CLINT WILKERSON SUCCESSOR TRUSTEE OF THE MIKE ALAN WILKERSON TRUST DATED 1995 v. SCOTT WILKERSON KIMBERLY WILKERSON (2026)

Appellant, plaintiff Clint A. Wilkerson (Plaintiff), in his individual capacity and in his capacity as Successor Trustee of the Mike Alan Wilkerson Trust Dated 8/9/1995, appeals from the grant of summary judgment by the Circuit Court of Jasper County, Missouri, with respect to Plaintiff's quiet-title action against Defendants Scott and Kimberly Wilkerson (collectively, Defendants). In Plaintiff's sole point on appeal, he contends the trial court “erred in granting Defendants’ motion for summary judgment which alleged Plaintiff's claim was barred by the statute of limitations because Defendants were estopped from asserting that defense[.]” This point lacks merit because Plaintiff failed to plead estoppel in a reply in the underlying action.

Factual and Procedural Background

On March 9, 2023, Mike Alan Wilkerson (Decedent) filed suit against Defendants to impose a constructive or resulting trust regarding a tract of land the petition described as “Mike's Farm” (the Property). With leave of court, Decedent filed an amended petition on November 16, 2023. In that petition, Decedent pled the following theories of recovery: unjust enrichment (Count 1); breach of confidential or fiduciary relationship (Count 2); and declaratory judgment (Count 3).¹ Defendants filed their initial answer to the amended petition on February 1, 2024.

Decedent died on January 24, 2025. On January 29, 2025, counsel for Decedent filed a motion for substitution of Decedent as a party. This motion was sustained by the trial court, and Plaintiff was substituted as the party-plaintiff.

With leave of court, Defendants filed an amended answer (Amended Answer) on February 25, 2025. The Amended Answer admitted some paragraphs of the amended petition, denied others, and pled several affirmative defenses. The two relevant here alleged that: (1) Plaintiff's Counts 1, 2 and 3 are barred by § 516.010 “because [Decedent] was not seized or possessed of such real estate within ten (10) years of filing his action”; and (2) “Plaintiff's causes of action are barred by the statute of limitations ․ § 516.120 which requires Plaintiff to commence his actions within five (5) years after the causes of action accrued.”² Plaintiff did not file a reply to Defendants’ Amended Answer to plead estoppel as an affirmative avoidance.

On March 6, 2025, Defendants filed a motion for summary judgment as defending parties pursuant to Rule 74.04(b). Pursuant to Rule 74.04(c)(1), the stated legal basis for the motion was that “Plaintiff's causes of action are time-barred by Missouri's statutes of limitation,” § 516.010 and § 516.120. Defendants’ motion for summary judgment included a list of seven statements of uncontroverted material fact (SUMF). Plaintiff filed a response which admitted all seven paragraphs of Defendants’ SUMF and hypothesized eight more SUMF. Defendants filed a reply which admitted all eight of Plaintiff's additional SUMF. On September 10, 2025, the trial court granted Defendants’ motion for summary judgment.³

Standard of Review

Defendants were the defending parties below. “A defending party is entitled to a summary judgment if it demonstrates: ․ that there is no genuine dispute as to the existence of the facts necessary to support movant's properly pleaded affirmative defense.” A.O. v. Lester E. Cox Med. Centers, 719 S.W.3d 923, 933 (Mo. App. 2025); see City of Chesterfield v. State, 590 S.W.3d 840, 843 (Mo. banc 2019). A defending party cannot obtain summary judgment unless it alleges undisputed facts demonstrating that the plaintiff is unable to recover on any pleaded theory. See, e.g., Smith v. Taney Cnty., 552 S.W.3d 745, 751 (Mo. App. 2018). In Defendants’ Amended Answer, they pled that all of Plaintiff's theories of recovery were barred by § 516.010 and § 516.120. That was also the stated legal basis for the motion for summary judgment. The trial court's judgment, however, did not state the reasons for its decision to grant summary judgment to Defendants. When the trial court's order does not do so, we presume that the court based its decision on the grounds raised in the movant's motion for summary judgment. Marshall v. Marshall, --- S.W.3d ----, 2026 WL 1732681, at *2 (Mo. App. filed June 16, 2026).

An appellate court reviews the grant of summary judgment de novo, but this principle is limited by another factor. A de novo standard of review does not alter the fact that an appellant always bears the burden of establishing error regardless of the standard of review. City of De Soto v. Parson, 625 S.W.3d 412, 416 n.3 (Mo. banc 2021). As our Supreme Court explained in Wilkinson v. Farmers Holding Companies, 732 S.W.3d 93 (Mo. banc 2026):

“[T]his Court reviews the circuit court's grant of summary judgment de novo. But this standard of review does not alter that appellants always bear the burden of establishing error whatever the standard of review.” [Parson, 625 S.W.3d at 416 n.3]; see also Apperson v. Kaminsky, 727 S.W.3d 422, 426 & n.3 (Mo. banc 2026) (noting issues of law are reviewed de novo but an “appellant always bears the burden of showing error and a right to relief”). In conducting de novo review, this Court reviews arguments properly presented to the circuit court, properly preserved for review, and properly raised on appeal.

Wilkinson, 732 S.W.3d at 98.

Discussion and Decision

On appeal, our review is limited to issues raised by the point relied on. Watson-Spargo v. Treasurer of State, Custodian of Second Inj. Fund, 370 S.W.3d 292, 293 (Mo. App. 2012); Bland v. IMCO Recycling, Inc., 67 S.W.3d 673, 681 (Mo. App. 2002). Plaintiff presents one point on appeal, which states:

The trial court erred in granting Defendants’ motion for summary judgment which alleged that Plaintiff's claim was barred by the statute of limitations because Defendants were estopped from asserting that defense in that Defendant Scott Wilkerson's representations to [Decedent] that they should wait and see how much money [Decedent] got from settling his legal malpractice lawsuit in order to settle on a figure to be paid to Scott for return of [the Property] induced [Decedent] to refrain from filing suit to recover the [P]roperty until after the lawsuit was settled and it would be against equity and good conscience for Scott to take advantage of his representations by asserting that the lawsuit is now barred because of the delay when his conduct was the cause for the delay.

This point does not assert that the trial court committed any error in granting summary judgment based on the merits of Defendants’ statute-of-limitations defenses. The only issue presented by the point is that Defendants were precluded by estoppel from relying on those defenses. Therefore, we confine our review to that issue alone. See Sommers v. Kruse Mennillo, LLP, 699 S.W.3d 525, 529 (Mo. App. 2024).

“The statute of limitations ․ is an affirmative defense that seeks to avoid a plaintiff's cause of action, and alleges that even if plaintiff's petition is true, plaintiff cannot prevail because there are additional facts that permit the defendant to avoid legal responsibility.” Wolfe v. Walker, 713 S.W.3d 536, 542 (Mo. App. 2025) (internal quotation marks and citations omitted). Plaintiff argues that Defendants are estopped from relying on the statutes of limitations. We disagree.

In relevant part, Rule 55.01 states that “[a] defense consisting of an affirmative avoidance to any matter alleged in a preceding pleading must be pleaded.” Id. In relevant part, Rule 55.08 states:

In pleading to a preceding pleading, a party shall set forth all applicable affirmative defenses and avoidances, including but not limited to ․ estoppel ․. A pleading that sets forth an affirmative defense or avoidance shall contain a short and plain statement of the facts showing that the pleader is entitled to the defense or avoidance ․.

Id. Thus, here, estoppel is an affirmative avoidance to an affirmative defense. Hoag v. McBride & Son Inv. Co., Inc., 967 S.W.2d 157, 171 (Mo. App. E.D. 1998); see also Rosales v. Benjamin Equestrian Ctr., LLC, 597 S.W.3d 669, 683 (Mo. App. W.D. 2019) (an avoidance is “an affirmative defense to an affirmative defense”); Allen v. Titan Propane, LLC, 484 S.W.3d 902, 905 (Mo. App. S.D. 2016) (same holding). An avoidance to an affirmative defense must be pled in a timely filed reply or it is waived. Allen, 484 S.W.3d at 905; Billings Mut. Ins. Co. v. Cameron Mut. Ins. Co., 229 S.W.3d 138, 143 (Mo. App. 2007).

Plaintiff did not file a reply pleading estoppel as an affirmative avoidance to Defendants’ statute-of-limitations affirmative defenses. Therefore, that affirmative avoidance was waived and cannot be used to avoid summary judgment. See, e.g., Montgomery v. Coreslab Structures (Missouri), Inc., 697 S.W.3d 766, 773-74 (Mo. App. 2024); Steinbach v. Maxion Wheels Sedalia LLC, 637 S.W.3d 493, 504-05 (Mo. App. 2021). As both of these cases also illustrate, a reviewing court will not convict a trial court of error concerning an issue it was never asked to decide. Montgomery, 697 S.W.3d at 774; Steinbach, 637 S.W.3d at 505; see also Matter of Spruill, 709 S.W.3d 438, 442-43 (Mo. App. 2025) (by court rule, statute and controlling case law, an appellate court will not review a matter which has not been presented to or expressly decided by the trial court). Here, because the issue of estoppel was not properly presented to the trial court by way of a reply, the court never ruled on that issue and it has been waived. See Wilkinson, 732 S.W.3d at 98; Allen, 484 S.W.3d at 905.

Finally, Plaintiff's reliance on State ex rel. Beisley v. Perigo, 469 S.W.3d 434 (Mo. banc 2015), is misplaced. First, the procedural posture in Beisley is factually distinguishable from the case at bar:

[Beisley] filed a motion to dismiss [the plaintiff's] petition, arguing her claim was time-barred by section 537.100, the wrongful death statute of limitations, because it was filed more than three years after the decedent's death. [The plaintiff] filed suggestions in opposition, arguing [Beisley and co-defendant Maples] fraudulently concealed their wrongdoing as alleged in her petition. [The plaintiff] stated this conduct made it impossible for her to identify perpetrators and name defendants, which were prerequisites to maintaining a civil suit. [The plaintiff] also alleged [Beisley] and Maples should be estopped from relying on the statute of limitations as a defense due to their fraudulent concealment of their wrongdoing.

Beisley, 469 S.W.3d at 436. Thus, Beisley involved a ruling on a motion to dismiss and has no application to a waived affirmative avoidance in a summary judgment proceeding.

Second, Beisley held that the doctrine of equitable estoppel prevented the relator from relying on § 537.100 as an affirmative defense due to the fraudulent concealment of his wrongdoing. Beisley, 469 S.W.3d at 445. Beisley, issued on August 18, 2015, was a 4-3 decision with one special judge concurring in the majority opinion. Its holding is directly in conflict with Boland v. Saint Luke's Health Sys., Inc., 471 S.W.3d 703 (Mo. banc 2015), as modified Oct. 27, 2015 (Boland I), which held that the plaintiffs’ claims were time-barred by § 537.100 and that this statute did not contain an exception for fraudulent concealment. Id. at 704-05. That holding was reaffirmed in Boland v. Saint Luke's Health Sys., 588 S.W.3d 879 (Mo. banc 2019) (Boland II), which again held that fraudulent concealment did not toll § 537.100. Boland II, 588 S.W.3d at 884-85. Boland II is the last controlling case from our Supreme Court, which we are bound to follow. Mo. Const. art. V, § 2; State v. Spencer, 307 S.W.3d 203, 205 (Mo. App. 2010). Thus, Beisley no longer has any precedential value on the question of whether estoppel can be used to preclude reliance on § 537.100. For both of these reasons, Beisley provides no support for Plaintiff's argument.

In conclusion, we deny Plaintiff's point because: (1) Plaintiff's claims are time-barred; and (2) Plaintiff failed to plead estoppel as an affirmative avoidance in a reply to Defendants’ Amended Answer asserting statutes of limitations as affirmative defenses. The judgment of the trial court is affirmed.

FOOTNOTES

1.   Decedent's amended petition also stated: “This is an action to impose a constructive or resulting trust on the following tracts of land [the Property] located in Jasper County Missouri[.]” While not pled as a separate count, the parties and trial court treated the entire action as one seeking to quiet title.

2.   All statutory references are to RSMo (2016). All rule references are to Missouri Court Rules (2023).

3.   Given our disposition, infra, it is unnecessary to summarize any of the admissions from the summary judgment pleadings or SUMF before the trial court when it granted summary judgment.

JEFFREY W. BATES, J. – OPINION AUTHOR

JENNIFER R. GROWCOCK, J. – CONCUR JOSEPH L. HENSLEY, J. – CONCUR