Yahne v. Pettis County Sheriff Dept.

• Citation: 73 S.W.3d 717
• Decision Date: 19 February 2002
• Docket Number: No. WD 60113.,WD 60113.
• Parties: Glenn Wayne YAHNE, Appellant, v. PETTIS COUNTY SHERIFF DEPARTMENT and Sheriff Gary R. Starke, Respondents.
• Court: Court of Appeal of Missouri (US)

73 S.W.3d 717

Glenn Wayne YAHNE, Appellant, v. PETTIS COUNTY SHERIFF DEPARTMENT and Sheriff Gary R. Starke, Respondents.

No. WD 60113.

Missouri Court of Appeals, Western District.

February 19, 2002.

Motion for Rehearing and/or Transfer to Supreme Court Denied April 2, 2002.

Application for Transfer Denied May 28, 2002.

George Allen Barton, Kansas City, for appellant.

Jeff A. Mittelhauser, Sedalia, for respondent.

RONALD R. HOLLIGER, Judge.

Glenn Wayne Yahne sued the Pettis County Sheriff seeking the return of $140,000 he claimed was seized from him and wrongfully transferred to federal officials in violation of the CAFA statute, §§ 513.600 to 513.645.¹ In a case of first impression we must determine whether the statute of limitation contained in § 513.630 of CAFA applies to his claim for return of the money. The money was allegedly seized on February 24, 1995, and a transfer to federal authorities approved (allegedly without compliance with CAFA) on March 7, 1995. Yahne's petition was not filed until March 15, 2001. The Sheriff contended that the applicable limitation period was the three-year provision of § 516.130 for actions against a sheriff involving his official duty. Alternatively, the Sheriff argued that the five-year limitation of § 516.120 barred Yahne's claim. Yahne contended that the five-year statute within CAFA, § 513.630, as tolled by the pendency of a criminal proceeding against him was the proper statute.² The trial court sustained the Sheriff's motion to dismiss finding that § 516.130 applied and Yahne now appeals.

Both parties suggest that the issue of which statute of limitations applies to a cause of action is a question of law. As such, the trial court's ruling is subject to de novo review by this court, without deference to the trial court's conclusions. Craven v. State ex rel. Premium Standard Farms, Inc., 19 S.W.3d 160, 163 (Mo.App.2000). We add that where a statute of limitations is asserted in support of a motion to dismiss, the petition should not be dismissed unless the petition clearly establishes on its face and without exception that it is time barred. Sheehan v. Sheehan, 901 S.W.2d 57, 59 (Mo. banc 1995). Certain general rules of pleading concerning limitations defenses are also particularly germane. The statute of limitations is an affirmative defense that is waived if not raised. Rule 55.08. A party raising the bar of limitations carries the burden of both pleading and proving the defense. Business Men's Assurance Co. v. Graham, 984 S.W.2d 501, 507 (Mo. banc 1999). A party must plead the particular statute upon which he relies. State ex rel. B.A.W. by Warner v. Zupan, 901 S.W.2d 250, 251 (Mo.App.1995). Limitations is not one of those enumerated defenses that may be raised by motion rather than in an answer. Rule 55.27. A party may properly plead alternative statutes of limitations alleged to bar the claim. Reed v. Rope, 817 S.W.2d 503, 507 (Mo.App.1991).

The burden of proving an exception to the limitations bar is upon the party against whom the defense is asserted. Lomax v. Sewell, 1 S.W.3d 548, 553 (Mo.App.1999). The required pleading is in the nature of an avoidance. Rule 55.08 and 55.01. Suggestions in support of or opposing a motion are not the type of pleadings in which to properly assert an affirmative defense of matter of avoidance. Id. Although a party need not necessarily plead matters in avoidance of limitations in the first place, Schwartz v. Lawson, 797 S.W.2d 828, 834 (Mo.App.1990), they must appear by way of reply to the pleading raising the defense, id., if not appearing on the face of the original petition. Batek v. Curators of Univ. of Mo., 920 S.W.2d 895, 897 (Mo. banc 1996).

Our recitation of these general principles leads us to the apparently unnoticed and certainly unmentioned state of the pleadings in this case. The Sheriff's answer pleaded the statute of limitations as a defense but mentioned no specific statute. Neither § 516.130 nor § 516.120 were mentioned until he filed his subsequent motion to dismiss. Yahne filed no reply to the Sheriff's answer in avoidance of the defense nor do we criticize that omission given the lack of notice in Sheriff's answer of what limitations statute the Sheriff relied upon. In his suggestions in opposition to the Sheriff's motion, Yahne suggested that the applicable statute of limitations was the five-year limitation in § 513.630 (CAFA). And although his claim would, on the face of the petition, be beyond that five-year limitation, Yahne was content to assert his contention that the tolling provision within the CAFA statute of limitations applied to his claim in his suggestions in opposition to the Sheriff's motion, without filing a reply to the Sheriff's answer asserting the claimed avoidance.

What legal significance are we to give to pleadings in such a state? To hold that the Sheriff waived the issue by not asserting the specific statute in this answer although he did so in this motion to dismiss imposes a result not urged by Yahne. Moreover, it begs the question since in any event Yahne does not think that § 516.130 is applicable to his cause at all. To that extent the parties are correct that we are faced with a pure question of law (whether § 516.130 or § 513.630 applies). If we were to determine, however, that the CAFA limitation period applies, it also has expired on the face of the pleadings. Application of the rule that failure by Yahne to assert the avoidance of tolling during the pendency of the criminal proceeding would likewise impose a result not sought by Sheriff. Nevertheless we are not comfortable on the basis of the legal file and arguments before us that Sheriff would concede that if § 513.630 applies that its running has been tolled for a sufficient time that the action was timely filed. If, however, we conclude that the general limitation period of § 516.130 applies, then the state of the pleadings and Yahne's claim of tolling are only of passing theoretical interest. We discuss these considerations only to make clear that the practicalities of this case and the principles described above necessarily limit our review in this case to a consideration of whether the general or CAFA limitation period applies and not to whether Yahne's claim is timely filed under the CAFA limitation period.

FACTS

On February 24, 1995, pursuant to a search warrant, the Pettis County Sheriff's Department seized in excess of $100,000 in currency from Yahne's home. The record does not reveal whether Yahne was arrested at that time, but apparently he was subsequently charged with a criminal drug offense. Yahne's petition alleges that a civil forfeiture action under CAFA was not filed, but rather on March 7, 1995, the Pettis County Prosecutor filed a request under § 513.647 of CAFA to transfer the money to federal authorities. Yahne alleges that the transfer was approved by a circuit judge the same day without compliance with the provisions of the statute including notice to Yahne and an opportunity to object.³ On March 15, 2001, Yahne filed a three-count petition against the Sheriff and the Sheriff's Department alleging the facts described above and seeking return of the money or its equivalent. Assumpsit for money had and received, unjust enrichment and replevin were pled as theories of relief. After the pleadings and motion to dismiss discussed earlier, the trial court found that the three-year limitation period of § 516.130 applied and entered a judgment of dismissal.

THE GENERAL LIMITATION STATUTE § 516.130

Chapter 516 contains the general legislative provisions for statutes of limitation. Its provisions apply to civil actions except that the "provisions of § 516.010 to § 516.370 shall not extend to any action which is or shall be limited by any statute; but such action shall be brought within the time limited by such statute." § 516.300. The limitation period selected by the trial court was, inter alia:

516.130. What actions within three years

Within three years:

(1) 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;

(2) An action upon a statute for a penalty or forfeiture, where the action is given to the party aggrieved, or to such party and the state.

Yahne does not argue that this statute would not ordinarily apply to an action against a sheriff for the recovery of specific property.⁴ Nor does Yahne cite to § 516.300 as establishing our method of analysis although he argues generally that the CAFA limitation period applies because it is more specific.

THE CAFA LIMITATION STATUTE § 513.630

Notwithstanding any other provision of law, a proceeding under this act may be commenced up until five years after the conduct terminates or the cause of action accrues. If a criminal prosecution or civil action is brought by the state relating to conduct which would constitute criminal activity as defined in section 513.605, then the running of the period of limitations shall be suspended during the pendency of such prosecution or action by the state and for five years thereafter.

Our task is, therefore, to determine whether the CAFA statute is a more specific statute of limitation that applies rather than any of the general limitation periods in Chapter 516, including specifically § 526.130. See Anderson v. Dyer, 456 S.W.2d 808, 813 (Mo.App.1970). A review of reported decisions is of limited assistance. Where a cause of action, such as wrongful death, has its own built in statute of limitations, the latter prevails. Thompson by Thompson v. Crawford, 833 S.W.2d 868, 871 (Mo. banc 1992). And the wrongful death statute limitation period prevails over even the specific statute of limitation in Chapter 516 dealing with medical malpractice actions. Gramlich v. Travelers Ins. Co., 640...