Cox v. Ripley County
| Decision Date | 27 July 2010 |
| Docket Number | No. SD29740,No. SD29768,SD29740,SD29768 |
| Parties | DENNIS COX, Plaintiff/Appellant/Respondent, v. RIPLEY COUNTY, MISSOURI, Defendant/Respondent/Cross-Appellant. |
| Court | Missouri Court of Appeals |
Attorney for Appellant: Devin S. Kirby, THE KIRBY LAW FIRM, P.C., Doniphan, Missouri
Attorney for Respondent: L. Dwayne Hackworth, HACKWORTH, HACKWORTH & FERGUSON, Piedmont, Missouri
APPEAL FROM THE CIRCUIT COURT OF RIPLEY COUNTY Honorable Paul McGhee, Senior Judge
AFFIRMED IN PART; REVERSED IN PART AND REMANDED WITH DIRECTIONS
Dennis Cox served a four-year term as Sheriff of Ripley County, Missouri, ending on December 31, 1996. Five years later, on December 31, 2001, he filed a petition claiming that the county undercompensated him by $7,803.30 each year of his term. Following a bench trial, the trial court entered a judgment awarding him that amount for his last year in office plus prejudgment interest beginning from January 1, 1997. Cox appeals (No. SD29740), claiming that the trial court erred in applying the section 516.1201 five-year statute of limitation to bar his recovery for the first three years of his term because, first, the county waived that affirmative defense in failing to plead it and, second, applying section 516.100, "the statute of limitation did not begin to run until [Cox] sustained the last item of damage, which was his last day in office." Ripley County cross-appeals (No. SD29768), contesting the prejudgment interest award in favor of Cox from January 1, 1997, claiming there was no evidence that Cox demanded payment, as required by section 408.020, for the award of prejudgment interest. Finding that the trial court properly applied the statute of limitation but erred in awarding prejudgment interest from January 1, 1997, rather than from the filing date of the petition, we reverse the award of prejudgment interest and remand for calculation of prejudgment interest from December 31, 2001. In all other respects, the judgment is affirmed.
Review by this Court is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), which provides that a trial court's decision must be affirmed on appeal unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Walton v. City of Berkeley, 223 S.W.3d 126, 128 (Mo. banc 2007).
The county originally answered Cox's petition raising the section 516.130 threeyear statute of limitation as an affirmative defense. The trial court dismissed Cox's petition on that basis, and Cox appealed that judgment to this Court. Cox v. Ripley County, 233 S.W.3d 225 (Mo.App. 2007) ("Cox I"). In that appeal, Cox contended the trial court should have applied the section 516.120 five-year statute of limitation. Id. at 227. This Court agreed, reversed the dismissal, and remanded the case "for further proceedings." Id. at 231.
On remand, the only additional pleading or evidence before the trial court was the parties' Joint Stipulation of Facts in Lieu of Live Testimony. Finding that Cox's claim for payment of undercompensation for the first three years of his term, 1993 through 1995, was barred by section 516.120, the trial court entered judgment in favor of Cox for $7,803.30, "together with interest on that amount commencing January 1, 1997."
Cox contends that the trial court erred in holding that his damages were barred in part because Ripley County failed to plead the applicable statute of limitation, section 516.120, in its answer, did not amend its answer, and thereby waived this defense. In support, Cox cites Gibson v. Ransdell, 188 S.W.2d 35 (Mo. 1945), Reed v. Rope, 817 S.W.2d 503 (Mo.App. 1991), Tudor v. Tudor, 617 S.W.2d 610 (Mo.App. 1981), and Rebel v. Big Tarkio Drainage Dist., 602 S.W.2d 787, 790 (Mo.App. 1980).2 These cases do not assist Cox because our Supreme Court retreated from its previous position on waiver in Heins Implement Co. v. Mo. Highway & Transp. Comm'n, 859 S.W.2d 681, 684 n.2 (Mo. banc 1993) (abrogated on other grounds by Southers v. City of Farmington, 263 S.W.3d 603, 623 (Mo. banc 2008), as modified on denial of rehearing) and Green v. City of St. Louis, 870 S.W.2d 794, 797 (Mo. banc 1994). An understanding of these cases requires that we first look at Rules 55.08 and 55.33(a).3
Rule 55.08 provides, in pertinent part: "In a pleading to a preceding pleading, a party shall set forth all applicable affirmative defenses and avoidances[.]" Rule 55.08 further provides that a statute of limitation is an affirmative defense. Under Rule 55.33(a), a defendant who fails to plead an affirmative defense in the answer may seekleave to amend the answer to include such a defense. Rule 55.33(a) further provides that leave to amend a pleading "shall be freely given when justice so requires." "The factors the trial court should consider in determining whether to permit amendment of an answer include: (1) the hardship to the moving party if the request is denied; (2) the reasons for
failure to include the matter in a designated pleading; and (3) the injustice or prejudice
caused the opposing party if the request is granted." Id at 797 (citing Stewart v. Sturms, 784 S.W.2d 257, 262 (Mo.App. 1989)).
It is in this context that the Supreme Court in Green stated:
Before 1993, Rule 55.08 was generally interpreted to mean that a failure to plead an affirmative defense results in a waiver of the defense. Detling v. Edelbrock, 671 S.W.2d 265, 271 (Mo. banc 1984). In Heins Implement Co. v. Missouri Highway & Transportation Commission, 859 S.W.2d 681 (Mo. banc 1993), this Court retreated from its previous interpretation of Rule 55.08. After Heins, issues not raised in the answer are simply not raised in the lawsuit. Heins, 859 S.W.2d at 684 n.2. The affirmative defense of collateral estoppel is not, therefore, deemed waived, per se, in the present case.
Green, 870 S.W.2d at 797. Heins noted that "Rule 55.08 does not contain language indicating waiver[.]" Id at 684 n.2.
In Green, the appellant claimed that the respondent city waived an affirmative defense of collateral estoppel when it failed to raise the defense in its answer. There, the respondent raised the defense in a motion for summary judgment, which the trial court sustained. The Supreme Court, finding that the record was "insufficient to determine whether summary judgment should have been entered on the ground of collateral estoppel[,]" reversed the grant of summary judgment and remanded "to enable the trial court to apply the factors set forth in Stewart v. Sturms so as to determine whether summary judgment is proper." Green, 870 S.W.2d at 798.
Although decided a year before Heins and Green, the Western District of our Court applied the principles later announced in those cases in Rose v. City of Riverside, 827 S.W.2d 737, 739 (Mo.App. 1992). In Rose, the appellant claimed that the respondent's affirmative defense of the statute of limitation was waived, in that the respondent failed to plead the defense in its answer, although it was raised in the respondent's motion for summary judgment. Id at 739. The Western District found that the statute of limitation should apply and that summary judgment was appropriately ordered, in that the "[a]ppellants were well aware the defense existed since the respondent raised it in its motion for summary judgment[,]" and that denial of the respondent's motion to amend its answer would be an abuse of the trial court's discretion. Id.
Here, it is obvious that Cox was well aware that the county was asserting a statute of limitation defense and, more particularly, that the five-year statute of limitation was applicable, as he asserted such a claim in Cox I, and this Court decided in that appeal that he was correct. Cox I, 233 S.W.3d at 231. While better practice may have dictated the county's amendment of its answer, there is no doubt that the three Stewart v. Sturms factors as cited by the Supreme Court in Green all favor the county in this case. Any trial court denial of a motion to amend county's answer would have been an abuse of discretion. Therefore, the county's failure to amend its answer to specifically plead section 516.120 did not waive that statute of limitation affirmative defense. Green, 870 S.W.2d at 797; Heins, 859 S.W.2d at 684 n.2. Cox's first point is denied.Cox's Actions _ for Unpaid Annual Compensation Accrued Annually
The trial court found that section 57.317 provides that a "county sheriff shall receive an annual salary[,]" and, although Cox was paid on a monthly basis at the end of the month, "he was not entitled to his entire annual salary until the end of the year." This factual finding and legal conclusion are not challenged on appeal. Rather, Cox claims in his second point that the trial court erred in finding that his claim for undercompensation for the years 1993, 1994, and 1995 were barred by application of the section 516.120 statute of limitation, in that the trial court failed to apply section 516.100, which provides that the statute of limitation would not begin to run until Cox sustained the last item of damage, which, he contends, was his last day in office.
Cox contends that Ripley County owed him "a continuing duty" during his fouryear term as sheriff and had a statutory obligation to pay him pursuant to section 57.317, but failed to pay the correct salary for his entire term. Cox argues that, pursuant to section 516.100, he did not sustain his last item of damage until his final day in office, December 31, 1996, and because he filed his claim within five years of that date, no part of his claim should be limited. Cox further contends that Ripley County's breach of a statutory duty is analogous to the breach of contractual duties discussed in Sabine v. O.W. Leonard, 322 S.W.2d 831 (Mo. 1959), and Reed v. Rope, 817 S.W.2d 503 (Mo.App. 1991). Cox...
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