Cox v. Ripley County, No. SD29740

CourtMissouri Court of Appeals
Writing for the CourtGary W. Lynch, Presiding
PartiesDENNIS COX, Plaintiff/Appellant/Respondent, v. RIPLEY COUNTY, MISSOURI, Defendant/Respondent/Cross-Appellant.
Decision Date27 July 2010
Docket NumberNo. SD29740,No. SD29768

DENNIS COX, Plaintiff/Appellant/Respondent,
v.
RIPLEY COUNTY, MISSOURI, Defendant/Respondent/Cross-Appellant.

No. SD29740
No. SD29768

Missouri Court Of Appeals
Southern District
Division Two

Filed July 27, 2010


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

Gary W. Lynch, Presiding Judge

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,

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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.

Standard of Review

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).

Analysis
Failure to Plead Statute of Limitation Was Not a Waiver

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.

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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 seek

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leave 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 [784 S.W.2d at 262] so as to determine whether summary judgment is proper." Green, 870 S.W.2d at 798.

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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...

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