ST. LOUIS —  A proper plaintiff cannot use the state’s saving statute to revive a dismissed lawsuit that was brought by an improper plaintiff who lacked standing, the Missouri Court of Appeals Eastern District has ruled. 

In Love v. Piatchek, the appeals court agreed with the trail court's dismissal in a wrongful death lawsuit.

In January 2010, Delores Henry filed a wrongful death suit against the St. Louis Board of Police Commissioners and certain St. Louis police officers after her grandson, Darrell Williams Jr., was fatally shot on Nov. 18, 2009, by two officers after a car chase. Henry attempted to invoke standing as next of kin and alleged that the officers opened fire on the vehicle’s occupants without cause and with excessive force. Williams’ parents were incarcerated at the time and not named as parties.

In April 2014, one week before the trial, Henry dismissed her suit without prejudice.

“The opinion is silent as to why the first lawsuit was dismissed, except to say that the grandmother voluntarily dismissed the case without prejudice to re-file,” John Mahon Jr., partner at St. Louis-based Williams Venker & Sanders, told the St. Louis Record.

Four months later, Williams’ mother, Kathryn Love, filed a second wrongful death lawsuit. As a surviving parent, Love was a proper plaintiff under Missouri law, according to court documents. In March 2015, the defendants moved to dismiss Love’s suit for untimeliness, asserting that the statute of limitations expired in November 2012, three years after Williams' death. Love argued that the suit was filed timely under the state’s savings statute — the re-filing of a proper plaintiff’s claim by another proper plaintiff — because it was filed within one year of the voluntary dismissal of the first wrongful death suit.

The trial court dismissed the case on the basis that Henry’s original petition was invalid because she was not an eligible plaintiff in the first instance because Williams’ surviving parents were superior plaintiffs. The court said that Henry lacked standing and there was nothing for the saving statute to save.

On appeal, the court noted that if both lawsuits are brought by proper plaintiffs with standing, a suit may be timely refiled within the one-year savings statute, and the second suit will relate to 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. Thus, the mother could not file a second suit and have it relate back to the grandmother’s non-viable first suit.

“One implication of this ruling is that it demonstrates the importance of not only timely filing a wrongful death suit within the applicable statute of limitations, but also ensuring the timely filing includes a proper plaintiff,” Mahon said.

Mahon said that it does not appear that any further action has been taken. 

“It is not clear what, if anything, will happen next in the case or whether the appellants will attempt to seek review by the Supreme Court of Missouri," he said.

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