Doyle v. Crane

• Decision Date: 12 September 2006
• Docket Number: No. WD 65654.,WD 65654.
• Citation: 200 S.W.3d 581
• Parties: Sharon K. DOYLE, Appellant, v. Kevin M.J. CRANE and Connie Millican Sullivan, Respondents.
• Court: Missouri Court of Appeals

200 S.W.3d 581

Sharon K. DOYLE, Appellant, v. Kevin M.J. CRANE and Connie Millican Sullivan, Respondents.

No. WD 65654.

Missouri Court of Appeals, Western District.

September 12, 2006.

COPYRIGHT MATERIAL OMITTED

Maryteresa Doyle, Shawnee Mission, KS, for Appellant.

Susan Ford Robertson, Jeffrey O. Parshall and Jeffrey H. Blaylock, Columbia, for Respondents.

Before EDWIN H. SMITH, C.J., and BRECKENRIDGE and SPINDEN, JJ.

PER CURIAM.

Sharon K. Doyle appeals the order of the Circuit Court of Boone County, Missouri, dismissing her petition for malicious prosecution against the respondents, Kevin Crane and Connie Millican Sullivan. The filing of the appellant's petition resulted from her being charged in the Circuit Court of Boone County with violating the Boone County Animal Control Ordinance § 1.4.4, a class A misdemeanor. The charge was filed by respondent Sullivan, who at the time was an assistant prosecuting attorney for Boone County employed by respondent Crane, the Prosecuting Attorney of Boone County. The trial court dismissed the appellant's malicious prosecution claim against the respondents based upon its finding that it was barred by the running of the applicable two-year statute of limitations of § 516.140.¹ The court found that the appellant's cause of action had accrued on March 3, 2003, triggering the running of the statute of limitations, when the State entered its nolle prosequi in the underlying criminal action, such that the statute of limitations expired on March 3, 2005, one day prior to the filing of the appellant's petition on March 4, 2005.

The appellant raises what she designates as three points on appeal. However, she raises what really is only one point in that she challenges only one ruling of the trial court—the court's dismissal of her petition for the running of the applicable statute of limitations of § 516.140. Rule 84.04(d)² governs proper Points Relied On, providing, in pertinent part: "(1) Where the appellate court reviews the decision of a trial court, each point shall: (A) identify the trial court ruling or action that the appellant challenges." (Emphasis added.) Hence, as envisioned by the rule, we shall treat the appellant's designated three points as one.

In her sole point on appeal, the appellant claims that the trial court erred in sustaining the respondents' motion to dismiss her petition for malicious prosecution, filed on March 4, 2005, based on its being barred by the running of the applicable two-year statute of § 516.140, because the trial court erroneously declared and applied the law in determining that her cause of action had accrued on March 3, 2003, the date the State entered its nolle prosequi in the appellant's underlying criminal case, triggering the running of the applicable statute of limitations, in that under the proper declaration and application of the law, her cause of action did not accrue until the trial court entered its order on March 5, 2003, dismissing the underlying criminal case against her, such that the statute of limitations did not begin to run until March 5, 2003, and did not expire until March 5, 2005, one day after she had filed her petition.

We dismiss for lack of jurisdiction.

Facts

On September 27, 2002, respondent Sullivan charged the appellant in the Circuit Court of Boone County, Missouri, in Case Number 02 CR 169047, with violating § 1.4.4 of the Boone County Animal Control Ordinance, a class A misdemeanor, punishable under § 1.10 of the Boone County Animal Control Ordinances and §§ 192.300, 557.021.1, 558.011, and 560.016. At the time, respondent Sullivan was employed by respondent Crane. On November 22, 2002, the appellant filed a motion to dismiss the criminal charge against her. On March 3, 2003, respondent Sullivan filed a "NOTICE OF NOLLE PROSEQUI." On March 5, 2003, the trial court made the following docket entry: "STATE ENTERS NOLLE PROSEQUI. CAUSE DISMISSED."

On March 4, 2005, the appellant filed, in the Circuit Court of Boone County, Missouri, a petition for damages for malicious prosecution. She alleged, inter alia, that the respondents had caused the charge of September 27, 2002, to be filed against her, that the criminal prosecution terminated in her favor, that the respondents acted without probable cause and/or reasonable grounds in the initiation of the criminal proceeding, that the respondents' outrageous conduct was actuated by malice in that they acted with reckless indifference, and that she sustained damages as a result. In their joint answer of April 6, 2005, the respondents alleged, inter alia, the affirmative defense of the running of the statute of limitations, found in § 516.140, barring the appellant's petition. In addition, on that same day, the respondents filed a motion to dismiss based on the running of the statute of limitations. On May 11, 2005, the trial court sustained the respondents' motion to dismiss.

This appeal follows.

I.

In her sole point on appeal, the appellant claims that the trial court erred in sustaining the respondents' motion to dismiss her petition for malicious prosecution, filed on March 4, 2005, based on its being barred by the running of the applicable two-year statute of limitations of § 516.140, because the trial court erroneously declared and applied the law in determining that her cause of action had accrued on March 3, 2003, the date the State entered its nolle prosequi in the appellant's underlying criminal case, triggering the running of the applicable statute of limitations. Specifically, she claims that the trial court erroneously declared and applied the law with respect to the legal effect of the State's nolle prosequi on March 3, 2003, in that, under the correct declaration and application of the law, her underlying criminal case was not dismissed when the nolle prosequi was filed by the State, but when the trial court made its docket entry on March 5, 2003, formally dismissing her case based upon the State's nolle prosequi, such that the statute of limitations did not begin to run until March 5, 2003, and did not expire until March 5, 2005, one day after the appellant had filed her petition. Essentially, the appellant is claiming that the State's nolle prosequi was not entered of record until the trial court made its docket entry on March 5, 2003.

As stated in Lomax v. Sewell, 1 S.W.3d 548, 552 (Mo.App.1999):

A statute of limitations allows the cause of action to accrue and then cuts off the claim if suit is not filed within a certain period of time. The running of the applicable statute of limitations is an affirmative defense and must be pleaded as such pursuant to Rule 55.08. The party asserting the affirmative defense of the running of the applicable statute of limitations has the burden of not only pleading but proving it.

(Citations omitted.) In that regard, Rule 55.08³ requires, inter alia, that "[i]n pleading to a preceding pleading, a party shall set forth all applicable affirmative defenses[.]" Hence, the failure to plead the running of the applicable statute of limitations as a defense in a responsive pleading, waives the defense. Patel v. Pate, 128 S.W.3d 873, 877 (Mo.App.2004). Here, there is no dispute that the respondents properly pled the affirmative defense of the running of the applicable statute of limitations in their answer to the appellant's petition.

If properly pled, as here, the affirmative defense of the running of the statute of limitations may be asserted in a motion to dismiss. Id. However, a petition will not be dismissed on the affirmative defense of the statute of limitations unless it is absolutely clear from the face of the petition that it is time barred. Id. "Normally, the running of the statute is a question of law for the court to decide. However, when contradictory or different conclusions may be drawn from the evidence as to whether the statute of limitations has run, it is a question fact for the jury to decide." Lomax, 1 S.W.3d at 552-53 (citation omitted).

Section 516.140, the applicable statute of limitations for claims of malicious prosecution, provides, in pertinent part, that an action for "malicious prosecution" shall be brought "within two years." "The statute of limitations begins to run when [the] plaintiff's right to sue arises," or in other words, when the plaintiff could first maintain his cause of action successfully. Lane v. Non-Teacher Sch. Employee Ret. Sys. of Mo., 174 S.W.3d 626, 634 (Mo.App.2005). To succeed on a claim for malicious prosecution, the plaintiff has the burden of proving that the defendant instigated the prosecution of the underlying criminal case against him, without probable cause and with malice, which was terminated in his favor, and resulted in damages to him. Linn v. Moffitt, 73 S.W.3d 629, 633 (Mo.App.2002). Hence, a claim of malicious prosecution does not arise or accrue until the underlying proceeding or action is terminated in the plaintiff's favor. Id. For purposes of malicious prosecution, an underlying action is deemed terminated when: (1) a final judgment is entered on the merits; (2) the action is dismissed by the court with prejudice; or (3) the action is abandoned. Id.; Kelley v. Kelly Residential Group, Inc., 945 S.W.2d 544, 550 (Mo.App.1997); Arana v. Reed, 793 S.W.2d 224, 226 (Mo.App.1990).

In their motion to dismiss, the respondents alleged that the applicable statute of limitations, found in § 516.140, had expired on March 3, 2005, one day prior to the filing of the appellant's petition, such that it was time barred and should be dismissed. In support of this allegation, the respondents further alleged that the appellant's cause of action arose or accrued on March 3, 2003, triggering the running of the statute of limitations, when the State filed its notice of nolle prosequi in the appellant's underlying criminal case, which had the effect of terminating the case against the appellant in her favor. The appellant contends, however, that her...