Carolyn Holmes, Personal Representative for the Estate of Robert v. Holmes v. Union Pacific Railroad Co. ( 2020 )

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
CAROLYN HOLMES, Personal )
Representative for the Estate of )
ROBERT V. HOLMES, )
)
WD82867
Appellant, )
v. )
OPINION FILED:
)
June 9, 2020
)
UNION PACIFIC RAILROAD CO., )
)
Respondent. )
Appeal from the Circuit Court of Jackson County, Missouri
The Honorable Bryan E. Round, Judge
Before Division Two: Mark D. Pfeiffer, Presiding Judge, and
Alok Ahuja and Gary D. Witt, Judges
This case addresses the discretion afforded trial courts in responding to a party’s efforts to
substitute a party in an amended pleading. Here, where the trial court possessed actual knowledge
that Ms. Carolyn Holmes had, in fact, been appointed as the personal representative of her late
husband’s estate well before the trial court dismissed the petition for “lack of standing,”
immediately after the trial court’s dismissal ruling it was an abuse of discretion for the trial court
to refuse to allow Ms. Holmes to file her amended pleading to assert the fact that she had been
appointed as the personal representative and possessed the legal status necessary to pursue her late
husband’s FELA claim. Accordingly, we reverse and remand for further proceedings consistent
with our ruling today.
Factual and Procedural Background
Mr. Robert Holmes (“Mr. Holmes”) died on July 3, 2015. On April 29, 2018, his widow,
Ms. Carolyn Holmes (“Ms. Holmes”), filed a petition for damages for wrongful death under the
Federal Employers’ Liability Act (“FELA”), 45 U.S.C. §§ 51, et seq., against Mr. Holmes’s former
employer, Union Pacific Railroad Company (“Union Pacific”), in the Circuit Court of Jackson
County, Missouri (“circuit court”). Ms. Holmes’s FELA petition alleged that Mr. Holmes suffered
work-related toxic exposure that led to his death from lung cancer.
In the caption and the body of the petition, Ms. Holmes alleged that she was the personal
representative for her late husband’s estate. It was subsequently discovered during the course of
written discovery in December 2018 that Ms. Holmes, though the surviving spouse, had not yet
been appointed as the personal representative of her late husband’s estate.1 It is, however,
undisputed that an estate for the late Mr. Holmes was subsequently opened in March 2019 in the
Probate Division of the Circuit Court of Clay County, Missouri, Case No. 19CY-PR00252
(“probate court”), and it is likewise undisputed that the probate court issued Letters of
Administration in Mr. Holmes’s probate estate on April 9, 2019, appointing Ms. Holmes as the
personal representative of Mr. Holmes’s estate.
1
By way of affidavit dated December 21, 2018, counsel for Union Pacific averred that during his attempt to
obtain Mr. Holmes’s medical records, he discovered that letters of administration from an estate for Mr. Holmes had
not been issued declaring that Ms. Holmes was the personal representative and it hindered his ability to obtain medical
records. The same affidavit reflects that communications occurred between opposing counsel about the necessity to
open the estate and obtain the letters of administration, and Ms. Holmes’s counsel agreed that he would take steps to
open the estate and have Ms. Holmes appointed as personal representative. In fact, the estate was opened in March
2019 and letters of administration were issued appointing Ms. Holmes as the personal representative in April 2019.
In the interim, there was nothing prohibiting a subpoena duces tecum to obtain the medical records more promptly if
Union Pacific’s counsel felt that time was of the essence to obtain the subject deceased person’s records.
2
On December 21, 2018, Union Pacific moved to dismiss Ms. Holmes’s petition “under Mo.
R. Civ. Pro. 55.27(a)(1)” (i.e., lack of jurisdiction over the subject matter due to Ms. Holmes’s
alleged lack of “standing” to maintain the lawsuit) and relied upon pre-Webb2 precedent that
inappropriately conflated the concepts of a circuit court’s “authority” with its “jurisdiction” over
the subject matter. There were numerous disputes between the parties as to the timeliness of
Ms. Holmes’s response to Union Pacific’s motion to dismiss, culminating with the circuit court
declaring via order dated March 4, 2019, that all amended pleadings should be filed by April 3,
2019, and that it would take up the motion to dismiss at that time.
Prior to April 3, 2019, Ms. Holmes’s counsel notified the circuit court that Mr. Holmes’s
probate estate had been opened in the probate court and that letters of administration would be
forthcoming shortly. On April 9, 2019, the probate court issued the aforementioned letters of
administration and that order of the probate court was presented to the circuit court on the same
date along with a proposed amended pleading that did not change the nature or substance of the
FELA claim against Union Pacific, but rather only attached the procedural documentation (i.e.,
probate court order) to confirm Ms. Holmes’s status as personal representative of her late
husband’s estate, confirm that she had complied with the statutory prerequisite to suit, and thereby
confirm that she possessed the legal status necessary to proceed with the subject FELA claim.
The circuit court did not take up the motion to dismiss until April 29, 2019, some twenty
days after the circuit court had actual knowledge that Ms. Holmes had, in fact, been appointed
personal representative of her late husband’s estate by the probate court and, thus, possessed the
legal capacity to pursue the subject FELA claim on behalf of her late husband. The circuit court
refused to grant leave to amend the petition, refused to consider documentation provided by
2
J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009).
3
Ms. Holmes confirming her appointment by the probate court as personal representative,3 instead
considered Union Pacific’s affidavit attached to its motion to dismiss that presented evidence
outside Ms. Holmes’s wrongful death petition, and issued its order sustaining Union Pacific’s
motion to dismiss on the ground that Ms. Holmes “lacks standing to bring this cause of action”
and hence concluded that the circuit court lacked “jurisdiction” to permit the cause of action to
proceed.
After the circuit court’s order dismissing the case due to its perceived pleading deficiency
that Ms. Holmes lacked standing, Ms. Holmes immediately repeated her request for relief by
seeking leave of the circuit court to file her amended pleading “correcting” the circuit court’s
perceived pleading deficiency addressed in the circuit court’s dismissal ruling, but the circuit court
denied Ms. Holmes the opportunity to amend her pleading—which again, was akin to a
substitution of party plaintiff and not a substantive amendment to the original pleading. Final
judgment of dismissal4 was entered by the circuit court on June 25, 2019, and Ms. Holmes timely
appealed. On appeal, Ms. Holmes argues that the circuit court abused its discretion in refusing to
3
While the dissenting opinion chooses to join the circuit court in debating whether the probate court should
have issued an order appointing Ms. Holmes as the personal representative, no amount of debate on that topic can
change that fact in this lawsuit. And, in the probate case pending in Clay County, there has never been any objection
to Ms. Holmes’s appointment as the personal representative, a fact that the dissent ignores when it cites to inapposite
precedent with a completely different procedural posture, Estate of Mickels, 542 S.W.3d 311 (Mo. banc 2018), an
appeal addressing the probate court’s denial of an appointment of personal representative that was untimely requested.
Here, the circuit court is not the probate court, and the probate court granted Ms. Holmes’s request to be appointed
as personal representative with no objection. The simple fact is that the circuit court in this lawsuit cannot ignore the
fact that Ms. Holmes has been appointed as the personal representative of her late husband’s estate. If, on remand,
the circuit court wishes to collaterally attack the probate ruling of the probate court, refuse to accept the fact of
Ms. Holmes’s uncontested appointment by the probate court as personal representative of her late husband’s estate,
and chooses to dismiss the underlying case on that basis, then presumably on the next appeal it will be appropriate to
address the circuit court’s authority to collaterally attack another court’s ruling—particularly one that was made before
the circuit court in this lawsuit chose to ignore it.
4
Although the general rule prohibits appeal from a dismissal without prejudice, there are exceptions, the
application of which depends on “whether the dismissed party will be unable to maintain their action in the court
where the action was filed presuming the reason for dismissal was proper.” Palisades Collection, LLC v. Watson, 375
S.W.3d 857, 859-60 (Mo. App. W.D. 2012). Here, because the statute of limitations for Ms. Holmes’s FELA claim
would otherwise render her unable to maintain her action in the court where the action was filed, the judgment of
dismissal in this case had the effect of a final judgment for the purposes of appellate review.
4
permit her to amend her pleading both before and after the circuit court issued its dismissal ruling
on the basis of “lack of standing.”
Standard of Review
Though Ms. Holmes asserts error by the circuit court in refusing to permit her amended
pleading to be filed either before the circuit court’s dismissal or immediately after the dismissal
ruling, we find the latter dispositive and hence only address the circuit court’s discretion in refusing
to permit Ms. Holmes to amend her pleading immediately after the dismissal ruling of April 29,
2019.5 Both parties cite to Costa v. Allen, 274 S.W.3d 461 (Mo. banc 2009), and Rule 67.066 in
their appellate briefing to this court, and we agree that such rule and precedent are applicable here.
Rule 67.06 states:
“On sustaining a motion to dismiss a claim . . . the court shall freely grant leave
to amend and shall specify the time within which the amendment shall be made or
amended pleading filed. If the amended pleading is not filed within the time
allowed, final judgment of dismissal with prejudice shall be entered on motion
except in cases of excusable neglect; in which cases amendment shall be made
promptly by the party in default.
(Emphasis added.) The denial by a circuit court to grant leave to amend upon issuing a dismissal
ruling7 is reviewed for abuse of discretion. Dibrill v. Normandy Assocs., Inc., 383 S.W.3d 77, 92
(Mo. App. E.D. 2012). “In reviewing the trial court’s decision [to deny leave to amend], we look
5
The dissenting opinion fails to recognize the difference between the circuit court’s rulings before dismissal
(Rule 44.01) versus after dismissal (Rule 67.06) and focuses misplaced Rule 44.01(b) discussion on “excusable
neglect” which, for purposes of today’s appeal, is only relevant on the circuit court’s amended pleading rulings before
dismissal. But, our ruling today only addresses the circuit court’s discretion in refusing to permit an amended pleading
after dismissal. And, as much as the dissenting opinion attempts to mischaracterize the March 4, 2019, scheduling
order as a “dismissal” ruling contemplated by Rule 67.06, that scheduling order simply is not a dismissal ruling that
invokes the Rule 67.06 timeline standards. The dismissal ruling plainly did not occur until April 29, 2019. This
mischaracterization by the dissent is fatal to its application of Rule 67.06.
6
All rule references are to I MISSOURI COURT RULES—STATE 2020.
7
In the introductory and concluding paragraphs of the dissenting opinion, the dissent refers to Ms. Holmes’s
failure to challenge “the circuit court’s dismissal order” or indicating “respect [for] my colleagues’ reluctance to affirm
the circuit court’s judgment dismissing Holmes’s petition.” But, as we explain in the majority opinion, entering the
“dismissal order” is not the point of Rule 67.06 or Costa v. Allen or this appeal. What we are addressing in this appeal
is the abuse of discretion by the circuit court in refusing to grant Rule 67.06 relief to Ms. Holmes after the “dismissal
order” was entered. Failing to recognize this distinction is where the majority and dissenting opinions diverge.
5
to see whether justice is furthered or subverted by the course taken.” Tisch v. DST Sys., Inc., 368
S.W.3d 245, 257 (Mo. App. W.D. 2012) (quoting Kenley v. J.E. Jones Constr. Co., 870 S.W.3d
494, 498 (Mo. App. E.D. 1994)).
Factors to be considered in determining whether the trial court erred in denying
leave to amend include: (1) the hardship to the moving party if leave to amend is
denied; (2) the moving party’s reasons for omitting the matter from the original
pleading; and (3) any injustice that would result to the nonmoving party were leave
to amend granted.
Id.
Analysis
The Underlying Judgment
Though Ms. Holmes has not challenged the substantive basis for the circuit court’s
dismissal ruling on appeal, it bears some relation to whether justice is being “furthered or
subverted” if this dismissal ruling is permitted to stand.8 And, though the circuit court may have
had some justified frustration with Ms. Holmes’s counsel and his dilatory shortcomings related to
the rules of procedure and the circuit court’s previous scheduling orders leading up to its dismissal
ruling, the circuit court also chose to ignore rules of procedure and case precedent in maneuvering
its way to punishing the litigant for the sins of the attorney.
First, this was a motion to dismiss—not a motion for summary judgment. This is a
distinction with a difference under our rules of procedure:
8
The dissent ignores the affirmative steps Ms. Holmes took to establish her capacity to sue before the
dismissal ruling was issued by the circuit court and criticizes Ms. Holmes for failing to challenge the substantive basis
of the dismissal ruling after it was entered. However, as we explain in today’s ruling, it does not matter that the circuit
court mistakenly considered Ms. Holmes’s status as personal representative a “standing” issue—for, Ms. Holmes had
provided evidence of her personal representative appointment to the circuit court before the dismissal ruling and
should have been permitted to amend her pleadings “in form only” after the dismissal ruling. Contrary to the assertion
of the dissenting opinion, when analyzing the discretion of circuit courts, the issue of “justice” is never waived; instead,
we must “look to see whether justice is furthered or subverted” by the court’s exercise of its discretion. In that light,
it is relevant to our discussion that the circuit court should never have entertained the subject motion to dismiss in the
manner that it did, let alone grant it.
6
In ruling on a motion to dismiss, the trial court can only consider the pleadings, and
appellate review is also limited to the pleadings. If the court considers matters
outside the pleadings, Rule 55.27(a) allows a motion to dismiss to be converted into
a motion for summary judgment if certain procedures are followed.
....
Before a trial court may treat a motion to dismiss as a motion for summary
judgment, however, it must notify the parties that it is going to do so and give the
parties an opportunity to present all materials pertinent to a motion for summary
judgment. Where there is no evidence that the court notified the parties that it
intended to treat the motion as a request for summary judgment or consider matters
outside the pleadings it will be treated as a motion to dismiss.
Cmty. Treatment, Inc. v. Mo. Comm’n on Human Rights, 561 S.W.3d 107, 111-12 (Mo. App. W.D.
2018) (citation omitted) (internal quotation marks omitted).
Here, the original wrongful death FELA petition filed by Ms. Holmes alleged that she was
the personal representative. Though Union Pacific presented affidavit “testimony” that this
statement of fact was untrue (at that time), Union Pacific did not file a motion for summary
judgment; rather, Union Pacific filed a motion to dismiss. Union Pacific never requested that the
circuit court convert the motion to dismiss to a motion for summary judgment. Similarly, the
circuit court never notified the parties that it would treat the motion to dismiss as a motion for
summary judgment and never notified Ms. Holmes that she would have the opportunity to present
any counter-affidavit or evidence to confirm her status as the personal representative of her late
husband’s estate prior to the circuit court’s dismissal ruling.
Given this record, the circuit court should have reviewed the pleading and only considered
the pleading; for, “[t]he determination of factual questions is not appropriate on a motion to
dismiss.” Cmty. Treatment, Inc., 561 S.W.3d at 111. And, the circuit court must assume all facts
alleged in the petition are true. Avery Contracting, LLC v. Niehaus, 492 S.W.3d 159, 162 (Mo.
7
banc 2016). The underlying judgment by the circuit court plainly failed to review the motion to
dismiss under the correct lens of factual review.9
Next, and importantly, both Union Pacific and the circuit court erroneously treated
Ms. Holmes’s capacity to sue as the personal representative of her late husband’s estate as an issue
of standing and compounded that mistake of law by conflating the concept of a circuit court’s
“authority” versus its “jurisdiction” and ultimately concluded that a statutory prerequisite to suit
(i.e., Ms. Holmes’s personal representative status) was a matter of subject matter jurisdiction. In
so doing, both Union Pacific and the circuit court cited to pre-Webb precedent relevant to issues
of “standing” and its impact upon “jurisdiction,” Bird v. Weinstock, 864 S.W.2d 376, 380 (Mo.
App. E.D. 1993) (“If a party lacks standing sufficient to maintain the action and therefore has no
right to relief, the court necessarily lacks jurisdiction of the question presented and cannot enter
judgment on the matter.”); W. Cas. & Sur. Co. v. Kansas City Bank & Trust Co., 743 S.W.2d 578,
580 (Mo. App. W.D. 1988) (stating that if a party lacks standing, then its petition is subject to
dismissal because it fails to establish the requisite subject matter jurisdiction),10 and failed to
recognize that Ms. Holmes’s status as personal representative (or not) has nothing to do with her
standing to sue in the instant proceeding; rather, it only impacts her capacity to sue. And, in point
of fact, Union Pacific has never asserted the affirmative defense of Ms. Holmes’s lack of capacity
9
The dissent asserts that where parties fail to object to the circuit court considering matters outside the
pleadings, the issue is considered waived. However, here, by Ms. Holmes asserting a right to have her own “matters
outside the pleadings” considered by the circuit court, the procedural scenario in this case is unlike any cited by the
dissent, and Ms. Holmes’s efforts below to seek the circuit court’s consideration of the probate court’s order is
tantamount to an objection to the circuit court’s disregard of all the relevant facts that had bearing upon Ms. Holmes’s
legal status to pursue the underlying FELA claim on behalf of her deceased husband.
10
As J.C.W. ex rel. Webb v. Wyciskilla, 275 S.W.3d 249, 254 (Mo. banc 2009), teaches us, these cases should
no longer be cited for the premise that a court’s lack of “authority” to hear a dispute equates with a lack of “subject
matter jurisdiction.” As we have recently noted, statutory prerequisites to filing suit “do not have any impact upon a
circuit court’s subject matter jurisdiction. . . . Statutory prerequisites to suit are not elements to a lawsuit; . . . [and]
are not jurisdictional pleading requirements, at least not since the Webb ruling.” McDonald v. Chamber of Commerce,
581 S.W.3d 110, 115-16 (Mo. App. W.D. 2019). And, as we discuss further in today’s ruling, since the real question
is Ms. Holmes’s capacity to sue and that issue has never been raised by Union Pacific, Union Pacific has—at present—
waived that issue for review both with the circuit court and this court.
8
to sue nor raised it by way of motion asserting such defense pursuant to Rule 55.27(g)(1). Again,
this is an important distinction.
We find City of Wellston v. SBC Communications, Inc., 203 S.W.3d 189 (Mo. banc 2006),
and its progeny instructive:
First, the trial court was incorrect that failure to bring suit in the name of
[the entity legally authorized to bring suit] goes to [plaintiff’s] standing to sue. The
alleged error is not one of standing but of whether [plaintiff] had the capacity to
sue . . . :
Capacity to sue refers to the status of a person or group as an entity
that can sue or be sued, and is not dependent on the character of the
specific claim alleged in the lawsuit. . . .
Standing to sue evaluates the sufficiency of a plaintiff’s interest, in
the subject of the lawsuit. It is a concept used to ascertain if a party
is sufficiently affected by the conduct complained of in the suit, so
as to insure that a justiciable controversy is before the court . . . .
Objections to standing, unlike objections based on the real party in
interest rule, cannot be waived . . . .
Id. at 193 (quoting 15 MISSOURI PRACTICE Civil Rules Practice § 52.01-2 (Mary Coffey ed., 2d
ed. 1997)).
“The distinction between capacity to sue and standing to sue is important because a claim
that a party does not have capacity to sue can be waived or avoided by amendment of the pleadings,
while a claim that a party does not have standing to sue cannot be waived.” In Their Representative
Capacity as Trustees for Indian Springs Owners v. Greeves, 277 S.W.3d 793, 797 (Mo. App. E.D.
2009) (emphasis added) (citing to City of Wellston, 203 S.W.3d at 193).
Rule 55.13 provides that when a defendant desires to raise an issue as to the legal
existence of a party, or the capacity of a party to sue, the defendant “shall do so by
specific negative averment, which shall include such supporting particulars as are
peculiarly within the pleader’s knowledge.” Rule 55.27(g)(1) provides that the
defense that the plaintiff does not have legal capacity to sue is waived if it is neither
made in a motion nor included in a responsive pleading.
Midwestern Health Mgmt. v. Walker, 208 S.W.3d 295, 298 (Mo. App. W.D. 2006).
9
Conversely, the Missouri Rules of Civil Procedure clearly provide that “[m]isjoinder of
parties is not ground for dismissal of an action. Parties may be dropped or added by order of the
court on motion of any party or on its own initiative at any stage of the action and on such terms
as are just.” Rule 52.06. Hence, “Rule 52.06 clearly permits substitution of the proper party
plaintiff where suit has been brought in the wrong name, whenever the issue becomes known[.]”
City of Wellston, 203 S.W.3d at 194.
Here, there is no dispute between the parties that the FELA statute clearly identifies the
entity that possesses the capacity to sue in the present controversy:
Every common carrier by railroad while engaging in commerce between any of the
several States . . . , shall be liable in damages to any person suffering injury while
he is employed by such carrier in such commerce, or, in case of the death of such
employee, to his or her personal representative, for the benefit of the surviving
widow or husband and children of such employee; . . . for such injury or death
resulting in whole or in part from the negligence of any of the officers, agents, or
employees of such carrier, or by reason of any defect or insufficiency, due to its
negligence, in its cars, engines, appliances, machinery, track, roadbed, works,
boats, wharves, or other equipment.
45 U.S.C. § 51 (emphasis added); Mo., Kan. & Tex. Ry. Co. v. Wulf, 226 U.S. 570, 576 (1913)
(noting that under FELA, the plaintiff could not “maintain the action except as personal
representative”).
Here, however, in its gatekeeper role,11 the circuit court had actual knowledge as of
March 25, 2019, that the probate estate had been opened and Ms. Holmes’s appointment as
personal representative was imminent; further, the circuit court had actual knowledge as of April 9,
2019, that Ms. Holmes had been appointed by the probate court as the personal representative of
her late husband’s estate and hence possessed the legal capacity to pursue her late husband’s FELA
11
Should the issue of Ms. Holmes’s capacity to sue ever be properly challenged by Union Pacific, such issue
is an issue for the court, not the jury, to resolve.
10
claim. The circuit court knew these undisputed facts well before the circuit court decided to
dismiss Ms. Holmes’s claim on the erroneous basis that she lacked standing on April 29, 2019.
Hence, even though Union Pacific has never raised the affirmative defense of lack of
capacity to sue by way of a Rule 55.27(g)(1) motion or a responsive pleading with a corresponding
motion for summary judgment, and the circuit court possessed no authority to take up the issue of
Ms. Holmes’s capacity to sue absent such motion or responsive pleading, the circuit court not only
took up the issue but erroneously labeled the issue as one involving Ms. Holmes’s standing to sue.
Hence, were we to permit the underlying judgment of dismissal to stand, we question
whether the procedural and substantive merits of the underlying dismissal ruling could, in good
faith, be deemed to promote the ends of justice.
Discretionary Factors
Applying the discretionary factors to the circuit court’s refusal to permit Rule 67.06 relief
to Ms. Holmes when she provided the circuit court an amended pleading “correcting” what the
circuit court had concluded was a pleading defect both before and immediately after the circuit
court’s dismissal ruling leads us to conclude that justice is not furthered by permitting the circuit
court’s ruling to stand.
Here, Ms. Holmes will be forever barred from pursuing her late husband’s FELA claim if
she is not permitted to file her amended pleading, which effectively serves as nothing more than a
substitution of party plaintiff; Union Pacific will suffer little to no prejudice by permitting
Ms. Holmes to amend her pleadings as the amended pleading is nothing more than a form, not
substantive, amendment; and the gatekeeper issue in question (i.e., capacity to sue) is more of a
legal question for the courts than a pleading requirement, so there is some question whether
Ms. Holmes was even required to plead her personal representative status. What is important to
11
the means of justice is that Ms. Holmes has, in fact, demonstrated her capacity to sue—and she
did so prior to the circuit court’s erroneous dismissal ruling on the basis of standing to sue.
Our Tisch v. DST Systems, Inc. factor analysis, thus, leads us to conclude that justice is
subverted by the circuit court refusing to permit a simple “form not substance” amendment to her
pleading upon the circuit court’s dismissal ruling. “Missouri law favors disposition of a case on
the merits when possible, and care must be given by trial courts to issue their rulings in a manner
that serves the ends of justice.” Molder v. Trammell Crow Servs., Inc., 309 S.W.3d 837, 840 (Mo.
App. W.D. 2010) (citation omitted). “We are mindful that trial courts must be able to control and
expedite their dockets. But it is of greater importance that the court’s work should be done with
care and discernment and that [the court] should be ever diligent and zealous in [its] unremitting
efforts to attain the ends of justice.” Peet v. Randolph, 103 S.W.3d 872, 877 (Mo. App. E.D. 2003)
(internal quotation marks omitted). “This is because the purpose of all courts is to do justice, and
justice is best served when all litigants have a chance to be heard.” Id. at 877-78 (internal quotation
marks omitted).12
Simply put, Rule 67.06 mandates that “[o]n sustaining a motion to dismiss a claim13 . . .
the court shall freely grant leave to amend.” Rule 67.06 (emphasis added). The general
12
Of note, in Union Pacific’s supplemental appendix, it provided this Court rulings from numerous other
federal district court cases that had addressed similar issues from identical toxic exposure FELA claims against Union
Pacific as those presented in the underlying lawsuit. In almost all of the rulings related to those federal court cases,
we discern that similar to our ruling today, the federal district courts in those FELA claims noted that “the issue
[amending a pleading to denote personal representative status] is one of form rather than substance. The record shows
that the plaintiff has now been appointed personal representative of the decedent’s estate. The amendment will not
prejudice [Union Pacific] because it has been on notice of the claim since its inception. The plaintiff’s claim is a type
of claim—exposure to toxic chemicals in the workplace—of which [Union Pacific] is surely familiar.” Resp’t App.
p. A24. Likewise, though some of the federal judicial rulings imposed monetary sanctions upon the plaintiff for the
delay in obtaining the personal representative probate order, those same courts also justified sanction over dismissal
of the pleading in that “dismissal is a harsh outcome, particularly where, as in this case, the statute of limitations will
impose a bar to re-filing.” Resp’t App. p. A44. The dissent cites to the one instance where, after the plaintiff was
afforded relief similar to Rule 67.06 from Missouri’s rules of civil procedure but failed to meet the court-imposed
timeline standard, then and only then was the action dismissed.
13
Herein lies the fatal defect in Union Pacific’s argument on appeal and the dissenting opinion as it relates
to Costa v. Allen, 274 S.W.3d 461 (Mo. banc 2008). Both Union Pacific and the dissent take the approach that the
12
application of Rule 67.06 is that “[o]rdinarily when a first pleading is ruled to be insufficient in a
trial court, the party is afforded a reasonable time to file an amended pleading if desired.” Costa
v. Allen, 274 S.W.3d 461, 463-64 (Mo. banc 2008) (internal quotation marks omitted).
Here, like Costa, the present lawsuit is in the early stages of the litigation. Here, like Costa,
after the trial court’s ruling dismissing Ms. Holmes’s first pleading, Ms. Holmes immediately
sought relief from the circuit court to file an amended pleading. But here, unlike Costa,
Ms. Holmes took the additional affirmative step to provide the circuit court with a proposed
amended pleading that addressed the circuit court’s concern as to her legal status as a personal
representative for her late husband’s estate—by attaching as an exhibit to such amended pleading
the probate court order appointing her as the personal representative. Ms. Holmes never sought to
add new claims or change the nature of her underlying FELA claim; instead, she only sought to
clarify that she was wearing the appropriate “litigation hat” to authorize her to pursue the same
FELA claim that she had always made on behalf of her late husband against Union Pacific. Under
these circumstances, it was an abuse of discretion to refuse to permit Ms. Holmes to amend her
pleading by way of “form” and not “substance.” See also Asmus v. Capital Region Family
Practice, 115 S.W.3d 427, 433-34 (Mo. App. W.D. 2003) (holding court’s refusal to allow
pleading amendment that was nothing more than a substitution of party plaintiff was an abuse of
discretion).
March 4, 2019 order of the circuit court served as a dismissal ruling; it did not. The first dismissal of this proceeding
occurred on April 29, 2019, twenty days after the circuit court had been made aware that Ms. Holmes was, in fact, the
personal representative of her late husband’s estate. Likewise, though the dissent quotes extensively from the case of
Sheffield v. Matlock, 587 S.W.3d 723 (Mo. App. S.D. 2019), the dissent fails to mention that the proposed amended
pleading in Sheffield was an attempt by the plaintiff to add new claims and change the nature of the pleadings after
extensive discovery had been conducted relating to the original claims asserted. That is not the factual or procedural
scenario in the present case—where Ms. Holmes is not changing the nature or type of claim that she is presenting and
is merely “correcting” the perceived pleading deficiency relating to her original claim, precisely the type of amended
pleading that Costa v. Allen found to be a clear abuse of discretion for a trial court to refuse to permit pursuant to
Rule 67.06. The dissent fails to cite a case that rebuts Costa v. Allen and Sheffield (a Southern District opinion)
certainly does not purport to overrule the authority of Costa v. Allen (a Missouri Supreme Court case).
13
FELA Precedent
It has also not been lost on our analysis today that, “[a]s a general matter, FELA cases
adjudicated in state courts are subject to state procedural rules, but the substantive law governing
them is federal.” St. Louis Sw. Ry. v. Dickerson, 470 U.S. 409, 411 (1985). “FELA was designed
to be a broad, remedial statute, eliminating several common-law tort defenses and providing liberal
recovery for injured workers.” Griffin v. Dakota, Minn. & E. R.R. Corp., 551 S.W.3d 578, 582
(Mo. App. W.D. 2018) (internal quotation marks omitted). The United States Supreme Court has
“liberally construed FELA to further Congress’[s] remedial goal.” Consol. Rail Corp. v. Gottshall,
512 U.S. 532, 543 (1994).
“In [Missouri, Kansas & Texas Railway Co. v. Wulf, 226 U.S. 570, 576 (1913),] the action
had been instituted by the mother of the deceased as his sole heir, and subsequently [i.e.,
approximately two years later]14 she was appointed administratrix and was made a party plaintiff.”
Drakopulos v. Biddle, 231 S.W. 924, 926 (Mo. 1921). “The action in that case was under the
[F]ederal Employers’ Liability Act, where the action could only be maintained by the personal
representative of the deceased. The substitution was approved, and it was ruled that the
substitution did not change the cause of action.” Id. The Wulf court ruled that the amendment was
not equivalent to the commencement of a new cause of action nor did it set up any different state
of facts as grounds for the action, but rather was a change in form not substance, and thus, it would
not be subject to the statute of limitations of FELA, but rather would relate back to the beginning
of the suit. 226 U.S. at 576.
14
The dissenting opinion asserts that Union Pacific has suffered prejudice due to the four-month delay in
Ms. Holmes’s appointment as personal representative. Irrespective, a four-month delay is hardly comparable to the
two-year delay (of appointment of the widow as personal representative of her late husband’s estate) in Wulf that the
Supreme Court of the United States found no prejudice to exist—due to the simple fact that the substitution of
“personal representative” for “surviving widow” was nothing more than a change in form not substance of the
underlying FELA claim. We believe the prejudice analysis of the United States Supreme Court is more compelling
than that of the dissenting opinion.
14
The same result is proper here. On remand, the circuit court is instructed to permit
Ms. Holmes to file her amended pleading, and her appointment as personal representative shall be
deemed to relate back to the original pleading filed in the underlying FELA wrongful death claim.
Conclusion
The circuit court’s judgment of dismissal is vacated, and the cause is remanded for further
proceedings consistent with our ruling today.
/s/ Mark D. Pfeiffer
Mark D. Pfeiffer, Presiding Judge
Gary D. Witt, Judge, concurs.
Alok Ahuja, Judge, dissents separately.
15
IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
CAROLYN HOLMES, Personal )
Representative for the
Estate of )
ROBERT V. HOLMES, )
Appellant, ) WD82867
)
v. ) FILED: June 9, 2020
)
UNION PACIFIC RAILROAD CO., )
Respondent. )
DISSENTING OPINION
I respectfully dissent. Because Carolyn Holmes does not challenge on appeal
each of the grounds underlying the circuit court’s dismissal order, and because the
circuit court acted within its discretion in refusing to grant Holmes leave to amend
her petition out of time, I would affirm the circuit court’s judgment. I cannot join
the majority opinion for the further reason that it justifies reversal based on at least
two arguments which Holmes has never made, either in the circuit court or on
appeal. It is inappropriate for this Court to act as Holmes’ advocate, raise non-
jurisdictional arguments which she has plainly waived, and base reversal on issues
which neither the respondent nor the circuit court has had the opportunity to
address.
Time Bar on Appointment as Personal Representative
I begin with an issue Holmes’ briefing wholly ignores. In the circuit court’s
dismissal order, the court observed that Holmes would be time-barred from
obtaining letters of administration, given that her husband had died in 2015:
Under Missouri law, the statute of limitations to apply for
appointment as a personal representative is one year after the date of
the death of decedent. Mo. Rev. Stat. § 473.020. However, under
section 537.021.1,
“[t]he existence of a cause of action. . . for wrongful death
. . . shall authorize and require the appointment by a
probate division of the circuit court of:
(1) A personal representative of the estate . . .
and such appointment in only those cases involving los[t]
chance of recovery or survival shall be made
notwithstanding the time specified in section 473.050 for
the exclusive purpose of pursuing a cause of action related
to such injury or wrongful death . . .
Here, over one year has passed since decedent’s death.
It appears that the circuit court was correct in concluding that Holmes had
one year in which to seek appointment as personal representative. In Estate of
Mickels, 542 S.W.3d 311 (Mo. 2018), the Missouri Supreme Court affirmed the
denial of letters of administration sought by a widow more than one year after her
husband’s death; the widow had sought a belated appointment as personal
representative so that she could prosecute a survival action on her deceased
husband’s behalf. The Court held that “Section 473.020 is clear: applications for
the appointment of a personal representative must be filed within one year after the
death of the decedent.” Id. at 314-15. The Court emphasized that “[t]he only
exception to this statute of limitations applies to claims of lost chance of recovery or
survival.” Id. at 315 n.7 (citation and internal quotation marks omitted). “This
Court cannot disregard the firm limitation on when personal representatives may
be appointed in favor of a judicially created equitable exception, no matter how
compelling the argument or how narrowly tailored the exception.” Id. at 315. In
this case, the claim Holmes seeks to prosecute is not one for “lost chance of recovery
or survival,” and therefore the statutory exception to the time bar in § 473.020,
RSMo, does not appear to be applicable.
2
Although the circuit court’s dismissal order reasoned that any appointment of
a personal representative for Robert Holmes’ estate would now be time-barred,
Holmes’ briefing on appeal does not even address the issue. She does not argue:
that the circuit court’s reading of the relevant statutes was erroneous; that the
court’s discussion of the one-year time bar was not an independent basis for its
dismissal order; or that the Clay County Circuit Court’s issuance of letters of
administration, almost four years after Robert Holmes’ death, could not be
collaterally challenged as untimely in this wrongful death proceeding.1
To the extent that the circuit court’s dismissal order was based in part on the
fact that Holmes was time-barred from seeking appointment as the personal
representative of her late husband’s estate, Holmes’ failure to challenge that legal
determination, standing alone, mandates affirmance. See, e.g., KDW Staffing, LLC
v. Grove Constr., LLC, 584 S.W.3d 833, 838 (Mo. App. W.D. 2019) (“‘Failure to
challenge on appeal all articulated grounds for the court's ruling is fatal to the
success of the appeal.’” (citations omitted)); Knight v. Con-Agra Foods, Inc., 476
S.W.3d 355, 358 (Mo. App. W.D. 2015) (“if a trial court or administrative agency
relies on multiple, independently sufficient grounds in issuing an adverse ruling,
the appellant must challenge each of those independent grounds of decision”); City
1 Particularly since the issue has not been briefed by the parties, it is unclear
to me whether an untimely appointment of a personal representative could be challenged in
this FELA action. A treatise on Missouri probate law states that “[a] mere irregularity in
the appointment of a personal representative that does not render his appointment totally
void, does not make a proceeding for sale instituted by him subject to collateral attack. If,
however, the whole record affirmatively shows that the appointment was wholly void, . . . it
has been held that the proceeding was void.” 5B John A. Borron, MO. PRACTICE, PROBATE
LAW & PRACTICE § 1103 (2020) (footnotes omitted). It may be that Union Pacific was
entitled (and may yet be entitled) to seek revocation of the letters of administration issued
to Holmes in the probate division of the Clay County Circuit Court. See, e.g., In re Dugan’s
Est., 309 S.W.2d 137, 140-41 (Mo. App. 1957).
3
of Peculiar v. Hunt Martin Materials, LLC, 274 S.W.3d 588, 591 (Mo. App. W.D.
2009).2
Factual Background
To review the circuit court’s discretionary ruling refusing to allow Holmes to
amend her petition out of time, we must begin with a full understanding of the
course of proceedings in the circuit court. The full factual context reflects that
Holmes’ counsel was well aware of the need for Holmes to be appointed as the
personal representative of her deceased husband’s estate, months before the circuit
court gave her thirty days in which to secure that appointment. Holmes falsely
represented – on multiple occasions – that she was in fact her husband’s duly
appointed personal representative. When those representations were challenged,
her counsel made multiple unfulfilled promises to obtain an appointment. She
offered the circuit court no explanation, much less a credible explanation, for her
failure to even apply for appointment as personal representative until eleven
months after her suit was filed, and just 10 days before the court’s thirty-day
deadline expired. Holmes’ unjustified delay in obtaining appointment as personal
representative prevented Union Pacific from gaining timely access to her deceased
husband’s medical records, and threatened to upend the schedule established in the
circuit court’s case management order. Given these factual circumstances, the
circuit court could – in its discretion – find that Holmes had failed to exercise
reasonable diligence to secure letters of administration, and that she had not
demonstrated excusable neglect sufficient to justify an extension of the court’s
thirty-day deadline.
2 I recognize that Holmes’ appeal challenges the circuit court’s refusal to
permit her to amend her petition out of time, and does not directly challenge the circuit
court’s dismissal ruling. But Holmes only sought leave to amend in order to allege that she
had been belatedly appointed as the personal representative of her husband’s estate. If no
such appointment could be legally effective (as the circuit court concluded in its dismissal
order), then denying Holmes leave to amend becomes a moot point.
4
When she filed her petition, Holmes was plainly aware that only the personal
representative of a deceased railroad worker’s estate is entitled to prosecute a
wrongful-death claim under the Federal Employers’ Liability Act, 45 U.S.C. § 51
(the “FELA”). Holmes filed a Petition for Damages, alleging that Union Pacific was
liable for her husband’s death from lung cancer under the FELA, on April 29, 2018
– a full year before the circuit court entered its order denying her leave to amend
her petition out-of-time. The caption of Holmes’ Petition identifies her – falsely – as
“Personal Representative for the Estate of Robert V. Holmes,” and the body of the
petition repeats that false allegation twice more.
The record reflects that Holmes’ counsel was aware, well before this suit was
even filed, that a FELA wrongful death claim must be prosecuted by the decedent’s
personal representative. In her opposition to Union Pacific’s Motion to Dismiss,
Holmes informed the circuit court that her counsel had litigated this precise issue in
at least two other FELA wrongful-death cases brought against Union Pacific.3 In
its briefing on the Motion to Dismiss, Union Pacific advised the circuit court that
“this is at least the sixth case filed by Holmes’ counsel in which he failed to comply”
with the requirement that a FELA wrongful-death plaintiff be appointed as the
decedent’s personal representative.
After conducting a case management conference with counsel on November 5,
2018, the circuit court entered a Scheduling Order which set the case for a five-day
jury trial beginning January 13, 2020. The Scheduling Order provided that
“[p]arties will be added/pleadings amended no later than 12/7/18.” The Scheduling
Order also set deadlines for expert designations, dispositive motions, and the
completion of discovery.
3 Holmes cited the circuit court to West v. Union Pac. R.R. Co., No. 8:17-CV-36,
2017 U.S. Dist. LEXIS 153699 (D. Neb. Sept. 12, 2017), and Tindall v. Union Pac. R.R. Co.,
No. 17-1221 & 17-1222, 2017 WL 4155428 (C.D. Ill. Sept. 19, 2017).
5
Union Pacific propounded interrogatories and requests for production of
documents on Holmes on August 17, 2018. In response, on October 23, 2018, Union
Pacific obtained authorizations from Holmes for the release of her husband’s
medical records. According to an affidavit of Union Pacific’s counsel, Holmes
“signed those releases in the capacity of the personal representative of the estate of
Robert Holmes.” As Union Pacific’s counsel sought to use the authorizations
Holmes had executed, “at least one medical provider . . . requested that copies of the
letters of administration establishing that plaintiff is in fact the personal
representative be provided.” Union Pacific’s counsel sent an e-mail to Holmes’
counsel on November 26, 2018, requesting that Holmes’ counsel provide the letters
of administration, and explaining that the lack of these letters was preventing
Union Pacific from conducting necessary pretrial investigation:
I do not believe that you have yet produced the letters of
administration in this case. Can you please provide them promptly?
Because of difficulties in obtaining records, we will have to file a
motion if I do not receive the letters soon.
Holmes’ counsel responded on November 28, 2018. Notably, in that response
Holmes’ counsel: (1) acknowledged that Holmes had not yet been appointed
personal representative (contrary to the representations in her Petition and in the
authorizations for release of medical records); (2) advised Union Pacific’s counsel
that Holmes would be petitioning for appointment; and (3) recognized that the lack
of such an appointment would serve as the basis for a motion to dismiss. Holmes’
counsel’s November 28, 2018, response reads:
No official estate has been opened. Missouri allows estates to be
opened for 2 years after death.[4] FELA allows for claims three years
4 It is unclear why Holmes’ counsel considered it to be helpful that “Missouri
law allows estates to be opened for 2 years after death.” According to the Petition, Robert
Holmes died on July 3, 2015 – more than three years before counsel’s e-mail. Moreover, as
explained above, it appears that counsel was mistaken concerning the time allowed for
6
after death. We are going to petition the Court but I know you have to
file a Motion to Dismiss.
Although Holmes’ counsel promised on November 28, 2018, that “[w]e are
going to petition the Court” for letters of administration appointing Holmes as
personal representative of her deceased husband’s estate, the record does not
indicate that Holmes did anything to secure such an appointment for the next four
months. Holmes’ inaction is particularly glaring given that her counsel had
acknowledged that the lack of a valid appointment could serve as the basis for
dismissal of the action, and was aware that the lack of a valid appointment was
preventing Union Pacific from obtaining medical records critical to its investigation
and defense of the case. Moreover, Holmes’ inaction must be evaluated in light of
the circuit court’s Scheduling Order, which provided that “[p]arties will be
added/pleadings amended no later than 12/7/18.”
Union Pacific moved to dismiss Holmes’ Petition for Damages for lack of
standing on December 21, 2018. In its motion, Union Pacific argued that Holmes
lacked standing to prosecute a FELA wrongful death claim because she “was not
validly appointed as the personal representative of Robert V. Holmes’ estate at the
time that this action commenced. Nor has she since been validly appointed.”
Under 16th Circuit Local Rule 33.5.1, Holmes’ opposition to the Motion to
Dismiss was due ten days after the motion was filed. Holmes filed no timely
opposition. Instead, on January 25, 2019, Holmes filed a motion for leave to file her
opposition to the Motion to Dismiss out of time. In her motion for leave, Holmes
alleged that her counsel “logged the response as being due on January 20, 2019,”
and “had no inkling that the response date was actually December 31, 2018,” until
the court’s law clerk e-mailed counsel on January 11, “questioning if the Plaintiff
appointment: Missouri statutes apparently require that an appointment be made within
one year of the decedent’s passing, not two.
7
was going to file a response.” Holmes did not explain why she waited until January
25 – fourteen days after the court’s inquiry – to file her motion for leave to respond
out of time (particularly since counsel had purportedly calendared January 20th as
his response deadline). On February 28, 2019, the circuit court granted Holmes’
motion to file her opposition to the Motion to Dismiss out of time, “despite Plaintiff’s
inability to identify and abide by local rule.”
Despite the majority’s focus on these issues, Holmes’ belated opposition to the
Motion to Dismiss did not argue that Union Pacific was raising an issue of capacity
to sue, which it had waived by failing to plead; nor did she object to the fact that
Union Pacific’s dismissal motion referred to matters outside the pleadings. Holmes’
opposition did not dispute (1) that she had not yet been appointed as the personal
representative of her late husband’s estate; or (2) that such an appointment was
required under 45 U.S.C. § 51. Instead, Holmes argued only that she should be
given an opportunity to cure the defect in her petition, and that her belated
appointment would relate back to the date on which the petition was filed:
Instantly, Mrs. Holmes will formalize her position as the
Administratrix of the Estate and her appointment as Administratrix
should relate back under Rule 55.33(c) which mirrors Federal Rule
15(c) which was, in pertinent part, adopted by Missouri. Or, in the
alternative, this Court should allow a filing of an Amended Complaint
to more specifically plead the capacity to sue that, pursuant to FELA
and the Supreme Court’s interpretation thereof, will relate back to the
original date of filing.
....
Plaintiff, if leave is granted, and a reasonable time allowed, will
perfect her status as Representative of the Estate. If the Court so
requires, an Amended Complaint will then be filed that will set forth
neither new facts regarding the cause of action nor a different type of
cause of action, the Plaintiff will merely set forth the fact that she is
indeed the personal representative of the Estate in sufficient detail so
as to satisfy the Defendant.
8
Although Holmes’ belated opposition to the Motion to Dismiss stated that she
would seek appointment as personal representative “instantly,” she apparently did
nothing to obtain such an appointment for the next two months.
In an order entered on March 4, 2019, the circuit court accepted Holmes’
suggestion that she be granted “a reasonable time . . . [to] perfect her status as
Representative of the Estate.” The March 4th order states that
[t]he Court, being duly advised in the premises, having reviewed
[Union Pacific’s Motion to Dismiss], Plaintiff’s Suggestions in
Opposition, filed January 28, 2019, and Defendant’s Reply, filed
January 30, 2019, shall stay this Motion, pending a thirty (30) day
time period, from the date of this Order, for Plaintiff to file an
amended petition with all claims conforming to Missouri and Local
Rule. Following the conclusion of the thirty (30) days, the Court will
consider all plead[ed] matters, as it relates to the motion to dismiss.
Thus, although the circuit court’s Scheduling Order had specified that
“[p]arties will be added/pleadings amended no later than 12/7/18,” the court granted
Holmes until April 3, 2019 – almost four months beyond the original deadline – in
which to perfect her status as her deceased husband’s personal representative, and
file an amended petition reflecting that appointment.
Holmes did not file an amended petition, or secure her appointment as
personal representative, by the court’s April 3, 2019 deadline. Instead, on April 10,
2019, she filed a Motion to File her Amended Petition Out of Time. In that motion,
Holmes acknowledged that she was required under Rule 44.01(b) to establish
“excusable neglect” for her failure to file an amended petition by April 3rd. To
establish such “excusable neglect,” Holmes alleged that, “[o]n March 25, 2019,
Plaintiff, Carolyn S. Holmes filed her Application for Letters of Administration with
the 7th Judicial District Circuit for Clay County.” Holmes alleged, however, that
the Clay County Circuit Court did not appoint her as personal representative until
April 9, 2019. Holmes’ entire argument to establish “excusable neglect” consisted of
the following:
9
The Plaintiff prepared and filed the Request for the Grant of
Letters of Administration within the time frame set by the Court.
However, the Clerk of the Probate Division of the Circuit Court of Clay
County took fifteen days to perform a ministerial task of granting the
Letters of Administration.
Notably, although factual allegations contained in a motion are not self-proving,5
Holmes submitted no affidavit or other evidence to substantiate her account of her
efforts to obtain appointment as personal representative. It also bears emphasis
that Holmes offered no explanation in her April 9th motion why she had waited
twenty-one days, out of the thirty-day period provided by the circuit court, before
filing her motion in Clay County seeking to be appointed as personal representative.
In opposing Holmes’ motion for leave to amend out of time, Union Pacific
emphasized that her failure to obtain timely appointment as personal
representative had hampered its ability to collect and analyze Robert Holmes’
medical records, conduct follow-up discovery from Holmes, and retain its own
experts. In an affidavit accompanying its opposition, Union Pacific’s counsel
explained that
A full set of medical records is crucial to defending an alleged
latent injury arising out of a toxic tort, such as this case. For one,
what the decedent knew and when he knew it are important questions
to know when evaluating whether the claim was timely under the
statute of limitations. Accordingly, to properly analyze the question,
we must know what symptoms the decedent experienced, what
diagnosis the physician made, and what etiology, if any, the physician
determined was to blame. Depending on what the records show, the
present lawsuit could be untimely under the statute of limitations.
Additionally, the decedent's lung cancer could have been caused
by exposures that the decedent did not experience at work. For
instance, smoking is a significant risk factor for lung cancer. If the
decedent told his physician that he had smoked a significant number of
cigarettes per day and that he had done so for many years, then that
would be relevant to determining the cause of his lung cancer. This is
5 See, e.g., St. Louis Bank v. Kohn, 517 S.W.3d 666, 674 (Mo. App. E.D. 2017)
(“A motion is not self-proving, and the movant has the burden of proving the allegations
contained therein.” (citations omitted)).
10
basic information that Union Pacific is entitled to in defending this
case.
Because Holmes’ actions had delayed its ability to obtain necessary medical
records, Union Pacific requested that, if the court did not dismiss the action, it
continue all deadlines in the court’s Scheduling Order for 120 days.
It is against this backdrop that the circuit court denied Holmes’ motion for
leave to amend her petition out of time.
Standard of Review
Holmes does not challenge the legal basis on which the circuit court
dismissed her petition. She acknowledges that she was only entitled to prosecute a
FELA action for her husband’s wrongful death if she had been appointed as
personal representative of his estate, and that she had not been appointed as
personal representative until almost a year after filing her petition.
The ruling challenged in Holmes’ Point Relied On is the circuit court’s refusal
to permit her to amend her petition to allege that she had been appointed as the
personal representative of her husband’s estate. Holmes acknowledges that a
circuit court’s ruling on a motion to amend a pleading is reviewed for an abuse of
discretion. Br. at 10-11 (citing Sill v. Burlington N. R.R., 87 S.W.3d 386, 395 (Mo.
App. S.D. 2002)).
Holmes’ framing of the issue on appeal is mistaken. The circuit court in this
case did not deny Holmes leave to amend her petition. To the contrary, in its March
4, 2019, order, the circuit court granted Holmes leave to amend her petition, and
gave her thirty days to do so. The circuit court gave Holmes this opportunity in
response to the request in her opposition to Union Pacific’s Motion to Dismiss, that
she be given an opportunity to cure the admitted defect in her existing petition.
The circuit court’s March 4th order permitted Holmes to amend her petition, despite
11
the fact that the court’s Scheduling Order had required amendments to the
pleadings to be filed no later than December 7, 2018.
What is actually at issue here is not a refusal to permit an amendment of the
petition, but the circuit court’s refusal to extend the thirty-day period it had given
Holmes to amend her petition, based on the court’s conclusion that Holmes had
failed to demonstrate “excusable neglect” under Rule 44.01(b). The decision
whether to permit an untimely filing based on “excusable neglect” is “within the
sound discretion of the trial court.” Irvin v. Palmer, 580 S.W.3d 15, 22 (Mo. App.
E.D. 2019); accord, Scottsdale Ins. Co. v. Addison Ins. Co., 448 S.W.3d 818, 825 (Mo.
2014).
“Excusable Neglect”
Rule 44.01(b) provides that, “[w]hen . . . by order of court an act is required or
allowed to be done at or within a specified time,” the court may extend the period
after it expires “where the failure to act was the result of excusable neglect.”
Holmes’ Motion to File Her Amended Petition Out of Time acknowledged that she
was required to satisfy this “excusable neglect” standard.
The circuit court did not abuse its discretion in finding no “excusable neglect”
in the circumstances of this case.
“Excusable neglect” is the failure to act “not because of the
party’s own carelessness, inattention, or willful disregard of the court’s
process, but because of some unexpected or unavoidable hindrance or
accident.” “Excusable neglect is an action attributable to mishap and
not the result of indifference or deliberate disregard.”
State ex rel. Mylan Bertek Pharmaceuticals, Inc. v. Vincent, 561 S.W.3d 68, 72 (Mo.
App. E.D. 2018) (citations omitted). “Importantly, demonstrating excusable neglect
is a higher burden than proving an action was not ‘recklessly designed to impede
the judicial process’ as required to show good cause to set aside a default judgment
under Rule 74.05(d).” Irvin, 580 S.W.3d at 22.
12
As described in the “Factual Background” section above, Holmes’ counsel was
aware, before this suit was ever filed, that Holmes needed to be appointed as her
deceased husband’s personal representative. Despite the fact that Holmes had not
been appointed as personal representative, her Petition for Damages falsely claimed
that she was the personal representative of her deceased husband’s estate, and she
executed authorizations for release of medical records in her purported capacity as
personal representative. Holmes candidly acknowledged in late November 2018
that she had not yet been appointed personal representative, but stated that “[w]e
are going to petition” for an appointment; counsel also expressed his understanding
that the lack of an appointment provided Union Pacific with grounds to move to
dismiss the petition. Yet, despite being advised of the defect in late November 2018,
Holmes apparently did nothing to cure the problem, forcing Union Pacific to file a
motion to dismiss in late December 2018. Even in response to that Motion to
Dismiss, Holmes did not petition for letters of administration. Instead, in her
untimely response to the Motion to Dismiss, she told the court that she would seek
an appointment “instantly,” and asked that the circuit court allow her a “reasonable
time” within which to seek appointment, and thereafter to amend her petition. The
court granted her request on March 4, 2019 – thereby extending the deadline for
amendment of pleadings specified in the court’s Scheduling Order by almost four
months.
Yet, despite the fact that she was given thirty days within which to seek an
appointment, Holmes waited twenty-one days (until March 25, 2019) before even
filing the necessary pleadings to secure an appointment. On appeal, Holmes now
claims that “she did not dawdle” because (presumably before March 25th), “[s]he
hired local counsel to administer the estate in Clay County, prepared the required
pleadings including the application for appointment of a personal representative,
and obtained executed renunciations of rights for each of the applicable heirs to her
13
late husband’s estate.” But the record does not support her claim that she took any
action to obtain appointment as personal representative before March 25, 2019.
She provided no information to the circuit court concerning any particular actions
she had taken to secure letters of administration, other than to allege that she
requested the issuance of letters on March 25th. Holmes claimed in the circuit
court that her March 25th filing alone, and the Clay County Circuit Court’s failure
to immediately issue letters of administration in response, justified a finding of
“excusable neglect.”
The record before the circuit court indicated that Holmes had apparently
taken no action to seek appointment as personal representative until March 25,
2019 – almost eleven months after this suit was filed; four months after promising
Union Pacific’s counsel that “[w]e are going to petition the Court”; two months after
telling the court she would seek appointment “instantly”; and just ten days before
the thirty-day period provided by the circuit court was set to expire. In these
circumstances, the circuit court was fully justified in concluding that Holmes’
failure to obtain letters of administration by April 3, 2019, was not the result of an
“unexpected or unavoidable hindrance or accident,” but was instead the result of
Holmes’ “carelessness, inattention,” and “indifference.” Vincent, 561 S.W.3d at 72.
The circuit court did not abuse its discretion by finding no “excusable neglect,” and
in refusing to further extend the deadline for Holmes to file a petition naming a
competent party as plaintiff.
Rule 67.06 does not change this result. Although that Rule states that a
circuit court “shall freely grant leave to amend” “[o]n sustaining a motion to dismiss
a claim,” Holmes had the opportunity to amend her petition here, when the court
gave her thirty days within which to cure the admitted defect in her existing
pleading. Although the circuit court’s March 4, 2019, order may not have expressly
stated that Holmes’ existing petition was subject to dismissal, that would have been
14
obvious to everyone, since Holmes had herself conceded that only a duly appointed
personal representative may prosecute a FELA wrongful death action and that she
had not yet secured such an appointment. The fact that the circuit court did not
expressly state, “secure an appointment, or else,” is immaterial.
In any event, Rule 67.06 does not guarantee a plaintiff an automatic right to
amend.
Rule 67.06 provides that “[o]n sustaining a motion to dismiss a
claim . . . the court shall freely grant leave to amend.” Similarly, Rule
55.33(a) states that “leave [to amend] shall be freely given when justice
so requires.” While both rules stress granting amendments to
pleadings liberally, they do not confer an absolute right to file even a
first amended petition. Denial of leave to amend is within the sound
discretion of the trial court, and its decision will not be disturbed
unless there is a showing that such court palpably and obviously
abused its discretion. Judicial discretion is abused when the court’s
ruling is clearly against the logic of the circumstances presented to the
court and is so unreasonable and arbitrary that it shocks the sense of
justice and indicates a lack of careful, deliberate consideration.
...
The recognized purpose of allowing amendments to pleadings is
to allow a party to present evidence that was overlooked or unknown
when the original pleading was filed without changing the original
cause of action. Appellate courts have found no abuse of discretion in
denying the amended pleadings of parties who fail to show the
pleadings include any facts that were unknown when the original
pleading was filed.
Sheffield v. Matlock, 587 S.W.3d 723, 731 (Mo. App. S.D. 2019) (quoting Moore v.
Firstar Bank, 96 S.W.3d 898, 903-04 (Mo. App. S.D. 2003) (other citations omitted)).
Circuit courts generally consider four factors in determining whether leave to
amend should be granted: “1) the hardship to the moving party that a denial would
cause; 2) the reasons for the moving party's failure to include the matter in the
original pleadings; 3) the timeliness of the application for leave to amend; and 4) the
hardship or injustice that granting leave to amend would cause to the non-moving
party.” Concerned Citizens for Crystal City v. City of Crystal City, 334 S.W.3d 519,
15
526 (Mo. App. E.D. 2010) (citation omitted). Here, the circuit court could justifiably
find that three of those four factors weighed against permitting Holmes’ belated
motion to amend: Holmes offered no reason, much less a credible one, for her
failure to secure her appointment as personal representative at an earlier time; her
application for leave to amend was untimely both under the court’s original
Scheduling Order and under the court’s March 4, 2019, order; and by the time
Holmes sought leave to amend, Union Pacific had been denied access to documents
critical to its defense for almost five months, and was seeking an across-the-board
120-day extension of the case management deadlines to compensate for Holmes’
delay. Moreover, the fact that only Robert Holmes’ duly appointed personal
representative could prosecute this action was not “‘unknown when the original
pleading was filed,’” Sheffield, 587 S.W.3d at 731 (citation omitted). To the
contrary, Holmes’ counsel were well aware of the need for an appointment before
this suit was ever filed.
In Sheffield, the Southern District affirmed the denial of a post-judgment
motion for leave to amend in analogous circumstances. It explained:
Appellant did not assert or demonstrate to the trial court that his
proposed first amended petition presents any factual allegations about
Respondent Attorneys' conduct that were overlooked or unknown to
him when he filed his initial petition. Also, Appellant failed to proffer
to the trial court any reason why these proposed additional theories of
liability were not included in his initial petition. In the absence of
Appellant providing this critical information to the trial court, we
cannot say that the trial court abused its discretion in denying him
leave to file his first amended petition.
Moreover, the trial court’s denial of leave to amend the petition
is buttressed by Appellant’s lack of timeliness in seeking such leave.
First, as previously noted, Appellant failed to offer the trial court any
reason why these additional legal theories against Respondent
Attorneys could not have been included in his initial petition.
Second, Appellant failed to offer to the trial court any
explanation as to why he did not seek to amend his petition during the
fifteen months between the filing of Respondent Attorneys' motion to
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dismiss and the entry of the trial court’s judgment. As demonstrated
by Appellant’s argument on December 11, 2017, in his response to the
motion to dismiss – over twelve months before entry of the trial court’s
judgment – Appellant was well aware of his potential claims of civil
conspiracy and malpractice against Respondent Attorneys. In that
response, Appellant argued that Respondent Attorneys were “civil
conspirators” and that Collins had “committed malpractice.”
Third, Appellant first sought leave to amend his petition only
after both extended and repeated briefing and argument to the trial
court and the trial court’s entry of the judgment dismissing his
petition. “‘Our liberal amendment rules are not meant to be employed
as a stratagem of litigation. Rather, the purpose of the grant of an
amendment is to allow a party to assert a matter unknown or
neglected from inadvertence at the time of the original pleading.’”
Sheffield, 587 S.W.3d at 731–32 (citations omitted).
Notably, in at least one other case in which the same counsel have litigated
this identical issue, the court ordered dismissal where the plaintiff failed to obtain
timely appointment of a personal representative. Reynolds v. Union Pac. R.R. Co.,
No. 8:18CV303, 2019 WL 4933519 (D. Neb. Oct. 7, 2019). The facts in Reynolds are
striking similar to this case: the plaintiff had not been appointed as personal
representative when the suit was filed; the district court gave plaintiff twenty-one
days in which to obtain letters of administration; plaintiff did not comply, but “did
submit a notice showing that [she] filed an application for appointment of a
personal representative” eight days before expiration of the twenty-one day
deadline. Id. at *1. The court noted that “the railroad in this case raised the
standing issue over three months prior to [the magistrate judge’s] ruling.” Id. The
district court concluded that, in these circumstances, dismissal without prejudice
was warranted:
The Court finds that plaintiff was given ample time to file for
the appropriate appointment papers. The Court further finds that the
magistrate judge gave deadlines to the plaintiff for such compliance.
The plaintiff failed to comply with the court orders or to otherwise
respond to the orders. Accordingly, the Court agrees that dismissal
without prejudice is an appropriate sanction in this case.
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Id. at *2.
Obviously, when we review for an “abuse of discretion,” the question is not
whether we would have entered the same order as the circuit court. See, e.g.,
Frontenac Bank v. GB Invs., LLC, 528 S.W.3d 381, 390 (Mo. App. E.D. 2017).
Instead, “‘if reasonable persons may differ as to the propriety of an action taken by
the trial court, then it cannot be held that the trial court has abused its discretion.’”
State v. Selph, 568 S.W.3d 561, 568 (Mo. App. S.D. 2019) (quoting State ex rel.
Wyeth v. Grady, 262 S.W.3d 216, 219 (Mo. 2008)). While the circuit court’s refusal
to allow Holmes to amend her petition out of time may have been harsh, I do not
believe in the circumstances of this case it was so far “beyond the pale” that we
should reverse it.
Capacity to Sue
The majority opinion holds that Union Pacific’s objection to Holmes’ standing
to prosecute this action actually raised an issue of “capacity to sue,” which Union
Pacific waived by failing to assert the issue in its answer.
But Holmes has never made these arguments, either in the circuit court, nor
on appeal.6 Rather than raising procedural objections, Holmes responded to Union
Pacific’s standing argument on the merits, conceding that she had not yet obtained
the necessary appointment as personal representative, but assuring the court that
6 The majority opinion also complains that Union Pacific erroneously
contended that its “standing” argument defeated the circuit court’s subject matter
jurisdiction. Once again, this is not an issue Holmes has ever raised. In addition, the
question whether standing implicates the circuit court’s “jurisdiction” has been the subject
of inconsistent decisions. In Schweich v. Nixon, 408 S.W.3d 769 (Mo. 2013), the Missouri
Supreme Court stated that, “[a]lthough sometimes referred to in terms of jurisdiction, . . .
the concept of standing is better understood as a matter of justiciability[.]” Id. at 774 n.5.
Despite the Supreme Court’s statement in Schweich, however, decisions of this Court have
continue to characterize standing issues as “jurisdictional.” See, e.g., Stephens Cemetery,
Est. 1864, Inc. v. Tyler, 579 S.W.3d 299, 305 (Mo. App. S.D. 2019); Chastain v. Geary, 539
S.W.3d 841, 848 (Mo. App. W.D. 2017); In re J.D.S., 482 S.W.3d 431, 437-38 (Mo. App. W.D.
2016); Estate of Freebairn, 481 S.W.3d 555, 558 (Mo. App. E.D. 2015). Union Pacific’s
reference to standing as a “jurisdictional” issue is certainly understandable.
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she would promptly do so. The majority opinion is the first time in this litigation
when it has been argued that Union Pacific’s Motion to Dismiss raised an
unpleaded (and therefore waived) issue of capacity to sue.
Given that Holmes never argued that Union Pacific was raising a “capacity to
sue” argument in a procedurally defective manner, we should not raise the issue on
our own, to justify reversal of the circuit court’s decision. The fact that Holmes did
not raise the capacity-to-sue issue in the circuit court should be enough to foreclose
us from considering it here. It is a commonplace that
[t]he trial court cannot have erred in denying a claim . . . that
was never presented to it. An issue that was never presented to or
decided by the trial court is not preserved for appellate review. An
appellate court will not convict the trial court of error on an issue
which was never before it to decide.
Brizendine v. Conrad, 71 S.W.3d 587, 593 (Mo. 2002) (citations and internal
quotation marks omitted); accord, e.g., Ferguson v. St. Paul Fire & Marine Ins. Co.,
597 S.W.3d 249, 263 (Mo. App. W.D. 2019); Bartsch v. BMC Farms, LLC, 573
S.W.3d 737, 743 (Mo. App. W.D. 2019); Fouts v. Regency N. Acquisition, LLC, 569
S.W.3d 463, 466-67 (Mo. App. W.D. 2018). Generally, non-jurisdictional arguments
“are subject to waiver if not raised timely in a responsive pleading or as otherwise
permitted by Missouri’s rules and case law.” McCracken v. Wal-Mart Stores E.,
L.P., 298 S.W.3d 473, 477 (Mo. 2009) (citations omitted); accord, Hightower v.
Myers, 304 S.W.3d 727, 733 (Mo. 2010) (noting that, since Missouri court’s authority
to resolve paternity and child custody issues was not a “jurisdictional” question,
mother waived her claim that circuit court lacked authority to proceed by failing to
timely raise it in the circuit court).
This Court has specifically held that, where a plaintiff responds to a motion
to dismiss or for summary judgment on the merits, without arguing that the motion
raises an unpleaded affirmative defense, the pleading issue is waived. Hanff v.
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Hanff, 987 S.W.2d 352, 357 (Mo. App. E.D. 1998) (where plaintiff failed to object to
summary judgment motion on the basis that it raised an unpleaded affirmative
defense, but instead “chose to address the substantive merits of the argument,” “the
issue . . . must be treated as though it had been raised in the pleadings”; citations
omitted); Caldwell v. Lester E. Cox Med. Ctrs.-S., Inc., 943 S.W.2d 5, 10 (Mo. App.
S.D. 1997) (despite defendants’ failure to specifically plead statute of limitations as
affirmative defense in their answers, holding that defendants adequately preserved
issue when they raised it in motions to dismiss). Under these decisions, Holmes
would be foreclosed from raising a pleading issue in this Court.
The fact that Holmes failed to raise this issue in the circuit court leaves
Union Pacific in an untenable position. If Holmes had made the argument the
majority now raises for her, Union Pacific could have moved to amend its answer, to
specifically deny Holmes’ capacity to sue. This should be reason enough to refuse to
consider the issue after-the-fact on appeal. Indeed, prior decisions of this Court
have held that a plaintiff cannot argue for the first time on appeal that a dispositive
ruling relies on an unpleaded affirmative defense, because if the issue had been
timely raised, the circuit court would have been required to grant the defendant
leave to amend its answer to raise the issue. Dwyer v. Meramec Venture Assocs.,
LLC, 75 S.W.3d 291, 292 n.1 (Mo. App. E.D. 2002) (citing Rose v. City of Riverside,
827 S.W.2d 737, 739 (Mo. App. W.D. 1992)); Armoneit v. Ezell, 59 S.W.3d 628, 634
(Mo. App. E.D. 2001).
Not only did Holmes not raise the capacity-to-sue issue in the circuit court –
she did not raise it here. This is a separate, independently sufficient reason
preventing this Court from relying on this unmade argument as a ground for
reversal. We repeatedly hold that we will not consider issues which are defectively
raised in an appellant’s briefing, “‘to ensure that appellate courts do not become
advocates by speculating on facts and on arguments that have not been made.’”
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Wynn v. BNSF Ry. Co., 588 S.W.3d 907, 915 (Mo. App. W.D. 2019) (citations
omitted); accord, e.g., Hoover v. Hoover, 581 S.W.3d 638, 640-41 (Mo. App. W.D.
2019). The reasons for our refusal to consider poorly presented arguments should
apply with even greater force to arguments which the party never made (either well
or poorly).
Consideration of Matters Outside the Pleadings
The majority opinion also emphasizes that Union Pacific relied on matters
outside the petition to establish that Holmes had not been appointed as personal
representative. Once again, however, Holmes has not challenged Union Pacific’s
reliance on facts beyond the petition, either in the circuit court or on appeal; indeed,
she has admitted throughout that she did not receive letters of administration prior
to April 9, 2019. Generally, where a party does not object to consideration of
matters outside the pleadings on a motion to dismiss, that issue is considered
waived. See, e.g., Lauber-Clayton, LLC v. Novus Props. Co., 407 S.W.3d 612, 617
n.5 (Mo. App. E.D. 2013); Robert T. McLean Irrevocable Trust v. Patrick Davis, P.C.,
283 S.W.3d 786, 789 (Mo. App. S.D. 2009); Mitchell v. McEvoy, 237 S.W.3d 257, 259
(Mo. App. E.D. 2007).
I would also note that Rule 55.27(a), which requires “conversion” of a motion
to dismiss to a motion for summary judgment, does not apply here. It only applies if
the motion to dismiss asserts “failure of the pleading to state a claim upon which
relief can be granted.” Rule 55.27(a); see Johnson v. Lou Fusz Auto. Network, Inc.,
519 S.W.3d 450, 455 (Mo. App. E.D. 2017) (“The portion of Rule 55[.27(a)] requiring
notice to the parties before the court considers matters outside the pleadings
expressly applies only to motions to dismiss for failure to state a claim.” (citation
omitted)).
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Conclusion
I fully understand and respect my colleagues’ reluctance to affirm the circuit
court’s judgment dismissing Holmes’ petition. The judgment will forever bar
Carolyn Holmes from litigating her claim that her husband’s death was caused by
chemical exposures during his work for Union Pacific, and that she is entitled to
compensation from Union Pacific for her grievous loss. I am skeptical that I would
have entered the same orders as the circuit court, if I were sitting in its place. But
the issue on appeal is only whether the circuit court abused its broad discretion to
grant or deny leave to amend, or to excuse noncompliance with the deadlines the
court had imposed. In the circumstances of this case, it cannot fairly be said that no
reasonable jurist would have entered the same orders as the circuit court. I would
affirm.
Alok Ahuja, Judge
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