348 S.W.3d 172
Mo. Ct. App.2011Background
- Timothy Ball contracted with Friese Construction Co. in 2000 to build a single-family home; closing occurred March 29, 2001.
- Ball claimed basement floor cracks in December 2001; SCI Engineering issued a report December 13, 2001 with possible causes and recommendations.
- January 7, 2002 Friese advised Ball to consult a structural engineer; Strain Engineering report followed in 2002 with potential slab movement explanations.
- Ball sent further complaints in December 2005 and May 2006; Friese responded denying structural defects and attributing movement to drainage/water issues; ongoing post-2002 concerns alleged.
- GeoTest, Inc. issued a report on December 13, 2009 attributing damage to highly plastic soils and water-related heaving, with drainage improvement recommendations.
- Ball filed suit May 28, 2010 alleging breach of implied warranty of habitability, fraud, and MMPA; summary judgment for Friese granted November 2010 based on statute of limitations; appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Section 516.100 tolls the claim based on late ascertainment. | Ball: damages not ascertainable until 2009, tolling applies. | Friese: damages were ascertainable earlier; tolling not appropriate. | No tolling; accrual began around 2002. |
| Whether multiple damages toll the statute under Section 516.100. | Ball: several items of damage over years toll the statute until last item. | Friese: only a single wrong; no multiple-damage tolling. | Not tolling; single wrong caused damages; accrual in 2002. |
Key Cases Cited
- Powel v. Chaminade Coll. Prep., Inc., 197 S.W.3d 576 (Mo. banc 2006) (capable of ascertainment standard is an objective notice test)
- Graham, 984 S.W.2d 507 (Mo. banc 1999) (trigger of statute when damage is ascertainable)
- Ashford Condo., Inc., 328 S.W.3d 714 (Mo. App. E.D. 2010) (damages accrue when injury is apparent; continuing damages not tolling factor)
- Lane v. Non-Teacher Sch. Employee Ret. Sys. of Missouri, 174 S.W.3d 626 (Mo. App. W.D. 2005) (accrual upon discovery or notice of injury)
- Arst v. Max Barken, Inc., 655 S.W.2d 845 (Mo. App. E.D. 1983) (single wrong with continuing damages accrues at time of wrong)
- Kennedy v. Microsurgery and Brain Research Institute, 18 S.W.3d 39 (Mo. App. E.D. 2000) (damages are ascertained when damage appears, not when the extent is known)