author: LISA WHITE HARDWICK, Chief Judge.

text:
    Richard ROBINSON, et al., Appellant, v. Cheryl HOOKER, Respondent.
    No. WD 71207.
    Missouri Court of Appeals, Western District.
    Aug. 3, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 28, 2010.
    Application for Transfer Denied Nov. 16, 2010.

      Patrick B. Starke, Esq., Blue Springs, for appellant.
    Jamie L. Cook, Esq., Kansas City, for respondent.
    Before Division One: LISA WHITE HARDWICK, Chief Judge Presiding, JAMES M. SMART, JR., and MARK D. PFEIFFER, Judges.
   LISA WHITE HARDWICK, Chief Judge.

Richard Robinson appeals the dismissal of his negligence claim against his co-employee, Cheryl Hooker, following a workplace accident. Robinson contends the circuit court erred in determining his negligence claim was barred by the exclusivity provisions of the Workers’ Compensation Act and the doctrines of res judicata and official immunity. For reasons explained herein, we reverse the dismissal and remand the cause to the circuit court.

I. Factual and Procedural History

On October 23, 2007, Robinson and Hooker were performing street cleaning tasks as employees of the City of Kansas City, Missouri. Hooker lost her grip on a high pressure hose that swung wildly and struck Robinson, causing blindness in his right eye. Robinson filed a workers’ compensation claim for permanent partial disability benefits, which he settled with the City on January 30, 2009.

Two months later, Robinson filed a Petition against Hooker in the Jackson County Circuit Court. The petition alleged that Robinson suffered an eye injury as a result of Hooker’s negligence in failing to use ordinary care while operating a high pressure hose. The petition also included a loss of consortium claim for Robinson’s wife, Nadine. Hooker filed a Motion to Dismiss, asserting the court lacked subject matter jurisdiction because the Workers’ Compensation Act provided Robinson’s exclusive remedy for his injury claim against a co-employee. Alternatively, the motion asserted that Robinson’s negligence claim was barred by the doctrines of res judica-ta and official immunity.

The circuit court granted Hooker’s motion without explanation. Robinson appeals the dismissal of his petition.

II. Standard of Review

A motion to dismiss is an attack on the petition and solely a test of the adequacy of the pleadings. Wheeler v. Sweezer, 65 S.W.3d 565, 568 (Mo.App.2002). On appeal of a judgment granting dismissal, this court must determine if the facts pleaded and the reasonable inferences therefrom state any grounds for relief. Id. We must assume the factual allegations are true and make no attempt to weigh credibility or persuasiveness. Johnson ex rel. Wilken v. Jones, 67 S.W.3d 702, 705 (Mo.App.2002). “Our review is a de novo examination of whether the petition invokes principles of substantive law.” Clark v. Clark (In re Estate of Clark), 83 S.W.3d 699, 702 (Mo.App.2002).

When the circuit court does not provide reasons for dismissing a petition, we must presume the decision was based on the grounds stated in the motion to dismiss. Duvall v. Lawrence, 86 S.W.3d 74, 78 (Mo.App.2002). We will affirm if dismissal was appropriate on any of the grounds asserted by the movant. Id. In this case, Hooker moved for dismissal based on the exclusivity of the Workers’ Compensation Act, res judicata, and official immunity. Because the circuit court did not explain the grounds for its decision, we must consider whether the dismissal was appropriate under any of the grounds asserted. Rychnovsky v. Cole, 119 S.W.3d 204, 208 (Mo.App.2003).

III. Issues on Appeal

A. Workers’ Compensation Act

In her Motion to Dismiss, Hooker argued the circuit court lacked subject matter jurisdiction because the Workers’ Compensation Act, Section 287.120, provides the exclusive remedy for Robinson’s injury claim against a co-employee. Robinson contends the court erred in dismissing his petition on this ground because the Act does not bar civil claims against co-employees, based on a 2005 amendment requiring strict construction of the exclusivity provision. § 287.800.

As a preliminary matter, we find that Hooker’s defense of immunity under the Workers’ Compensation Act did not raise a jurisdictional defect. In McCracken v. Wal-Mart Stores E., LP, 298 S.W.3d 473, 479 (Mo. banc 2009), the Supreme Court recently recognized that the circuit court has subject matter jurisdiction over personal injury claims pursuant to article V, section 14 of the Missouri Constitution, and the statutory provisions of the Workers Compensation Act cannot overrule that constitutional authority. Thus, any claim of immunity under the Act “is not a question that affects the circuit court’s subject matter jurisdiction” and should not be raised in a motion to dismiss. Id. The proper procedure for raising the Act’s applicability is as an affirmative defense, as provided in Rules 55.08 and 55.27(a). Id.

Because McCracken was decided while this case was pending, we must consider Hooker’s claim of immunity as preserved by the filing of her motion to dismiss. Id. at 480. For purposes of this appeal, we will proceed as if Hooker had filed a responsive pleading asserting the affirmative defense of employer immunity under Section 287.120. This procedural posture allows us to address the issue presented: Whether Hooker, as Robinson’s co-employee, can properly seek immunity from the civil suit based on a strict construction of the Act’s exclusivity provisions.

1. History of Co-Employee Immunity

Historically, prior to the passage of workers’ compensation laws, an employer was not liable for injuries to an employee caused by the negligent acts of a “fellow servant.” Bender v. Kroger Grocery & Baking Co., 310 Mo. 488, 276 S.W. 405, 406 (1925). Missouri courts gradually increased the employer’s tort liability for these injuries based on the theory that an employer has a non-delegable duty to provide a safe place to work. Id. If a co-employee was negligent in performing the non-delegable duty of an employer, the employer could be held responsible for the resulting injuries to other employees. Mitchell v. Polar Wave Ice & Fuel Co., 206 Mo.App. 271, 227 S.W. 266, 269 (1921).

In 1926, the Workmen’s Compensation Act made the employer responsible for providing benefits to injured employees in exchange for the employer receiving immunity against tort claims for the injuries. Gunnett v. Girardier Bldg. & Realty Co., 70 S.W.3d 632, 635 n. 2, 635-36 (Mo.App.2002). Following the common law approach, courts later extended the statutory immunity to co-employees for negligence in performing a non-delegable duty of the employer. State ex rel. Badami v. Gaertner, 630 S.W.2d 175, 179 (Mo.App.1982).

In Badami, this judicial extension of immunity was deemed necessary to “fix” the Act’s omission of agency principles in determining liability for workplace injuries. Id. at 178. Under Badami and its progeny, a co-employee could not be sued unless there was a showing of “something more” than a breach of the employer’s duty to provide a safe workplace. Id. at 180; State ex rel. Taylor v. Wallace, 73 S.W.3d 620, 622 (Mo. banc 2002) (overruled on other grounds by McCracken, 298 S.W.3d at 478-79). The “something more” test required proof that a co-employee engaged in an affirmative negligent act that purposefully and dangerously caused or increased the risk of injury. Taylor, 73 S.W.3d at 622.

2. Statutory Construction

Prior to 2005, Section 287.800 mandated that “[a]ll provisions of [the Workers’ Compensation Act] shall be liberally construed with a view to the public welfare.” Under this standard, courts broadly interpreted the Act to extend benefits to the largest possible class and resolved any doubts as to the right of compensation in favor of the employee. Schuster v. State Div. of Emp’t Sec., 972 S.W.2d 377, 384 (Mo.App.1998).

In 2005, the Act was amended to eliminate the requirement of liberal construction. Section 287.800 now provides:

Administrative law judges, associate administrative law judges, legal advisors, the labor and industrial relations commission, the division of workers’ compensation, and any reviewing courts shall construe the provisions of this chapter strictly.

(Emphasis added.) This change requires the courts to use principles of strict construction in applying all provisions of the workers’ compensation statute.

Strict construction means that a “statute can be given no broader application than is warranted by its plain and unambiguous terms.” Harness v. S. Copyroll, Inc., 291 S.W.3d 299, 303 (Mo.App.2009). The operation of the statute must be confined to “matters affirmatively pointed out by its terms, and to cases which fall fairly within its letter.” Allcorn v. Tap Enters., Inc., 277 S.W.3d 823, 828 (Mo.App.2009) (citing 3 Sutherland Statutory Construction § 58:2 (6th ed.2008)). ‘“A strict construction of a statute presumes nothing that is not expressed.’” Id. (quoting Sutherland, supra.)

3. Strict Construction of Employer Immunity Provisions

Based on the new requirement of strict construction, Robinson argues that the exclusivity provisions of the Workers’ Compensation Act, which grants employer immunity from civil claims, cannot be applied to co-employees. Section 287.120 of the Act provides:

1. Every employer subject to the provisions of this chapter shall be liable, irrespective of negligence, to furnish compensation under the provisions of this chapter for personal injury or death of the employee by accident arising out of and in the course of the employee’s employment, and shall be released from all other liability therefore whatsoever, whether to the employee or any other person.
2. The rights and remedies herein granted to an employee shall exclude all other rights and remedies of the employee ... at common law or otherwise, on account of accidental injury or death, except such rights and remedies as are not provided for by this chapter.

The first paragraph of this section only refers to an “employer” being released from liability in exchange for providing workers’ compensation benefits. Because there is no provision releasing employees from liability to their injured co-workers, Robinson contends the immunity is exclusively available to employers. Strict construction requires this court to interpret and apply the Act based on its plain language. Robinson asserts there is nothing in the Act to indicate that the term “employer” includes co-employees; thus, the more liberal application and extension of the employer immunity to co-employees, as set forth in Badami and its pre-2005 progeny, is no longer applicable.

Robinson finds further support for his argument in the second paragraph of Section 287.120, which states that the exclusivity provision only limits the rights and remedies of the employee as specified in the Act. This language implicitly allows an injured employee to pursue civil remedies for claims against parties not covered by the Act. That interpretation is consistent with Section 287.150.1, which expressly preserves the employee’s right of recovery against a “third person” whose negligence caused the. workplace injury. Robinson posits that a co-employee qualifies as a third party who can be sued for tort liability. See Schumacher v. Leslie, 360 Mo. 1238, 232 S.W.2d 913, 917 (1950).

We agree that the exclusivity provisions of Section 287.120 must be strictly construed in light of the 2005 amendment to the Act. See McCracken, 298 S.W.3d at 481. We also agree that co-employee immunity primarily arose from a judicial construct in Badami that must be re-evaluated based on principles of strict construction. in so doing, we are mindful that the primary rule of statutory interpretation is to effectuate legislative intent as reflected in the plain and ordinary language of the statute. Berra v. Danter, 299 S.W.3d 690, 696 (Mo.App.2009).

With regard to Section 287.120, the determination of whether the exclusivity provision applies to co-employees depends upon the meaning of the term “employer.” When a term is defined within a statute, we must give effect to the legislature’s definition. Jones v. Dir. of Revenue, 832 S.W.2d 516, 517 (Mo. banc 1992). The Act defines “employer,” in relevant part, as:

(1) Every person, partnership, association, corporation, limited liability partnership or company, trustee, receiver, the legal representatives of a deceased employer, and every other person, including any person or corporation operating a railroad and any public service corporation, using the service of another for pay;
(3) Any of the above-defined employers must have five or more employees to be deemed an employer for the purposes of this chapter....

§ 287.030.1 (emphasis added). The meaning of a key term in the Act is subject to strict construction. Hager v. Syberg’s Westport, 304 S.W.3d 771, 776 (Mo.App.2010).

Generally, a co-employee would not fall within this statutory definition of an “employer” as a “person ... using the service of another for pay” and “hav[ing] five or more employees.” Strict application of the definition requires us to further conclude that co-employees are not entitled to invoke the employer immunity under Section 287.120. Even though the language of the exclusivity provision was not amended in 2005, the scope of employer immunity was narrowed by the new lens of strict construction. See Mo. Alliance for Retired Americans v. Dep’t of Labor & Indus. Relations, 277 S.W.3d 670, 679-80 (Mo. banc 2009) (2005 amendments limiting the definitions of “injuries” and “accidents” necessarily limited the scope of the exclusivity clause). The immunity applies only to those who qualify as an “employer” under the Act. The employee retains a common law right of action against co-employees who do not fall squarely within the definition of “employer.”

Hooker cannot qualify as an “employer” based on the mere statement in the petition that she is a co-employee of Robinson. Accordingly, she is not entitled to immunity under Section 287.120, and the circuit court erred in dismissing Robinson’s petition on that ground. Unless there is an alternative ground for the dismissal (as discussed herein in the remaining points), we must reverse the judgment and remand the cause for further proceedings.

B. Doctrine of Res Judicata

Hooker’s Motion to Dismiss asserted Robinson’s tort action was barred by the doctrine of res judicata based on the settlement of his workers’ compensation claim against the City. Robinson contends the circuit court erred in dismissing his petition on this ground because there was a lack of identity between the claims and parties in the two proceedings.

The defense of res judicata bars any claim that was previously litigated between the same parties or those in privity with them. Spath v. Norris, 281 S.W.3d 346, 350 (Mo.App.2009). Claims that could have been raised by a prevailing party in the first action are merged into, and thereby barred by, the first judgment. Chesterfield Vill. v. City of Chesterfield, 64 S.W.3d 315, 318 (Mo. banc 2002). The defense is applicable upon “the concurrence of the following [four] elements: (1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of the persons or parties to the action; and (4) identity of the quality or status of the persons for or against whom the claim is made.” Romeo v. Jones, 86 S.W.3d 428, 432 (Mo.App.2002). The inquiry focuses on the factual bases for the claim and not the legal theories asserted. Chesterfield, 64 S.W.3d at 319.

In the workers’ compensation proceeding, Robinson sought permanent partial disability benefits from the City to cover his loss of income and medical expenses from his work-related injury. Here, Robinson has sued Hooker for her personal negligence in operating a water hose. He seeks compensation for pain and suffering, loss of consortium, and other tort-related damages that are not available under the Workers’ Compensation Act. Different facts will be necessary to prove the damage claims in the lawsuit as compared to those in the disability proceeding. The parties in the two actions are also necessarily different. Robinson could only obtain workers’ compensation benefits from his employer; he could not have brought suit against Hooker personally in the earlier proceeding. Thus, Robinson’s claim against Hooker was not merged into or barred by the earlier judgment awarding workers’ compensation benefits. There is a clear lack of identity between the two proceedings.

Hooker’s motion cited two cases to support her request for dismissal on grounds of res judicata: Conley v. Treasurer of Missouri, 999 S.W.2d 269 (Mo.App.1999) overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 226 (Mo.banc 2003), and Shockley v. Laclede Electric. Cooperative, 825 S.W.2d 44 (Mo.App.1992). These cases are distinguishable because they involved workers’ compensation claims that were filed subsequent to an original benefit claim and not a subsequent lawsuit. In Conley, the court did not rule that the employee’s claim was barred by res judicata; rather, it held the employee could not re-litigate a stipulated disability percentage in a subsequent claim against the Second Injury Fund. 999 S.W.2d at 274-75. Likewise, in Shockley, the court ruled that once a workers’ compensation claim was settled by stipulation, the employee could not later file a second benefits claim seeking additional treatment for the original injury. 825 S.W.2d at 49. Neither case provides legal justification for dismissal of a lawsuit against an individual following the resolution of a workers’ compensation claim.

Robinson’s petition was not barred by the settlement of his benefits claim. He could not have sued Robinson for personal liability in the workers’ compensation proceeding. The circuit court erred in dismissing his lawsuit on grounds of res judi-cata. We must, therefore, reverse the judgment unless the dismissal was appropriate on the remaining alternative ground of official immunity.

C. Official Immunity

In his final point on appeal, Robinson contends the circuit court erred in dismissing his petition based on Hooker’s defense of official immunity. He argues the immunity is inapplicable because Hooker is not a public official and she was not performing discretionary acts.

“Official immunity protects public officials from liability for alleged acts of ordinary negligence committed during the course of their official duties for performance of discretionary acts.” Davis v. Lambert-St. Louis Int’l Airport, 193 S.W.3d 760, 763 (Mo.banc 2006). It is “intended to provide protection for individual government actors who, despite limited resources and imperfect information, must exercise judgment in the performance of their duties. Its goal is also to permit public employees to make judgments affecting public safety and welfare without concerns about possible personal liability.” Southers v. City of Farmington, 263 S.W.3d 603, 611 (Mo.banc 2008) (internal citations omitted).

As a threshold requirement for official immunity, Hooker must demonstrate that she is a public official. Lynn v. T.I.M.E.-D.C, Inc., 710 S.W.2d 359, 361 (Mo.App.1986). She is not entitled to such immunity merely as a City employee working alongside Robinson. Id. To invoke the defense, Hooker must plead and prove that she was employed in a supervisory capacity that elevated her to the level of a public official. Id.; see also Schulz ex rel. Schulz v. City of Brentwood, 725 S.W.2d 157, 161 (Mo.App.1987).

Beyond her official status, Hooker must also establish that she was performing a discretionary act and not a ministerial act. The difference depends on the “degree of reason and judgment” required to perform the act. Kanagawa v. State By and Through Freeman, 685 S.W.2d 831, 836 (Mo.banc 1985) overruled on other grounds by Alexander v. State, 756 S.W.2d 539 (Mo.banc 1988). “An act is discretionary when it requires ‘the exercise of reason in the adaption of means to an end, and discretion in determining how or whether an act should be done or a course pursued.’ ” Davis, 193 S.W.3d at 763 (quoting Jackson v. Wilson, 581 S.W.2d 39, 43 (Mo.App.1979)). A ministerial act is a clerical function that “a public officer is required to perform upon a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to his own judgment or opinion concerning the propriety of the act to be performed.” Jackson, 581 S.W.2d at 43.

The underlying petition alleged that Robinson suffered an eye injury when his “co-employee,” Hooker, negligently operated a high pressure hose. No further factual details were provided in the pleadings or in the Motion to Dismiss. We find nothing in the record to indicate whether Hooker was a supervisor or whether she was performing a discretionary act at the time the injury occurred. Accordingly, Hooker failed to establish that she was entitled to official immunity.

The circuit court erred in dismissing Robinson’s petition on the basis of official immunity. The judgment of dismissal is reversed, and the cause is remanded for further proceedings. On remand, Hooker will have the opportunity to file a responsive pleading, and the circuit court can thereupon consider whether she has a viable affirmative defense of official immunity-

Conclusion

The judgment of dismissal is reversed and remanded consistent with the instructions set forth herein.

All Concur.

      . All statutory citations are to the Revised Missouri Statutes 2000, as updated by the Cumulative Supplement 2009, unless otherwise indicated.

      . McCracken applied the holding of Webb ex rel. J.C.W. v. Wyciskalla, 275 S.W.3d 249, 251-54 (Mo. banc 2009), wherein the Supreme Court clarified that Missouri recognizes only two types of jurisdiction: personal and subject matter, both of which derive from constitutional principles.

      .All rule citations are to Missouri Rules of Civil Procedure (2010) unless otherwise noted.

      . This conclusion is consistent with the longstanding principle that close questions regarding the existence of common law rights should weigh in favor of retaining the common law right of action. See Distefano v. Saint-Gobain Calmar, Inc., 272 S.W.3d 207, 211-12 (Mo.App.2008); Looper v. Carroll, 202 S.W.3d 59, 64 n. 6 (Mo.App.2006).


source: Caselaw Access Project

author: THOMAS H. NEWTON, Presiding Judge.

license: Public Domain

text:
    SADDLERIDGE ESTATES, INC., and McClain Brothers Real Estate, LLC., Respondent-Appellants, v. Eugene RUIZ and Charlene Ruiz, Appellant-Respondents.
    Nos. WD 70806, WD 71311.
    Missouri Court of Appeals, Western District.
    Aug. 3, 2010.
    As Modified Sept. 28, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 28, 2010.
    Application for Transfer Denied Nov. 16, 2010.

      Gary M. Steinman, Gladstone, MO, for Appellant-Respondent.
    Daniel A. Thomas, Independence, MO, for Respondent-Appellants.
    Before THOMAS H. NEWTON, P.J., JAMES EDWARD WELSH, and GARY D. WITT, JJ.
   THOMAS H. NEWTON, Presiding Judge.

Mr. Eugene and Mrs. Charlene Ruiz appeal the trial court’s judgment in favor of Saddleridge Estates, Inc. (Saddleridge) and McClain Brothers Real Estate, L.L.C. (McClain). Saddleridge and McClain (collectively “Respondents”) sued the Ruizes for breach of contract, fraudulent misrepresentation, breach of the implied covenant of good faith and fair dealing, and punitive damages. Saddleridge also sued the Ruizes for negligent misrepresentation. A jury found the Ruizes liable for breaching the contract with Saddleridge and McClain, for negligently and fraudulently misrepresenting material facts to Saddler-' idge and McClain, and for punitive damages. The trial court entered judgment in accord with the verdict. We affirm.

Factual and Procedural Background

The Ruizes contacted McClain, the exclusive real estate broker for Saddleridge, to purchase a lot and build a home in Saddleridge, a real estate subdivision in Independence. The Ruizes, who lived in Platte County, told McClain that they desired to build a home on the lot so their children could be near Mr. Ruiz’s parents, who had recently moved to the villas in Saddleridge. After a year of dealings with McClain, the Ruizes purchased a lot from Saddleridge. The Ruizes purchased the lot for $95,000, which was less than the agreed upon price of $150,000, because the land contained rocks that would have to be excavated to build a home compliant with Saddleridge’s specifications. Mr. Ruiz took out a $95,000 loan against one of his businesses to purchase the lot.

Pursuant to the terms of the Lot Contract, the Ruizes were required to build on the lot. The contract also provided that the Ruizes would begin construction on the lot within six months unless their current home did not close “timely.” If their home did not close “timely,” they had another six months in which to begin construction. However, if construction did not commence at “the end of one year,” the Ruizes had to list the property with McClain at six percent commission “until sold.” The Ruizes, McClain, and Saddleridge signed the Lot Contract on February 26, 2004. They closed on the lot April 4, 2004.

On August 6, 2004, the Ruizes sold their home but did not tell Ms. Patti Bruch, McClain’s agent, or Saddleridge. Shortly thereafter, the Ruizes purchased a home in a different subdivision near Saddleridge. Two years after the lot was sold, Ms. Bruch performed a records check and discovered the Ruizes had sold their home within six months of purchasing the lot. On May 9, 2006, Ms. Bruch contacted Mr. Ruiz, seeking to enforce the contract to list the lot. The Ruizes requested a price of $190,000; she told them that no lot in the subdivision had sold at that price. On May 29, 2006, Ms. Bruch faxed the Ruizes a Listing Agreement with their requested price of $190,000. The Ruizes did not sign the Listing Agreement. Ms. Bruch also informed them of prospective buyers. In August 2006, Ms. Bruch faxed the Ruizes an offer from a couple to purchase the lot for $140,000. The Ruizes did not accept the offer or make a counteroffer.

In September 2006 and in November 2006, the Ruizes listed the lot as collateral securing lines of credit totaling $160,000. All of the money was used as capital for one of Mr. Ruiz’s businesses. In January 2007, Respondents sued the Ruizes for breach of contract, fraudulent misrepresentation, breach of the implied covenant of good faith and fair dealing, and punitive damages. Saddleridge also sued them for negligent misrepresentation.

The above evidence was presented at a jury trial. The jury found the Ruizes liable for breaching the contract with Respondents, for negligently and fraudulently misrepresenting material facts to Respondents, and for punitive damages. It awarded Saddleridge $56,000 in compensatory damages and $190,000 in punitive damages. It awarded McClain $60,000 in compensatory damages and $65,000 in punitive damages. The Ruizes filed a motion for judgment notwithstanding the verdict (JNOV), remittitur, and in the alternative, a motion for new trial. The trial court overruled the motion and entered judgment reflecting the jury’s determinations. The Ruizes appeal.

Legal Analysis

The Ruizes argue eight points on appeal. The first point challenges the trial court’s ruling precluding the Ruizes from being called as witnesses to rebut testimony provided in a videotaped deposition during plaintiffs’ case in chief. Points two through six challenge the trial court’s denial of the motion for JNOV. The seventh point challenges the trial court’s giving of verdict directors on the plaintiffs’ claims. The eighth and final point challenges the trial court’s admitting evidence of damages by Saddleridge that were not disclosed during discovery or alleged in the petition. Because the Ruizes’ third point challenges the evidentiary support for the damages, we address the third point during our discussion of the eighth point.

Prohibiting “cross-examination was not error.

In their first point, the Ruizes argue that the trial court erred in prohibiting their counsel from calling them to testify after portions of their videotaped deposition statements were introduced in plaintiffs’ case in chief. The court prohibited live testimony rebutting the deposition statements because the Ruizes would be able to address those statements during their defense. The trial court instructed that the Ruizes could play any portion of the deposition immediately following the selections played by the plaintiffs. We review the trial court’s exclusion of evidence for an abuse of discretion. KRP ex rel. Brown v. Penyweit, 219 S.W.3d 829, 834 (Mo.App. W.D.2007).

The Ruizes claim that the trial court erred in prohibiting them from taking the stand to rebut the statements played by plaintiff because they were entitled to “cross-examination” under section 491.070 despite the fact that the direct testimonies were videotaped depositions. Section 491.070 grants civil litigants the right to cross-examine witnesses who provide evidence against them. Under section 491.030, civil litigants can compel adverse parties to testify as witnesses in the litigant’s case in chief. Counsel for the adverse party has the right to cross-examine the opposing party the same as other witnesses. § 491.030. These statutes are not applicable here because the Ruizes were not called as witnesses; rather their deposition statements were played for the jury.

“Depositions may be used in court for any purpose.” Rule 57.07(a). After selections from a deposition are proffered to the jury, the opposing party’s remedy is to “utilize the deposition to clarify ..., rebut the inferences to be drawn from the [selections], or explain its side of the controversy.” Nugent v. Owens Corning Fiberglas, Inc., 925 S.W.2d 925, 929 (Mo.App. E.D.1996); see also Keith v. Burlington N.R. Co., 889 S.W.2d 911, 922 (Mo.App. S.D.1994). Thus, the trial court did not abuse its discretion in prohibiting counsel from calling the Ruizes to the stand for rebuttal because the Ruizes’ sole recourse was to utilize their depositions to their favor. Moreover, the Ruizes had the opportunity to develop and explain their deposition statements during their defense with direct testimony. Consequently, the Ruizes’ first point is denied.

McClain ivas a party to the contract.

In their second point, the Ruizes argue that the trial court erred in denying their motion for directed verdict and judgment notwithstanding the verdict as to McClain’s claims ((1) breach of contract, (2) fraudulent misrepresentation, (3) breach of the implied covenant of good faith and fair dealing, and (4) punitive damages) because McClain was not a party to the contract in dispute or to the other contracts therein referenced, despite its representative’s signature.

To prevail on their motion for directed verdict, the Ruizes had to show that McClain failed to make a submissible case. Porter v. Toys ‘R’ Us-Del., Inc., 152 S.W.3d 310, 315 (Mo.App. W.D.2004). “A breach of contract action includes the following essential elements: (1) the existence and terms of a contract; (2) that plaintiff performed or tendered performance pursuant to the contract; (3) breach of the contract by the defendant; and (4) damages suffered by the plaintiff.” Keveney v. Mo. Military Acad., 304 S.W.3d 98, 104 (Mo. banc 2010) (citing Howe v. ALD Servs., Inc., 941 S.W.2d 645, 650 (Mo.App. E.D.1997)). A contract requires mutual obligations and consideration. See Bengimina v. Allen, 375 S.W.2d 199, 202 (Mo.App.1964).

The Ruizes argue that a contract did not exist because there were no “ ‘mutual agreements’ or consideration exchanged” between them and McClain. Language within the contract designates exclusive listing rights to McClain if the Ruizes failed to commence building a home at the end of one year. This contractual language shows that the Ruizes owed McClain the obligation to commence building a home so that McClain could receive the commission and, in the alternative, to use McClain to sell the land at a six percent commission if no home was built within a year. That same language implies McClain’s obligation to market the property, sell it, and give the proceeds to the Ruizes minus its six percent commission. Thus, there were mutual obligations and consideration for the contract because McClain’s and the Ruizes’ promises conferred legal duties and liabilities. See Bengimina, 375 S.W.2d at 202-03. The Ruizes’ second point is denied.

Punitive damages were supported by the evidence.

In their fourth point, the Ruizes argue that the JNOV should have been granted as to punitive damages because there was no evidence that either of them acted with evil motive or reckless indifference to Respondents’ rights. Respondents were required to present clear and convincing evidence that the Ruizes possessed the requisite mental intent of willful or reckless disregard of Respondents’ rights. See Rinehart v. Shelter Gen. Ins. Co., 261 S.W.3d 583, 591 (Mo.App. W.D.2008). To substantiate the punitive damages claim, Respondents adduced evidence that the Ruizes used the lot to collateralize a business line of credit with no intention of ever building on the lot in reckless disregard of Saddleridge’s right to have a developed lot and McClain’s right to receive a commission.

The Ruizes argue that this evidence does not support a finding that they did not intend to build on the lot at the time of purchase, and they list facts supporting a finding against evil motive. However, the clear and convincing evidence that supports a finding to uphold the punitive damages must guide us. Fabricor v. E.I. DuPont de Nemours & Co., 24 S.W.3d 82, 96 (Mo.App. W.D.2000) (stating the evidence is viewed in the light most favorable to the submission of punitive damages and contrary evidence and inferences are disregarded).

The following facts support a finding of reckless disregard of Saddleridge’s right to sell the property and McClain’s right to obtain a commission after the Ruizes failed to build after a year: the Ruizes’ failure to inform McClain that their home had been sold within six months or that they purchased a home in a neighboring division; the Ruizes’. refusal to sell the lot for less than $190,000 after McClain informed them that no empty lot had ever sold for that price; and the Ruizes’ use of the lot as collateral for two separate lines of credit after being notified of their contractual obligation to list the property for sale, and of prospective buyers for the property. Therefore, the Ruizes’ fourth point is denied.

In their fifth and sixth points, the Ruizes argue that the JNOV should have been granted because there was no evidence to substantiate a finding that the Ruizes falsely represented their intent to build on the lot at the time they signed the lot contract or that the Ruizes did not use reasonable care in stating they would build on the lot at the time of purchase. To submit a claim to the jury, a plaintiff must adduce evidence for each element of its claim. See Porter, 152 S.W.3d at 315. We view the evidence in the light most favorable to the verdict to determine if the evidence substantiates the misrepresentations claims. See id.

Fraudulent misrepresentation is shown by adducing evidence of:

(1) a representation; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge of its falsity; (5) the speaker’s intent that it should be acted on by the person and in the manner reasonably contemplated; (6) the hearer’s ignorance of the falsity of the representation; (7) the hearer’s reliance on the representation being true; (8) his right to rely thereon; and, (9) the hearer’s consequent and proximately caused injury.

Droz v. Trump, 965 S.W.2d 436, 441 (Mo.App. W.D.1998). The Ruizes argue that Respondents failed to show pre-contract evidence that the Ruizes never intended to build on the lot at the time they signed the contract. Contrary to the Ruizes’ contention, post-contract acts may also support a finding of a pre-contract intent not to build at the time of signing. See Ellison v. Valley View Dairy, Inc., 905 S.W.2d 93, 97 (Mo.App. S.D.1995) (stating any evidence, except sole proof of nonperformance, may be used to show a present intent not to perform).

Respondents’ theory was that the Ruizes falsely promised to build on the lot so that Mr. Ruiz could obtain the land and later sell it at a higher price because he was speculating on the land — intending to hold it until a profit could be made from the sale of it. The following evidence when considered together supports Respondents’ theory from which the jury could reasonably infer that Mr. Ruiz falsely promised to build a home on the lot within the time specified at the signing of the lot contract. First, Mr. Ruiz had several business, one of which involved rehabilitating homes to increase their value, he used money from one of those businesses to purchase the lot, and he referred to the lot as an investment during his deposition. Second, Mr. Ruiz admitted that he had inserted the word “timely” in the lot contract to indicate the total time the house had been on the market, knowing that the selling of his then current home would never be “timely” under his definition. Third, the Ruizes purchased a home in a nearby development shortly after selling their Platte County home without informing Saddleridge or McClain. Fourth, Mr. Ruiz failed to present builder plans to McClain within the time specified. Fifth, Mr. Ruiz admitted he refused to list the property for anything less than approximately twice what he paid for it because he wanted to make a profit.

As for Ms. Ruiz, there was evidence from which a reasonable juror could find that she shared her husband’s intent not to build on the lot within the time specified when she signed the Lot Contract. Ms. Ruiz admitted that she signed the contract with an understanding that they were required to build a home within a certain time. Ms. Ruiz also admitted that she discussed the listing price with her husband and agreed upon $190,000 for the lot based on the six percent commission owed to McClain, the expenses they incurred in maintaining the lot, and their unwillingness to release the land easily because it was valuable to them. Her testimony supports an inference that, although Mr. Ruiz handled the finances, Ms. Ruiz discussed matters with him before he carried them out. Because she failed to inform McClain or Saddleridge that they had sold their Platte County home, the jury could infer that the Ruizes discussed not building on the lot and treating the land as an investment, and that Mr. Ruiz implemented the plan.

Thus, there was evidence from which a reasonable juror could find that the Ruizes misrepresented their intent to build on the lot. Because we have determined there was a submissible case for ft-audulent misrepresentation against the Ruizes, we do not discuss the submissibility of the negligent misrepresentation. Accordingly, the Ruizes’ fifth and sixth points are denied.

Failing to submit separate verdict forms was not prejudicial.

In their seventh point, the Ruizes argue that the trial court erred in submitting verdict directors that failed to distinguish between Mr. Ruiz and Mrs. Ruiz when the petition alleged counts against them both in their individual capacity, depriving the jury of the opportunity to find that one of the parties was not liable. Respondents argue that this issue was not preserved because the Ruizes only objected to verdict forms but not the verdict directors. To preserve a challenge to jury instructions, the party must make specific objections (state the matter being objected and the grounds of the objection) to the instructions before the jury retires to deliberate and must raise the same objections in the motion for new trial. Rule 70.08

According to the record, the Ruizes only objected to the submission of the verdict forms and not the verdict directors. During a conference discussing jury instructions, the Ruizes argued that the verdict forms should provide the jury with choice to find one but not the other liable, rather than a request to find them collectively either liable or not liable. Yet they stated that they had no objections to the verdict directors. However, in their motion for new trial, the Ruizes alleged errors as to the submission of both the verdict directors and verdict forms.

The Ruizes argue that the challenge to the verdict directors is preserved because the language objecting to the verdict forms also applies to the verdict directors because they argued that the finding of liability needs to be as to each party for each claim. However, because they only objected to the verdict forms, it is the only challenge to the jury instructions preserved.

Relying on Bender v. Colt Industries, Inc., the Ruizes argue that the verdict directing instruction should designate the party against whom the instruction is directed. 517 S.W.2d 705, 708 (Mo.App.1974). The Ruizes claim that the directors and the forms failed to delineate the actions or inactions of each appellant and was thereby prejudicial. Respondents assert that no prejudice ensued because the claims were alleged in the petition against both of them and they argued that the Ruizes were-not liable during closing argument without differentiating their liability. Respondents are correct. The Ruizes’ liability was alleged and submitted together so the jury was not confused by the instructions or verdict forms. The Ruizes’ seventh point is denied.

Award of damages to Saddleridge was proper.

In their eighth point, the Ruizes argue that the trial court erred in allowing Saddleridge to present evidence of damages not disclosed in discovery or alleged in its petition. The Ruizes claim that Respondents violated Rule 56.01(e)(1) when they did not allege $55,000 as damages based on a lot reservation contract in response to the Ruizes’ interrogatory request. The Ruizes argue that Respondent’s violation of Rule 56.01(e)(1) resulted in them not being prepared for trial. Respondents contend that the Ruizes failed to object at trial, so they cannot raise this issue on appeal.

Respondents’ petition for damages alleged that the “undeveloped lot remains an eyesore for the other residents and members of the Saddleridge Community and has further had an adverse impact on the property values of the surrounding homes and lots.” Respondents pleaded damages in general. At trial, Mr. McClain testified that the Ruizes were given a $55,000 rock allowance so that they could immediately build a house. He also testified that the $55,000 rock allowance would not have been given had he known that the Ruizes were not going to build on the land. The jury assessed damages of $56,000 to Sad-dleridge, which is a thousand dollars more than the amount Saddleridge discounted from the original sales price to account for the compulsory rock excavation on the lot. The Ruizes argue that the jury should not have been allowed to consider the rock allowance testimony.

Broad discretion is given to courts concerning challenges made during trial to evidence that was not disclosed in the answers to interrogatories. State ex rel. Mo. Highway & Transp. Comm’n v. Vitt, 785 S.W.2d 708, 712 (Mo.App. E.D.1990). “In the sound exercise of its discretion, [a court] may admit or exclude such evidence, or determine and impose appropriate sanctions for violations of rules governing interrogatories.” Id. Parties consent to the trying of issues raised by evidence beyond the scope of the pleadings when they fail to “timely and specifically object to [such] evidence.” Holtmeier v. Dayani, 862 S.W.2d 391, 399-400 (Mo.App. E.D.1993).

On direct examination, Ms. Bruch testified that the Ruizes originally agreed to pay $150,000 for the lot but ultimately purchased the lot for $95,000 because they would have an additional expense to excavate rock in order to build the mandatory basement. The Ruizes did not object to her testimony and asked Ms. Bruch, on cross-examination, if the reduced price was a result of their coercion, to which Ms. Bruch stated, “No.” The Ruizes only objected after Respondent’s counsel asked Ms. Bruch on redirect, “If they promised to pay 150 and only paid 95, does McClain ... lose that money or does Saddleridge?” During the bench conference, Respondent’s counsel explained that Saddleridge intended to argue that they would not have lowered the price if they knew the Ruizes were not going to build. The Ruizes’ counsel did not argue to the court that the fraud theory had not been pleaded. Because there was no objection to the evidence or the fraud theory, the submission of the rock allowance as a product of fraud was proper. The Ruizes’ eighth point is denied.

In their third point, the Ruizes argue that the trial court erred in denying the JNOV motion because no evidence supports an award of damages to Saddler-idge. The Ruizes argue that the evidence did not support damages because Saddler-idge claimed that it lost the benefit of other lot sales in its petition but presented evidence during trial that all the lots had been sold. Moreover, the Ruizes claim that the contractual remedy was reselling the land and that Respondents did not seek specific performance. Thus, the Ruizes argue that Respondents did not present evidence proving any monetary damages, nor were they entitled to them under the contract.

Although the contract did not provide for monetary damages, the trial court was allowed to award monetary damages on the fraud claims. See Fiordelisi v. Mt. Pleasant, LLC, 254 S.W.3d 120, 128 (Mo.App. E.D.2008) (stating plaintiff may affirm the contract and seek damages or disaffirm the contract and seek rescission when fraudulently induced to contract). The jury found that the Ruizes not only breached the contract but also fraudulently (and negligently) misrepresented that they were going to build a home when they entered the contract. Saddleridge was entitled to recover incidental losses and expenses suffered as a result of the Ruizes’ misrepresentations. See Heberer v. Shell Oil Co., 744 S.W.2d 441, 443 (Mo. banc 1988). The evidence of the $55,000 rock allowance was an incidental loss suffered because of the Ruizes’ misrepresentations and, thus, was sufficient to sustain the award of damages for fraudulent misrepresentation. Because we have decided that the evidence concerning the rock allowance was properly admitted, there was evidence supporting the award of damages to Sad-dleridge. Consequently, the Ruizes’ third point is denied.

Conclusion

Therefore, we affirm the trial court’s judgment.

JAMES E. WELSH and GARY D. WITT, JJ., concur.

      . The contract in relevant part states:
      In this subdivision, it is understood that the Lot Contract, Builders Agreement/Contract, and Residential New Construction Sale Contract are all integrated and one does not stand-alone without performance on all. Therefore, the buyer understands and agrees that a six percent (6%) commission is to be paid to [McClain], as agent on the price of the lot and any house built on the lot (in the event the Residential New Construction Sales Contract does not close, home will be listed with [McClain] at 6% commission). For the purpose of computing said commission, the price of the lot shall be determined by the seller and agreed by the buyer. The price of the house shall be the price set forth in the builder agreement/contract and shall include all actual costs and fees.

      . Respondents argue that points two through six have not been preserved because the motions for directed verdict (DV) were insufficient under Rule 72.01(a), which requires a motion for DV to set forth specific grounds. The written motions for DV do not address any of the grounds argued on appeal. However, the Ruizes' first oral motion for DV argued that the court should rule in their favor because the plaintiffs failed to meet the necessary elements of all six claims. The second oral motion for DV specifically argued the failure to prove breach of contract. It did not address the lack of evidence to support monetary damages. The motion, however, addressed the punitive damages and the lack of evidence to show a pre-contractual intent to not build on purchased land. We believe the oral motions specified sufficient grounds to preserve the second and third issues for review. The general argument of insufficiency of the evidence to prove the elements of a breach of contract encompasses any challenges to the existence of a contract and justification for monetary damages. The issues in points four through six were specifically addressed in the oral motions for DV, and thus are preserved. We consequently reject Respondents' claim of waiver.

      . Statutory references are to RSMo 2000 unless otherwise indicated, and rule references are to Missouri Rules of Civil Procedure 2009.


author: PER CURIAM:

text:
    Thomas D. GOODNER, Appellant, v. MISSOURI DEPARTMENT OF CONSERVATION, et al., Respondents.
    No. WD 71556.
    Missouri Court of Appeals, Western District.
    Aug. 10, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 28, 2010.
    Application for Transfer Denied Nov. 16, 2010.
    Brian J. Klopfenstein, Kearney, MO, for Appellant.
    James N. Foster, Jr., and Stephen B. Maulé, St. Louis, MO, for Respondents.

      Before Division I: JAMES M. SMART, JR., Presiding Judge, and MARK D. PFEIFFER and CYNTHIA L. MARTIN, Judges.
   Order

PER CURIAM:

Thomas D. Goodner appeals from the judgment of the Circuit Court of Jackson County at Independence (“trial court”) granting the motion for summary judgment of the Missouri Department of Conservation and its employees, Phil Phillips and Robert Staton. On appeal, Goodner asserts two points, both related to claimed error of the trial court in granting summary judgment to the Department and its employees as to Goodner’s wrongful termination claim. Finding no error, we affirm in this per curiam order and have provided the parties a memorandum of law explaining our ruling. Rule 84.16(b).


text:
    David HINCHMAN, Respondent, v. Sarah Xianghong HINCHMAN, Appellant.
    No. WD 71143.
    Missouri Court of Appeals, Western District.
    Aug. 24, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 28, 2010.
    Application for Transfer Denied Nov. 16, 2010.
    Dennis J. Campbell Owens, Kansas City, MO, for Appellant.
    Jill C. Jackoboice, Kansas City, MO, for Respondent.
    Before LISA WHITE HARDWICK, C.J., JAMES EDWARD WELSH, J., and JAMES W. VAN AMBURG, Sp. J.
   ORDER

PER CURIAM:

Sarah Xianghong Hinchman appeals the circuit court’s judgment dissolving her marriage to David Hinchman. We affirm. Rule 84.16(b).


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Donnell GLOVER, Appellant.
    No. ED 93894.
    Missouri Court of Appeals, Eastern District, Division One.
    Sept. 14, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 26, 2010.
    Lisa M. Stroup, St. Louis, MO, for appellant.
    Chris Koster, John W. Grantham, Jefferson City, MO, for respondent.
    Before: ROY L. RICHTER, C.J., KENNETH M. ROMINES, J., MICHAEL BULLERDIECK, Sp., J.
   ORDER

PER CURIAM.

Donnell Glover appeals the Judgment of the Circuit Court of the City of St. Louis, the Honorable Robert H. Dierker, Jr. presiding. Glover was convicted first-degree tampering with an automobile. Glover was sentenced as a persistent offender to nine years of imprisonment in the Missouri Department of Corrections. Glover now appeals the sentence and judgment.

On appeal, Glover first argues that the Circuit Court erred when it denying his Batson challenge to the State’s use of a peremptory strike of Venire person Petty. Second, Glover argues that the Circuit Court erred by failing to dismiss the case based on an alleged discovery violation.

We have reviewed the briefs and the record on appeal, and find no error of law in this case. Thus, a written opinion would have no precedential value. The judgment is affirmed pursuant to Rule 84.16(b).

AFFIRMED.


author: KATHIANNE KNAUP CRANE, Judge.

text:
    Richard A. GARTNER, Petitioner/Respondent, v. MISSOURI ETHICS COMMISSION, Respondent/Appellant, and Richard Chrismer, as Director of St. Charles County Election Authority, and Ruth Miller, as County Clerk, Respondents.
    No. ED 94916.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 14, 2010.
    Rehearing Denied Oct. 26, 2010.

      Chris Koster, John R. Phillips, Ronald R. Holliger, Attorney General, Jefferson City, MO, for appellant.
    Michael L. Wood, The Gartner Law Firm, St. Peters, MO, for respondent.
   KATHIANNE KNAUP CRANE, Judge.

The Missouri Ethics Commission (the MEC) appeals from the trial court’s judgment ordering that plaintiff, Richard Gart-ner, be listed as a candidate on the August 3, 2010 primary ballot for Associate Circuit Judge, Division 12, for the 11th Judicial Circuit in St. Charles County, Missouri. We dismiss the appeal as moot.

On February 23, 2010, plaintiff filed an application to become a candidate on the August 3, 2010 ballot for Associate Circuit Judge, Division 12, for the 11th Judicial Circuit in St. Charles County, Missouri. The MEC provided plaintiff with a Notice to Candidate that advised him that he was required to file a Personal Financial Disclosure Statement (PFD) with the MEC by April 13, 2010. The Notice to Candidate also stated that plaintiff “may be disqualified as a candidate” if he failed to file a PFD with the MEC by April 20, 2010.

Plaintiff claimed that he mailed a PFD by first class mail to the MEC on February 25, 2010. However, the MEC claimed it did not receive a PFD from plaintiff before the April 20, 2010 deadline. On April 22, 2010, plaintiff received a letter from the MEC, dated April 20, 2010, that stated: “As of the date of this letter, we have not received your personal financial disclosure statement.” On April 22, 2010, plaintiff mailed another PFD, which the MEC received on April 23, 2010. The MEC subsequently determined that plaintiff had failed to meet the April 20, 2010 deadline, and it disqualified him from being a candidate. On April 28, 2010, the MEC sent a notice to the Clerk of St. Charles County, advising the clerk that plaintiff was disqualified pursuant to section 104.492.2 RSMo (2000).

On May 5, 2010, plaintiff filed a petition for declaratory judgment and temporary restraining order against the MEC, the Director of the St. Charles County Election Authority, and the Clerk of St. Charles County. Plaintiff sought, inter alia, a declaration that plaintiff had properly filed his PFD with the MEC and an order that plaintiffs name be placed on the August 3, 2010 ballot. After an expedited trial, the trial court found that plaintiff had properly mailed his PFD on February 25, 2010, and that there was therefore a presumption of receipt by the MEC. It also found that the MEC had failed to show by a preponderance of the evidence that the MEC did not receive the PFD prior to the closure date of April 13, 2010. The trial court ordered the MEC to rescind its letter directing the St. Charles County clerk to remove plaintiff from the August 3, 2010 ballot and ordered that plaintiffs name be placed on the ballot.

The MEC appealed the trial court’s judgment and completed its Notice of Appeal on June 9, 2010. On July 2, 2010, the MEC filed its brief along with a motion for an expedited briefing schedule or, in the alternative, a ruling that the appeal was not moot. Plaintiff filed suggestions in opposition to the MEC’s motion and a motion to dismiss the case as moot. In support of this motion, plaintiff filed an affidavit from the St. Charles County Election Authority, in which the Election Authority stated that the August 3, 2010 primary election ballots had already been printed with plaintiffs name and had been used for absentee voting since June 22, 2010. We granted the motion to expedite the briefing schedule by requiring plaintiffs respondent’s brief to be filed by August 1, 2010, and the MEC’s reply brief by August 17, 2010, with oral argument to be set in September. We took the motion to dismiss with the case.

For its sole point on appeal, the MEC asserts that the trial court erred in ordering that plaintiff be reinstated on the August 3, 2010 ballot. However, we must first address the threshold question of whether the controversy is moot. State ex rel. Reed v. Reardon, 41 S.W.3d 470, 473 (Mo. banc 2001) (citing Armstrong v. Elmore, 990 S.W.2d 62, 64 (Mo.App.1999)).

A cause of action is moot when the question presented for decision seeks a judgment upon some matter which, if the judgment was rendered, would not have any practical effect upon any then existing controversy. When an event occurs which renders a decision unnecessary, the appeal will be dismissed as moot.

C.C. Dillon Co. v. City of Eureka, 12 S.W.3d 322, 325 (Mo. banc 2000) (quoting Bank of Washington v. McAuliffe, 676 S.W.2d 483, 487 (Mo. banc 1984) (citations omitted)). The mootness doctrine is triggered when some event “ ‘so alters the position of the parties that any judgment rendered [merely becomes] a hypothetical opinion.’ ” Reed, 41 S.W.3d at 473 (alteration in original) (quoting Armstrong, 990 S.W.2d at 64).

This case became moot on June 22, 2010, when absentee voting in the August 3, 2010 primary election began and plaintiffs name was then on the primary election ballot. Moreover, as subsequent events unfolded, plaintiff was not selected as his party’s candidate in that primary election. A decision by this court on the issue of whether plaintiff was properly placed on the August 3, 2010 primary ballot will no longer have any practical effect on an existing controversy and would merely be an advisory opinion. See Election Board v. City of Lee’s Summit, 277 S.W.3d 740, 744-45 (Mo.App.2008); Armstrong, 990 S.W.2d at 64.

The MEC argues that we should not dismiss this case as moot because the issue in this case has public importance, the circumstances of this case are likely to be repeated in the future, and therefore this appeal fits within the “public interest” exception to the mootness rule. The “public interest” exception to the mootness doctrine applies if a case presents an issue that “(1) is of general public interest and importance, (2) will recur, and (3) will evade appellate review in future live controversies.” City of Manchester v. Ryan, 180 S.W.3d 19, 22 (Mo.App.2005). However, this exception is narrow, and “‘if an issue of public importance in a moot case is likely to be present in a future live controversy practically capable of review, the “public interest” exception does not apply.’ ” Id. (quoting Kinsky v. Steiger, 109 S.W.3d 194, 196 (Mo.App.2003) (citations omitted)); see also Chastain, 968 S.W.2d at 237.

This case does not fall within the public interest exception because the MEC has failed to show that the issue in this case will likely evade review in a future controversy. In other cases, issues addressing the timeliness of a candidate’s PFD have been adjudicated on appeal before the case became moot. See Jackson County Bd. of Elec. Com’rs v. Paluka, 13 S.W.3d 684 (Mo.App.2000). An expedited appellate process is also available if timely requested, see, e.g., City Council of Gladstone v. Yeaman, 768 S.W.2d 103 (Mo.App.1988), as is the writ process. See Chastain, 968 S.W.2d at 239. Under these circumstances, we decline to apply the public interest exception to reach the merits of this moot case.

Conclusion

This appeal is dismissed as moot.

GLENN A. NORTON, P.J. and GEORGE W. DRAPER III, J„ concur.

      . Section 105.487 RSMo (2000) requires the PFD to be filed no later than fourteen days after the close of filing, in this case April 13, 2010. Section 105.492 RSMo (2000) requires the MEC to send the disqualification notice if the PFD is not filed twenty-one days after the close of filing, in this case April 20, 2010.

      . In determining whether a case is moot, we may consider matters outside the record. Precision Invest. v. Cornerstone Propane, 220 S.W.3d 301, 304 (Mo. banc 2007); Reed, 41 S.W.3d at 473; Reynolds v. City of Valley Park, 254 S.W.3d 264, 266 (Mo.App.2008); State ex rel. Chastain v. City of Kansas City, 968 S.W.2d 232, 237 (Mo.App.1998).


author: SHERRI B. SULLIVAN, P.J.

text:
    John HEMPHILL, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 94247.
    Missouri Court of Appeals, Eastern District, Division Three.
    Sept. 21, 2010.
    Rehearing Denied Oct. 26, 2010.

      John Hemphill, Charleston, MO, Acting pro se, Movant/Appellant.
    Shaun J. MacKelprang, Jamie P. Rasmussen, Jefferson City, MO, for Respondent/Respondent.
   SHERRI B. SULLIVAN, P.J.

Introduction

John Hemphill (Appellant) appeals from the judgment of the motion court denying his motion to reopen his Rule 27.26 post-conviction proceedings. We dismiss.

Factual and Procedural Background

In 1985, Appellant was convicted of capital murder, Section 565.001, for which he was sentenced to life imprisonment without the possibility of probation or parole for fifty years. This Court affirmed Appellant’s conviction and sentence in State v. Hemphill, 699 S.W.2d 83, 84 (Mo.App. E.D.1985). On December 11, 1987, Appellant filed a pro se motion for post-conviction relief under Rule 27.26. On March 7, 1988, appointed post-conviction counsel entered an appearance on Appellant’s behalf. A hearing was scheduled for May 6, 1988, but there is no record of what happened on the scheduled hearing date. On June 13, 1989, the motion court dismissed Appellant’s Rule 27.26 motion without prejudice because the pro se motion had not been signed and no amended motion had been filed.

In November 1989, Appellant wrote the court clerk to inquire about the status of his motion, and was informed that it had been denied. On December 23, 1989, Appellant filed a motion to reinstate the motion, alleging that it had in fact been signed. On January 19, 1990, the motion court denied the motion to reinstate. Appellant did not appeal this denial.

Appellant wrote to post-conviction counsel in January of 1990, asking counsel if he was still representing him. Appellant again wrote him on February 15, 1990, asking counsel if he understood that the Rule 27.26 motion could be refilled because it had been dismissed without prejudice, noting that they would probably have to appeal the ruling because of the time that had passed since the dismissal. Appellant also asked counsel in the February 15, 1990 letter “to get this matter reviewed before the appellate court and I will take it from there.” There is no indication in the record that post-conviction counsel ever responded to Appellant, and counsel did not refile the motion or file an appeal.

In August 1990, Appellant contacted the Office of the Public Defender (PD), which replied after an investigation that “It certainly appears that [appointed post-conviction counsel] did nothing in your case.” The PD suggested that Appellant file a petition for habeas corpus and offered the services of an attorney in the office because-of the circumstances of Appellant’s case. On September 12, 1990, a copy of Appellant’s request was forwarded to an attorney who would assist Appellant with his habeas corpus petition. That attorney wrote Appellant on September 20, 1990 requesting information to assist in the preparation of the petition. Over a month later on October 25, 1990, Appellant still had not responded, and a second attorney sent a follow-up letter. Appellant responded on October 31, noting that he had begun contacting the public defender’s office because appointed post-conviction counsel never responded to his inquiries. He included copies of the order denying his motion and some letters from the case. In April 1991, Appellant corresponded with the habeas corpus attorney again. He informed that attorney of the ruling in Luleff v. State, 807 S.W.2d 495 (Mo.banc 1991), and told that attorney that “after reading this case I don’t think a state habeas corpus would be the appropriate motion to file.” He asked the attorney to prepare a draft of a successive post-conviction motion and then said “I believe I can work from there.”

On March 12, 2004, fourteen years later, Appellant filed a motion to reopen his Rule 27.26 motion. On August 19, 2004, the motion court denied Appellant’s motion to reopen. In 2005, Appellant filed a motion seeking leave to file a second motion pursuant to Rule 27.26, and this motion was denied by the trial court on July 14, 2005. These motions and court orders are not included in the record on appeal, but are referenced in the court’s November 6, 2009 judgment from which Appellant appeals.

On October 20, 2009, Appellant filed a second motion to reopen his Rule 27.26 motion. In this motion to reopen, he alleged that he had been abandoned by post-conviction counsel because counsel did not file an amended motion and did not appeal the dismissal of Appellant’s Rule 27.26 motion. On November 6, 2009, the motion court again denied the motion to reopen, reasoning that Appellant’s Rule 27.26 motion had been properly denied without prejudice because it had not been signed, and that Appellant had filed successive motions that had repeatedly been denied and he was raising no new grounds for relief. On January 22, 2010, Appellant filed this appeal.

Point on Appeal

In his point on appeal, Appellant asserts the motion court erred in denying his motion to reopen his Rule 27.26 motion because it alleged facts that were supported by the record in that he was abandoned by post-conviction counsel when counsel failed to: 1) correct the signature deficiency in Appellant’s Rule 27.26 motion; 2) file an amended Rule 27.26 motion; and 3) appeal the motion court’s dismissal without prejudice of Appellant’s Rule 27.26 motion.

Standard of Review

The review of the denial of a motion to reopen post-conviction proceedings is limited to a determination of whether the motion court’s findings and conclusions of law are clearly erroneous. White v. State, 265 S.W.3d 850, 852 (Mo.App. E.D.2008). The motion court’s findings and conclusions will be deemed clearly erroneous only if we are left with the definite and firm impression that a mistake has been made after reviewing the entire record. Id.

Discussion

The motion court’s control over post-conviction proceedings is limited to the thirty days following the court’s ruling in the proceeding. Rule 75.01. The only exception to this limitation is when the motion court is allowed to reopen the proceeding to address a claim of abandonment by post-conviction counsel. Johnson v. State, 244 S.W.3d 226, 228 (Mo.App. E.D.2008). Abandonment is limited to instances in which post-conviction counsel either (1) fails to take any action on the movant’s behalf and the record shows the movant is deprived of a meaningful review of his claims, or (2) is aware of the need to file an amended motion and fails to do so in a timely fashion. Id.

“For [post-conviction] counsel to abandon his client, he must have completely shirked his obligations imposed under the rules.” Hankins v. State, 302 S.W.3d 236, 238 (Mo.App. S.D.2009), quoting Kennedy v. State, 210 S.W.3d 417, 420 (Mo.App. S.D.2006). “Movant is presumed abandoned by counsel when the record, on its face, establishes non-compliance with the duties imposed by Rule 27.26(h).” Hankins, 302 S.W.3d at 238; Kennedy, 210 S.W.3d at 420; see also Luleff v. State, 807 S.W.2d 495, 498 (Mo.banc 1991). “When this presumption arises, Movant is entitled to a hearing to determine if he was abandoned.” Hankins, 302 S.W.3d at 238; Kennedy, 210 S.W.3d at 420. “Additionally, abandonment by counsel can occur when ‘the record reflects that counsel has determined that there is a sound basis for amending the pro se motion but fails to file the amended motion in a timely manner as required by Rule 29.15(f) Hankins, 302 S.W.3d at 238; Brown v. State, 179 S.W.3d 404, 407 (Mo.App. S.D.2005) (quoting Sanders v. State, 807 S.W.2d 493, 494-95 (Mo.banc 1991)); see also Simmons v. State, 190 S.W.3d 558, 559 (Mo.App. E.D.2006).

In the instant case, Appellant claims his appointed post-conviction counsel abandoned him by failing to take any action in his case despite his appointment by the court, entry of appearance, and his affirmative promises to Appellant to do so. However, we cannot make such determination upon a record that is incomplete. There are no copies of the following in the record: Appellant’s initial motion to reopen filed March 12, 2004; the court’s August 19, 2004 order overruling it; Appellant’s motion seeking leave to file a second motion, and the July 15, 2004 order denying it. In ruling on Appellant’s claims in the 2009 motion to reopen, the motion court specifically found that the claims raised in the current motion to reopen were the same as those raised previously and were denied for the same reasons:

Movant filed a motion to reopen the proceeding in 2004 and the motion was denied by Order dated August 19, 2004. In 2005 movant filed a motion seeking leave to file a second motion pursuant to Rule 27.26 and this motion was denied by Order dated July 14, 2005. Movant’s latest motion merely repeats the claims that have been repeatedly denied by this Court, and the Court finds no reason to reconsider the claims.

[Emphasis added.] Accordingly, because the trial court references the court’s previous orders denying Appellant’s previous motions in its reasoning in denying Appellant’s motion once again, those previous motions and orders must be a part of the record for our consideration in whether or not the trial court erred in its 2009 order.

“The record on appeal shall contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented ... to the appellate court for decision.” Supreme Court Rule 81.12(a) (2010); see also Cook v. State, 156 S.W.3d 418, 420 (Mo.App. E.D.2005). Because the above stated items are not included in the record before us, and are necessary to the determination of Appellant’s question presented, the record is incomplete, and Appellant’s appeal must be dismissed.

Conclusion

The appeal is dismissed.

CLIFFORD H. AHRENS and LAWRENCE E. MOONEY, JJ., concur.

      . All rule references are to Mo. R.Crim. P.1978, unless otherwise indicated.

      . All statutory references are to RSMo 1987, unless otherwise indicated.

      . Respondent’s Motion to Dismiss is granted, for the reasons stated in this opinion only.


text:
    GLASGOW ENTERPRISES, Appellant, v. OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY, et al., Respondents.
    No. ED 94385.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 21, 2010.
    Rehearing Denied Oct. 26, 2010.

      Daniel F. Wagner, Jr., Clayton, MO, for Appellant.
    Roger W. Pecha, Kenneth L. Coyne, Saint Louis, MO, for Respondents.
    Before GLENN A. NORTON, P.J., KATHIANNE KNAUP CRANE, J. and GEORGE W. DRAPER III, J.
   ORDER

PER CURIAM.

Glasgow Enterprises appeals the grant of summary judgment in favor of Old Republic National Title Insurance Company and Old Republic Title Insurance Company on all counts asserted in Glasgow’s first amended petition. No error of law appears. An extended opinion would have no precedential value. We have, however, provided the parties with a memorandum setting forth the reasons for our decision. We affirm the judgment under Rule 84.16(b).


author: DON E. BURRELL, Judge.

text:
    Paul BRYANT and Gloria R. REYNOLDS, Carol E. Whitaker, Tracy Scott Reynolds, Ramona L. Kindrick and Debra J. Reynolds, Plaintiffs-Appellants, v. CARTER COUNTY, Missouri and Commissioners Eddie Ballard, Lynn Murdick, and Gene Oakley, Defendants-Respondents.
    No. SD 30249.
    Missouri Court of Appeals, Southern District, Division One.
    Sept. 23, 2010.

      Devin Kirby, Doniphan, MO, for Appellants.
    Ivan L. Schraeder, St. Louis, MO, for Respondents.
   DON E. BURRELL, Judge.

Paul Bryant and Jerry Reynolds (“Plaintiffs”) each served as the Sheriff of Carter County. Each sued Carter County and its Commissioners, Eddie Ballard, Lynn Mur-dick, and Gene Oakley, (“Defendants”) for past wages they claimed they should have received. The case was ultimately submitted to the trial judge on stipulated facts. After the trial court entered a judgment awarding each plaintiff monetary damages, Defendants filed a motion for new trial. The trial court granted Defendants’ request without stating any grounds for its ruling. Plaintiffs now appeal that decision.

Because the trial court did not specify “the ground or grounds on which the new trial [was] granted,” Plaintiffs filed a Rule 84.05(c) statement requesting that Defendants file the opening brief. This switch in the usual briefing order is allowed because the trial court’s failure to identify the ground(s) for its order results in a “presumption [ ] that the trial court erroneously granted the motion for new trial and the burden of supporting such action is placed on the respondent.” Rule 84.04(c).

Defendants’ opening brief asserts two points: 1) the trial court did not err in granting a new trial because it lacked “subject matter jurisdiction” over Plaintiffs’ claims because they were time-barred by the applicable statute of limitation; and 2) the trial court did not err in correcting the date of its decision to order a new trial via a nunc pro tunc order.

Because Defendants have failed to demonstrate that a new trial was required on nondiscretionary grounds, and Defendants have failed to rebut the presumption of error, the trial court’s order granting a new trial must be reversed.

Factual and Procedural Background

To put it mildly, this case has a somewhat tortured history. Plaintiffs filed them petition in Carter County more than eight years ago. Defendants initially responded with a general motion to dismiss for failure to state a claim. In July 2002, Plaintiffs filed a motion seeking both a change of judge and change of venue. Although the court’s order in response to that motion has not been included in the record on appeal, the change of judge request was apparently granted the next day, and a series of special judges were assigned to hear the case. In May 2005— three years after it was filed — the trial court denied Defendants’ motion to dismiss. Defendants filed an answer on June 1, 2005, and the case was scheduled for a bench trial. Defendants’ answer contained an affirmative assertion that “Plaintiffs’ causes of action are barred by the Statue [sic] of Limitations.” No specific statute was referenced, and no facts were averred in support of the alleged defense.

In January 2007, the parties filed a “Joint Stipulation in Lieu of Live Testimony.” Among other things, the stipulation provided that Carter County had less than 8,000 inhabitants and set forth the method the county used to determine the salaries of elected officials, along with a schedule of the salaries actually paid Plaintiffs during their respective years in office. The parties stipulated that: Plaintiff Bryant was the duly elected sheriff of Carter County from January 1, 1985, to December 31, 1992, and again from January 1, 1997, to December 31, 2000; Plaintiff Reynolds was the duly elected sheriff from January 1, 1993, to December 31, 1996; Carter County paid its Sheriff $13,750.00 per year from 1985 to 1996 and $25,000 per year from 1997 through 2000. The stipulation contained no other facts that might support a statute of limitation defense and made no reference to any particular statute that might apply.

In June 2007, Judge Mark Richardson was assigned to the case. By agreement of the parties, the case was then transferred to Butler County. After the parties submitted written suggestions, Judge Richardson took the case under submission. On March 21, 2008, Judge Richardson entered a judgment awarding each plaintiff $70,824.00 plus statutory interest at 9% per year. The judgment included findings of fact, grounds for the decision, and the method the court used to calculate Plaintiffs’ damages. The judgment con-tamed no findings or grounds regarding any statute of limitation defense.

Defendants responded to the judgment by filing their motion for new trial on April 11, 2008. On June 9, 2008, Judge Richardson held a hearing on Defendants’ motion. At that hearing, Defendants argued that the case should have been dismissed or the judgment set aside because: 1) the claims were barred by the statute of limitation; 2) some of the plaintiffs lacked standing to pursue the case; 8) the trial court lacked jurisdiction; and 4) the wrong parties were named as defendants in the action. Judge Richardson took the motion under advisement.

On July 10, 2008, the 90th day after Defendants filed their motion for new trial, Defendants filed a notice of appeal that challenged the judgment entered in favor of Plaintiffs. The next day — the 91st day after Defendants filed their motion for new trial — the following entry appeared in the court’s docket record: “Court reviews Motion for New Trial and hereby sustains said motion. Clerk to notify counsel. So Ordered. MLR [Judge Richardson’s initials^.]” On July 21, 2008, the court made the following docket entry: “Court enters nunc pro tunc order to correct the scrivener’s error dating said order 7/11/08 to be changed to 7/10/08. Clerk to notify counsel. So Ordered. MLR[.]”

Defendants continued to pursue their appeal of the trial court’s underlying March 21, 2008, judgment because they were unsure of the effectiveness of the trial court’s July 21st nunc pro tunc order. This court subsequently held that the July 21st order was properly used to correct a scrivener’s error and the trial court had therefore timely granted Defendants’ motion for new trial on the last day it had the authority to do so, July 10, 2008. See Bryant v. Carter Cnty., 283 S.W.3d 802, 803-04 (Mo.App. S.D.2009) (“Bryant I”). The timely entry of the new trial order meant that the March 21, 2008, judgment in favor of Plaintiffs was no longer a final judgment, and Defendants’ appeal was dismissed for that reason. Id. at 804.

Before this court had issued its opinion in Bryant I, Plaintiffs attempted to appeal the new trial order. We dismissed Plaintiffs’ appeal at that time on the grounds that it was not taken from a final, appeal-able judgment. Plaintiffs sought to overturn that ruling by filing a petition for writ of prohibition with our Supreme Court on March 19, 2009. That request for extraordinary relief was denied.

In the meantime, Judge Richardson retired from the bench. The Honorable Robert Smith was appointed to replace him on October 21, 2009. On December 14, 2009, after our mandate had issued in Bryant I, Judge Smith entered a “Judgment and Decree” which stated, “Upon review of the file, the Court hereby declares that the docket entry of July 11, 2008, as amended by the Nunc Pro Tunc docket entry of July 21, 2008, granting a new trial is a final decree for purposes of RSMo. § 512.020.” This appeal timely followed.

Analysis

We will address Defendants’ second point first. This court upheld the validity of Judge Richardson’s July 21, 2008, nunc pro tunc order in Bryant I. Absent a showing that our decision relied on a mistaken fact, resulted in “manifest injustice,” or was followed by a change in the law, there is no need to readdress it. See Walton v. City of Berkeley, 223 S.W.3d 126, 128-30 (Mo. banc 2007). None of these exceptions to the “law of the case” doctrine apply here. Defendants’ second point is correct; the trial court’s decision to grant a new trial was not erroneous simply because a nunc pro tunc order was used to correct the date of its issuance.

Defendants’ first point asserts, “The trial court did not err in granting [Defendants’] motion for new trial based on the affirmative defense of the statute of limitations under [section] 516.120 because the court lacked subject matter jurisdiction over [Plaintiffs’] claims, in that the claims are time-barred under [section] 516.120 since [Plaintiffs] did not file their lawsuit until after five years had elapsed from the date the cause of action accrued.” Plaintiffs responded that Defendants “failed to show a legal nondiscretion-ary basis to support the granting of a new trial in that the trial court failed to specify the ground(s) upon which the motion for new trial was granted.” Plaintiffs are correct.

Rule 78.03 states, “Every order allowing a new trial shall specify of record the ground or grounds on which said new trial is granted.” Rule 84.05(c) provides that “[w]hen a trial court grants a new trial without specifying of record the ground or grounds on which the new trial is granted, the presumption shall be that the trial court erroneously granted the motion for new trial and the burden of supporting such action is placed on the respondent.” Thus, “[w]hen a trial court enters an order for new trial but fails to specify reasons for ordering a new trial, the trial court’s actions are presumed to be erroneous.” Greek by Greek v. Midwestern Tel., Inc., 880 S.W.2d 364, 365 (Mo.App. S.D.1994).

Defendants mistakenly assert that we should review the trial court’s decision to grant a new trial for an abuse of discretion, citing Thurman v. St. Andrews Mgmt. Servs., Inc., 268 S.W.3d 434 (Mo.App. E.D.2008). But in Thurman, “[t]he trial court granted Plaintiffs’ motion for a new trial ‘on the grounds that the court erred in not allowing the jury to apportion fault among the remaining defendants and the dismissed party, [a doctor.]”’ Id. at 440. Thurman is distinguishable because Rule 84.05(c) simply has no application when the trial court states its reasons for granting a new trial. Damon Pursell Constr. Co. v. Missouri Highway & Transp. Comm’n., 192 S.W.3d 461, 471 n. 2 (Mo.App. W.D.2006). Here, no grounds supporting the decision were set forth in either Judge Richardson’s original docket entry or Judge Smith’s subsequent order deeming that entry final for purposes of appeal.

Rule 84.05(d) provides: “If the trial court grants a new trial without specifying discretionary grounds, it shall never be presumed that the new trial was granted on any discretionary grounds.” This rule has been interpreted to mean that when the trial court does not state its ground(s), “and only discretionary grounds support the new trial order, ‘the action of the trial court cannot be sustained on that ground’ and, thus, the new trial order must be vacated.” Bishop v. Carper, 81 S.W.3d 616, 619 (Mo.App. W.D.2002) (quoting Pretti v. Herre, 403 S.W.2d 568, 569 (Mo. banc 1966)). That means we may affirm the trial court’s decision to grant a new trial only if Defendants establish that the trial court committed a reversible error during the trial as a matter of law. Curtis v. Curtis, 491 S.W.2d 29, 33 (Mo.App. Spfld.D.1973).

Defendants attempt to assert such a claim by stating that the passing of the time limitation set forth in section 516.120 deprived the trial court of “subject matter jurisdiction” over Plaintiffs’ claims. We presume they do so because a true “[l]ack of subject matter jurisdiction is not subject to waiver; it can be raised at any time, even on appeal. By contrast, if a matter is not jurisdictional but rather is a procedural matter required by statute or rule or an affirmative defense of the sort listed in Rule 55.08, then it generally may be waived if not raised timely.” McCracken v. Wal-Mart Stores East, LP, 298 S.W.3d 473, 476 (Mo. banc 2009) (internal citation omitted).

Fatal to Defendants’ position is the fact that “[t]he law is well settled that the affirmative defense of ‘the statute of limitations is non-jurisdictional and can be waived.’ ” Dice v. Darling, 974 S.W.2d 641, 645 (Mo.App. W.D.1998) (quoting Longhibler v. State, 832 S.W.2d 908, 911 (Mo. banc 1992)). The trial court was not required as a matter of law to grant a new trial on the ground that it lacked subject matter jurisdiction over Plaintiffs’ case as a result of the expiration of any applicable statute of limitation. As a result, Defendants have failed to establish that a non-discretionary ground supported the trial court’s decision. Point I is denied.

Even if the trial court had stated that it was granting Defendants’ motion for new trial on the ground that Plaintiffs’ claims were time-barred by section 516.120, that decision would not withstand appellate review. This case was tried solely on the parties’ joint stipulation. That stipulation contained no evidence relating to when a particular statute of limitation defense commenced and would thereafter bar any of Plaintiffs’ claims. The specific statute of limitation Defendants believed applicable was also not identified in Defendants’ pleadings.

It is not enough to allege generally that a claim is barred by “the statute of limitations.” See Grady v. Amrep Inc., 139 S.W.3d 585, 590 (Mo.App. E.D.2004); Heintz v. Swimmer, 922 S.W.2d 772, 775 (Mo.App. E.D.1996). The trial court had no obligation to rule on a defense that was not raised. See Adams v. Inman, 892 S.W.2d 651, 653 (Mo.App. W.D.1994) (holding it was error for the trial court to dismiss a claim based on a statute of limitation and collateral estoppel when the defendant did not raise either as a defense). Because Defendants did not plead a specific statute and presented no evidence in support of its application, the trial court could not have found that Defendants were entitled to prevail on it.

Defendants argue that “all pleadings and facts show that the applicable statute of limitations had run on the matter pursuant to [s]ection 516.120.2 RSMo as interpreted in Cox v. Ripley County, 233 S.W.3d 225 (Mo.App. S.D.] 2007)” (“Cox I”). After our reversal in Cox I, this court, in a subsequent appeal, allowed Ripley County to rely on a five-year statute of limitation when it had not specifically alleged that statute in its answer. Cox v. Ripley County, — S.W.3d - (Mo.App. S.D.2010) (“Cox II”). The county’s answer alleged that Cox’s claim was barred by a three-year statute of limitation, section 516.130.1. The trial court agreed with the county and applied the three-year statute in reaching its judgment. We reversed, holding that the applicable statute was the five-year limitation set forth in section 516.120.1. Cox I, 233 S.W.3d at 226, 231.

On remand, the county asserted the five-year statute. Cox argued that the defense had been waived by the county’s prior failure to identify the five-year statute in its answer. Cox II, - S.W3d at ——. We noted that the county’s reliance on the five-year statute came as no surprise to Cox because it was the very statute he had argued was applicable in his Cox I appellate brief. Id. at --. As a result, we held that a defense relying on the five-year statute was not waived because it would have been an abuse of discretion under the unique circumstances of that case for the trial court to have refused the county an opportunity to amend its answer to assert it. Cox II, — S.W.3d at -.

Here, Plaintiffs did not concede the application of a particular statute of limitation. Instead, the record reveals that Defendants: 1) never correctly identified the applicable statute in its pleadings; and 2)

presented no evidence in support of the defense at trial. Identifying and asserting the relevant statute of limitation after the trial is over in a motion for new trial comes too late. The defense must be specifically asserted by the time the case is decided. See Straub, 128 S.W.3d at 159-60, 161; Weaver v. African Methodist Episcopal Church, Inc., 54 S.W.3d 575, 587 (Mo.App. W.D.2001) (cases holding that the failure to request a jury instruction on the affirmative defense constituted a waiver of it). See also Patel v. Pate, 128 S.W.3d 873, 877 (Mo.App. W.D.2004) (holding that a statute of limitation defense raised for the first time in a motion to dismiss filed at the close of the plaintiffs’ evidence was untimely).

Because Defendants have failed to demonstrate that a new trial was required on nondiscretionary grounds, the presumption of error under Rule 84.05(c) has not been rebutted. Defendants’ first point fails, and the trial court’s December 14, 2009 “Judgment and Decree” granting a new trial is reversed. The matter is remanded to the trial court which is directed to vacate that “Judgment and Decree” and reinstate the court’s March 21, 2008, judgment.

BARNEY, J., and BATES, P.J., Concur.

      . All rule references are to Missouri Court Rules (2010).

      . In the interim, Plaintiff Reynolds passed away. The parties stipulated that Gloria D. Reynolds, Carol E. Whitaker, Tracy Scott Reynolds, Ramona L. Kindrick, and Debra J. Reynolds were Plaintiff Reynolds's lawful heirs, and they were substituted in his place.

      . The trial court reviewed the stipulation, pleadings, and memorandums of law and concluded that Plaintiffs had been underpaid from 1988 to 1996. The trial court discussed the statutorily prescribed method for establishing official salaries for a county having the same assessed valuation and population as Carter County. The trial court determined that, based on the statutory provisions and the highest salary paid to another elected official during the relevant period, "the Defendants should have paid all Carter County officer holders, including Plaintiff [] Bryant, 98.3% of their maximum allowable compensation as their salaries.” The maximum allowable salary for sheriff was $32,000.00 for counties with the same classification as Carter County. Based on the foregoing, the trial court ultimately concluded that Plaintiff Bryant "was under-compensated $17,706.00 per year for his entire term of office from January 1, 1988 until December 31, 1992, which totals $70,824.00." The trial court applied the same reasoning to Plaintiff Reynolds's salary and concluded that he "was also under-compensated $17,706.00 per year for his entire term of office from January 1, 1993 until December 31, 1996, which totals $70,824.00.”

      . Unless otherwise indicated, all statutory references are to RSMo 2000.

      . On appeal, Defendants argue that the limitation period commenced on Plaintiffs' first day in office, citing State ex rel. Gasconade Cnty. v. Jost, 291 S.W.3d 800, 804 (Mo.App. E.D.2009), and Cox v. Ripley Cnty., 233 S.W.3d 225, 230-31 (Mo.App. S.D.2007). While both cases apply the five-year statute of limitations expressed in section 516.120.2, our subsequent decision in the Cox case pointed out that the limitation period commenced on the last day of each year in the term of office in which the official was underpaid because the salary was paid annually. Cox v. Ripley Cnty., - S.W.3d - (Mo.App. S.D.2010). In Jost, the cause of action to recover overpayment commenced mid-term when the commissioners received their midterm raises. 291 S.W.3d at 804-05.


text:
    Nathaniel S. WALSH, Respondent, v. Kevin X. MCGOWAN, Appellant.
    No. ED 94551.
    Missouri Court of Appeals, Eastern District, Division Four.
    Oct. 26, 2010.

      Michael J. Sewell, Clayton, MO, for Appellant.
    Paul Simon, Jr., St. Louis, MO, for Respondent.
    Before KURT S. ODENWALD, P.J. and ROBERT G. DOWD, JR., and PATRICIA L. COHEN, JJ.
   ORDER

PER CURIAM.

Kevin X. McGowan (“McGowan”) appeals from the judgment of the trial court granting summary judgment in favor of Nathaniel S. Walsh (“Walsh”) in the amount of $137,390.04. McGowan argues the trial court erred in: (1) granting summary judgment in favor of Walsh because there was a genuine dispute regarding whether Walsh provided any consideration in exchange for McGowan’s promise to pay Walsh; (2) awarding attorneys’ fees to Walsh because a genuine issue of material fact existed regarding whether Walsh was entitled to attorneys’ fees pursuant to the consulting agreement; and (3) granting summary judgment in favor of Walsh because there was a genuine dispute as to whether McGowan sold fifty percent or more of the voting and/or controlling interest of Heers Building, LLC.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion reciting the detailed facts and restating principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. Walsh’s motion for attorneys’ fees on appeal is granted in the amount of $9,000.00. The judgment is affirmed in accordance with Rule 84.16(b).