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Branstad v. Kinstler7/5/2005
Opinion Vote: REVERSED AND REMANDED.
Smith, C.J., and Lowenstein, J., concur.
Opinion:
Monroe Branstad appeals the judgment of the trial court dismissing his action against Red Kinstler for negligent misrepresentation based on the running of the statute of limitations. Mr. Branstad claims that the trial court incorrectly computed the date from which the cause of action accrued and the statute of limitations began to run. The judgment is reversed, and the case is remanded for further proceedings.
Facts
Mr. Branstad's petition, filed November 17, 2003, alleges that he boarded approximately 783 head of cattle with RPR Ranch for care and feeding in accordance with the contract between the two entities and that while the cattle were boarded with RPR Ranch approximately 120 cows died due to acorn poisoning and the remaining cattle failed to gain weight because they, too, were affected by acorn poisoning, thereby further reducing Mr. Branstad's realized income when they were sold. Mr. Branstad's petition claims that he consulted with Red Kinstler, an agent for Shelter Mutual Insurance Company, RPR Ranch's insurer, before he placed the cattle; he was assured by Mr. Kinstler that RPR Ranch's policy covered him and RPR Ranch against the loss of his cattle; he reasonably relied on Mr. Kinstler's assurances; and, therefore, he did not seek additional insurance. Coverage for the loss of the cattle was ultimately denied by Shelter, and the Circuit Court of Randolph County upheld the denial of coverage on February 18, 1999, in a declaratory judgment action filed by Shelter against the owner of RPR Ranch on September 16, 1997. Finally, Mr. Branstad 's petition alleges that due to Mr. Kinstler's reckless misrepresentations to him that the Shelter policy covered such a loss that occurred, Mr. Branstad suffered damages.
Mr. Kinstler filed a motion to dismiss arguing that the death of the cattle occurred sometime between May 1996 and November 1996 and that the five-year statute of limitations of section 516.120 expired in November 2001. Mr. Branstad filed a response to the motion to dismiss. Following argument on the motion, the trial court entered judgment dismissing the petition finding that the cause of action accrued in November 1996 when the cattle died and, therefore, that the action was time barred. This appeal by Mr. Branstad followed.
Standard of Review
Whether the statute of limitations applies to an action is a question of law that is reviewed de novo. Braun v. Petty , 129 S.W.3d 449, 451 (Mo. App. E.D. 2004) . " here a statute of limitations is asserted in support of a motion to dismiss, the petition should not be dismissed unless the petition clearly establishes on its face and without exception that it is time barred." Yahne v. Pettis County Sheriff Dep't , 73 S.W.3d 717, 719 (Mo. App. W.D. 2002)(citing Sheehan v. Sheehan, 901 S.W.2d 57, 59 (Mo. banc 1995)).
Discussion
The parties do not dispute that the five-year statute of limitations of section 516.120(4) applies in this case. Rather, the dispute involves when Mr. Branstad's cause of action accrued to begin the running of the statute of limitations. A cause of action accrues for purposes of section 516.120 when damage is sustained and capable of ascertainment. Section 516.100; Olean Assocs., Inc. v. Knights of Columbus , 5 S.W.3d 518, 521-22 (Mo. App. E.D. 1999) . Section 516.100 provides in pertinent part:
or the purposes of section 516.100 to 516.370, the cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom i
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