16:02 PM

The Flag, September - October 2022

Vol. 78, No. 5 / September - October 2022

Journal - W. Dudley McCarterW. Dudley McCarter
W. Dudley McCarter, a former president of The Missouri Bar, is a partner in the St. Louis law firm of Behr, McCarter, Potter, Neely & Hyde.


Giudicy v. Mercy Hospitals East, 645 S.W.3d 492 (Mo. banc 2022).

Alfred J. (A.J.) Giudicy appealed the circuit court’s judgment dismissing his medical malpractice case without prejudice after Giudicy failed to file an affidavit of merit within 180 days pursuant to § 538.225, RSMo. Giudicy argued § 538.225 violates the Missouri Constitution. He also contended the medical providers waived their defense of failure to file an affidavit of merit and that he substantially complied with the statute. The Supreme Court of Missouri rejected those arguments and affirmed the circuit court's judgment in Giudicy v. Mercy Hospitals East.2

Section 538.225 serves “to cull at an early stage of litigation suits for negligence damages against health care providers that lack even color of merit” and “protect the public and litigants from the cost of ungrounded medical malpractice claims.”3 The section also prevents a plaintiff from threatening a medical provider with a groundless claim to force a settlement in lieu of the high cost of defense otherwise required.4

Giudicy argued the mandate under § 538.225.6 that “‘the court shall, upon motion of any party, dismiss the action’ impermissibly invades the province of the judiciary.”5 The Supreme Court of Missouri rejected a similar challenge before6 and reaffirmed that § 538.225 “does not violate the separation of power principle, despite the mandatory dismissal language.”7

Giudicy also argued the medical providers waived the defense of failure to file the affidavit of merit, and Giudicy stated that a lack of a § 538.225 affidavit is an affirmative defense that must be raised. “No Missouri caselaw establishes section 538.225 as an affirmative defense.”8 “This Court finds section 538.225 is not an affirmative defense that can be waived if not pleaded in an answer.”9

Third, Giudicy alleged the circuit court erred by not finding he substantially complied with § 538.225. “Allowing substantial compliance by permitting a plaintiff to file outside the legislature’s designated timeframe would infringe on the very purpose of the statute,” the Court ruled.10


State of Missouri ex rel. Meredith Green v. Missouri Commission on Human Rights, 649 S.W.3d 31 (Mo. App. W.D. 2022).

The Missouri Commission on Human Rights (MCHR), its executive director, and Mercy Health and Mercy Clinic Joplin LLC (collectively, Mercy) appealed the circuit court’s summary judgment in favor of Meredith Green regarding her petition for a permanent writ of mandamus directing the MCHR to issue her a right-to-sue letter. The Missouri Court of Appeals-Western District found that the MCHR had a ministerial duty to issue a right-to-sue letter to Green and terminate its investigation of her complaint, affirming the judgment in State of Missouri ex rel. Meredith Green v. Missouri Commission on Human Rights.11

Section 213.111.1 requires the MCHR to provide a right-to-sue letter when (1) a complaint has been filed with the MCHR, (2) 180 days have passed since the filing of the complaint without the MCHR having completed its review, (3) and the complainant submits a written request for a right-to-sue letter. Upon issuance of the right-to-sue letter, the MCHR must terminate all proceedings relating to the complaint under § 213.111.1. In this case, the MCHR did not determine within the 180-day period whether Mercy is a covered “employee” or whether Mercy was Green’s employer. Only after the 180-day period did the MCHR determined that Mercy was not subject to the MCHR, and the MCHR lacked jurisdiction over Green’s complaint. Since the MCHR received Green’s request for a right-to-sue letter, the MCHR lacked authority to continue investigating Green’s complaint or to take any action other than to issue the right-to-sue letter past the 180-day period, the Court of Appeals ruled.12

“[A]lthough a complainant is not entitled to a right-to-sue letter prior to the expiration of 180 days from filing, a written request for such a letter made prior to that time does not render such a request a nullity.”13 “Rather, such a request serves the purpose of the requirement that a request be submitted in writing and is effective upon the expiration of 180 days.”14 


Four Star Enterprises Equipment, Inc. v. Employers Mutual Casualty Co., 648 S.W.3d 903 (Mo. App. S.D. 2022).

Four Star Enterprises Equipment, Inc. rented equipment to a subcontractor of a public road project, and the general contractor and subcontractor did not pay for the rented equipment. Four Star filed a lawsuit against them and Employers Mutual Casualty Company (EMC), which furnished the statutory payment bond required under § 107.170. While the case was pending, Four Star assigned its bad debts and rights to all existing legal claims to RGH, L.L.C. Following Four Star obtaining default judgment against the subcontractor, it dismissed its claims against EMC and the general contractor. A year later, Four Star and RGH filed a separate lawsuit against EMC alleging EMC was obligated to pay Four Star and RGH the default judgment principal, pre-judgment and post-judgment interest, and attorney’s fees. One of EMC’s counterpoints was that RGH’s claim was barred by the five-year statute of limitations under § 516.120, which the trial court agreed with and dismissed the lawsuit. RGH appealed the decision, contending the court erroneously applying the five-year statute of limitations in § 516.120 to RGH’s action to recover on EMC’s bond. RGH argued that the trial court should have applied the 10-year statute of limitations in § 516.110. The Missouri Court of Appeals-Southern District agreed with RGH and reversed the trial court’s decision in Four Star Enterprises Equipment, Inc. v. Employers Mutual Casualty Co.15

EMC’s bond was issued pursuant to § 107.170, which applies to contracts for public works costing more than $50,000 that are performed for a public entity.16 Section 516.110(1) established a 10-year statute of limitations for “[a]n action upon any writing, whether sealed or unsealed, for the payment of money or property[.]”

In Miner v. Howard,17 the Kansas City Court of Appeals held the 10-year statute of limitations applied when the plaintiff brought an action to recover on the contractor’s bond for materials. In this case, a contractor was hired to dig a well for the city, and the contractor provided a $1,000 bond, conditioned in part on his promise to pay for the labor and materials used in the project.18 The Supreme Court of Missouri agreed that the Miner court correctly applied the 10-year statute of limitations to an action to recover on a surety bond for materials provided for a public works construction contract.19

In RGH’s case, the Supreme Court of Missouri relied on Miner in holding that § 516.110 “is the statute of limitation that is applicable to actions on surety bonds.”20 It ruled that RGH’s action against EMC was timely because it was commenced within 10 years after the equipment was provided for the project. “Therefore, the trial court erred by applying § 516.120 to RGH’s claim and dismissing RGH from the lawsuit,” the Court stated.


Schlafly v. Cori, 647 S.W.3d 570 (Mo. banc 2022).

Bruce S. Schlafly and Anne S. Cori are children of Phyllis Schlafly and beneficiaries of the Phyllis Schlafly Revocable Trust. Bruce Schlafly filed the instant action, alleging Cori engaged in an abuse of process by filing a lawsuit to invalidate portions of the trust. The circuit court dismissed his petition with prejudice for failure to state a claim upon which relief could be granted. The Supreme Court of Missouri reversed the circuit court’s ruling in Schlafly v. Cori21 after determining that the petition contains sufficient allegations regarding the elements of an abuse of process claim under the deferential standard of review applied when adjudicating motions to dismiss.

To establish an abuse of process, one must show “(1) the present defendant made an illegal, improper, perverted use of process, a use neither warranted nor authorized by the process; (2) the defendant had an improper purpose in exercising such illegal, perverted or improper use of process; and (3) damage resulted.”22

“The relevant question is ‘whether process ha[s] been used to accomplish some unlawful end or to compel the opposite party to do some collateral thing which he [or she] could not be compelled to do legally.’ An improper use cannot be inferred from an improper purpose. Importantly, an abuse of process occurs ‘when a party employs legal process in a manner technically correct, but for a wrongful and malicious purpose to attain an unjustifiable end or an object that the particular process in not meant to effectuate.’ But if one simply pursues an action to its authorized conclusion, an abuse of process does not occur, regardless of evil motive. Accordingly, liability arises in rare cases in which the allegedly improper action was instituted ‘to obtain a result which the process was not intended by law to effect.’”23

Bruce Schlafly alleged Cori instituted the trust lawsuit to “achieve unlawful ends, to compel [Bruce Schlafly] to act in a manner in which he could not be legally compelled, and to obtain results outside of the scope of process,” the Court ruled.24 


1 W. Dudley McCarter, a former president of The Missouri Bar, is a partner in the St. Louis law firm of Behr, McCarter, Potter, Neely & Hyde.

2 645 S.W.3d 492 (Mo. banc 2022).

3 Mahoney v. Doerhoff Surgical Servs., Inc., 807 S.W.2d 503, 507 (MO. banc 1991).

4 Id. at 508.

5 645 S.W.3d at 498.

6 Hink v. Helfrich, 545 S.W.3d 335, 337 (Mo. banc 2018).

7 645 S.W.3d at 498.

8 Id. at 500.

9 Id. at 501.

10 Id. at 502.

11 (Mo. App. W.D. 2022).

12 See Najib v. Missouri Comm’n on Human Rights, 2022 WL 677883, (Mo. App. 2022).

13 Id. at 548.

14 Id.

15 648 S.W.3d 903 (Mo. App. S.D. 2022).

16 See § 107.170.1-.2 RSMo Cum. Supp (2019).

17 67 S.W. 692 (Mo. App. 1902).

18 Id. at 693.

19 See Miner, 67 S.W. at 693.

20 Frank Powell Lumber Co. v. Fed. Ins. Co., 817 S.W.2d 648, 652-53 (Mo. App. 1991).

21 647 S.W.3d 570 (Mo. banc 2022).

22 Trustees of Clayton Terrace Subdivision v. 6 Clayton Terrace LLC, 585 S.W.3d 269, 277 (Mo. banc 2019).

23 Id. at 278

24 647 S.W.3d at 3.