Martin v. Crowley, Wade & Milstead, Inc.

RENDLEN, Judge.

Plaintiffs by their petition for damages charged defendant, a professional engineering, architectural, and land-surveying corporation, with negligence in the survey of a residential lot owned by plaintiffs which they intended as a home construction site. The trial court sustained defendant’s motion to dismiss on the ground the cause of action was barred by § 516.120, RSMo 1978, the applicable statute of limitations. Following reversal in the Western District we granted transfer and now determine the cause as though on original appeal, Mo. Const, art. V, § 10, and we too reverse judgment of the trial court.

Reviewing the dismissal of plaintiffs’ petition, we allow the pleading its broadest intendment, treat all facts alleged as true, and construe the allegations favorably to the plaintiffs. Shapiro v. Columbia Union National Bank & Trust Co., 576 S.W.2d 310, 312 (Mo. banc 1978), cert. denied, 444 U.S. 831, 100 S.Ct. 60, 62 L.Ed.2d 40 (1979).

In October, 1973, plaintiffs hired defendant to survey their lot and to plot the location of the home they contemplated building. Plaintiffs advised defendant they wanted their house set back fifty feet from the front line and twelve feet east of the west property line. Later that month defendant prepared the plot plan and staked the lot lines, as well as the locations for the intended house. Thereafter plaintiffs constructed their home, placing it in the location delineated by the stakes and according to the plot plan.

In May, 1981, plaintiffs discovered that their house, while built where defendant specified, was located only six feet from the true west property line rather than twelve.¹ The fair market value of the real estate is less than it would have been had defendant’s survey not been in error. In August, 1983, plaintiffs filed this petition for damages alleging that the damages incurred through mislocation of the house were a direct and proximate result of defendant’s negligence in surveying and plotting the land.

Plaintiffs contend that the trial court erred in sustaining defendant’s motion to dismiss because they filed their petition within five years of May, 1981 which, they allege, was the time the statute of limitations commenced running. The parties agree that § 516.120, RSMo 1978, is the applicable statute, but the question is, when did the running of its five-year limitation period commence?

It is axiomatic that the five-year statute of limitations begins running when the cause of action accrued. Section 516.100, RSMo 1978. That section further provides in pertinent part:

[T]he 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 is sustained and is capable of ascertainment, and, if more than one item of damage, then the last item, so that all resulting damage may be recovered, and full and complete relief obtained.

Id. (emphasis added).

As this Court has previously recognized, the mere occurrence of an injury itself does not necessarily coincide with the accrual of a cause of action. Dixon v. Shafton, 649 S.W.2d 435 (Mo. banc 1983); Krug v. Sterling Drug, Inc., 416 S.W.2d 143 (Mo.1967); see also Anderson v. Griffin, Dysart, Taylor, Penner & Lay, P.C., 684 S.W.2d 858 (Mo.App.1984); Thorne v. Johnson, 483 S.W.2d 658 (Mo.App.1972). Such a reading would deprive the additional language “and is capable of ascertainment” of any meaning. The legislature’s amendment, in 1919, of what is now § 516.-100 was intended to state

in the plainest of words that the cause of action should no longer be deemed to accrue “when the wrong is done or the technical breach of contract or duty occurs”, as had been held in the Rankin [v. Schaeffer, 4 Mo.App. 108 (1877)] and Schade [v. Gehner, 133 Mo. 252, 34 S.W. 576 (1896)] decisions.

Thorne, 483 S.W.2d at 661.

The facts alleged do not support the trial court’s reluctant finding² that plaintiffs’ damages were ascertainable more than five years prior to filing of this cause. That finding stems from defendant’s assertion that the statute of limitations commenced running in October, 1973. In support of its contention, defendant argues that the defect complained of was visible and ascertainable by an easy inspection of the land or by asking a neighbor. We reject such a proposition to the extent that it would impose upon plaintiffs an automatic, affirmative duty to double check the services provided by a professional expert.

We hold, that from the pleadings, involving a layman/expert relationship, nothing indicates plaintiffs knew or should have known of any reason, until May, 1981, to question defendant’s work. Under these circumstances, plaintiffs had no duty to double check defendant’s work. Hence under the facts alleged the damages were not “capable of ascertainment” in October, 1973.

Our holding is consistent with results in previous cases. See, e.g., Dixon, 649 S.W.2d 435; Jepson v. Stubbs, 555 S.W.2d 307 (Mo. banc 1977); Anderson, 684 S.W.2d 858; Thorne, 483 S.W.2d 658. In Thome, the Court of Appeals reversed a trial court’s order dismissing claimants’ action because it was barred by the five-year statute of limitations. There claimants, in 1968, filed a petition against an abstract company based upon the latter’s negligent certification of an abstract. The abstract, delivered under certification in 1961, omitted a 1957 deed. This mistake was not discovered by claimants until 1968. The Court of Appeals held that the mistake was not ascertainable prior to 1968 simply because the deed had been recorded in 1957, stating that “[i]t would be absurd to lay down as a legal requirement that these parties, in addition to hiring a professional abstractor, should also have to make their own independent laymen’s investigation to ascertain whether their professional agent had done its job properly.” Id. at 663.

Similarly in Anderson the Court of Appeals reversed a trial court’s order dismissing Anderson’s action for malpractice against his attorney because it was barred by the five-year statute of limitations. In his petition, Anderson alleged that he had suffered a default judgment on account of his attorney’s failure to dismiss an earlier action per his request, and on account of the attorney’s subsequent inattention to a counterclaim filed against Anderson. The Court of Appeals held that the statute of limitations commenced running in October, 1981, when Anderson first learned of the default judgment. The Court of Appeals rejected attorney’s argument that the statute of limitations commenced running on October 30, 1975, when the default judgment was entered. While defendant correctly observed that the default judgment was a matter of public record, and thus the damages were literally capable of ascertainment, as of October 30, 1975, the Court of Appeals stated that “[a]s a layman, Anderson cannot be expected to double check every act (or failure to act) of his attorney.” Anderson, 684 S.W.2d at 861.

Additionally, in Dixon we held that the five-year statute of limitations barred a legal malpractice action where claimants learned of the malpractice and retained independent counsel more than five years prior to filing of the action.

Contrary to defendant’s argument, and the trial court’s order, Jepson does not require us to affirm the dismissal of plaintiffs’ action. There we held that the five-year statute of limitations barred a legal malpractice action. Jepson had consulted an attorney who advised that he had no defense to pending charges of Selective Service violations. Relying upon that advice, Jepson pleaded guilty on August 1, 1967, and was sentenced to prison. On March 4,1969, Jepson was placed on parole and was released from parole September 7, 1970. On March 12, 1973, Jepson, consulting with another attorney, first learned that he had a possible defense, and in February, 1975, the federal court set aside Jepson’s conviction. Jepson filed his legal malpractice action on August 18, 1975. Finding the statute of limitations to have been tolled during Jepson’s imprisonment, we held that the statute of limitations commenced running on March 4, 1969. Unlike the present case, the very consequences of defendant’s services, known to plaintiff, provided sufficient reason for plaintiff in Jepson to question defendant’s work after plaintiff’s release from prison whereafter he had unfettered opportunity to pursue post-conviction remedies or other relief.

The facts before us are insufficient to find that the statute of limitations commenced running more than five years prior to filing of this cause. It may well be that there were facts, as yet undeveloped, which should have at least put plaintiffs on notice of defendant’s error prior to May, 1981. Such facts if they exist can be developed during discovery or trial.

The judgment is reversed and the cause remanded to the trial court with direction to reinstate plaintiffs’ petition.

REVERSED AND REMANDED WITH DIRECTIONS.

HIGGINS, C.J., and BILLINGS, BLACK-MAR, DONNELLY and ROBERTSON, JJ., concur. WELLIVER, J., concurs in result in separate opinion filed.

1 . It appears from the briefs that plaintiffs learned of the error from a resurvey obtained to settle a boundary dispute with a neighbor.

2 . The trial judge, in his order and memorandum, stated that he interpreted "capable of ascertainment,” § 516.100, RSMo 1978, to mean that "a plaintiff doesn’t lose his cause of action if he did the best he could, judging him as a reasonable person.” But he further concluded that this Court, in Jepson v. Stubbs, 555 S.W.2d 307 (Mo. banc 1977), held otherwise and that Jepson required dismissal of plaintiffs’ petition.