Cox v. Ripley County, No. 27808.

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: PHILLIP R. GARRISON
• Citation: 233 S.W.3d 225
• Decision Date: 23 August 2007
• Docket Number: No. 27808.
• Parties: Dennis COX, Plaintiff-Appellant, v. RIPLEY COUNTY, Missouri, and Commissioners Jesse Roy, Ray Joe Hastings and William Kennon, Defendants-Respondents.

233 S.W.3d 225

Dennis COX, Plaintiff-Appellant,
v.
RIPLEY COUNTY, Missouri, and Commissioners Jesse Roy, Ray Joe Hastings and William Kennon, Defendants-Respondents.

No. 27808.

Missouri Court of Appeals, Southern District, Division Two.

August 23, 2007.

233 S.W.3d 226

Devin S. Kirby, The Kirby Law Firm, P.C., Doniphan, for Appellant.

Christopher J. Miller, Ripley County Prosecuting Attorney, Doniphan, for Respondents.

PHILLIP R. GARRISON, Judge.

This appeal stems from the dismissal of a claim filed by Dennis Cox ("Plaintiff") for amounts claimed owed to him by Ripley County due to Plaintiff allegedly being under compensated for his services as sheriff. He contends that the trial court erred in finding that the three-year statute of limitations under Section 516.130.1,¹ applied to bar his claim against Ripley County, and its Commissioners, Jesse Roy, Ray Joe Hastings and William Kennon (collectively referred to as "Defendants").

On April 17, 1995, Nick Pepmiller ("Pepmiller") filed a petition with the Circuit Court of Ripley County, Missouri, alleging that Defendants under compensated him in violation of Missouri law for the years he served as the Ripley County Sheriff. On December 31, 2001, Pepmiller filed a motion for leave to add Plaintiff and then both Pepmiller and Plaintiff filed an amended petition² that included Plaintiff's claim that he was under compensated for the period of January 1, 1993, to December 31, 1996, the years he served as the Ripley County Sheriff.³ Defendants filed a motion to dismiss the first amended petition on March 7, 2005, alleging that Plaintiff's claim against Defendants was barred by the three-year statute of limitations as set forth in Section 516.130.1. On April 26, 2005, the trial court granted Pepmiller's motion to add Plaintiff and the motion to file the amended the petition. In the amended petition, Plaintiff asserted that he held the elected office of Sheriff of Ripley County from January 1, 1993 to December 31, 1996, but that he was under compensated during this period.

On November 2, 2005, the court took up all pending motions and issued its "Order and Memorandum of Findings," finding that Plaintiff's claim against Defendants was barred by the three-year statute of limitations as set forth in Section 516.130.1, and dismissed Plaintiff's claim with prejudice. The case proceeded to trial regarding Pepmiller's claims, and the trial court issued its final judgment on May 9, 2006, finding in favor of Pepmiller and against Defendants for his claims arising within three years of the filing of his original petition. This appeal followed.

Our review of a grant of a motion to dismiss is de novo. Platonov v. The

233 S.W.3d 227

Barn, L.P., 226 S.W.3d 238, 240 (Mo.App. E.D.2007). We assume that all the plaintiff's averments in the petition are true and grant the plaintiff all reasonable inferences from the petition. Id. "When an affirmative defense is asserted, such as a statute of limitation, the petition may not be dismissed unless it clearly establishes `on its face and without exception' that it is barred." Sheehan v. Sheehan, 901 S.W.2d 57, 59 (Mo. banc 1995) (quoting International Plastics Development, Inc. v. Monsanto Co., 433 S.W.2d 291, 294 (Mo. banc 1968))

On appeal, Plaintiff argues that the trial court erred in applying the three-year statute of limitations of Section 516.130.1 instead of the five-year period set out in Section 516.120.2. Section 516.130.1 provides that a three-year statute of limitations shall apply to

an action against a sheriff, coroner or other officer, upon a liability incurred by the doing of an act in his official capacity and in virtue of his office, or by the omission of an official duty, including the nonpayment of money collected upon an execution or otherwise.

Section 516.120.2 sets out a five-year statute of limitations that applies to "an action upon a liability created by a statute other than a penalty or forfeiture."

Section 57.317 sets forth the statutorily mandated formula for determining a county sheriff's compensation. That section lists a schedule of compensation and requires that "the county sheriff in any county ... shall receive an annual salary computed as set forth in the following schedule." Section 57.317. Plaintiff alleges that Defendants did not follow the formula set forth by that section and in doing so set his salary contrary to Missouri law.

The dispositive issue before this Court is which statute of limitations applies to the particular facts as pled by Plaintiff. Statutory interpretation and construction is a matter of law and not fact. State v. Laplante, 148 S.W.3d 347, 348 (Mo.App. S.D. 2004). The purpose of engaging in statutory construction is to determine the "legislative intent from the language of the act, considering the words used in their plain and ordinary meaning, and to give effect to that intent whenever possible." Connor v. Monkem Co., Inc., 898 S.W.2d 89, 90 (Mo. banc 1995). When faced with two different statutes, each applicable to the same matter, the two must be read together and harmonized. City of Ellisville v. Lohman, 972 S.W.2d 527, 534 (Mo.App. E.D.1998).

The Defendants contend that the three-year statute of limitation of Section 516.130.1 should apply because, as county commissioners, they are "officers" within the meaning of that statute. When faced with the issue of what constituted an "officer" within the meaning of the three-year statute of limitations, our Supreme Court noted that

a public office is defined to be `the right, authority and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public.' The individual who is invested with the authority and is required to perform the duties is a public officer.

State ex rel. School District of Sedalia v. Harter, 188 Mo. 516, 87 S.W. 941, 943 (1905) (internal citations omitted). Under such a definition, it would appear that Defendants, Commissioners Jesse Roy, Ray Joe Hastings and William Kennon, are officers. See Section 49.010 et seq. This finding, however, does not end our inquiry. We believe a brief review of the

233 S.W.3d 228

case history surrounding Sections 516.120.2 and 516.130.1 is necessary to serve as a guide in our decision

First, in 1924, a former employee brought a suit against Kansas City and the members of the board of water commissioners alleging that he was improperly discharged and seeking reinstatement...