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MISKEW v. HESS3/15/1996
Dr. Don B.W. Miskew appeals from summary judgment granted in favor of Lynn Johnson in Dr. Miskew's malicious prosecution claim. On appeal, Dr. Miskew contends that the trial court inappropriately granted summary judgment because genuine issues of material fact remained on three of the essential elements of his malicious prosecution claim. We disagree, holding that any factual disputes were not material to Dr. Miskew's claim and that Dr. Miskew failed to prove all of the required elements for a valid malicious prosecution action. Dr. Miskew also argues that the trial court lacked authority to consider Johnson's affidavit and other materials submitted in Johnson's reply brief in support of his summary judgment motion. Dr. Miskew further argues that the trial court failed to allow him an opportunity to dispute the materials. We disagree. Accordingly, we affirm the judgment of the trial court.
FACTS:
This malicious prosecution action stems from a medical malpractice suit brought by John Bealer against Dr. Miskew. In the malpractice suit, the trial court granted summary judgment to Dr. Miskew, and Bealer appealed. The facts surrounding Bealer's medical problems, which are relevant to the present appeal, are as follows: On June 22, 1982, Bealer injured his right knee and ankle while working as the manager of a Village Inn Restaurant in Overland Park. Dr. Miskew examined Bealer the next day at his office and diagnosed Bealer's condition as a right knee ligament strain and a right ankle sprain. Bealer later claimed that during the examination he told Dr. Miskew that he was allergic to aspirin. The next day, June 24, 1982, Bealer telephoned Dr. Miskew and complained of pain in his leg. Dr. Miskew prescribed a drug called Zomax, which apparently contained aspirin, for the pain. Later that same day, Bealer obtained the Zomax and took two pills. Thirty minutes after taking the pills, Bealer began vomiting. Bealer was rushed to the hospital. His initial symptoms were exhaustion, shock, nervousness, labored breathing, and a swollen face. Bealer's doctors told him that those symptoms were caused by his adverse reaction to the Zomax. Bealer's labored breathing was later diagnosed as asthma in November 1982. Bealer claimed that his asthma was caused by the Zomax.
On September 15, 1984, Bealer filed a medical malpractice action against Dr. Miskew, alleging that Dr. Miskew negligently prescribed the Zomax. Paul Hess, an attorney, filed the initial malpractice action for Bealer. In answering the petition, Dr. Miskew asserted that the claim was barred by the 2-year statute of limitations.
Because Bealer failed to prosecute his petition, the trial court dismissed the case on March 12, 1985. But on April 30, 1986, the trial court granted Bealer's motion to set aside the earlier dismissal.
In September 1986, Johnson entered his appearance as Bealer's attorney. Johnson told David Erickson, Dr. Miskew's attorney, that he planned to dismiss the case without prejudice to evaluate the medical and legal issues in the case. The trial court granted Johnson's
motion to dismiss without prejudice. Erickson later wrote Johnson and requested that he complete his analysis of the case and decide whether he would refile the case. A few months later, Johnson wrote Erickson and stated that he planned to refile the malpractice lawsuit against Dr. Miskew. In his letter, Johnson stated that he believed that Bealer had suffered a permanent injury as a result of his taking the Zomax.
On June 30, 1987, Johnson refiled the Bealer lawsuit against Dr. Miskew. Claiming that the statute of limitations barred Bealer's action, Dr. Miskew moved for summar
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