Reed v. Rope

Citations: 817 S.W.2d 503; 1991 Mo. App. LEXIS 1162; 1991 WL 137328Docket: WD 43362

Court: Missouri Court of Appeals; July 30, 1991; Missouri; State Appellate Court

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Herbert M. Rope, as Personal Representative of the Estate of Andrew Reed, appeals a jury verdict favoring Ida Hankin Reed, who was awarded $166,233 for breaches of an antenuptial agreement. The agreement, established about twenty-five years prior to Mr. Reed's death, included provisions for Mr. Reed to provide a suitable home and financial support, as well as a life estate in the home he built for them. Mrs. Reed's claims centered on Mr. Reed's failure to uphold these promises.

Rope raises five points on appeal: (1) the statute of limitations bars parts of Mrs. Reed's claim, and the trial court wrongly allowed evidence outside this period; (2) the expert economist's testimony regarding damages was based on incorrect data and should have been excluded; (3) the economist did not properly assess the loss of Mrs. Reed's life estate; (4) the court improperly allowed summaries of Mr. Reed's tax returns prepared by Mrs. Reed's attorney; and (5) evidence of Mrs. Reed's performance of wifely duties was irrelevant and prejudicial.

The case has a history, where Mrs. Reed initially petitioned to discover Mr. Reed's estate assets. Rope contested the antenuptial agreement's validity, leading to a writ of prohibition requiring a prior determination of the agreement's validity before a jury trial. The trial court ultimately upheld the agreement's validity, allowing the breach claim to proceed to jury trial, resulting in the award to Mrs. Reed.

In 1925, Louis Hankin and his wife married and had two children. They opened a clothing store in Nevada, Missouri, in 1931, which Mrs. Hankin continued to operate after Mr. Hankin’s death in 1946 until 1949, when she hired a manager and moved to Kansas City. In 1957, she met Andrew Reed, a widower with three adult children, and they began a relationship, agreeing to marry in early 1960. Mr. Reed requested a prenuptial agreement, which Mrs. Hankin’s brother drafted and both parties signed before their marriage on May 22, 1960.

Post-marriage, they resided in a house built by Mr. Reed, which was titled solely in his name. Mrs. Reed managed household expenses, paying half of them and covering her own clothing and medical costs. In August 1985, Mr. Reed demanded that Mrs. Reed pay $500 monthly rent for the home and threatened her life when she refused. Fearing for her safety, Mrs. Reed left and rented an apartment. 

In 1984, Mr. Reed indicated that if he died first, Mrs. Reed could only remain in the house for two months before being forced to vacate, contrary to their antenuptial agreement. After Mrs. Reed left, Mr. Reed altered his will to deny her rights to the house posthumously. Following his death, the will and a codicil were admitted to probate, preventing Mrs. Reed from accessing the house.

Mr. Rope argues that the trial court incorrectly upheld Mrs. Reed's motion in limine, thereby denying him the chance to use a statute of limitations defense against her claims. Mrs. Reed contends that a motion in limine is not subject to appeal and asserts that Mr. Rope forfeited his statute of limitations defense by not including it in his initial response and failing to submit it for jury consideration.

The appealability of Mrs. Reed's "motion in limine" is examined, noting that such motions typically address the exclusion of objectionable evidence but are generally not appealable due to their interlocutory nature. However, Mrs. Reed’s motion aimed to strike the affirmative defense of statute of limitations, which led the court to treat it as a motion to strike rather than a standard motion in limine, rendering the ruling appealable as trial error. 

The court also assessed whether Mr. Rope properly raised the statute of limitation defense. This defense is an affirmative one that must be pleaded and proven. Mr. Rope did not raise this defense in his initial answer to Mrs. Reed's claim or in response to her amended claim; it was only introduced three years later in response to a second amended claim. Mrs. Reed contends that Mr. Rope waived the defense by not raising it timely or in his initial pleadings. While Rule 55.27 allows for certain defenses to be raised by motion, it requires that defenses be included in responsive pleadings. Mr. Rope's attempt to invoke the statute of limitations was untimely, yet Mrs. Reed failed to file a motion to strike this defense when it was raised. Citing precedent, the court noted that since Mrs. Reed did not object to the new defense, similar to the case of Haney v. Thomson, it remains valid. Mr. Rope cited two statutes, 516.110 (ten-year limit) and 516.120 (five-year limit), as potential bars to Mrs. Reed's claim.

In March 1990, Mr. Rope amended his answer to invoke statutes of limitation 516.120 and 516.110 as defenses against Mrs. Reed's claim. To successfully use a statute of limitation as a defense, the specific statute must be identified. Mrs. Reed argues that pleading an alternative statute is insufficient, but the court asserts that simultaneous pleading of both statutes is acceptable if both are clearly articulated. The court did not need to determine the appropriate statute concerning the antenuptial agreement, as neither statute barred Mrs. Reed's claim.

Mrs. Reed testified that breaches of the antenuptial agreement, which mandated Mr. Reed provide for her living expenses and allow her to remain in his house for life, began in 1961 and continued until his death in 1986. Despite the agreement, Mr. Reed required her to cover her own expenses and altered his will to deny her the promised life estate. According to Section 516.100, a cause of action starts when the last breach occurs, allowing for recovery of all damages from that point.

The last breach occurred in February 1986, and Mrs. Reed filed her petition in November 1986, well within the statute of limitations. Citing the case of Sabine v. Leonard, the court affirmed that Mrs. Reed could recover damages for all breaches during the contract's term. Mr. Rope contends that Mrs. Reed should only recover damages that accrued right before filing her petition, referencing Davis v. Laclede Gas Co. However, the court found his application of Davis incorrect, stating that all damages were not ascertainable in a single action and reaffirming that Davis does not overrule Sabine. Point (1) was denied.

Mr. Rope asserts that Dr. Ward's testimony regarding Mr. Reed's income from 1975 to 1985 lacked foundation, as it was based solely on summaries of Mr. Reed's income tax returns provided by Mrs. Reed's attorneys, which Dr. Ward had not personally reviewed. Despite this, Mr. Rope did not object to the testimony or the methodology during the trial, which constitutes a waiver of any foundational objection. Additionally, Mr. Rope challenges Dr. Ward's calculations of damages related to Mrs. Reed's loss of a life estate in the marital home, arguing that Dr. Ward's assessment was not adequately supported by facts and failed to consider Mrs. Reed's projected longevity at Mr. Reed's death. Mr. Rope previously relied on the case Johnson v. Linder to define the measure of damages based on "use value," which includes rental value. Dr. Ward, however, used evidence of rental value, taxes, and repair costs to calculate damages from Mr. Reed's death to Mrs. Reed's life expectancy. In a post-trial motion, Mr. Rope shifted his argument to assert that damages should instead be calculated under RSMo 442.530, which outlines a different measure based on the total value of the marital residence, rather than the "use value" stated in Johnson.

Mr. Rope asserts that the court erred by relying on Johnson, the law he presented during the trial. The principle established in Gambrell v. Kansas City Chiefs Football Club prohibits a party from appealing based on errors created by their own actions. Mr. Rope contests the trial court's allowance of Dr. Ward's calculations regarding Mrs. Reed's longevity and damages, which were based on a projected life expectancy from the date of trial (5.19 years) rather than from Mr. Reed's death. He argues that damages should instead be calculated from Mr. Reed's death, using a life expectancy of 7.6 years, resulting in approximately two years of future damages at trial.

Mr. Rope references Boten v. Brecklein, which states that damages for breach of contract should reflect the value of performance at the time of breach. He claims this supports calculating Mrs. Reed's longevity from the date of Mr. Reed's death. The court compares this to Leh v. Dyer, where a similar issue was resolved by allowing evidence of life expectancy from the trial date, which was deemed appropriate to avoid jury speculation on damages. The court finds Mr. Rope's arguments insufficient to challenge the accepted method of calculating longevity, stating it does not contradict the rule established in Boten. Consequently, this point is denied. Additionally, Mr. Rope contends that the court erred by allowing one of Mrs. Reed's attorneys to testify about the accuracy of summaries related to Mr. Reed's income tax returns without the jury present.

Mr. Rope moved to strike Dr. Ward's testimony, arguing that the foundation was insufficient to prove the summaries used in his analyses accurately reflected Mr. Reed's income tax returns. An attorney for Mrs. Reed testified outside the jury's presence that the summaries were indeed accurate. This rendered Mr. Rope's objection moot. Mr. Rope also contended that the court erred in admitting evidence of Mrs. Reed's performance of marital duties, claiming it was irrelevant and prejudicial. However, evidence is deemed relevant if it supports or contradicts a fact at issue or corroborates pertinent evidence, with relevancy being a matter of the trial court's discretion. The court found that since Mr. Rope denied Mrs. Reed's performance under their antenuptial agreement, her performance of marital obligations was relevant, and the trial court did not abuse its discretion in allowing such evidence. Consequently, Mr. Rope's arguments on this point were denied, and the trial court's judgment was affirmed.