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Straub v. Tull2/6/2004
Opinion Vote: AFFIRMED.
Prewitt and Garrison, J.J., concur.
Opinion:
Gary Tull, ("Appellant"), appeals from a judgment entered against him in which his daughter, Terri Straub ("Respondent"), was awarded damages arising from his acts of childhood sexual abuse against her. In the trial below, a jury awarded Respondent $25,000.00 in actual damages and $85,000.00 in punitive damages. We affirm.
In his sole point relied on, Appellant maintains the trial court erred in overruling his motions for directed verdict at the close of Respondent's evidence and at the close of all of the evidence. Appellant also contends the trial court erred in overruling Appellant's amended motion for judgment notwithstanding the verdict, or, in the alternative, Appellant's motion for new trial based on the running of relevant statutes of limitations, as explained below.
"In reviewing motions for directed verdict and for judgment notwithstanding the verdict, this Court takes the evidence in the light most favorable to the verdict, giving the prevailing party all reasonable inferences from the verdict and disregarding the unfavorable evidence." Nemani v. St. Louis University, 33 S.W.3d 184, 185 (Mo. banc 2000). "The trial court has wide discretion in ruling upon a motion for new trial." Enos v. Ryder Automotive Operations, Inc., 73 S.W.3d 784, 788 (Mo.App. 2002). "In reviewing a trial court's denial of a motion for new trial, we must indulge every reasonable inference favoring the trial court's ruling and not reverse that ruling absent a clear abuse of discretion." Ballard v. Ballard, 77 S.W.3d 112, 115 (Mo.App. 2002) (quoting Ashcroft v. TAD Res. Int'l, 972 S.W.2d 502, 505 (Mo.App. 1998)).
We observe that a statute of limitations allows a cause of action to accrue and then cuts off the claim if suit is not filed within a certain period of time. Lomax v. Sewell, 1 S.W.3d 548, 552 (Mo.App. 1999). "The running of the applicable statute of limitations is an affirmative defense and must be pleaded as such pursuant to Rule 55.08." Id. "The party asserting the affirmative defense of the running of the applicable statute of limitations has the burden of not only pleading but proving it." Id. "Although a party need not necessarily plead matters in avoidance of limitations in the first place, they must appear by way of reply to the pleading raising the defense, if not appearing on the face of the original petition." Yahne v. Pettis County Sheriff Dept, 73 S.W.3d 717, 719 (Mo.App. 2002) (citations omitted).
Normally, the running of the statute is a question of law for the trial court to decide. Lomax, 1 S.W.3d at 552. Such questions of law are granted de novo appellate review with no deference being paid to the trial court's determination of law. State v. Williams, 24 S.W.3d 101, 110 (Mo.App. 2000); State v. Tinoco, 967 S.W.2d 87, 89 (Mo.App. 1998). "However, when contradictory or different conclusions may be drawn from the evidence as to whether the statute of limitations has run, it is a question of fact for the jury to decide." Lomax, 1 S.W.3d at 552-53.
"Where the opposing party admits the running of the statute of limitations, there is no question of fact on this issue for the jury to decide requiring an instruction thereon." Id. "However, when the running of the applicable statute of limitations is not admitted and turns on a jury question, a jury instruction is required and the failure of the party relying on the defense to request an instruction on the same constitutes an abandonment thereof, even though it was properly pled." Id.
Viewing the facts in the light most favorable to the jury's verdict, Seitz v. Lemay Bank and Tru
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