This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Glenn Wayne Yahne, Appellant v. Pettis County Sheriff Department and Sheriff Gary R. Starke, Respondents Case Number: WD60113 Handdown Date: 02/19/2002 Appeal From: Circuit Court of Pettis County, Hon. Theodore B. Scott, Judge Counsel for Appellant: George Allen Barton Counsel for Respondent: Jeff A. Mittelhauser Opinion Summary: Glenn Yahne appeals the dismissal of his suit against the Pettis County sheriff's department and Sheriff Gary R. Starke based upon statute of limitations grounds. Yahne's claim sought return of funds he alleged were transferred improperly to federal officials in violation of CAFA. The specific grounds for relief pled in his petition were money had and received, unjust enrichment, and replevin. Yahne contends that the court improperly applied the general statue of limitations in section 516.130 for actions against a sheriff, instead of the statute of limitations within CAFA, section 513.630. AFFIRMED. Division holds: 1) Yahne's suit, while arising out of actions which allegedly violated CAFA, asserts common law theories of relief. It is not, as such, an action brought pursuant to CAFA. 2) The CAFA statute of limitations applies only to actions brought pursuant to CAFA. The statutory language does not admit an interpretation that extends the CAFA statue of limitation to common law claims such as pled by Yahne. Citation: Opinion Author: Ronald R. Holliger, Judge Opinion Vote: AFFIRMED. Smith, P.J. and Howard, J., concur. Opinion:
Glenn Wayne Yahne sued the Pettis County Sheriff seeking the return of $140,000 he claimed was seized from him and wrongfully transferred to federal officials in violation of the CAFA statute, sections 513.600 to 513.645.(FN1) In a case of first impression we must determine whether the statute of limitation contained in section 513.630 of CAFA applies to his claim for return of the money. The money was allegedly seized on February 24, 1995, and a transfer to federal authorities approved (allegedly without compliance with CAFA) on March 7, 1995. Yahne's petition was not filed until March 15, 2001. The Sheriff contended that the applicable limitation period was the three-year provision of section 516.130 for actions against a sheriff involving his official duty. Alternatively, the Sheriff argued that the five-year limitation of section 516.120 barred Yahne's claim. Yahne contended that the five-year statute within CAFA, section 513.630, as tolled by the pendency of a criminal proceeding against him was the proper statute.(FN2) The trial court sustained the Sheriff's motion to dismiss finding that section 516.130 applied and Yahne now appeals. Both parties suggest that the issue of which statute of limitations applies to a cause of action is a question of law. As such, the trial court's ruling is subject to de novo review by this court, without deference to the trial court's conclusions. Craven v. State ex rel. Premium Standard Farms, Inc., 19 S.W.3d 160, 163 (Mo. App. 2000). We add that where 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. Sheehan v. Sheehan, 901 S.W.2d 57, 59 (Mo. banc 1995). Certain general rules of pleading concerning limitations defenses are also particularly germane. The statute of limitations is an affirmative defense that is waived if not raised. Rule 55.08. A party raising the bar of limitations carries the burden of both pleading and proving the defense. Business Men's Assurance Co. v. Graham, 984 S.W.2d 501, 507 (Mo. banc 1999). A party must plead the particular statute upon which he relies. State ex rel. B.A.W. by Warner v. Zuppan, 901 S.W.2d 250, 251 (Mo. App. 1995). Limitations is not one of those enumerated defenses that may be raised by motion rather than in an answer. Rule 55.27. A party may properly plead alternative statutes of limitations alleged to bar the claim. Reed v. Rope, 817 S.W.2d 503, 507 (Mo. App. 1991). The burden of proving an exception to the limitations bar is upon the party against whom the defense is asserted. Lomax v. Sewell, 1 S.W.3d 548, 553 (Mo. App. 1999). The required pleading is in the nature of an avoidance. Rule 55.08 and 55.01. Suggestions in support of or opposing a motion are not the type of pleadings in which to properly assert an affirmative defense of matter of avoidance. Id. Although a party need not necessarily plead matters in avoidance of limitations in the first place, Schwartz v. Lawson, 797 S.W.2d 828, 834 (Mo. App. 1990), they must appear by way of reply to the pleading raising the defense, id., if not appearing on the face of the original petition. Batek v. Curators of Univ. of
Mo., 920 S.W.2d 895, 897 (Mo. banc 1996). Our recitation of these general principles leads us to the apparently unnoticed and certainly unmentioned state of the pleadings in this case. The Sheriff's answer pleaded the statute of limitations as a defense but mentioned no specific statute. Neither section 516.130 nor section516.120 were mentioned until he filed his subsequent motion to dismiss. Yahne filed no reply to the Sheriff's answer in avoidance of the defense nor do we criticize that omission given the lack of notice in Sheriff's answer of what limitations statute the Sheriff relied upon. In his suggestions in opposition to the Sheriff's motion, Yahne suggested that the applicable statute of limitations was the five-year limitation in section 513.630 (CAFA). And although his claim would, on the face of the petition, be beyond that five-year limitation, Yahne was content to assert his contention that the tolling provision within the CAFA statute of limitations applied to his claim in his suggestions in opposition to the Sheriff's motion, without filing a reply to the Sheriff's answer asserting the claimed avoidance. What legal significance are we to give to pleadings in such a state? To hold that the Sheriff waived the issue by not asserting the specific statute in this answer although he did so in this motion to dismiss imposes a result not urged by Yahne. Moreover, it begs the question since in any event Yahne does not think that section 516.130 is applicable to his cause at all. To that extent the parties are correct that we are faced with a pure question of law (whether section 516.130 or section 513.630 applies). If we were to determine, however, that the CAFA limitation period applies, it also has expired on the face of the pleadings. Application of the rule that failure by Yahne to assert the avoidance of tolling during the pendency of the criminal proceeding would likewise impose a result not sought by Sheriff. Nevertheless we are not comfortable on the basis of the legal file and arguments before us that Sheriff would concede that if section 513.630 applies that its running has been tolled for a sufficient time that the action was timely filed. If, however, we conclude that the general limitation period of section 516.130 applies, then the state of the pleadings and Yahne's claim of tolling are only of passing theoretical interest. We discuss these considerations only to make clear that the practicalities of this case and the principles described above necessarily limit our review in this case to a consideration of whether the general or CAFA limitation period applies and not to whether Yahne's claim is timely filed under the CAFA limitation period. FACTS On February 24, 1995, pursuant to a search warrant, the Pettis County Sheriff's Department seized in excess of $100,000 in currency from Yahne's home. The record does not reveal whether Yahne was arrested at that time, but apparently he was subsequently charged with a criminal drug offense. Yahne's petition alleges that a civil forfeiture action under CAFA was not filed, but rather on March 7, 1995, the Pettis County Prosecutor filed a request under section
513.647 of CAFA to transfer the money to federal authorities. Yahne alleges that the transfer was approved by a circuit judge the same day without compliance with the provisions of the statute including notice to Yahne and an opportunity to object.(FN3) On March 15, 2001, Yahne filed a three-count petition against the Sheriff and the Sheriff's Department alleging the facts described above and seeking return of the money or its equivalent. Assumpsit for money had and received, unjust enrichment and replevin were pled as theories of relief. After the pleadings and motion to dismiss discussed earlier, the trial court found that the three-year limitation period of section 516.130 applied and entered a judgment of dismissal. THE GENERAL LIMITATION STATUTE Section516.130 Chapter 516 contains the general legislative provisions for statutes of limitation. Its provisions apply to civil actions except that the "provisions of section 516.010 to section 516.370 shall not extend to any action which is or shall be limited by any statute; but such action shall be brought within the time limited by such statute." Section 516.300. The limitation period selected by the trial court was, inter alia: 516.130. What actions within three years Within three years: (1) An 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; (2) An action upon a statute for a penalty or forfeiture, where the action is given to the party aggrieved, or to such party and the state. Yahne does not argue that this statute would not ordinarily apply to an action against a sheriff for the recovery of specific property.(FN4) Nor does Yahne cite to section 516.300 as establishing our method of analysis although he argues generally that the CAFA limitation period applies because it is more specific. THE CAFA LIMITATION STATUTE Section 513.630 Notwithstanding any other provision of law, a proceeding under this act may be commenced up until five years after the conduct terminates or the cause of action accrues. If a criminal prosecution or civil action is brought by the state relating to conduct which would constitute criminal activity as defined in section 513.605, then the running of the period of limitations shall be suspended during the pendency of such prosecution or action by the state and for five years thereafter. Our task is, therefore, to determine whether the CAFA statute is a more specific statute of limitation that applies rather than any of the general limitation periods in Chapter 516, including specifically section 526.130. See Anderson v. Dyer, 456 S.W.2d 808, 813 (Mo. App. 1970). A review of reported decisions is of limited assistance. Where a cause of action,
such as wrongful death, has its own built in statute of limitations, the latter prevails. Thompson by Thompson v. Crawford, 833 S.W.2d 868, 871 (Mo. banc 1992). And the wrongful death statute limitation period prevails over even the specific statute of limitation in Chapter 516 dealing with medical malpractice actions. Gramlich v. Travelers Ins. Co., 640 S.W.2d 180, 185 (Mo. App. 1982). Likewise a specific limitation period outside of Chapter 516, dealing with actions against notaries on their bonds, has been held to prevail over a general limitation period. State ex rel State Life Ins. Co. v. Faucett, 163 S.W.2d 592, 594 (Mo. 1942). Section 516.130 contains no such express legislative clarity. Most of the other reported cases interpreting or applying section 516.300 deal with the applicability of tolling or savings provisions of Chapter 516 to actions otherwise limited by a statute outside of Chapter 516 and, therefore, shed little light on our analysis. Yahne marshals several arguments to support his conclusion that the CAFA limitation period applies. First, he contends that his claims are based solely on Sheriff's violations of CAFA and that the plain language of section 513.630 indicates that it is applicable. Citing the general rules of statutory construction he argues that the plain and ordinary meaning of the term "a proceeding under this act" in section 513.630 indicates a legislative intent to apply to his claim. State v. Residence Located at 5708 Paseo, 896 S.W.2d 532, 537 (Mo. App. 1995) (a statutory provision should be construed according to its plain and ordinary meaning); Wolff Shoe Co. v. Dir. of Revenue, 762 S.W.2d 29, 31 (Mo. banc 1988) (plain meaning is as understood by persons of ordinary intelligence). Second, he contends that Sheriff's position that section 513.630 applies only to claims by "investigative agencies" because of the definition of that term and "civil proceeding" in section 513.605(2) and (5) is incorrect because the legislature did not use either of those defined terms in section 513.630. Specifically he contends that "a proceeding" is a broader and more generic term than the defined term "civil proceeding" which is specifically used in other portions of CAFA but not in section 513.630. He claims that adoption of Sheriff's argument would violate the rules that a court must give effect to a statute as written, McDermott v. Carnahan, 934 S.W.2d 285, 287 (Mo. banc 1996), and that words should not be added by implication to a statute that is clear and unambiguous. Emery v. Wal-Mart Stores, Inc., 976 S.W.2d 439, 449 (Mo. banc 1998). For his third argument, Yahne points to the second sentence of section 513.630 providing for a tolling of the period of limitations during the pendency of a criminal prosecution or civil action brought by the state. He argues that the legislature would not have included the tolling provision unless it intended for the limitations period to apply to claims brought by persons whose property had been seized. He contends we must presume that the legislature does not enact meaningless provisions. Younger v. Missouri Public Entity Risk Management Fund, 957 S.W.2d 332, 336 (Mo. App.
1997). Finally, he argues that other provisions of CAFA provide different time limits for forfeiture actions initiated by investigative agencies and that these are shorter than the five-year period in section 513.630. Specifically he refers to section 513.607 requiring a petition for forfeiture of seized property to be filed within 14 days after the seizure. To fully address Yahne's arguments we must first generally explain the structure and elements of CAFA. Section 513.607 declares that "All property of every kind used or intended for use in the course of, derived from, or realized through criminal activity is subject to civil forfeiture." The proceeding may be in rem, in personam or both. Section 513.607.4. A petition may be filed before or after seizure. Section 513.607.5. If the seizure occurs before the filing of the CAFA petition, as is the usual scenario, it must be reported to the prosecuting or attorney general within four days and, if deemed warranted, a petition for civil forfeiture must be filed within 10 days of receipt of the notice. Section 513.607.5(2). This court has held both time limits to be mandatory. State v. Hampton, 817 S.W.2d 470, 472 (Mo. App. 1991) (Fenner, J.