In the Missouri Court of Appeals Eastern District
DIVISION FOUR
CHARLOTTE BENTON, ) No. ED100309 ) Plaintiff/Appellant, ) Appeal from the Circuit Court of ) St. Charles County vs. ) ) CRACKER BARREL ) Honorable Richard K. Zerr OLD COUNTRY STORES, INC., ) ) Defendant/Respondent. ) Filed: April 29, 2014
Introduction
In this personal injury action, Charlotte Benton (Plaintiff) appeals the trial court’s
judgment granting a motion to dismiss in favor of Cracker Barrel Old Country Stores, Inc.,
(Defendant). Plaintiff contends that the trial court erred in concluding that her claim was barred
by Illinois’ two-year statute of limitations, as applied by Missouri’s borrowing statute,
§ 516.190, RSMo.1 We affirm.
Factual Background
The facts are not in dispute. On March 12, 2009, Plaintiff and her husband began a road
trip from their home in St. Charles County, Missouri, to North Carolina. The couple drove to
Mount Vernon, Illinois, where they stopped for breakfast at Defendant’s restaurant. As Plaintiff
1 All statutory references are to the Revised Missouri Statutes 2000, as supplemented, unless otherwise indicated. was walking from her car to the entrance of the restaurant, she fell on the walkway and sustained
injuries to her wrist, elbow, knee and patella. Four years later, on March 21, 2013, Plaintiff filed
a petition in the Circuit Court of St. Charles County, Missouri, seeking damages for her personal
injuries which Plaintiff alleged were caused by Defendant’s negligence in failing to keep its
walkway safe and free of defects. On April 1, 2013, Plaintiff amended her petition to include a
claim of negligent misrepresentation.2
In response, Defendant filed a motion to dismiss asserting that Plaintiff’s claim was
barred by the two-year Illinois statute of limitations,3 through the application of Missouri’s
borrowing statute, § 516.190, RSMo. The trial court agreed and granted the motion to dismiss.
Plaintiff appeals.
Standard of Review
Appellate review of a trial court’s grant of a motion to dismiss is de novo. Summer
Chase Second Addition Subdivision Homeowners Ass’n v. Taylor-Morley, 146 S.W.3d 411, 415
(Mo. App. E.D. 2004). In reviewing the trial court’s dismissal of a petition, we view the facts in
the light most favorable to the plaintiff, treating the facts alleged as true, to determine whether
the facts pleaded and the inferences reasonably drawn therefrom state any ground for relief.
K.G. v. R.T.R., 918 S.W.2d 795, 797 (Mo. banc 1996). If it appears from the petition that the
cause of action is barred by the statute of limitations, a motion to dismiss on that ground is
properly sustained. Klemme v. Best, 941 S.W.2d 493, 497 (Mo. banc 1997). The determination
of whether a statute of limitations applies to bar a cause of action is a question of law. Harris-
Laboy v. Blessing Hosp., Inc., 972 S.W.2d 522, 524 (Mo. App. E.D. 1998).
2 The inclusion of this claim in Plaintiff’s amended petition does not change the nature of her personal injury action for purposes of determining the applicable statute of limitations. 3 Under Illinois law, a personal injury action must be commenced within two years after the cause of action accrued. 735 ILCS 5 §13-202 (2008).
2 Discussion
In her sole point, Plaintiff contends that the trial court erred in dismissing her personal
injury action based on Illinois’ two-year statute of limitations, as applied by Missouri’s
“borrowing statute,” § 516.190. Specifically, Plaintiff claims that Missouri’s five-year statute of
limitations4 applies to her cause of action because it “originated” in Missouri. Plaintiff argues
that her claim originated in Missouri because: 1) Defendant advertised and marketed its
restaurant in Missouri via “interactive websites;” and 2) Plaintiff’s road trip began and ended in
Missouri.
Section 516.190 – Missouri’s Borrowing Statute
Section 516.190, commonly referred to as the “borrowing statute,” provides that:
Whenever a cause of action has been fully barred by the laws of the state ... in which it originated, said bar shall be a complete defense to any action thereon, brought in any courts of this state. (Emphasis added.)
In accordance with the plain language of this provision, Missouri courts have held that
when a cause of action “originates” in another state, the foreign state’s statute of limitations
becomes applicable to a claim that is filed in Missouri. See, e.g., Ferrell Gas, Inc. v. Edward A.
Smith, PC, 190 S.W.3d 615, 620 (Mo. App. W.D. 2006); Natalini v. Little, 185 S.W.3d 239, 243
(Mo. App. S.D. 2006) (citing Thompson v. Crawford, 833 S.W.2d 868, 872 (Mo. banc 1992)).
Therefore, if the cause of action is time-barred by the foreign state’s statute of limitations, then
§ 516.190 operates to bar the action in Missouri as well. State ex rel. Old Dominion Freight
Line, Inc. v. Daily, 369 S.W.3d 773, 777 (Mo. App. S.D. 2012).
The dispositive question here is whether Plaintiff’s cause of action “originated” in
Missouri or Illinois. Neither party disputes that the Missouri Supreme Court has construed the
term “originated,” within the meaning of the borrowing statute, to be the equivalent of the term 4 Section 516.120 (4) sets forth a five-year statute of limitations for filing a personal injury action in Missouri.
3 “accrued,” as set forth in § 516.100. See Thompson, 833 S.W.2d at 871. Section 516.100
provides that a cause of action accrues “when the damage resulting therefrom is sustained and is
capable of ascertainment.” Natalini, 185 S.W.3d at 243. Thus, for purposes of the borrowing
statute, “a cause of action accrues … and originates where damages are sustained and are
capable of ascertainment.” Id. (citing Day v. DeVries & Assocs., P.C., 98 S.W.3d 92, 95-96
(Mo. App. W.D. 2003)). The phrase “capable of ascertainment” means capable of being
ascertained by a reasonable person using reasonable diligence. Cook v. DeSoto Fuels, Inc., 169
S.W.3d 94, 103 (Mo. App. E.D. 2005). Damages are ascertainable when they can be discovered
or made known, regardless of whether the extent of the damages are then known. Klemme, 941
S.W.2d at 497.
Cause of Action Originated Where Injuries Were Sustained
The undisputed facts in this case establish that on March 12, 2009, Plaintiff suffered
injuries when she fell on a walkway outside of Defendant’s restaurant in Illinois. Because
Plaintiff’s injuries were sustained and capable of ascertainment in Illinois, we conclude that her
cause of action originated in Illinois. Thus, Missouri’s borrowing statute mandates the
application of Illinois’ two-year statute of limitations, which began to run in March 2009, when
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In the Missouri Court of Appeals Eastern District
DIVISION FOUR
CHARLOTTE BENTON, ) No. ED100309 ) Plaintiff/Appellant, ) Appeal from the Circuit Court of ) St. Charles County vs. ) ) CRACKER BARREL ) Honorable Richard K. Zerr OLD COUNTRY STORES, INC., ) ) Defendant/Respondent. ) Filed: April 29, 2014
Introduction
In this personal injury action, Charlotte Benton (Plaintiff) appeals the trial court’s
judgment granting a motion to dismiss in favor of Cracker Barrel Old Country Stores, Inc.,
(Defendant). Plaintiff contends that the trial court erred in concluding that her claim was barred
by Illinois’ two-year statute of limitations, as applied by Missouri’s borrowing statute,
§ 516.190, RSMo.1 We affirm.
Factual Background
The facts are not in dispute. On March 12, 2009, Plaintiff and her husband began a road
trip from their home in St. Charles County, Missouri, to North Carolina. The couple drove to
Mount Vernon, Illinois, where they stopped for breakfast at Defendant’s restaurant. As Plaintiff
1 All statutory references are to the Revised Missouri Statutes 2000, as supplemented, unless otherwise indicated. was walking from her car to the entrance of the restaurant, she fell on the walkway and sustained
injuries to her wrist, elbow, knee and patella. Four years later, on March 21, 2013, Plaintiff filed
a petition in the Circuit Court of St. Charles County, Missouri, seeking damages for her personal
injuries which Plaintiff alleged were caused by Defendant’s negligence in failing to keep its
walkway safe and free of defects. On April 1, 2013, Plaintiff amended her petition to include a
claim of negligent misrepresentation.2
In response, Defendant filed a motion to dismiss asserting that Plaintiff’s claim was
barred by the two-year Illinois statute of limitations,3 through the application of Missouri’s
borrowing statute, § 516.190, RSMo. The trial court agreed and granted the motion to dismiss.
Plaintiff appeals.
Standard of Review
Appellate review of a trial court’s grant of a motion to dismiss is de novo. Summer
Chase Second Addition Subdivision Homeowners Ass’n v. Taylor-Morley, 146 S.W.3d 411, 415
(Mo. App. E.D. 2004). In reviewing the trial court’s dismissal of a petition, we view the facts in
the light most favorable to the plaintiff, treating the facts alleged as true, to determine whether
the facts pleaded and the inferences reasonably drawn therefrom state any ground for relief.
K.G. v. R.T.R., 918 S.W.2d 795, 797 (Mo. banc 1996). If it appears from the petition that the
cause of action is barred by the statute of limitations, a motion to dismiss on that ground is
properly sustained. Klemme v. Best, 941 S.W.2d 493, 497 (Mo. banc 1997). The determination
of whether a statute of limitations applies to bar a cause of action is a question of law. Harris-
Laboy v. Blessing Hosp., Inc., 972 S.W.2d 522, 524 (Mo. App. E.D. 1998).
2 The inclusion of this claim in Plaintiff’s amended petition does not change the nature of her personal injury action for purposes of determining the applicable statute of limitations. 3 Under Illinois law, a personal injury action must be commenced within two years after the cause of action accrued. 735 ILCS 5 §13-202 (2008).
2 Discussion
In her sole point, Plaintiff contends that the trial court erred in dismissing her personal
injury action based on Illinois’ two-year statute of limitations, as applied by Missouri’s
“borrowing statute,” § 516.190. Specifically, Plaintiff claims that Missouri’s five-year statute of
limitations4 applies to her cause of action because it “originated” in Missouri. Plaintiff argues
that her claim originated in Missouri because: 1) Defendant advertised and marketed its
restaurant in Missouri via “interactive websites;” and 2) Plaintiff’s road trip began and ended in
Missouri.
Section 516.190 – Missouri’s Borrowing Statute
Section 516.190, commonly referred to as the “borrowing statute,” provides that:
Whenever a cause of action has been fully barred by the laws of the state ... in which it originated, said bar shall be a complete defense to any action thereon, brought in any courts of this state. (Emphasis added.)
In accordance with the plain language of this provision, Missouri courts have held that
when a cause of action “originates” in another state, the foreign state’s statute of limitations
becomes applicable to a claim that is filed in Missouri. See, e.g., Ferrell Gas, Inc. v. Edward A.
Smith, PC, 190 S.W.3d 615, 620 (Mo. App. W.D. 2006); Natalini v. Little, 185 S.W.3d 239, 243
(Mo. App. S.D. 2006) (citing Thompson v. Crawford, 833 S.W.2d 868, 872 (Mo. banc 1992)).
Therefore, if the cause of action is time-barred by the foreign state’s statute of limitations, then
§ 516.190 operates to bar the action in Missouri as well. State ex rel. Old Dominion Freight
Line, Inc. v. Daily, 369 S.W.3d 773, 777 (Mo. App. S.D. 2012).
The dispositive question here is whether Plaintiff’s cause of action “originated” in
Missouri or Illinois. Neither party disputes that the Missouri Supreme Court has construed the
term “originated,” within the meaning of the borrowing statute, to be the equivalent of the term 4 Section 516.120 (4) sets forth a five-year statute of limitations for filing a personal injury action in Missouri.
3 “accrued,” as set forth in § 516.100. See Thompson, 833 S.W.2d at 871. Section 516.100
provides that a cause of action accrues “when the damage resulting therefrom is sustained and is
capable of ascertainment.” Natalini, 185 S.W.3d at 243. Thus, for purposes of the borrowing
statute, “a cause of action accrues … and originates where damages are sustained and are
capable of ascertainment.” Id. (citing Day v. DeVries & Assocs., P.C., 98 S.W.3d 92, 95-96
(Mo. App. W.D. 2003)). The phrase “capable of ascertainment” means capable of being
ascertained by a reasonable person using reasonable diligence. Cook v. DeSoto Fuels, Inc., 169
S.W.3d 94, 103 (Mo. App. E.D. 2005). Damages are ascertainable when they can be discovered
or made known, regardless of whether the extent of the damages are then known. Klemme, 941
S.W.2d at 497.
Cause of Action Originated Where Injuries Were Sustained
The undisputed facts in this case establish that on March 12, 2009, Plaintiff suffered
injuries when she fell on a walkway outside of Defendant’s restaurant in Illinois. Because
Plaintiff’s injuries were sustained and capable of ascertainment in Illinois, we conclude that her
cause of action originated in Illinois. Thus, Missouri’s borrowing statute mandates the
application of Illinois’ two-year statute of limitations, which began to run in March 2009, when
Plaintiff sustained her injuries. See Natalini, 185 S.W.3d at 246. Plaintiff did not file her
personal injury suit until March 2013, which was two years after the expiration of Illinois’ two-
year limitation period. Therefore, her claim was barred and the trial court correctly granted
Defendant’s motion to dismiss.
Nonetheless, Plaintiff asserts that her claim originated in Missouri because Defendant
advertised and marketed its restaurant in Missouri via “interactive websites” and mailings and
because her road trip began and ended in Missouri. Plaintiff claims that Defendant targeted,
4 solicited, and encouraged Missouri residents, including Plaintiff, to patronize its restaurant by
offering a “virtual tour,” as well as travel tips and directions. Because Plaintiff was allegedly
encouraged to patronize Defendant’s restaurant based on its online advertising in Missouri,
Plaintiff urges this Court to find that her claim “originated” in Missouri. Plaintiff argues that,
contrary to Thompson, the terms “originate” and “accrued” are not synonymous, and therefore,
should not be construed as “equivalent.” Plaintiff cites no case authority to support this
assertion. Instead, Plaintiff cites to various definitions found in Webster’s Third New
International Dictionary, Merriam-Webster’s dictionary, and non-relevant statutes. In essence,
Plaintiff suggests that we deviate from the well-established interpretation of the borrowing
statute as declared by our Supreme Court in Thompson to find that her claim originated in
Missouri. We are not persuaded.
The language of the borrowing statute is plain and unambiguous. To construe the
borrowing statute as Plaintiff suggests would be wholly inconsistent with Thompson and would
effectively allow Plaintiff to circumvent the § 516.190 time limitation mandates. Simply put,
allowing Plaintiff to pursue this action in Missouri after it was time-barred by the Illinois’
limitation period would ignore the plain language of the borrowing statute and contravene its
primary purpose to prevent forum shopping. See Harris-Laboy, 972 S.W.2d at 524. The fact
that Defendant advertised and marketed its restaurant in Missouri via online websites bears no
relevance to determining where Plaintiff’s cause of action originated for purposes of § 516.190.
Similarly, that Plaintiff’s road trip began and ended in Missouri is immaterial to the issue here
and Missouri courts have rejected similar arguments. See, e.g., Dorris v. McCanahan, 725
S.W.2d 870, 871 (Mo. banc 1987) (overruled on other grounds); Trzecki v. Gruenewald, 532
5 S.W.2d 209, 211-12 (Mo. banc 1976); Richardson v. Watkins Bros. Mem. Chapels, 527 S.W.2d
19, 20 (Mo. App. W.D. 1975).
Because Plaintiff failed to file her action within Illinois’ two-year limitation period, her
claim is barred under § 516.190. Thus, the trial court did not err in granting Defendant’s motion
to dismiss.
Conclusion
For the foregoing reasons, we affirm the trial court’s judgment dismissing
Plaintiff’s action.
________________________________ Philip M. Hess, Judge
Lisa Van Amburg, P.J. and Patricia L. Cohen., J. concur.