Lea v. Reed

880 S.W.2d 603, 1994 Mo. App. LEXIS 1162, 1994 WL 363424
CourtMissouri Court of Appeals
DecidedJuly 12, 1994
DocketNos. 19078, 19079
StatusPublished
Cited by1 cases

This text of 880 S.W.2d 603 (Lea v. Reed) 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
Lea v. Reed, 880 S.W.2d 603, 1994 Mo. App. LEXIS 1162, 1994 WL 363424 (Mo. Ct. App. 1994).

Opinion

SHRUM, Judge.

Patricia Ann Lea appeals from a judgment in favor of Herbert Franklin Reed on his claim that she owed him principal and interest on a loan he made to her.

On appeal, Lea contends the trial court erred in finding for Reed because his claim was barred by either a five-year or four-year statute of limitations. We reject Lea’s two points on appeal and affirm the judgment.

FACTS

After the death of her mother, who was married to Reed, Lea sued Reed, requesting partition of her mother’s real and personal property or sale of the property and division of the proceeds.

On March 6, 1992, Reed answered Lea’s petition and filed a multiple-count counterclaim. In Count II he alleged (1) on November 24, 1981, he lent Lea and her husband $12,000.00 with which to purchase a travel trader, (2) Lea promised to repay the $12,000 with 10 percent annual interest by paying monthly installments of $424.00, and (3) the principal balance was $10,369.14 as of June 2, 1987. Reed prayed for payment of the remaining principal plus interest that had accrued since July 2, 1987.1

Lea responded to Reed’s Count II with a general denial and an affirmative pleading in which she asserted that “said counterclaim is barred by the statute of limitations.”

At trial, on direct examination, Reed testified he bought the travel trailer for the Leas and that Patricia Lea verbally agreed to repay him “at so much a month at a reasonable rate of interest.” He recalled the loan amount was $12,000.00, the monthly payments were $424.00, and the interest rate was “10 percent maybe, or 8 percent.” Asked about the number of payments the Leas had made and the dates those payments were made, Reed said he could not answer “from recollection.”

Reed’s lawyer suggested he look at his “ledger book.” The trial court rejected the admission into evidence of the ledger as a past recollection recorded but permitted Reed to refresh his recollection with it. With the aid of his ledger, Reed testified [605]*605about two payments Lea made in 1982 and that, as of July 2, 1987, the balance due was $10,369.14. Lea’s attorney repeatedly objected to Reed’s testimony, arguing he was reading from the ledger rather than using it to refresh his recollection.

On cross-examination, the following transpired:

“Q [by Lea’s attorney]: Do you recall when was the last time that they made any payments on this trailer transaction?
A: Not without looking at my ledger.
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Q: All right, and so it’s a simple fact that you can’t tell us whether they made a payment on it within five years of March the 3rd of 1992?
A: You mean 1987?
Q: (Nods head.)
A: I can’t tell you without looking.
Q: So, they may not have made a payment in 1987?
A: I can’t tell you.
Q: Well, can you sit here and tell me that they made a payment on this alleged loan during 1987 or thereafter?
A: I can’t tell you except what my ledger says.”
On redirect examination, the following occurred:
“Q [by Reed’s attorney]: When was the last time Fred and Pat Lea made a payment on the travel trailer? Would you need to refer to your book to refresh your recollection?
A: Yes. (Examining document) July, ’87.”

During recross-examination, asked what he recalled “about that incident in July of ’87,” Reed said, “Nothing except she did pay the $750.00.”

Reed was the last witness in his case-in-chief. Immediately following his testimony, Lea’s attorney requested a ruling on the merits of Reed’s Count II “for the reason that there’s no substantial evidence to support the position that the claim is not barred by the statute of limitations....” The court denied the request.

On March 23, 1993, the trial court entered its “Interlocutory Judgment and Order of Sale” in which it ordered the real estate sold, with the sale proceeds to be divided in accordance with “further orders.” On Count II of Reed’s counterclaim, the court found in favor of Reed, found his damages to be $10,369.14 principal and $4,700.67 interest,2 and ordered Lea to pay him $15,069.81. The court’s disposition of the other counts of Lea’s claim and Reed’s counterclaim is not germane to this appeal, which is limited solely to Count II of the counterclaim.3

DISCUSSION AND DECISION

The linchpin of Lea’s two points on appeal is a statute of limitations defense. In Point I she contends the judgment in favor of Reed was erroneous because

“there was no substantial evidence showing any payments being made pursuant to the parties’ alleged 1981 borrowing agreement within the 5 year period4 prior to the filing of the counterclaim in that the only substantial testimony regarding payment was made by [Reed] whose testimony was inadmissible because it was not from memory but rather was merely a reading of a mem-[606]*606oraiidum which had been previously excluded by the court.”

Alternatively, she contends in Point II that the judgment was erroneous because Count II of Reed’s counterclaim

“was barred by the four year statute of limitations set forth in section 400-2.725 RSMo. in that the action was one involving an alleged breach of a contract for sale of goods and viewed in the light most favorable to [Reed] the evidence established that the last payment on the parties’ alleged 1981 contract was made in July of 1987 and the action was not commenced until March 6, 1992 which was more than four years after July of 1987.”

Supreme Court Rule 55.08 provides in pertinent part:

“In pleading to a preceding pleading, a party shall set forth all applicable affirmative defenses and avoidances, including ... statute of limitations.... A pleading that sets forth an affirmative defense or avoidance shall contain a short and plain statement of the facts showing that the pleader is entitled to the defense or avoidance.”

In ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 383-84 (Mo. banc 1993), the supreme court discusses the necessity of pleading facts in support of an affirmative defense. We need not repeat that discussion here. In her response to Count II of Reed’s counterclaim, Lea did not plead facts to support her bare legal conclusion that “said counterclaim is barred by the statute of limitations.” Under Rule 55.08 and ITT Commercial Finance Corp., Lea’s attempt to plead a statute of limitations defense was insufficient as a matter of law.

We are not unmindful of Rule 55.-33(b), which states, in part, “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” We find in the record no express consent by Reed to try a statute of limitations issue.

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885 S.W.2d 35 (Missouri Court of Appeals, 1994)

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Bluebook (online)
880 S.W.2d 603, 1994 Mo. App. LEXIS 1162, 1994 WL 363424, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lea-v-reed-moctapp-1994.