Wells v. Nulton

898 S.W.2d 653, 1995 Mo. App. LEXIS 620, 1995 WL 129351
CourtMissouri Court of Appeals
DecidedMarch 28, 1995
DocketNo. WD 49723
StatusPublished
Cited by1 cases

This text of 898 S.W.2d 653 (Wells v. Nulton) 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
Wells v. Nulton, 898 S.W.2d 653, 1995 Mo. App. LEXIS 620, 1995 WL 129351 (Mo. Ct. App. 1995).

Opinion

HANNA, Judge.

The plaintiff appeals the trial court’s dismissal of his personal injury suit. The trial court held that plaintiffs claims against two of the defendants named in his petition were barred by the statute of limitations. The issue on appeal is whether plaintiffs first amended petition relates back to the original petition so as to avoid the bar of the two-year statute of limitations.

From May 1991 through June 1991, the plaintiff pleaded that he received health care services from several different providers at Research Medical Center. On May 17,1993, plaintiff filed suit alleging medical malpractice against six defendants: Dr. Carnie Nul-ton, Kansas City Internal Medicine, M.D.’s, P.C. (KCIM), Research Medical Center (Research), Dr. Douglas Hagen, Anesthesia Associates of Kansas City, Inc. (Anesthesia Associates), and Dr. Ferenc Bankuti.

Three of the defendants, Dr. Nulton, KCIM and Research, filed answers to the petition. The other three, Dr. Hagen, Anesthesia Associates and Dr. Bankuti, filed motions to dismiss for failure to state a claim upon which relief could be granted. On July 22, 1993, the plaintiff filed a First Amended Petition. Thereafter, the motions to dismiss were overruled as moot.

In August 1993, the three defendants filed motions to dismiss the first amended petition, arguing that since the petition did not relate back to the filing of the original petition, the claims were barred by the statute of limitations. The trial court overruled the motion as to Dr. Hagen, but sustained the motions as to Anesthesia Associates and Dr. Bankuti. The court made its order of dismissal final and appealable pursuant to Rule 74.01(b). Only the two defendants who were dismissed from the suit, Anesthesia Associates and Dr. Bankuti, are involved in plaintiffs appeal.

As this is a medical malpractice case, the applicable statute of limitations is contained in § 516.105, RSMo 1986, which states that such a claim must be brought within two years of the occurrence of the negligent acts. The parties agree on two things: (1) that the first amended petition states a cause of action against the defendants; and (2) that the first amended petition was filed after the expiration of the statute of limitations.

The plaintiff admits that the original petition filed in this case was “not a model of petition draftsmanship.” Among other things, the petition did not contain specific allegations of the injuries suffered by the plaintiff or a prayer for relief. The plaintiff argues, citing Koerper & Co. v. Unitel Int'l Inc., 739 S.W.2d 705 (Mo. banc 1987), that the amended petition relates back because the allegations against both Dr. Bankuti and Anesthesia Associates contained in the first amended petition arose out of the same “conduct, transaction or occurrence” as those contained in the original petition — namely, the negligent provision of health care services between May 15, 1991, and June 7, 1991.

[655]*655In response, the defendants assert two slightly different arguments. Defendant Anesthesia Associates argues that there was nothing to relate back to because the original pleading was not a “petition” which satisfied the requirements of Rule 55.05. Defendant Dr. Bankuti argues that because the original petition failed to state a claim against him, there was nothing to which the amended petition could relate back.

The doctrine of relation back had its roots in the common law. In Arpe v. Mesker Bros. Iron Co., 323 Mo. 640, 19 S.W.2d 668 (1929), the Missouri Supreme Court held:

The general rule is that an amendment will not [relate back] if the proof necessary to support the pleading as amended is different from the proof necessary to support the same pleading before such amendment. ...

Id. at 670. For decades, this was the rule used to determine whether an amended petition would be permitted to relate back to the original filing date.

Effective September 1, 1973, the Supreme Court promulgated Rule 55.33(c), which states in relevant part:

(c) Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.

Following the enactment of the rule, a split developed between the Eastern District and Western District appellate courts concerning the applicable relation back rule.

The Eastern District line of cases is illustrated by the court’s holding in Hawkins v. Hawkins, 533 S.W.2d 634 (Mo.App.1976). In Hawkins, the plaintiff alleged that he performed services for the defendant in the defendant’s store and that he was entitled to a manager’s bonus for his services. Id. at 638. Following the expiration of the statute of limitations, the plaintiff amended his petition to state a cause of action based on breach of an employment contract. The court, noting that Rule 55.33(c) was modeled after Federal Rule of Civil Procedure 15(c), held that Rule 55.33(c) was specifically designed to change Missouri law on relation back. The court stated that the petition, although unartfully drawn, “gave sufficient notice of the situation involved between the parties and gave sufficient notice of the general transaction between the parties.” Id. Because the amended petition arose out of the conduct or transaction set forth or attempted to be set forth in the original petition, it related back to the filing of the original petition. Id.

The Western District line of eases is exemplified by Link v. Ise, 716 S.W.2d 805 (Mo. App.1986). In that case, the plaintiff filed a petition against a number of physicians alleging medical malpractice. The original petition contained only general allegations of negligence. After the expiration of the two-year statute of limitations, plaintiff amended her petition to include specific allegations of negligence against the doctors. This court rejected the reasoning of Hawkins, based primarily on the rationale that “Missouri adheres to a concept of fact pleading and notice of a claim is not sufficient to state a cause of action under Missouri law.” Id. at 809. The court continued to follow the pre-1973 “same evidence” rule, which states, “An amended pleading which requires proof of ultimate facts other than that which would have been necessary to sustain the original petition will not save the action from the bar of the statute of limitations.” Id.

The Missouri Supreme Court, in Koerper, agreed with the Eastern District that Rule 55.33(c) was designed to change the procedural law of Missouri. The court stated:

The following is an accurate statement of its rationale when this Court promulgated Rule 55.33(c) in 1973:
The Rule is derived from Rule 15(c) of the Federal Rules of Civil Procedure.

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Bluebook (online)
898 S.W.2d 653, 1995 Mo. App. LEXIS 620, 1995 WL 129351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wells-v-nulton-moctapp-1995.