Hasemeier v. Metro Sales, Inc.

699 S.W.2d 439, 1985 Mo. App. LEXIS 3634
CourtMissouri Court of Appeals
DecidedJuly 23, 1985
DocketNo. 49353
StatusPublished
Cited by5 cases

This text of 699 S.W.2d 439 (Hasemeier v. Metro Sales, Inc.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hasemeier v. Metro Sales, Inc., 699 S.W.2d 439, 1985 Mo. App. LEXIS 3634 (Mo. Ct. App. 1985).

Opinion

SNYDER, Judge.

Plaintiffs Mark Hasemeier and Donna Hasemeier appeal from a summary judgment in favor of defendants. The litigation arises out of the Hasemeiers’ claim against the defendants for defective construction of the Hasemeiers’ residence. The issue is whether the petition was filed within the applicable statute of limitations. The judgment is affirmed.

Four of appellants’ points relied on charge trial court error in rendering summary judgment because they in fact filed their petition within either the ten year limitations period allowed in § 516.097, RSMo.1978 or the five year period allowed in § 516.120, RSMo.1978.

In the appellants’ final point they say the trial court erred in denying their motion to strike respondent’s first amended answer in which they pled the specific statutes of limitations relied on. They argue respondents had waived the statute of limitations defense because in their original answer they raised the statute of limitations defense without specifying the statutes on which they were relying.

The last claim of error will be decided first. If the trial court erred in permitting respondents to amend their answer to specify the statutory provisions they were relying on in their statute of limitations affirmative defense, it will not be necessary to consider the appellants’ other points relied on. The trial court was well within its discretion in permitting respondents to amend their answer, however, and this point is denied.

Respondents’ answer to appellants' third amended petition was filed on January 15, 1982. It contained an allegation that the appellants’ cause of action was barred by the statute of limitations, without specifying with particularity the section of the statutes upon which it relied.

Several motions were filed and ruled upon, discovery ensued, and on May 18, 1984 respondents, by leave of court, filed their first amended answer in which they specified that all counts of the appellants’ third amended petition were barred by the statute of limitations as “set forth in § 516.120 RSMo. (1978), as read in conjunction with § 516.097 RSMo. (1978),” because the claims accrued more than five years prior to the filing of the petition.

Appellants were aware of respondents’ reliance upon the statute of limitations inasmuch as it was pled generally in respondents’ first answer, although without specifying the applicable statute sections. Appellants were not prejudiced by the trial court’s granting of the motion to amend.

A party may amend his pleadings by leave of court at any time and leave shall be freely given when justice so requires. Rule 55.33, DeArmon v. City of St. Louis, 525 S.W.2d 795, 802 (Mo.App.1975). Trial courts have broad discretion in determining whether leave to amend shall be granted. [441]*441Pender v. Foeste, 329 S.W.2d 656, 659[4] (Mo.1960), Sun Elec. Corp. v. Morgan, 678 S.W.2d 410, 412 (Mo.App.1984). This court finds that the trial court did not abuse its discretion in granting respondents leave to file the amended answer.

Appellants cite eases which hold that a party relying on the statute of limitations must plead the specific statutory section upon which he relies. There is no quarrel with those cases. Appellants cite no cases, however, in which a Missouri appellate court has ruled that a trial court abused its discretion in allowing an amendment to an answer under facts similar to those in the case under review. There was no error in permitting the challenged amendment.

Appellants maintain the trial court erred in granting respondents’ motion for summary judgment because the applicable statute of limitations is § 516.097 RSMo.1978 and the petition was filed within ten years of the date on which the residence was completed.

Appellants cite no authority to support their contention that § 516.097 RSMo. 1978 is the applicable statute. A point of error unsupported by citation of relevant authority is ordinarily deemed abandoned. Wright v. Martin, 674 S.W.2d 238 (Mo.App.1984). Appellants say nothing about this being a case of first impression and their argument does nothing more than quote sections of their petition, concluding with an assertion that the suit was brought within ten years of completion of the improvement.

The issue is not one of first impression. Crowder v. Vandendeale, 564 S.W.2d 879 (Mo. banc 1978); Gibson v. Reliable Chevrolet, Inc., 608 S.W.2d 471 (Mo.App.1980). The point is denied.

It remains, then, to determine whether appellants’ petition was filed within the five-year period allowed by § 516.120 RSMo.1978. Summary dispositions are appropriate in statute of limitations cases because underlying facts are relatively easy to develop, Dixon v. Shafton, 649 S.W.2d 435, 440 (Mo. banc 1983), but summary judgment procedure is an extreme and drastic remedy and should be utilized with great care. Commerce Bank of Fenton v. B.P.J. Enterprises, 659 S.W.2d 615, 617[1-4] (Mo.App.1983). Summary judgment should not be rendered unless “the prevailing party is shown by unassailable proof to be entitled thereto as a matter of law.” Pitman Mfg. Co. v. Centropolis Transfer Co., 461 S.W.2d 866, 872[3-5] (Mo.1970); Rule 74.04(h).

The petition was brought in six counts, breach of implied warranty of fitness and habitability, breach of implied warranty of construction in a skillful and workmanlike manner, fraud, fraudulent concealment, and violation of the Merchandising Practices Act. Their points relied on relate to the breach of implied warranty and fraud counts.

Appellants tacitly admit that the five-year statute is applicable to their cause of action. Missouri courts “have applied statutes of limitations with some strictness, and exceptions and estoppels have been rather grudgingly found.” Dixon v. Shafton, supra, citing Jepson v. Stubbs, 555 S.W.2d 307 (Mo. banc 1977).

Suit was filed on April 1, 1977. In answer to an interrogatory, appellants said:

The damage first became apparent on or about August 1, 1971, and approximately at the end of 1973 or the beginning of 1974 water began to leak into the finished side of the basement, and further damage has continued every day until the present and is still continuing.

Appellants’ other answers to interrogatories and deposition testimony all say that they started getting water in the basement in 1973 and that damage to basement floors and- walls, basement paneling and stairs, the basement tiled floor, a bar and a refrigerator occurred after 1973. They alleged further that damage to the patio occurred after 1973.

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Bluebook (online)
699 S.W.2d 439, 1985 Mo. App. LEXIS 3634, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hasemeier-v-metro-sales-inc-moctapp-1985.