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                   In the Missouri Court of Appeals
                                     Western District

    JEWESTINE ROBINSON,                )
                          Respondent, )
    v.                                 )
                                       )                 WD77828
    STATE OF MISSOURI, DEPARTMENT      )
    OF ECONOMIC DEVELOPMENT,           )                 FILED: September 8, 2015
                            Appellant. )

          APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY
                  THE HONORABLE JUSTINE E. DELMURO, JUDGE

           BEFORE DIVISION TWO: LISA WHITE HARDWICK, PRESIDING JUDGE,
               VICTOR C. HOWARD AND CYNTHIA L. MARTIN, JUDGES

          The Missouri Department of Economic Development (“DED”) appeals from a

    judgment in favor of Jewestine Robinson on her claim of premises liability

    negligence. DED contends the circuit court erred in denying the motion for

    judgment notwithstanding the verdict because Robinson’s claims were barred by

    the applicable five-year statute of limitations. For reasons explained in a

    Memorandum provided to the parties, we find no error and affirm the judgment.

                              FACTUAL AND PROCEDURAL HISTORY

          On January 28, 2004, Jewestine Robinson was injured at a state

    employment office in Kansas City. After a recent snowstorm, water and ice

    accumulated in the building's entryway as a result of heavy pedestrian foot-traffic
in and out of the building. Upon entering the building's foyer, Robinson slipped on

the wet floor when she was stepping aside to allow others to exit the building.

       Robinson filed a premises liability lawsuit against the Office of Administration

("OA") on January 8, 2009, within the five-year limitations period established by

Section 516.120(4), RSMo.1 Robinson alleged that OA "owned, operated, or was

otherwise responsible" for the area of the building where she slipped and fell. OA

filed a motion for summary judgment, denying any responsibility or control over the

area in which Robinson was injured. On February 25, 2013, the circuit court

granted OA's motion for summary judgment, finding OA merely procured the lease

of the building on behalf of various state agencies, including DED. Thus, the court

concluded that the day-to-day control over the premises was exercised by the

various agency-occupants of the building, and not OA.

       After summary judgment was granted, Robinson filed a motion for leave to

amend her petition to substitute DED as a defendant in March 2013. DED filed its

suggestions in opposition, arguing that because four years had passed since the

expiration of the statute of limitations period, Robinson's claims were time-barred.

DED further argued that Robinson's claims did not relate back to the time of her

original petition pursuant to Rule 55.33(c). The circuit court granted Robinson's




1
 All statutory references are to the Revised Statutes of Missouri 2000, as updated by the 2013
Cumulative Supplement.


                                                2
motion, finding that her claim against DED related back to the time of filing her

petition against OA, rejecting DED's statute of limitations argument.2

        Subsequently, DED filed an answer in which it generally alleged that

"Plaintiff's claims are barred by the statute of limitations." DED also filed a motion

for summary judgment, specifically setting forth its argument that Robinson's

claims were time-barred and did not relate back. Robinson filed suggestions in

opposition to DED's summary judgment motion, arguing that DED failed to properly

plead its limitations defense. DED then filed a motion seeking leave of court to

amend its answer. The court denied DED's summary judgment motion and did not

allow DED to amend its answer.

        At trial, the jury returned a verdict in favor of Robinson, awarding her

$67,500 in damages. DED filed a motion for judgment notwithstanding the

verdict, or in the alternative, a motion for new trial, and again asserted that

Robinson's claims were time-barred. The court denied the post-trial motion. DED

appeals.

                                        STANDARD OF REVIEW

        DED contends the circuit court erred in denying the motion for judgment

notwithstanding the verdict because Robinson's claims were barred by the five-

year statute of limitations in Section 516.120. The applicability of a statute of

limitations to an action presents a question of law that we review de novo. Warren




2
 The court found that the requirements of Rule 55.33(c) were met in that OA and DED shared a
sufficient identity of interest to allow Robinson's claims against DED to relate back to the filing of
her original petition against OA.

                                                   3
Cnty. Concrete, L.L.C. v. Peoples Bank & Trust Co., 340 S.W.3d 289, 290 (Mo.

App. 2011).

                                         ANALYSIS

         In its sole point on appeal, DED argues that Robinson’s claims are time-

barred because she substituted DED as a defendant beyond the expiration of the

statute of limitations. DED further argues that Robinson's claims against DED do

not meet the notice requirement of Rule 55.33(c), and therefore do not relate back

to the time of filing her original petition against OA.

         In response, Robinson argues that DED waived the limitations defense by

failing to properly plead it in its answer. Robinson argues that because the statute

of limitations is an affirmative defense, DED was required to plead specific facts

supporting its defense in accordance with Rule 55.08, but failed to do so. We

agree.

         Rule 55.08 requires a party to "set forth all applicable affirmative defenses,"

including the statute of limitations, in a responsive pleading. "A pleading that sets

forth an affirmative defense . . . shall contain a short and plain statement of the

facts showing that the pleader is entitled to the defense . . ." Rule 55.08. Bare

legal assertions, however, are insufficient to plead an affirmative defense. ITT

Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 383

(Mo. banc 1993). " 'A pleading that makes a conclusory statement and does not

plead the specific facts required to support the affirmative defense fails to

adequately raise the alleged affirmative defense, and the alleged affirmative



                                            4
defense fails as a matter of law.' " Echols v. City of Riverside, 332 S.W.3d 207,

211 (Mo. App. 2010) (citation omitted).

      Here, DED's answer alleged that "Plaintiff's claims are barred by the statute

of limitations." There were no factual allegations accompanying this assertion.

The allegation in DED's answer is a bare conclusory statement that "does not plead

the specific facts required to support the affirmative defense [and thus] fails to

adequately raise the alleged affirmative defense, and the alleged affirmative

defense fails as a matter of law." Delacroix v. Doncasters, Inc., 407 S.W.3d 13,

38 (Mo. App. 2013) (citation omitted). Thus, DED's conclusory assertion of its

limitations defense in its answer was insufficient to satisfy the requirements of

Rule 55.08.

      Notwithstanding the requirements of Rule 55.08, DED argues that "[t]he

manner of raising [its affirmative defense] . . . does not matter" and that "there is

nothing magic about an answer." Specifically, DED asserts that it was only

required to raise its limitations defense "in a timely fashion." DED further argues

that it sufficiently raised the defense by specifically alleging the necessary facts in

its motion for summary judgment.

      Our court has held that facts alleged in a motion for summary judgment

cannot substitute for the responsive pleading requirements of Rule 55.08. In Jones

v. Landmark Leasing, Ltd., 957 S.W.2d 369, 375–76 (Mo. App. 1997), we

rejected the argument that the detailed pleading of facts to support an affirmative

defense in summary judgment pleadings can cure the failure to properly plead the

defense in the answer. Our holding confirmed that any affirmative defense "must
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be set forth in the defendant's answer." Id. at 375 (emphasis added). Moreover,

in Chouteau Auto Mart, Inc. v. First Bank of Missouri, 148 S.W.3d 17, 26 (Mo.

App. 2004), we held that a defendant's attempt to raise its affirmative defense in

summary judgment pleadings failed to satisfy the requirements of Rule 55.08, and

did not operate to amend an earlier filed answer.

      DED relies on Salvation Army, Kansas v. Bank of Am., 435 S.W.3d 661

(Mo. App. 2014) to support its argument that the affirmative defense does not

have to be pled in the defendant's answer. However, in Salvation Army, the trial

court had permitted the defendants to amend their pleadings in order to sufficiently

raise the affirmative defense. Id. at 667 (stating that the affirmative defense "was

presented to the trial court in the form of a pleading to the trial court prior to final

judgment").

      DED further relies on Rose v. City of Riverside, 827 S.W.2d 737 (Mo. App.

1992) to support its argument that it sufficiently pled its limitations defense by

raising it in a motion for summary judgment. In Rose, the defendant filed a motion

for summary judgment in which it raised an affirmative defense, despite failing to

sufficiently plead it in an answer. Id. at 738. The trial court granted the

defendant's motion for summary judgment on the basis of its limitations defense.

Id. In rejecting the plaintiff's argument that defendant waived its limitations

defense, our court noted that if the case were remanded, the defendant would

inevitably seek leave to amend its answer to sufficiently raise the affirmative

defense. Id. at 739. In concluding that the statute of limitations would have

applied to bar plaintiff's claims, we noted that "[i]t would be an abuse of discretion
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to refuse to allow the [defendant] to amend its answer to include a statute of

limitations defense" if the case were remanded. Id. Therefore remanding to the

trial court to consider whether amendment would be permitted would serve no

useful purpose. Id.

       In this case, DED sought leave to amend its answer, and the circuit court

denied the request. Rule 55.03 allows a defendant who fails to raise its affirmative

defense in a responsive pleading to seek leave of the court to amend the pleadings.

Chouteau Auto Mart, Inc., 148 S.W.3d at 26. Although Rule 55.33(a) provides

that leave "shall be freely given when justice so requires," such leave is not

required. Id. The circuit court is vested with broad discretion to grant or deny

leave to amend the pleadings. Robinson v. City of Kansas City, 451 S.W.3d 315,

319 (Mo. App. 2014). That decision "will not be disturbed absent an obvious and

palpable abuse of discretion." Id. (citation omitted).

       Acting within its discretion, the circuit court did not allow DED to amend its

answer regarding the limitations defense.3            Because DED has not challenged on

appeal the denial of its motion for leave to amend its answer in this appeal, we

need not consider whether the circuit court abused its discretion in this regard.

       DED's conclusory assertion of the affirmative defense of the statute of

limitations in its answer was insufficient to satisfy the requirements of Rule 55.08.

Issues that are not properly raised in an answer are not preserved for determination



3
  The trial court could have found that allowing amendment of DED's answer would prejudice
Robinson. See Asmus v. Capital Region Family Practice, 115 S.W.3d 427, 433 (Mo. App. 2003)
(stating that "[t]he most frequent reason for denying leave to amend is that the opposing party will
be prejudiced.").

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in a lawsuit. Green v. City of St. Louis, 870 S.W.2d 794, 797 (Mo. banc 1994).

Because DED's affirmative defense of the statute of limitations was not properly

pled, the circuit court did not err in denying the motion for judgment

notwithstanding the verdict. DED's point on appeal is denied.

                                     CONCLUSION

      The circuit court's judgment is affirmed.



                                              ____________________________________
                                              Lisa White Hardwick, Judge


All Concur.




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