Zinke v. Orskog
2013 Mo. App. LEXIS 1457
| Mo. Ct. App. | 2013Background
- Zinke filed a medical malpractice petition March 28, 2011 in Adair County Circuit Court against Orskog.
- On September 2, 2011, Zinke filed a Motion to Dismiss Without Prejudice, requesting dismissal without prejudice and cost allocations.
- The court docket entry on September 15, 2011 stated the motion to dismiss was sustained.
- Zinke filed a Refiled Petition on September 13, 2012, asserting savings statute 516.230 permits refiling within one year of nonsuit.
- Orskog moved to dismiss the Refiled Petition on October 19, 2012, arguing the Refiled Petition was time-barred under 516.230.
- On April 9, 2013, the trial court granted the motion to dismiss the Refiled Petition, holding the voluntary dismissal was effective September 2, 2011, and the refiling occurred outside the one-year period; the court affirmed the dismissal on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the one-year period under 516.230 starts from the filing date or the court's dismissal order. | Zinke argues the period starts from September 15, 2011 (order sustaining dismissal). | Orskog contends the period begins on September 2, 2011 (filing of dismissal). | The period starts at filing of the voluntary dismissal; the order is a nullity. |
Key Cases Cited
- Kirby v. Gaub, 75 S.W.3d 916 (Mo.App.S.D. 2002) (savings statute begins with effective voluntary dismissal; order later is mere administrator action)
- Rickner v. Golfinopoulos, 271 S.W.3d 32 (Mo.App.W.D. 2008) (voluntary dismissal effective on filing date despite later court order)
- Fuller v. Lynch, 896 S.W.2d 764 (Mo.App.W.D. 1995) (effective date of voluntary dismissal is filing date; dismissal may be followed by cost orders)
- Emigh Engineering Co., Inc. v. Rickhoff, 605 S.W.2d 173 (Mo.App.E.D. 1980) (permitted voluntary dismissal takes effect without court action)
- Garrison v. Jones, 557 S.W.2d 247 (Mo. 1977) (dismissal without prejudice prior to evidence is effective without court order)
- McKenzie, 754 S.W.2d 557 (Mo. 1988) (motion to dismiss treated as voluntary dismissal effective on filing)
- P.R. v. R.S., 950 S.W.2d 255 (Mo.App.E.D. 1997) (motion to dismiss without prejudice effective on filing; court order unnecessary)
- Applied Bank v. Wenzlick, 344 S.W.3d 229 (Mo.App.E.D. 2011) (motion for voluntary dismissal treated as Rule 67.02(a) dismissal)