Eleanore Thorson, Appellant v. Elizabeth Connelly, Robert Palmer, and Betty Palmer, Respondents.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion

Case Style: Eleanore Thorson, Appellant v. Elizabeth Connelly, Robert Palmer, and Betty Palmer, Respondents. Case Number: SC88594 Handdown Date: 02/19/2008 Appeal From: Circuit Court of Dent County, Hon. Sanborn N. Ball Counsel for Appellant: Stephen K. Paulus Counsel for Respondent: Mark Turley and Daniel L. Birdsong Opinion Summary: This summary is not part of the opinion of the Court. It has been prepared by the Communications Counsel for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court and should not be quoted or cited. The opinion of the Court, which may be quoted, follows the summary. Overview: A trial court dismissed a grandmother's wrongful death lawsuit against those whose negligence she alleges caused her granddaughter's death because the grandmother, who filed her lawsuit in a timely manner, did not make a timely application to be appointed plaintiff ad litem. In a unanimous decision written by Judge Michael A. Wolff, the Supreme Court reverses the trial court's decision and remands (sends back) the case for further proceedings. As a living heir with a beneficial interest in the wrongful death action, the grandmother's appointment as plaintiff ad litem relates back to the date she filed suit. Facts: Eleanore Thorson's granddaughter died of a gunshot wound in August 2002. Four days before the statute of limitations expired in August 2005, Thorson filed a wrongful death suit against Elizabeth Connelly and Ronald and Betty

Palmer on behalf of herself, another grandmother and several aunts of the granddaughter. In her petition, Thorson referred to herself as a plaintiff ad litem but did not formally apply to become the plaintiff ad litem, pursuant to section 537.080(3), RSMo 2000, until late January 2006, after the defendants sought summary judgment, asserting that, because she was not the plaintiff ad litem, Thorson lacked standing to sue. In her petition, Thorson asked the trial court to recognize that her requests to proceed as a plaintiff ad litem in her initial filings constitute her application to proceed in that capacity, so that her appointment would be retroactive to the date of her filing, which was within the statute of limitations. In July 2006, the trial court granted both motions for summary judgment, concluding that Thorson lacked standing to bring the wrongful death suit, which the court dismissed with prejudice (so it could not be refilled). Thorson appeals. REVERSED AND REMANDED. Court en banc holds: As a living heir of her granddaughter with a beneficial interest in the wrongful death action, Thorson's appointment as plaintiff ad litem relates back to the date she filed suit. In analyzing a previous version of Missouri's wrongful death statute, this Court held that, where there were no persons available who had a right to sue in their own names, a late application to sue will relate back to a wrongful death action initiated within the limitations period by a person who has a "beneficial interest" in the action. Forehand v. Hall, 355 S.W.2d 940, 945 (Mo. banc 1962). If, however, the original action was filed by a person with no "legal or beneficial interest in its subject matter," the substitution of a proper plaintiff after the statute of limitations will not relate back but will be treated as a new action barred by the statute of limitations. Id. As a grandmother, Thorson is one of the persons who can share in the proceeds of a wrongful- death judgment under section 537.095.2, RSMo 2000, because -- with the granddaughter leaving no children or their descendants, no parents, and no siblings or their descendants -- she is an heir under the laws of descent. The relation- back doctrine is set forth in Rule 55.33(c), which provides generally that, when a claim asserted in an amended pleading arose out of the same occurrence set forth in the original pleading, the amendment relates back to the date of the original pleading. Here, Thorson's application to be appointed plaintiff ad litem in effect amends her original pleading because it substitutes a plaintiff suing in the proper capacity, and her amendment properly relates back to the date of her original filing. The relation-back of her appointment does not undermine the truth-finding process and does not prejudice or

unfairly surprise Connelly and the Palmers because they knew what Thorson's claim was from the beginning and are not deprived of the opportunity to prepare their defense. Henderson v. Fields, 68 S.W.3d 455, 467 (Mo. App. 2001), in which the court declined to recognize an amendment after judgment had been entered after trial, should not be read as inconsistent with the holding in this case. Citation: Opinion Author: Michael A. Wolff, Judge Opinion Vote: REVERSED AND REMANDED. All concur. Opinion: This slip opinion is subject to modification until the Court has ruled on the parties' motions for rehearing, if any, and will become final only after the Court issues its mandate. To see when the Court issues its mandate, please check the docket entries for the case on Case.net. The Issue Eleanore Thorson, grandmother of the late Heather Thorson, filed a wrongful death suit – four days before the statute of limitations expired – on behalf of herself and the other survivors of Heather, purporting to act as plaintiff ad litem under the wrongful death statute. The grandmother, however, did not seek a court appointment as plaintiff ad litem until after the statute of limitations had expired. The issue: Will an appointment of the grandmother as plaintiff ad litem relate back to the date of the filing of the case, or is this action barred by the statute of limitations? The Wrongful Death Suit Heather Thorson died of a gunshot wound on August 29, 2002. On August 25, 2005, Heather's grandmother, plaintiff Eleanore Thorson, filed a wrongful death suit against Elizabeth Connelly and Ronald and Betty Palmer. In her petition, Thorson claimed that Connelly negligently caused Heather Thorson's death. The circumstances of the death were described variously in the petition, which alleged that Connelly was negligent by firing the gun at Heather, or by pointing

the gun at Heather when the gun accidentally discharged, or by furnishing Heather with a deadly weapon, or by negligently grabbing the gun while it was pointed at Heather causing it to discharge. The wrongful death petition further alleged that Betty and Ronald Palmer were negligent in either furnishing Connelly with a handgun or by failing to prevent her from having the gun. The petition indicated that at the time of her death, Heather Thorson was unmarried and had no children. She had no living siblings or surviving parents. She was survived only by several aunts and two grandmothers, one of whom was Eleanore Thorson, the plaintiff. Section 537.080 provides that a wrongful death suit may be brought "(1) [b]y the spouse or children or the surviving lineal descendants of any deceased children, natural or adopted, legitimate or illegitimate, or by the father or mother of the deceased, natural or adoptive; (2) If there be no persons in class (1) entitled to bring the action, then by the brother or sister of the deceased, or their descendants, who can establish his or her right to those damages set out in section 537.090 because of the death."(FN1) Because Heather Thorson was not survived by a spouse, children, parents, siblings or nieces and nephews, the third section of section 537.080 becomes operative. Section 537.080(3) provides that, "[i]f there be no persons in class (1) or (2) entitled to bring the action, then [the suit may be brought] by a plaintiff ad litem. Such plaintiff ad litem shall be appointed by the court having jurisdiction over the action for damages provided in this section upon application of some person entitled to share in the proceeds of such action." Under this provision, Eleanore Thorson, as a person "entitled to share in the proceeds of such action," needed to apply to the trial court for appointment as a plaintiff ad litem in order to bring the wrongful death suit. In her initial petition, Eleanore Thorson referred to herself as "plaintiff ad litem," although she had not formally filed an application for appointment as plaintiff ad litem. In January 2006, Connelly and the Palmers, the defendants, filed motions for summary judgment, asserting that because Eleanore Thorson had failed to file an application for appointment, she lacked standing to bring the wrongful death suit. In response to the motion, Eleanore Thorson, on January 30, 2006, filed an application for appointment as plaintiff ad litem, requesting to "represent the interests of all persons entitled to share in the proceeds of this case." Eleanore Thorson asked that the trial court recognize that her requests to proceed as a plaintiff ad litem in the initial filings constitute her "application to proceed in that capacity" – in other words, that the request for appointment

relates back to the original filing. Eleanore Thorson also specifically asked that the order appointing her plaintiff ad litem "be made retroactive to the date of [the initial] filing," because at the time of the formal application for appointment, the three-year statute of limitations governing wrongful death suits had run. See section 537.100, which provides that "[e]very action instituted under section 537.080 shall be commenced within three years after the cause of action shall accrue...." Without the application of the relation-back doctrine to her application for appointment, that application would have been filed outside of the three-year statute of limitations – too late to give Thorson authority to bring the suit. The trial court granted both motions for summary judgment in July 2006, concluding that Thorson lacked standing to bring the wrongful death suit and dismissed the suit "with prejudice." After opinion in the court of appeals, this Court granted transfer. This Court has jurisdiction. Mo. Const. art. V, sec. 10. The Relation-Back Doctrine Under a previous version of Missouri's wrongful death statute, this Court addressed the application of the relation- back doctrine to appointment of a party to bring suit where there were no persons available who had a right to sue in their own names. See Forehand v. Hall, 355 S.W.2d 940 (Mo. banc 1962).(FN2) This Court's analysis in Forehand of the relation-back doctrine in wrongful death suits still applies. Where a wrongful death action is initiated within the limitations period by a person who has a "beneficial interest" in the action, but who, for lack of a court appointment, is not authorized to bring suit, "the substitution by amendment of the plaintiff suing in the proper capacity, or the joinder of the necessary additional parties plaintiff, after the lapse of the [limitations] period, will relate back to the time of filing the original action and the intervening running of the statute of limitations will not bar the maintenance of the suit by the substituted plaintiff...." 355 S.W.2d at 945. On the other hand, if the original action was filed by one who has "no legal or beneficial interest in its subject matter, the substitution of a proper party plaintiff after the statute of limitations has run will not relate back, but will be treated as a new action, which is barred by the statute of limitations." Id. Eleanore Thorson, as a grandmother, is one of the persons who can share in the proceeds of a wrongful-death judgment under section 537.095.2, because under the laws of descent, she is an heir. Section 474.010(c) ("If there are no children, or their descendants, father, mother, brother, sister, or their descendants, then to grandfathers, grandmothers, uncles and aunts or their descendants in equal parts;").

Forehand established that the question in this case is governed by the relation-back doctrine, which is set forth in the current version of Rule 55.33(c), which applies to amendments to pleadings.(FN3) The general rule is that "whenever a claim ... asserted in the amended pleading arose out of the ... occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading." Rule 55.33(c). In this case, an appointment of the original plaintiff, who had an interest in the proceeds of the action, to act formally as plaintiff ad litem is in effect an amendment to the pleadings because it is "the substitution of the plaintiff suing in the proper capacity." 355 S.W.2d at 945. Here, Eleanore Thorson is a living heir of Heather Thorson and has a beneficial interest in the wrongful death action. Her appointment as plaintiff ad litem will relate back to the date she filed suit.(FN4) "Statutes of limitation were never intended to be used as swords. Rather, they are shields, primarily designed to assure fairness to defendants by prohibiting stale claims" which tend "to undermine the truth finding process." Mikesic v. Trinity Lutheran Hospital, 908 S.W.2d 68, 73 (Mo. App. 1998) (internal citations omitted). The truth-finding process is not undermined by the relation-back of Thorson's appointment as plaintiff ad litem. Connelly and the Palmers, the defendants, suffer no prejudice or unfair surprise as they knew from the beginning what the claim was. They are not deprived of the opportunity to investigate timely and prepare their defenses. Id. Conclusion The judgment of the circuit court is reversed, and the case is remanded. All concur. Footnotes: FN1.All statutory references are to RSMo 2000. FN2.In Forehand, the widow had forfeited her right to sue under the then-existent law because she failed to sue within the statutorily prescribed six months, as had the child of the decedent, who had failed to bring his suit within the prescribed six-month period after the widow failed to do so. A suit by the widow as administratrix, as well as maintenance of suit by an "administrator de bonis non" were unavailing because the widow and child, on whose behalf the suit was purported to be brought, no longer had an interest in the action because, as to them, the statute of limitations period had expired. Fortunately, the wrongful death statute has since been simplified greatly, with a three-year period of limitations

applicable to all classes of plaintiffs. FN3.Rule 55.33(c) provides: 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. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and within the period provided by law for commencing the action against the party to be brought in by amendment: (1) has received such notice of the institution of the action as will not prejudice the party in maintaining the party's defense on the merits and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. FN4.Henderson v. Fields, 68 S.W.3d 455, 467 (Mo. App. 2001), in which the court declined to recognize an amendment after judgment had been entered after trial, should not be read as inconsistent with the holding in this case. In Henderson the court was asked to amend the judgment under Rule 74.06(a) to make appointment of grandparents as plaintiffs ad litem retroactive to the filing of the original petition. The court said Rule 74.06(a) was intended to correct clerical errors, not to change the capacity of the parties bring suit. Separate Opinion: None 0 This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.