328 S.W.3d 714
Mo. Ct. App.2010Background
- Ashford appeals a trial court ruling that its 2008 suits against Horner and Lamb were barred by the five-year statute of limitations, §516.120.
- Horner analyzed Ashford’s decks in 1999 and recommended repairs; Lamb was hired in 2000 to perform repairs and replace columns.
- Horner inspected Lamb’s work; decorative trim concealed each column, which had to be removed to assess damage.
- Ashford notified Horner and Lamb of concerns in 2000 and terminated Lamb in 2001; subsequent painting work was completed by Rice Painting.
- In 2006, after removal of trim by a different contractor, Ashford learned of substantial column deterioration and water damage.
- Ashford filed suit in 2008; the trial court held the claims accrued by 2000–2001 and were time-barred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Ashford's knowledge in 2000 about inadequate flashing start the limitations period? | Ashford asserts disputed facts preclude summary judgment on notice. | Horner/Lamb contend knowledge of the issue in 2000–2001 triggers accrual under §516.120. | Yes; knowledge in 2000–2001 triggered accrual. |
| Were damages capable of ascertainment before March 14, 2003? | Damages were not ascertainable until 2006 when trim was removed. | Damages were ascertainable when the fact of damage was known in 2000–2001. | Yes; damages capable of ascertainment by 2000–2001. |
| Does Linn Reorganized School District toll ascertainment for ongoing construction projects? | Linn tolling could delay accrual until project completion. | Even if Linn applies, accrual occurred by 2000–2001 here. | Tolling not controlling; accrual occurred prior to Linn’s potential effect. |
Key Cases Cited
- Powel v. Chaminade College Preparatory, Inc., 197 S.W.3d 576 (Mo. banc 2006) (capable of ascertainment standard triggers accrual when notice of injury occurs)
- Graham v. Bus. Men's Assurance Co. of Am., 984 S.W.2d 501 (Mo. banc 1999) (capable of ascertainment; damages need not be known in full)
- Linn Reorganized Sch. Dist. v. Butler Mfg. Co., 672 S.W.2d 340 (Mo. banc 1984) (construction-phase accrual; not tolled until project completion in some cases)
- O'Reilly v. Dock, 929 S.W.2d 297 (Mo. App. S.D. 1996) (damages ascertainable when injury is known, even if extent unknown)
- Kennedy v. Microsurgery & Brain Research Inst., 18 S.W.3d 39 (Mo. App. E.D. 2000) (ascertainment focuses on fact of damage, not exact amount)
- Kuehnle v. Best, 92 S.W.3d 135 (Mo. App. E.D. 2002) (ascertainment concept applied to bar limitations when damage is known)
- Arst v. Max Barken, Inc., 655 S.W.2d 845 (Mo. App. E.D. 1983) (awareness of damage supports accrual timing)
- State ex rel. Reif v. Jamison, 271 S.W.3d 549 (Mo. banc 2008) (corporate representative testimony binding; summary-judgment considerations)
- Marianist Province of the United States v. Ross, 258 S.W.3d 809 (Mo. banc 2008) (discusses notice and discovery standards for accrual)