Gaydos v. Imhoff

• Decision Date: 19 February 2008
• Docket Number: No. WD 67362.,WD 67362.
• Citation: 245 S.W.3d 303
• Parties: John GAYDOS, Bishop of the Diocese of Jefferson City acting by and Through SS Peter & Paul's Catholic Church Cemetery Board and SS Peter and Paul's Cemetery Board, Respondent, v. Timothy J. IMHOFF, Appellant.
• Court: Missouri Court of Appeals

245 S.W.3d 303

John GAYDOS, Bishop of the Diocese of Jefferson City acting by and Through SS Peter & Paul's Catholic Church Cemetery Board and SS Peter and Paul's Cemetery Board, Respondent, v. Timothy J. IMHOFF, Appellant.

No. WD 67362.

Missouri Court of Appeals, Western District.

February 19, 2008.

Shane L. Farrow, Esq., Jefferson City, for Appellant.

Richard J. Blanck, Esq., Booneville, for Respondents.

Before NEWTON, P.J., SPINDEN and HARDWICK, JJ.

LISA WHITE HARDWICK, Judge.

The Circuit Court of Cooper County entered judgment against Timothy Imhoff on a conversion claim and ordered him to pay $25,000 in actual damages, plus prejudgment interest. On appeal, Imhoff contends the trial court erred in denying his statute of limitations defense and in awarding prejudgment interest. For reasons explained herein, we affirm in part and reverse in part.

FACTUAL AND PROCEDURAL HISTORY

Imhoff served as president of the board of directors for SS Peter & Paul's Cemetery¹ from 1990 until 2002. Board members are appointed by the pastor of the SS Peter & Paul's Catholic Church to operate and manage the cemetery, which is located in Boonville, Missouri. As board president, Imhoff had control over all Cemetery funds, bank records, checkbooks, and the post office box. From 1997 through May 2001, Imhoff was the only person to write checks and make deposits or withdrawals from the Cemetery's bank accounts.

At a board meeting on December 10, 2000, Imhoff was asked to report on the financial status of a fundraising project referred to as the "Engraved Brick Sidewalk." Board members became concerned when Imhoff said he did not know the exact amount of the fundraiser proceeds. Imhoff initially told the board that the proceeds were placed in two certificates of deposit at a Columbia bank. At a later meeting, he told the board the certificates of deposit did not exist.

On April 8, 2001, the board requested Imhoff to turn over all financial records for the Cemetery. Imhoff relinquished the Cemetery checkbook and a few other documents to the board treasurer in May 2001, but failed to turn over all of the financial records. In 2002, the board retained a certified public accountant (CPA) to audit the Cemetery's financial records and conduct a review of Imhoff's personal finances. The audit reported many undocumented transactions in the Cemetery's bank records, including unexplained cash withdrawals, fees collected without corresponding deposits, and no receipts or invoices for certain expenditures. The audit concluded that at least $20,845 was missing and unaccounted for in the Cemetery's bank accounts for the period of 1997 to 2000. Also during that period, Imhoff's personal accounts showed deposits of $183,051, although he declared only $97,746 in earned income.

In November 2005, the Cemetery filed a three-count petition against Imhoff seeking an accounting, damages for conversion of funds, and a constructive trust on funds that Imhoff unjustly received. A bench trial was held in July 2006. During opening statements, Imhoff's counsel asserted that all of the Cemetery's claims were barred by the five-year statute of limitations in Section 516.120.² The Cemetery's counsel responded that the claims were not barred because they resulted from "ongoing and continuing transactions." After opening statements, the court advised counsel as follows: "I think when you put your evidence on, you'll need to deal with the issue of when you discovered your losses; and then we can argue again at the conclusion whether or not [the statute of limitations defense is] applicable."

After evidence was presented at trial, the court entered judgment in favor of the Cemetery on the conversion claim and denied relief on the accounting and constructive trust claims. The judgment ordered Imhoff to pay actual damages of $25,000 and prejudgment interest dating from December 10, 2000. The court rejected the statute of limitations defense, finding that Imhoff waived the defense by failing to raise it in a responsive pleading. Imhoff appeals.

STANDARD OF REVIEW

Review of this court-tried case is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We must affirm the judgment of the circuit court unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. "We must consider the evidence and all reasonable inferences in a light most favorable to the judgment, disregarding any evidence or inferences to the contrary." Pulley v. Sandgren, 197 S.W.3d 162, 165 (Mo.App.2006). "Although we give deference to the circuit court's factual determinations, our review of any error in applying the law is de novo." Id.

STATUTE OF LIMITATIONS DEFENSE

In his first point on appeal, Imhoff contends the trial court erred in denying his statute of limitations defense based on a finding of waiver. Imhoff argues the affirmative defense was raised at trial without objection and was tried by consent of the court and the parties, as permitted by Rule 55.33(b).³ Despite his failure to file a responsive pleading, Imhoff asserts the statute of limitations defense was properly presented at trial and should have been applied to bar the conversion claim. See Damon Pursell Constr. Co. v. Mo. Highway & Transp. Comm'n, 192 S.W.3d 461 (Mo.App.2006); RPM Plumbing Mech., Inc. v. Jim Plunkett, Inc., 46 S.W.3d 60 (Mo.App.2001).

We need not address the precise error alleged because the record supports a finding that the Cemetery's claim was not barred by the applicable statute of limitations, regardless of whether the affirmative defense was properly presented. We must affirm the trial court's judgment if it is sustainable for any reason supported by the record. Reagan v. County of St. Louis, 211 S.W.3d 104, 107 (Mo.App. 2006).

Under Section 516.120, all actions upon contracts, obligations or liabilities, including actions for conversion, must be brought within a five-year statute of limitations. Eisele v. Meyers, 929 S.W.2d 752, 755 (Mo.App.1996). The statutory time limit begins to run "when the damage resulting [from the wrong] is sustained and is capable of ascertainment, and, if more than one item of damage, then the last item." Section 516.100. Damage resulting from an actionable wrong is capable of ascertainment when "the evidence [is] such to place a reasonably prudent person on notice of a potentially actionable injury." Bus. Men's Assurance Co. of Am. v. Graham, 984 S.W.2d 501, 507 (Mo.banc 1999). The mere existence of the wrong coupled with nominal damage is not enough to accrue the statute. Powel v. Chaminade Col. Preparatory, Inc., 197 S.W.3d 576, 584 (Mo.banc 2006). However, all possible damages need not be known, or even knowable, before the statute accrues. Klemme v. Best, 941 S.W.2d 493, 497 (Mo.banc 1997). In order for the statute to accrue, plaintiff must have knowledge of the wrong and at least nominal damage, or of something that puts plaintiff on notice to inquire further. Powel, 197, S.W.3d at 584-85.

The evidence at trial showed that Imhoff, as board president, had sole control over the Cemetery's finances during the relevant period of 1997 through 2000. Although Imhoff failed to properly account for many financial transactions during that period, the Cemetery's board members were unaware of any specific problem until December 10, 2000. Board members became...