Gillespie v. Rice, 224 S.W.3d 608 (Mo. App. W.D. 2006)

Factual Background:

Plaintiff filed suit against Defendant-Doctor alleging malpractice.  After trial, the jury returned a verdict in favor of Defendant-Doctor.

Plaintiff filed an appeal but then died while the appeal was pending.  Plaintiff’s sister and executrix filed a suggestion of death pursuant to Rule 52.13[1], which states in pertinent part:

“Unless a Motion for substitution is served within 90 days after a suggestion of death is filed, the action shall be dismissed as to the deceased party without prejudice.”

The appeal was stayed until a motion for substitution was filed or ninety days from the filing of the suggestion of death, whichever occurred first.  The executrix did not timely file a motion for substitution.  The Staff Counsel from the court sent a fax to the executrix’s counsel requesting that the appeal be dismissed pursuant to Rule 52.13(a)(1).  The executrix filed suggestions in opposition to the dismissal claiming excusable neglect.  She claimed that she relied on the dates in, which were not accurate.

On Appeal:

Dismissed without prejudice.

When a party dies, Rule 52.13 requires a motion for substitution to be served within ninety days of the filing of a suggestion of death.  Under Rule 44.01(b), the court may extend the time limit for filing in its discretion or for cause shown.  The time limit may also be extended if a party can show that the missed deadline was the result of excusable neglect.  However, under 44.01, “the court … may not extend the time for taking any action under rule 52.13… . 

The executrix did not file the motion for substitution until the ninety-second day after she filed the suggestion of death.  Regardless of the reason for the missed deadline, the Court of Appeals did not have the any “inherent, equitable authority to substitute a party after death; …only to substitute as allowed by statute and rule.”  The case was dismissed without prejudice.


[1] All rules cited refer to Missouri Supreme Court Rules (2006).