The Missouri Court of Appeals recently gave a refresher course on the time of accrual for claims under the Missouri Merchandising Practices Act (“MMPA”). In Ball v. Friese Construction Co., the plaintiff brought suit against the defendant for violations of the MMPA, among other things, relating to the construction of the appellant’s house in 2001. The appellant filed his petition on May 28, 2010, nearly ten years after the home was constructed.
Notably, the plaintiff’s MMPA claim was governed by the five-year limitations period set forth in Section 516.120, RSMo., which provides for a five-year statute of limitations for liabilities created by statute. The issue before the court was whether the plaintiff’s claims were barred by Section 516.120.
In its opinion, the court reiterated that “the statute of limitations [in Missouri] is triggered not by discovery of damage, but by the commencement of the right to sue,” and that these two events do not necessarily coincide. Indeed, pursuant to Section 516.100, RSMo., the triggering event of the applicable statute of limitations is when (1) damage is sustained, and (2) the damage becomes capable of ascertainment.
As to the first element, the Missouri Court of Appeals noted that a claimant must have at least nominal damage to bring suit. The second element requires a more complex analysis. Commonly known as the “capable of ascertainment” standard, the second element is an objective standard whereby the court considers whether the “evidence was such to place a reasonably prudent person on notice of a potentially actionable injury.” More specifically, the test to be applied is “when a reasonable person would have been put on notice that an injury and substantial damages may have occurred and would have undertaken to ascertain the extent of the damages.”
In order for the statute of limitations to accrue, the claimant must have (1) knowledge of the wrong and at least nominal damage, or (2) knowledge of something that puts the claimant on notice to inquire further. In sum, “a cause of action accrues [under Missouri law] when the damage can be discovered, not when it is actually discovered.” (emphasis added).
Relying upon the foregoing caselaw, the Missouri Court of Appeals held that the plaintiff’s MMPA claim was barred by the statute of limitations. In support, the court noted that the record indicated that the plaintiff had reason to believe his basement floor was heaving due to water underneath the floor slab in 2002, well over five years prior to the time he filed his petition. “At that point, a reasonably prudent person would have been put on notice of a potentially actionable injury; thus the statute of limitations began to run.”