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Waiver of Statute of Limitations

Statutes of limitations provide a certain period of time in which a plaintiff must file a lawsuit. If the claim/lawsuit is not filed within the period, then it is barred. The specific time period depends on the type of claim. For instance, actions upon contracts are subject to a five (5) year statute of limitations. Section 516.120(1), RSMo.

The statute of limitations is an affirmative defense that is usually argued by the defendant. Community Title Co. v. U.S. Title Guar Co., Inc., 965 S.W.2d 245, 250 (Mo. Ct. App. 1998). Missouri procedural rules require that a defendant set forth all applicable affirmative defenses in its responsive pleadings. Storage Masters-Chesterfield, L.L.C. v. City of Chesterfield, 27 S.W.2d 862, 865 (Mo. Ct. App. 2000). If, however, a statute of limitations defense is not pleaded/argued, it is waived. Id.

A defendant will typically raise the statute of limitations as an affirmative defense in its responsive pleading (i.e., answer), motion to dismiss or at the summary judgment stage. Depending on how the plaintiff’s petition is drafted, it may be possible for the defendant to prevail with a motion to dismiss.  See Reed v. Rope, 817 S.W.2d 503, 507 (Mo. Ct. App. 1991) (a motion to dismiss may raise the issue that a claim is barred by the statute of limitations where the petition shows upon its face that the action is barred).

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