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Missouri Court of Appeals Holds Plaintiff Cannot Use Savings Statute to Revive Dismissed Lawsuit Brought by Improper Plaintiff

Love v. Piatchek, No. 103690 (November 8, 2016)

The Missouri Court of Appeals, Eastern District, affirmed a trial court’s dismissal of a lawsuit as being time-barred.  The court held that the plaintiff could not rely on an earlier lawsuit and Missouri’s “savings” statute because the earlier suit was brought by an improper plaintiff who lacked standing.

In the first lawsuit, a grandmother sued for the wrongful death of her grandson.  On the eve of trial, the grandmother dismissed the lawsuit, without prejudice.  Four months later, the decedent’s mother filed a second wrongful death lawsuit.  The defendant moved to dismiss the suit as being time-barred because it was filed after the expiration of the applicable statute of limitations.  The mother argued the suit was timely filed, under the savings statute, because it was filed within one year of the voluntary dismissal of the first wrongful death suit.  The trial court dismissed the case, and the mother appealed.

On appeal, the court noted that, as long as both lawsuits are brought by proper plaintiffs with standing, a suit may be timely re-filed within the one-year savings period allowed under the savings statute, and the second suit will relate back to the filing of the first suit.  However, in this case, the first lawsuit was not legally viable because the grandmother was not eligible to bring a wrongful death lawsuit under Missouri law and therefore lacked standing.  Thus, the mother could not file a second suit and have it relate back to the grandmother’s non-viable first suit under the savings statute.

Presiding Judge Lisa Van Amburg authored a concurring opinion pointing out the numerous unsuccessful attempts of the decedent’s father, an incarcerated felon, to join the lawsuit as a pro se plaintiff.  Had the father been named a plaintiff, as was his right, the first lawsuit would have been viable, and the mother’s subsequent suit would have been timely under the savings statute.