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

OPINION ON MOTION FOR REHEARING

After issuance of this Court's opinion, Plaintiff filed a timely motion for rehearing. See Rule 84.17(a)(1).¹ The motion for rehearing presents three arguments.

First, Plaintiff contends the Court overlooked the fact that Judge Hensley recused when this case was pending in the Circuit Court of Jasper County, Missouri. Plaintiff argues that Judge Hensley therefore “should not have been on the panel hearing the case” on appeal. We disagree.

Plaintiff's counsel was aware of the prior recusal and sent a letter to this Court. In relevant part, the letter stated: “This correspondence is not a request that Judge Hensley recuse, but I felt that the Court should be aware of his previous disqualification from the case when it was at the circuit level.” Respondents’ counsel also sent this Court a letter stating that Respondents had “no reason or request to recuse any of the Appeal Court Judges assigned to this matter.” Based on this correspondence, it appeared no party asked Judge Hensley to recuse, and he did not do so. After issuance of our opinion, Plaintiff now insists that Judge Hensley was not qualified to sit on this panel. This argument is meritless.

It is well settled that an appellate court will not permit a party to: (1) take a position on a matter that is directly contrary to, or inconsistent with, one previously assumed; or (2) complain on appeal about an alleged error in which he joined, acquiesced or invited by his conduct. See, e.g., Boswell v. O'Neil, 643 S.W.3d 655, 663 (Mo. App. 2022); Potter v. Hy-Vee, Inc., 560 S.W.3d 598, 606 (Mo. App. 2018); Klineline v. Klineline, 481 S.W.3d 551, 554 (Mo. App. 2015); Ard v. Shannon Cnty. Comm'n, 424 S.W.3d 468, 476 (Mo. App. 2014).

Second, Plaintiff contends this Court overlooked the fact that Respondents did not raise the issue of estoppel not being pled at trial, so they cannot do so on appeal. This argument lacks merit for the following reason.

A trial court makes its decision to grant summary judgment based on the pleadings, record submitted, and the law. Green v. Fotoohighiam, 606 S.W.3d 113, 115 (Mo. banc 2020). In reviewing the decision to grant summary judgment, an appellate court applies the same criteria as the trial court in determining whether summary judgment was proper. Id. Respondents’ amended answer properly pled that Plaintiff's claims were barred by § 516.010 and § 516.120. “A reply should be filed when a plaintiff desires to avoid or affirmatively attack new and affirmative matter alleged in the answer.” Warren v. Paragon Techs. Group, Inc., 950 S.W.2d 844, 845 (Mo. banc 1997) (internal brackets and citation omitted). An affirmative avoidance is an affirmative defense to an affirmative defense. Id. at 845-46. If Plaintiff wanted to assert estoppel as an affirmative avoidance, he had to plead it in a reply within 30 days after the filing of the amended answer. See Rule 55.25(b). By failing to do so, Plaintiff waived that affirmative avoidance. See, e.g., Billings Mut. Ins. Co. v. Cameron Mut. Ins. Co., 229 S.W.3d 138, 143 (Mo. App. 2007).

As the western district of this Court explained in Montgomery v. Coreslab Structures (Missouri), Inc., 697 S.W.3d 766 (Mo. App. 2024): “By failing to raise section 287.040.4 as an avoidance to the affirmative defense of exclusivity in a timely filed reply to Coreslab's answer Montgomery waived the defense. He cannot overcome the waiver by raising the argument for the first time in response to Coreslab's motion for summary judgment.” Id. at 774. That is what Plaintiff tried to do here. When the trial court granted summary judgment, the issue of estoppel had been waived and was not a live issue in the case. Based upon our review of the pleadings, we observed and understood the same thing. A trial court's judgment may be affirmed on any basis supported by the record. Yandell v. Kanakuk Heritage, Inc., 731 S.W.3d 500, 501 (Mo. App. 2026). We would have based our decision on Plaintiff's waiver, whether or not that issue was raised by Respondents on appeal. Because Plaintiff's reliance on estoppel was not properly presented to the trial court, it is not preserved for appellate review and will not be considered by this Court. See Wilkinson v. Farmers Holding Companies, 732 S.W.3d 93, 98-99 (Mo. banc 2026).

Third, Plaintiff contends this Court misinterpreted the law by holding that Plaintiff's reliance on State ex rel. Beisly v. Perigo, 469 S.W.3d 434 (Mo. banc 2015), was misplaced. We disagree. We stated that Beisly no longer has any precedential value on the question of whether estoppel can be used to preclude reliance on § 537.100. That is a correct statement. There is case law recognizing that equitable estoppel can apply to general statutes of limitation like § 516.010 and § 516.120. The existence of that case law does not aid Plaintiff because he waived the affirmative avoidance of estoppel by not pleading it in a reply.

FOOTNOTES

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

JEFFREY W. BATES, J. – OPINION AUTHOR

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