Southern Cross Lumber & Millwork Co. v. Becker

• Decision Date: 29 November 1988
• Docket Number: No. 54326,54326
• Citation: 761 S.W.2d 269
• Parties: SOUTHERN CROSS LUMBER & MILLWORK COMPANY, Plaintiff-Respondent, v. James B. BECKER, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 269

761 S.W.2d 269

SOUTHERN CROSS LUMBER & MILLWORK COMPANY, Plaintiff-Respondent, v. James B. BECKER, Defendant-Appellant.

No. 54326.

Missouri Court of Appeals,

Eastern District,

Division Two.

Nov. 29, 1988.

Robert E. Jones, St. Louis, for defendant-appellant.

David V. Collignon, Clayton, for plaintiff-respondent.

GRIMM, Presiding Judge.

In this bench-tried case, James Becker, d/b/a Becker Escrow Service, appeals from a judgment entered in favor of plaintiff Southern Cross Lumber and Millwork Company for damages resulting from a breach of fiduciary duty. We affirm.

There are three allegations of error. First, that the trial court erred in overruling Becker's motion to dismiss because Southern's cause of action was barred by the five-year statute of limitations, § 516.120, RSMo 1986. We disagree, because Southern filed its suit within five years after its damages were capable of ascertainment. Second, that the trial court erred in determining that Becker owed a duty to Southern not to deliver Southern's mechanic's lien waiver without first disbursing full payment to Southern. We disagree, because Becker, as escrow agent, had a duty not to release the lien waiver unless Southern received payment.

The third and final allegation is that the trial court erred in determining that Becker was indebted to Southern in the amount of $7,432.92 because Southern clearly acknowledged, by delivery of its lien waiver to Becker on March 27, 1981, that it was paid in full. We disagree, because there was sufficient evidence for the trial court to find that Southern had not actually received payment.

A review of the facts in the light most favorable to the verdict reveals that, beginning in 1980, Southern provided materials to David Guthrel Development Company for improvements on several lots. The lot involved here was lot 4, Oak Post Lane in Chesterfield. Lumber and materials valued at $15,026.78 were sent to lot 4.

Guthrel had a construction loan for this lot from South Side National Bank. The bank required that funds be disbursed through an escrow agency, here James Becker, d/b/a Becker Escrow Services. Becker's procedures, according to his manager, are the same as those "used by every escrow disbursing company in the city."

Pursuant to the escrow agreement, Guthrel, after receiving materials from Southern, was to send Southern a signed voucher indicating the amount to be paid Southern. Southern then must send the voucher, along with a statement of account and an executed lien waiver, to Becker. Becker then was to process the voucher. If sufficient funds were available, Becker countersigned the voucher, making it negotiable. The voucher was then to be sent back to Southern to endorse and deposit like a check.

After the above procedure was followed, on January 14, 1981, Southern received $7,593.86. On March 27, 1981, Southern received a voucher from Guthrel for $7,432.92; the remaining balance due. Southern, on the same day, sent Guthrel's voucher to Becker, along with a statement of account and a signed lien waiver, for $7,432.92.

After not receiving payment of the $7,432.92, Southern filed a mechanic's lien and petition to enforce the lien. On December 9, 1985, a circuit court found that Southern was not entitled to a mechanic's lien because of Southern's signed lien waiver dated March 27, 1981. On January 21, 1987, Southern filed its petition against Becker for breach of fiduciary duty.

Becker first alleges that the trial court erred in overruling his motion to dismiss because Southern's cause of action was barred by the five-year statute of limitations, § 516.120, RSMo 1986.

Becker argues that the applicable statute of limitations began to run on either March 28, 1981, (when he allegedly wrongfully delivered Southern's lien waiver to Guthrel) or on March 28, 1981, if not earlier (when he failed to pay Southern fully for the materials delivered). He claims that Southern's suit had to be brought by March 28, 1986, pursuant to the five-year statute of limitations, § 516.120, RSMo 1986. Thus, Southern's suit filed January 21, 1987, was untimely and consequently, barred.

Southern, on the other hand, contends that the statute of limitations did not begin to run until December 9, 1985. This is the date when Southern's signed lien waiver was used in circuit court to defeat its claim for a mechanic's lien. Thus, according to Southern, its suit was brought within five years, as § 516.120, RSMo 1986 requires.

Section 516.100 provides in pertinent part:

Civil actions, other than those for the recovery of real property, can only be commenced within the periods prescribed in the following sections, after the causes of action shall have accrued; provided, that for the purposes of sections 516.100 to 516.370, the cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment,....

Thus, § 516.100 requires that the resulting damage be "capable of ascertainment" before the applicable statute of limitations, here § 516.120, begins to run. "Capable of ascertainment" refers to the fact of damage rather than the precise amount. Title Insurance Company of Minnesota v. Construction Escrow Service, Inc., 675 S.W.2d 881, 885 (Mo.App.E.D.1984). It has been consistently held that the time under the statute of limitations begins to run only after the right to bring and prosecute a suit to a successful conclusion has arisen. Id. at 887; Beckers-Behrens-Gist Lumber Company v. Adams, 311 S.W.2d 70, 74 (Mo.App.E.D.1958). It does not necessarily begin to run when the liability is created. Construction Escrow Service, Inc. at 887.

From the evidence, we conclude that Southern did not actually sustain damage which was "capable of ascertainment" until December 9, 1985, when its lien waiver was used to defeat its claim for a mechanic's lien. The liability arose when Becker breached...