NW MO TOW RECOVERY INC v. GILLIS (2026)

NW MO Tow & Recovery, Inc., (NW MO Tow) appeals the judgment from the circuit court of Holt County granting the motion to dismiss filed by Michael and Marci Gillis. NW MO Tow's petition alleged a breach of contract claim. The trial court granted the Gillises’ motion to dismiss on the basis that the claim was barred by the five-year statute of limitations in section 516.120(1).¹ NW MO Tow argues the trial court erred in granting the motion to dismiss because the ten-year statute of limitations in 516.110(1) applies to its breach of contract claim for money owed. We reverse the trial court's judgment granting the motion to dismiss and remand for further proceedings consistent with this opinion.

Factual and Procedural Background

Because this appeal involves a dismissal by the trial court on the ground that NW MO Tow's claim is barred by a statute of limitations, we begin by setting out the general allegations of NW MO Tow's petition, treating all the facts as true and construing the allegations favorably to NW MO Tow. See Richest v. City of Kansas City, 643 S.W.3d 610, 613 (Mo. App. W.D. 2022).

Michael Gillis (Gillis) and his wife Marci Gillis operated, as sole proprietors, a farming operation doing business at various times as M & M Farms. Gillis was driving a tractor on December 19, 2017, with an attached ripper (a heavy-duty tool for breaking up soil). Gillis attempted to drive the tractor with the attached ripper across a bridge over a creek/ditch. The bridge collapsed as Gillis was crossing it and Gillis was injured in the accident. The sheriff's office contacted NW MO Tow to remove the tractor and ripper from the ditch. NW MO Tow called a second tow service to assist with the removal because of the scope of the work. NW MO Tow and the second tow service arrived at the scene on December 19. NW MO Tow and the other tow service discussed a plan for removing the tractor, and the work, which was “extensive,” was completed in approximately two days, by December 21.

The Gillises’ employee C.M. was at the accident scene both days on December 19 and 20. While at the scene, C.M. signed a contract for NW MO Tow's services, which stated the following:

I HEREBY AUTHORIZE YOU TO COMPLETE THE DESCRIBED TOW, WORK, AND RECOVERY. I AGREE TO PAY THEREFORE YOUR USUAL AND CUSTOMARY CHARGES FOR LABOR AND MATERIALS, PLUS YOUR TRANSPORTATION CHARGE AND TRAVEL EXPENSES, IF ANY. NW MO TOW & RECOVERY INC, IS NOT RESPONSIBLE FOR PERSONAL PROPERTY LEFT WITH THE UNIT FOR DAMAGES RESULTING FROM NORMAL REPAIR. I HAVE READ AND UNDERSTAND THE TERMS OF THE WORK ORDERED.

C.M. signed and printed his name on the respective customer lines.² The back of the document contained additional terms and conditions, including that finance charges would be applied to any unpaid balance, and that if NW MO Tow had to seek collection, then the customer agreed to pay for all collection costs, including attorneys’ fees, court costs, and legal expenses.

NW MO Tow successfully removed Gillis’ tractor and ripper from the ditch. The tractor was then taken to a repair shop where it was repaired and returned to Gillis, who was able to continue using the tractor.

An invoice from NW MO Tow dated December 21, 2017, was sent to Gillis and his insurance agent. The invoice detailed the work performed, totaling $18,606. Gillis refused to pay the bill because he thought that it was too high and “outrageous.” Gillis never paid NW MO Tow for its services.

NW MO Tow filed a one-count petition against Michael and Marci Gillis, d/b/a as M & M Farms, on April 21, 2025, for breach of contract. NW MO Tow requested $18,606 for services rendered, plus accumulated finance charges, attorneys’ fees and taxable expenses. The petition included a copy of the NW MO Tow contract for services and the invoice as exhibits. The Gillises filed a motion to dismiss, arguing that the breach of contract claim was time-barred by section 516.120(1)’s five-year statute of limitations. The Gillises argued that the five-year statute of limitations applied because the contract was for conditional services to be performed instead of an unqualified promise for the payment of money, and neither the petition nor the contract for services reflected an admission of a debt due and unpaid. In response, NW MO Tow argued that the ten-year statute of limitations in section 516.110(1) applied because the contract for services included an unqualified promise to pay money.

The trial court granted the motion to dismiss without explanation. NW MO Tow appeals.

Finality of Judgment

First, this Court has a duty to sua sponte determine whether we have the authority to decide the appeal. City of Kansas City v. Ross, 508 S.W.3d 189, 192 (Mo. App. W.D. 2017).

With exceptions which are not relevant here, “[o]ur jurisdiction depends upon the existence of a final judgment. Absent a final judgment, we lack jurisdiction and must dismiss the appeal. To constitute a final judgment, the judgment appealed from normally must dispose of all issues and all parties in the case and leave nothing for future determination.”

Id. (quoting Care and Treatment of Bowles v. State, 83 S.W.3d 93, 94 (Mo. App. W.D. 2002)). Here, the trial court dismissed NW MO Tow's petition without specifying whether the dismissal was entered with or without prejudice. Given the trial court's silence, by operation of Rule 67.03,³ the dismissal is presumed to be without prejudice. Id. Generally, a dismissal without prejudice is not a final judgment that can be appealed because the claimant is free to re-assert his or her claim. Boulevard Bank v. Malott, 397 S.W.3d 458, 462 (Mo. App. W.D. 2013).

It is well-established, however, that “a party can appeal from a dismissal without prejudice if the dismissal has the practical effect of terminating the action.” Hill-Bey v. Vandergriff, 697 S.W.3d 105, 108-09 n.5 (Mo. App. E.D. 2024). “If the plaintiff would be barred from refiling the suit due to the statute of limitations, then a dismissal without prejudice may be deemed final because it has the practical effect of terminating the litigation.” Ross, 508 S.W.3d at 192. Because NW MO Tow is barred from refiling its petition because of the trial court's statute of limitations application, the trial court's dismissal without prejudice has the practical effect of ending the litigation. Accordingly, the trial court's judgment is final.

We now turn to the merits of NW MO Tow's appeal.

Standard of Review

Appellate review of a trial court's grant of a motion to dismiss is a question of law that we review de novo. Sommers v. Kruse Mennillo, LLP, 699 S.W.3d 525, 529 (Mo. App. W.D. 2024). When a statute of limitations defense is raised, this Court must give the pleading its broadest intendment, we treat all facts as true, and we will construe the allegations favorably to the plaintiff. Richest, 643 S.W.3d at 613. “Where a statute of limitations is asserted in support of a motion to dismiss, the petition should not be dismissed unless the petition clearly establishes on its face and without exception that it is time barred.” Id. (quoting Patel v. Pate, 128 S.W.3d 873, 877 (Mo. App. W.D. 2004)). See also State ex rel. Halsey v. Phillips, 576 S.W.3d 177, 180 (Mo. banc 2019); Hartman v. Logan, 602 S.W.3d 827, 838 (Mo. App. W.D. 2020). “Accordingly, only in the rare case in which the face of a petition demonstrates a claim is time-barred should a court sustain a motion to dismiss on the ground the statute of limitations has run.” Halsey, 576 S.W.3d at 180.

Where, as here, the trial court does not provide reasons for its dismissal, we will presume that the trial court based its dismissal on the grounds alleged in the motion to dismiss. See Sommers, 699 S.W.3d at 530. Therefore, we presume the trial court concluded that section 516.120(1)’s five-year statute of limitations applies to NW MO Tow's breach of contract claim and dismissed NW MO Tow's petition for that reason.

Legal Analysis

In NW MO Tow's sole point on appeal, it argues that the trial court erred in granting the Gillises’ motion to dismiss because its petition for breach of contract was timely filed pursuant to section 516.110(1). NW MO Tow argues that because the contract for services was a writing for the payment of money, the ten-year statute of limitations in section 516.110(1) applies. We agree.

Sections 516.110(1) and 516.120 are the two statutes of limitation relating generally to contract actions. Hughes Dev. Co. v. Omega Realty Co., 951 S.W.2d 615, 616 (Mo. banc 1997). Section 516.110(1) applies to an “action upon any writing, whether sealed or unsealed, for the payment of money or property” and allows the claim to be brought within ten years. Section 516.120(1) applies to “[a]ll actions upon contracts, obligations or liabilities, express or implied, except those mentioned in section 516.110[.]” All claims under section 516.120 must be brought within five years.

“In determining whether the five-year or ten-year statute of limitations is applicable to a breach of contract claim, the sole consideration is whether there is any breach of a written promise to pay an amount of money[.]” Sommers, 699 S.W.3d at 530. For section 516.110(1)’s ten-year statute of limitations to apply, the party seeking to recover money owed must show there is a writing “for the payment of money and that the writing contains a promise to pay money, [while] the exact amount to be paid or other detail of the obligation may be shown by extrinsic evidence[.]” Rolwing v. Nestle Holdings, Inc., 437 S.W.3d 180, 183 (Mo. banc 2014) (quoting Cmty. Title Co. v. Stewart Title Guar. Co., 977 S.W.2d 501, 502 (Mo. banc 1998)). See also DiGregorio Food Prods., Inc. v. Racanelli, 609 S.W.3d 478, 481 (Mo. banc 2020) (“[T]he promise to pay money must arise from the writing's explicit language; extrinsic evidence cannot supply the promise.”).

“[T]he essence of a promise to pay money is that it is an acknowledgment of an indebtedness, an admission of a debt due and unpaid.” DiGregorio, 609 S.W.3d at 481 (citation omitted). By fair implication, the promise to pay money must be contained in the writing's language. Ebert v. Ebert, 627 S.W.3d 571, 582 (Mo. App. E.D. 2021). Put simply, when a plaintiff files suit to enforce a written promise to pay money, section 516.120(1)’s ten-year statute of limitations applies. See Rolwing, 437 S.W.3d at 183; Ebert, 627 S.W.3d at 581.

In Hughes Development Co. v. Omega Realty Co., 951 S.W.2d 615 (Mo. banc 1997), the Missouri Supreme Court considered whether the five-year statute of limitations or the ten-year statute of limitations applied to an action to recover money earned and payable under a written contract for services. 951 S.W.2d at 616. A management service agreement provided that Omega Realty Company would pay Hughes Development Company a percentage of the management fees Omega collected from certain apartment owners. Id. The Court acknowledged that “[d]espite nearly a century and a half of experience with these statutes of limitation, Missouri appellate courts have lurched unevenly from holding to holding, unable to craft a principled interpretation of the statutory language that could produce either consistency or predictability of application.” Id. Ultimately, the Court determined that there was a written promise to pay money, and, therefore, the ten-year statute of limitations in section 516.110(1) applied. Id. at 617.

In doing so, the Court “overturn[ed] nearly a century of case law distinguishing between the five-year and ten-year statute of limitations” and held that the ten-year statute of limitations in section 516.110(1) applies to every breach of contract action in which a plaintiff seeks a judgment from a defendant for the payment of money the defendant agreed to pay in a written contract. Midwest Div.–OPRMC, LLC v. Dep't of Soc. Servs., Div. of Med. Servs., 241 S.W.3d 371, 384 (Mo. App. W.D. 2007). The Court recognized that although its interpretation was “admittedly quite broad,” it was nonetheless adopted. Hughes, 951 S.W.2d at 617.

Here, the issue is whether NW MO Tow's contract for services reflects a written promise to pay money. See Rolwing, 437 S.W.3d at 183; Ebert, 627 S.W.3d at 582. If it does, then section 516.110(1)’s ten-year statute of limitations applies, and NW MO Tow's claim was timely filed. See Rolwing, 437 S.W.3d at 183; Ebert, 627 S.W.3d at 582. If not, the general five-year statute of limitations in section 516.120(1) applies, and NW MO Tow's claim is time-barred. See Ebert, 627 S.W.3d at 582.

Based on the allegations in NW MO Tow's petition, we are persuaded that the contract for services constituted a written promise to pay money and, therefore, the ten-year statute of limitations in section 516.110(1) applies. The contract for services, in writing and signed by the Gillises’ employee, contained a promise to pay an amount of money, specifically, NW MO Tow's labor and material charges that the Gillises’ employee requested and specifically authorized. NW MO Tow seeks a judgment against the Gillises for the payment of money, in the amount of $18,606 for “services rendered,” as agreed to by the Gillises’ employee in the written contract for services. Section 516.110(1)’s ten-year statute of limitations applies.

The Gillises argue that the five-year statute of limitations in section 516.120(1) applies because the contract was for conditional services to be performed rather than an unqualified promise for the payment of money. They argue that the contract did not reflect an admission of a debt due and unpaid, and that a contract to pay money in exchange for conditional services is not a writing for the payment of money or property as required by section 516.110(1).⁴

The Gillises cite J&M Securities, LLC v. Aziz, 626 S.W.3d 863 (Mo. App. E.D. 2021) to support their position. J&M Securities does not aid them, however. In J&M Securities, a landlord brought an action for damages against former tenants seeking to recover repair, maintenance, and cleaning expenses of the leased premises which were completed after the tenants had vacated the premises. 626 S.W.3d at 865-66. The lease agreement stated that the tenant would reimburse the landlord for repairs, maintenance, and cleaning once the landlord showed that the maintenance and repairs were necessary and that the tenants were liable. Id. at 865. The tenants sought summary judgment on the basis that the action was barred by section 516.120(1)’s five-year statute of limitations. Id. at 866. The trial court granted the summary judgment motion. Id.

On appeal, the Eastern District of this Court agreed that the five-year statute of limitations applied. Id. at 867. The Court stated that nowhere in the lease provisions was there an acknowledgment of a debt or an admission that a debt was due and unpaid. Id. The Court stated that, instead, the “promises to pay money with regard to repairs, maintenance and cleaning were conditional; in order for the promises to be effective, [the landlord] must first show repairs, maintenance and cleaning were necessary and that [the tenants] are liable for those expenses.” Id. The Court also stated that one section of the lease provided that the tenants would reimburse for “loss, damage, government fines, or costs of repairs or service on the premises due to a violation of the lease or rules, improper use of the premises, fixtures, appliances, or facilities, or negligence of [tenants or their] guests or occupants.” Id. Additionally, that section provided the tenants were to use diligence in maintaining and not damaging the property, and that a “breach of th[e] clause” would be considered “[t]enant abuse” and that the tenants would reimburse for repair costs upon demand. Id. The Court ultimately held that because the lease did not acknowledge a debt with regard to repairs, maintenance, and cleaning and admit that such a debt was due and unpaid, the five-year statute of limitations in section 516.120(1) applied, and the landlord's claim was time-barred. Id.

Here, in contrast, there was nothing conditional about the Gillises’ promise to pay NW MO Tow for its services. The written contract for services signed by the Gillises’ employee clearly indicates that the Gillises authorized NW MO Tow to remove the tractor with the attached ripper from the ditch and, in exchange, they would pay NW MO Tow's customary labor and material charges. It was “an admission of a debt due and unpaid.” Ebert, 627 S.W.3d at 582. It does not matter that the contract did not specify the exact amount due for NW MO Tow's services. The amount due was included in the later-sent invoice. See Rolwing, 437 S.W.3d at 183 (stating that “the exact amount to be paid ․ may be shown by extrinsic evidence[.]”). The service contract's clear language expresses a promise for the payment of money, and, therefore, section 516.110(1)’s ten-year statute of limitations applies to NW MO Tow's breach of contract action. See Ebert, 627 S.W.3d at 584. NW MO Tow's petition, filed April 21, 2025, was timely filed. The trial court erred in dismissing NW MO Tow's petition on the basis that it was barred by the statute of limitations.

NW MO Tow's sole point on appeal is granted.

Conclusion

The trial court's judgment of dismissal is reversed. We remand the case to the trial court for further proceedings consistent with today's ruling.

FOOTNOTES

1.   All statutory references are to the Revised Statutes of Missouri (2016), as supplemented.

2.   In this appeal from the trial court's granting of their motion to dismiss, the Gillises do not challenge that C.M. was their employee who was authorized to sign the contract for services on their behalf. Additionally, as NW MO Tow alleged that C.M. was an employee of the farming operation at the time he signed the contract, we view the facts as alleged in the petition as true and construe the allegations favorably to NW MO Tow. See Richest v. City of Kansas City, 643 S.W.3d 610, 613 (Mo. App. W.D. 2022).

3.   Missouri Supreme Court Rules (2025).

4.   The Gillises cite Van Stratten v. Friesen, 841 S.W.2d 750 (Mo. App. S.D. 1992) and McIntyre v. Kansas City, 171 S.W.2d 805 (Mo. App. 1943) to support their five-year statute of limitations argument. This, however, “expressly disregard[s] the mandate of Hughes Dev. Co. v. Omega Realty Co., 951 S.W.2d 615, 617 (Mo. banc 1997), directing us to ‘ignore’ such precedent on this topic.” Sommers v. Kruse Mennillo, LLP, 699 S.W.3d 525, 531 n.3 (Mo. App. W.D. 2024).

Janet Sutton, Judge

All concur.