A plaintiff who intends to rely on estoppel to overcome a defendant’s statute-of-limitations affirmative defense must plead that affirmative avoidance in a timely reply. In Wilkerson v. Wilkerson, No. SD39231 (Mo. App. S.D. Sept. 2, 2026), the Missouri Court of Appeals emphasized the consequences of overlooking that requirement: the plaintiff waived an estoppel defense paving the way for the Court to affirm summary judgment by the trial court for the defendants.
The case concerned a tract of land over which the plaintiff sought to impose a constructive or resulting trust. The Amended Petition asserted alternative theories of recovery, including unjust enrichment, breach of a confidential or fiduciary relationship, and declaratory judgment. In their Amended Answer, the defendants also raised the affirmative defenses that the plaintiff’s theories were barred by the ten-year statute of limitations in § 516.010 and the five-year statute of limitations in § 516.120.
The plaintiff did not file a reply to the Amended Answer. The defendants subsequently moved for summary judgment based on their statute of limitations defenses. The plaintiff admitted each of the defendants’ seven statements of uncontroverted material fact and submitted eight additional statements of fact, which the defendants also admitted. There being no genuine issue of material fact, trial court granted summary judgment in favor of defendants. A defendant seeking summary judgment on an affirmative defense must establish undisputed facts supporting that properly pleaded defense. To obtain judgment disposing of the entire case, the defendant must demonstrate that the plaintiff cannot recover under any pleaded theory. Here, the defendants’ limitations defenses and summary judgment motion addressed all of the plaintiff’s theories.
On appeal, the plaintiff’s sole point did not challenge the merits of the defendants’ statute of limitations defenses. Instead, plaintiff maintained that the defendants were estopped from asserting those defenses because the defendants made affirmative representations to plaintiff that induced plaintiff to delay in filing suit. Critically, plaintiff’s argument, even if credible, was reliant on an affirmative avoidance defense that the plaintiff had never pleaded.
Rule 55.01 requires a party to plead an affirmative avoidance to a matter alleged in a preceding pleading. And that means any preceding pleading. Rule 55.08 expressly includes estoppel among the affirmative defenses and avoidances that must be pleaded and requires supporting factual allegations. When invoked to defeat a statute-of-limitations defense, estoppel is an affirmative avoidance. But an avoidance to an affirmative defense must be pleaded in a timely reply or it is waived. Allen v. Titan Propane, LLC, 484 S.W.3d 902, 905 (Mo. App. S.D. 2016). Because the plaintiff had not filed a reply pleading estoppel, he could not rely on that avoidance to defeat summary judgment. See Montgomery v. Coreslab Structures (Missouri), Inc., 697 S.W.3d 766, 773–74 (Mo. App. 2024).
The decision also underscores that de novo review of summary judgment by the appellate court does not eliminate preservation requirements. The plaintiff did not present estoppel to the trial court through a reply, and the trial court had never ruled on that issue. The appellate court therefore rejected plaintiff’s estoppel argument and affirmed the trial court’s entry of summary judgment.
Lesson Learned: When reviewing an answer or amended answer, counsel should identify any affirmative defense that calls for an affirmative avoidance, calendar the reply deadline, and plead the facts supporting the avoidance. Waiting until summary judgment or appeal to raise an otherwise viable avoidance defense risks losing the defense before its merits can be considered.
