Sharon L. Peyton, Appellant v. Bellefontaine Gardens Nursing & Rehab, Inc., et al., Respondents.

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

Case Style: Sharon L. Peyton, Appellant v. Bellefontaine Gardens Nursing & Rehab, Inc., et al., Respondents. Case Number: SC88606 Handdown Date: 03/18/2008 Appeal From: Circuit Court of the City of St. Louis, Hon. John J. Riley Counsel for Appellant: Newton G. McCoy Counsel for Respondent: Susan Ford Robertson 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: This case involves the dismissal of a wrongful death action for failure to name a proper plaintiff before the statute of limitations expired. In a unanimous decision written by Judge Stephen N. Limbaugh Jr., the Supreme Court holds that – because the original plaintiff had power of attorney for the proper plaintiff, and the original petition gave notice of the proper plaintiff's interest and standing in the case – the amended petition relates back to the timely filed original petition; therefore, it is not outside the statute of limitations. Facts: Bellefontaine Gardens Nursing & Rehab Inc. resident Ruby Lane died in July 2006, leaving daughter Mary Jo Williams, granddaughter Sharon Peyton and another granddaughter. A few weeks later, Williams granted Peyton authority to act as her attorney in fact. In July 2005, Peyton filed a wrongful death suit against Bellefontaine Gardens and several "John Doe" defendants. Although she did not name Williams or the other granddaughter as plaintiffs, her petition did state

that they had been notified of the case pursuant to sections 537.080 and 537.095, RSMo. On the nursing home's motion, the trial court dismissed Peyton's case, determining that Williams alone had standing to sue under subdivision 1 of section 537.080.1, RSMo 2000. It further determined that Peyton, as a grandchild under subdivision 2 of the statute, lacked standing to bring the suit in her individual capacity. In March 2006, Peyton moved to amend her petition to add Williams as a plaintiff. In the meantime, however, the three-year statute of limitations for wrongful death actions under section 537.100, RSMo 2000, had expired. The trial court overruled her motion. Peyton appeals. REVERSED AND REMANDED. Court en banc holds: The trial court erred in dismissing the case because, as Williams' attorney in fact, Peyton had standing in the original suit, so her amended petition relates back to the timely original filing. Under Rule 55.33(c), if a claim asserted in an amended pleading arose from the same occurrence set forth in the original pleading, the amendment relates back to the date of the original pleading. Even before that rule was adopted, Forehand v. Hall, 355 S.W.2d 940 (Mo. 1962), provided that, if a timely wrongful death suit is filed by a party who has a "legal or beneficial interest" but who lacks authority to file the suit, an amended petition substituting a plaintiff suing in the proper capacity will relate back to the filing of the original petition. Section 537.095.1 requires that, to be perfected, a wrongful death action must list all other class members who are eligible to share in the proceeds of any judgment, and it permits one member of the purported class to represent the interests of the other class members. Additionally, this Court long has held that the body of the pleading, not the caption, determines the parties necessary to prosecute the action. Peyton's status as Williams' attorney in fact, combined with her petition's notice of Williams' interest and standing in the case, was sufficient to give Peyton the sort of legal and beneficial interest contemplated by Forehand and Rule 55.33(c), allowing her amended petition to relate back to the timely original action. Citation: Opinion Author: Stephen N. Limbaugh, Jr., 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. Sharon Peyton sued Bellefontaine Gardens Nursing & Rehab, Inc., and several "John Doe" defendants, to recover damages for the wrongful death of Ruby Lane, Peyton's grandmother. The trial court dismissed the case on the ground that Peyton lacked standing, and Peyton then sought leave to file an amended petition naming her mother, Mary Jo Williams, as plaintiff. However, by this time, the statute of limitations for wrongful death had expired, and for that reason, the motion to amend was overruled. Peyton appealed, and after opinion by the Court of Appeals, Eastern District, this Court granted transfer. Mo. Const. art. V, sec. 10. The judgment is reversed, and the case is remanded. Ruby Lane died July 26, 2002, leaving a daughter, Mary Jo Williams, and granddaughters Jennifer Degraffenreid and Sharon Peyton. On August 8, 2002, Williams executed a written document granting power of attorney to Peyton and naming Peyton her attorney in fact. Peyton filed a petition on July 15, 2005, styled "Sharon L. Peyton, as surviving heir of Decedent Ruby Lane, Plaintiffs." This original petition alleged that Peyton was "a member of the wrongful death class, pursuant to [section 537.080] and . . . entitled to damages pursuant to [section 537.095]." Paragraph five further stated that "Mary Williams, adult natural daughter of Ruby L. Lane; Jennifer Degraffenreid, adult natural granddaughter of Ruby L. Lane, although they are not named plaintiffs in this action, they have been notified of this cause of action pursuant to [sections] 537.080 and 537.095." Defendants moved to dismiss, arguing that Peyton lacked standing under section 537.080, RSMo 2000, which sets out the classes of persons entitled to bring a wrongful death action. That section states in relevant part:

1. Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which,

if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who . . . would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured, which damages may be sued for: (1) By 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; . . . . The trial court granted defendants' motion, determining that Williams alone, as surviving child of the decedent, had standing to sue under subdivision (1), and that Peyton, as a grandchild under subdivision (2), had no standing to bring the suit in her individual capacity. On March 6, 2006, Peyton moved for leave to file a second amended petition in order to cure the problem. This amended petition was styled "Mary Jo Williams, by and through Sharon Peyton, her attorney in fact." However, in the meantime the three-year statute of limitations for wrongful death actions, section 537.100, RSMo 2000, had run. The trial court overruled the motion to amend and dismissed the case, reasoning that the court lacked jurisdiction over a case originally brought by one with no standing, Farmer v. Kinder, 89 S.W.3d 447, 451 (Mo. banc 2002), and for that reason, an amendment purporting to add or substitute a proper party cannot relate back to the original petition so as to save the action once the statute of limitations has run. Peyton contends, however, that she did have standing as her mother's attorney in fact so that the second amended petition relates back to the timely original filing. This Court agrees.

Under Rule 55.33(c), if a claim asserted in the amended pleading arose from the same "occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading." Even before the adoption of Rule 55.33(c), Forehand v. Hall, 355 S.W.2d 940 (Mo. 1962), set forth the rule that where a wrongful death suit is timely filed by a party with a "legal or beneficial interest," but lacking authority to maintain the suit for want of a court appointment, the suit is saved from the running of the statute of limitations by "substitution by amendment of the plaintiff suing in the proper capacity," which relates back to the filing of the original petition. Id. at 945. If the party filing the original petition, however, lacks such a "legal or beneficial interest," then substituting the proper plaintiff after the running of the statute of limitations does not relate back, "but will be treated as a new action, which is barred by the statute of limitations." Id. Again, Peyton claims that she had a "legal or beneficial interest" in the case – or standing – because she was attorney in fact for her mother. Defendants maintain, however, that the original and first amended petitions make no mention of Peyton's status as attorney in fact and were brought by Peyton "as herself and seeking damages only for herself." They explain she was not the "real party in interest" but that she "was a stranger to and could have no interest in the cause of action." In other words, because Peyton individually had no cause of action, there was no valid petition to which the amended petition could relate back. See Forehand, 355 S.W.2d at 945; Goldschmidt v. Pevely Dairy Co., 111 S.W.2d 1, 3 (Mo. 1937). Defendants' argument, however, disregards the fact that paragraph five of the original petition stated that notice was provided to the other surviving heirs, expressly mentioning Mary Jo Williams as Ruby Lane's surviving child. This allegation was required under section 537.095.1, RSMo, in order to perfect the wrongful death action by identifying all other class members who were eligible to share in the proceeds of any judgment. And although the action was brought by only one of the purported class members, section 537.095.1 permits that class member to represent the interests of the other members of the class. Though Peyton, individually, was not a class member and, thus, had no standing to bring the action, her petition sufficed to give notice to defendants that Williams, at least, was entitled to bring the action for wrongful death and had standing to do so. This Court has long held that "the body of the pleading, not the caption, determines the

parties necessary to the prosecution of the action." Watson v. Watson, 562 S.W.2d 329, 331 n.2 (Mo. banc 1978). Accordingly, Peyton's status as attorney in fact for Williams, combined with the notice to the defendants of Williams's interest in the case, was sufficient to give Peyton the sort of "legal and beneficial interest" contemplated by Forehand and Rule 55.33(c), so that she was not a stranger to the case. See Rotella v. Joseph, 615 S.W.2d 616, 620, 621 (Mo. App. 1981). Under these circumstances, the amended petition should relate back to the timely original filing, and dismissal of the case was erroneous. For the foregoing reasons, the judgment is reversed, and the case remanded. All concur. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.