Dennis Cox, Plaintiff/Appellant v. Ripley County, Missouri, and Commissioners Jesse Roy, Ray Joe Hastings and William Kennon, Defendants/Respondents.
27808
Missouri Court of Appeals Southern District
08/23/2007
Phillip R. Garrison, Judge
Opinion Author: Phillip R. Garrison, Judge. Opinion Vote: REVERSED AND REMANDED. Bates, C.J., and Lynch, J., - concur. Appeal From: Circuit Court of Ripley County, Hon. William R. Hass. Counsel for Appellant: Devin S. Kirby. Counsel for Respondent: L. Dwayne Hackworth and Christopher J. Miller.
This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.
Opinion
Missouri Court of Appeals Southern District
Case Style: Dennis Cox, Plaintiff/Appellant v. Ripley County, Missouri, and Commissioners Jesse Roy, Ray Joe Hastings and William Kennon, Defendants/Respondents.
Case Number: 27808
Handdown Date: 08/23/2007
Appeal From: Circuit Court of Ripley County, Hon. William R. Hass
Counsel for Appellant: Devin S. Kirby
Counsel for Respondent: L. Dwayne Hackworth and Christopher J. Miller
Opinion Summary: None
Citation:
Opinion Author: Phillip R. Garrison, Judge
Opinion Vote: REVERSED AND REMANDED. Bates, C.J., and Lynch, J., - concur
Opinion:
Opinion
On April 17, 1995, Nick Pepmiller (“Pepmiller“) filed a petition with the Circuit Court of Ripley County, Missouri, alleging that Defendants under compensated him in violation of Missouri law for the years he served as the Ripley County Sheriff. On December 31, 2001, Pepmiller filed a motion for leave to add Plaintiff and then both Pepmiller and Plaintiff filed an amended petition2 that included Plaintiff‘s claim that he was under compensated for the period of January 1, 1993, to December 31, 1996, the years he served as the Ripley County Sheriff.3 Defendants filed a motion to dismiss the first amended petition on March 7, 2005, alleging that Plaintiff‘s claim against Defendants was barred by the three-year statute of limitations as set forth in
On November 2, 2005, the court took up all pending motions and issued its “Order and Memorandum of Findings,” finding that Plaintiff‘s claim against Defendants was barred by the three-year statute of limitations as set forth in
Our review of a grant of a motion to dismiss is de novo. Platonov v. The Barn, L.P., 226 S.W.3d 238, 240 (Mo.App. E.D. 2007). We assume that all the plaintiff‘s averments in the petition are true and grant the plaintiff all reasonable inferences from the petition. Id. “When an affirmative defense is asserted, such as a statute of limitation, the petition may not be dismissed unless it clearly establishes ‘on its face and without exception’ that it is barred.” Sheehan v. Sheehan, 901 S.W.2d 57, 59 (Mo. banc 1995) (quoting International Plastics Development, Inc. v. Monsanto Co., 433 S.W.2d 291, 294 (Mo. banc 1968).
On appeal, Plaintiff argues that the trial court erred in applying the three-year statute of limitations of
[a]n action against a sheriff, coroner or other officer, upon a liability incurred by the doing of an act in his official capacity and in virtue of his office, or by the omission of an official duty, including the nonpayment of money collected upon an execution or otherwise[.].
The dispositive issue before this Court is which statute of limitations applies to the particular facts as pled by Plaintiff. Statutory interpretation and construction is a matter of law and not fact. State v. Laplante, 148 S.W.3d 347, 348 (Mo.App. S.D. 2004). The purpose of engaging in statutory construction is to determine the “legislative intent from the language of the act, considering the words used in their plain and ordinary meaning, and to give effect to that intent whenever possible.” Connor v. Monkem Co., Inc., 898 S.W.2d 89, 90 (Mo. banc 1995). When faced with two different statutes, each applicable to the same matter, the two must be read together and harmonized. City of Ellisville v. Lohman, 972 S.W.2d 527, 534 (Mo.App. E.D. 1998).
The Defendants contend that the three-year statute of limitation of
[a] public office is defined to be ‘the right, authority and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public.’ The individual who is invested with the authority and is required to perform the duties is a public officer.
State ex rel. School District of Sedalia v. Harter, 87 S.W. 941, 943 (Mo. 1905) (internal citations omitted). Under such a definition, it would appear that Defendants, Commissioners Jesse Roy, Ray Joe Hastings and William Kennon, are officers. See
First, in 1924, a former employee brought a suit against Kansas City and the members of the board of water commissioners alleging that he was improperly discharged and seeking reinstatement and payment of salaries due him. State ex rel. Wingfield v. Kansas City, 263 S.W. 516 (Mo.App. K.C. 1924). The former employee claimed that he had been discharged in violation of what was then the civil service law. Id. at 517. At trial and on appeal, the defendants asserted that the three-year statute of limitations, then
Next, in Coleman v. Kansas City, Mo., 173 S.W.2d 572, 573 (Mo. 1943), city employees brought an action against Kansas City to recover the balance of salaries due them. The employees’ salaries were fixed by ordinance, but the employees had been required to take forced leaves of absences and salary cuts by Kansas City. Id. As one of its defenses, Kansas City relied on the five-year statute of limitations under what was then
In State ex rel. Robb v. Poelker, 515 S.W.2d 577, 578 (Mo. banc 1974), several state officials sought to compel officials of the City of St. Louis to budget for and pay sums due for care and maintenance of indigent patients from the City of St. Louis. The City of St. Louis officials then filed an action for a writ of mandamus against the governor, the state treasurer, the director of revenue, and all the members of the House of Representatives and the Senate of the State of Missouri. Id. at 580. That writ sought payment of amounts alleged due to the City of St. Louis by the State of Missouri for care provided to patients in hospitals of the City of St. Louis over ten years before the filing of the writ. Id. In denying the City of St. Louis’ writ, the Poelker court specifically held that the five-year limitations period of
Lohman was a suit filed by several municipalities against the director of revenue and the county for improper distribution of sales tax revenues. 972 S.W.2d 527, 529. At issue on appeal, was whether the three-year statute of limitations of
Most recently, a title company brought an action against a county and the county recorder to recover money that was stolen by the recorder. Investors Title Co., Inc. v. Hammonds, 217 S.W.3d 288, 292 (Mo. banc 2007). At trial, the court applied
For the reasons we will subsequently set forth, we believe that the case at bar is more similar to the Wingfield, Coleman, and Poelker cases and that the five-year period under
First, we find that Plaintiff‘s claim is “[a]n action upon a liability created by a statute other than a penalty or forfeiture.”
Second, we conclude from Wingfield, Coleman, Poelker, and Lohman that the three-year period of
Furthermore, this Court finds Hammonds to be inapplicable to the case at bar for several reasons. First, Hammonds did not involve “a liability created by a statute” and as such
Likewise, we find that Lohman differs from the case at bar and is therefore distinguishable on the facts before us. The primary distinction resides in the pleadings of the two cases. In Lohman, the appellants specifically pled that the “director of revenue”
was charged with the duty of distributing monthly to various municipalities in St. Louis County twenty-five (25%) percent of the distributable sales tax revenue collected . . .
had collected the sales tax . . . and continues to do so; and
disbursed sales tax revenue . . . in a manner inconsistent with the [applicable statutes.]
Lohman, 972 S.W.2d at 535. In the case at bar, Plaintiff pled “[t]hat during the period of January 1, 1993 to December 31, 1996, the Defendants and their duly elected predecessors, completed and set the Plaintiff[‘s] . . . salary contrary to Missouri Law[.] Our focus on the differences in the pleadings is relevant because “[t]he gravamen or a ‘fair reading of the complaint in its totality’ will determine the applicable statute of limitations[.]” Id. at 535 (quoting Wenthe v. Willis Corroon Corp., 932 S.W.2d 791, 796 (Mo.App. E.D. 1996)). The pleadings in Lohman established that the suit was primarily against an officer, i.e., the director of revenue, for duties and acts within his official capacities. In the case at bar, however, Plaintiff‘s pleadings are more properly construed against Defendant Ripley County and the Ripley County Commission as a whole. Moreover, when viewed in the light most favorable to Plaintiff, we cannot say that he pled an action involving an officer and “a liability incurred by the doing of an act in [that officer‘s] official capacity and in virtue of his office, or by the omission of an official duty, including the nonpayment of money collected upon an execution or otherwise.”
Defendants assert that even if the five-year period of
Defendants fail to recognize that the requirements of
For the reasons heretofore stated, we hold that the trial court erred in applying the three-year statute of limitations of
Footnotes:
Separate Opinion:
None
This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.