeal strongly urges that summary judgment was improper because disputed fact issues exist. Summary judgment of course is inappropriate where a dispute exists as to a material fact. The record consists of the pleadings, affidavits, interrogatories, answers thereto and depositions. While some factual disputes exist, the trial court assumed for the purpose of his ruling that representations were made as stated by the plaintiff. The court then determined that, under the controlling Missouri law set forth in its opinion, the record when viewed in the light most favorable to the plaintiff afforded no basis for tolling the statute of limitations. The trial court’s decision is not based upon the resolution of material factual issues.

We agree with the view of the trial court that no dispute exists as to material facts. The facts as urged by the plaintiff and accepted by the trial court *1254 for the purpose of ruling on the motion are inadequate upon the basis of controlling Missouri law to support a finding that the statute of limitations was tolled.

The judgment of dismissal is affirmed.

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PER CURIAM.

Plaintiff takes this timely appeal from final judgment dismissing his malpractice action on motion for summary judgment on the ground that the action is barred by the two-year statute of limitations governing malpractice actions. (§ 516.140 RSMol959, V.A.M.S.).

The facts and basis of decision are fairly set forth in Judge Wangelin’s opinion reported at 326 F.Supp. 537.

Plaintiff upon appeal strongly urges that summary judgment was improper because disputed fact issues exist. Summary judgment of course is inappropriate where a dispute exists as to a material fact. The record consists of the pleadings, affidavits, interrogatories, answers thereto and depositions. While some factual disputes exist, the trial court assumed for the purpose of his ruling that representations were made as stated by the plaintiff. The court then determined that, under the controlling Missouri law set forth in its opinion, the record when viewed in the light most favorable to the plaintiff afforded no basis for tolling the statute of limitations. The trial court’s decision is not based upon the resolution of material factual issues.

We agree with the view of the trial court that no dispute exists as to material facts. The facts as urged by the plaintiff and accepted by the trial court *1254 for the purpose of ruling on the motion are inadequate upon the basis of controlling Missouri law to support a finding that the statute of limitations was tolled.

The judgment of dismissal is affirmed.

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Bluebook (online)

453 F.2d 1253, 1972 U.S. App. LEXIS 11655, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vernon-johnson-v-grim-smith-hospital-ca8-1972.

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