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Straub v. Tull2/6/2004
r high school years, 1981-1984. See K.G ., 918 S.W.2d at 798.
Accordingly, Respondent's cause of action under Section 516.371, RSMo Cum. Supp. 1989, was viable at least until 1992, within the ten year limitation period set out in Section 516.371, RSMo Cum. Supp. 1989. During the ten-year period of time that her claim was viable under Section 516.371, RSMo Cum. Supp. 1989, the legislature enacted Section 537.046, RSMo Cum. Supp. 1990, which became effective August 28, 1990. By its express terms, the statute had the effect of extending her cause of action until three years from the date she discovered or reasonably should have discovered that her psychological injury or illness was caused by "childhood sexual abuse." Section 537.046,
RSMo Cum. Supp. 1990. Respondent testified at trial that it was not until the "end of 1998" when she realized she might be suffering from her injuries. She then brought her suit on May 25, 2000, well within the three year period of limitation for discovery of her "psychological injury " as set out in Section 537.046, RSMo Cum Supp. 1990.
Additionally, Respondent also asserts that a bar of limitation is an affirmative defense and that it was incumbent upon Appellant to show, as a matter of law, that the limitation periods he set out had run. See Lomax, 1 S.W.3d at 552. She points out that Appellant failed to offer or request an affirmative defense instruction on this issue. Appellant waived the factual issue of when any of the periods of limitations may have run. See Weaver v. African Methodist Episcopal Church, Inc., 54 S.W.3d 575, 587 (Mo.App. 2001). Although the record is equivocal as to what precise date Appellant quit sexually abusing Respondent, under the circumstances of this case, the issue was otherwise "one of fact for resolution by the jury." Id. Normally, this would be accompanied by an appropriate affirmative defense instruction. Id. Here, the jury returned a verdict in Respondent's favor.
Viewing the evidence in the light most favorable to Respondent's claim, as we must, and giving her the benefit of all reasonable inferences and disregarding inferences to the contrary, Seitz, 959 S.W.2d at 461, we cannot say the trial court erred or otherwise abused its discretion, in denying Appellant's motions for directed verdict at the close of all the evidence and judgment not withstanding the verdict, or alternatively a new trial. See Weaver, 54 S.W.3d at 587. Appellant's sole point is denied. The judgment of the trial court is affirmed.
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