Legal Memorandum: Statute of Limitations for Fraudulent Concealment

Issue: Under Missouri law, can the actions of a third party be attributed to the defendant for purposes of a fraudulent concealment claim?

Under Missouri law, the applicable statute of limitations for an action for taking or injuring property or for an injury to the rights of another is five years.  Mo. Stat. § 516.120(4) (1952).  Governed by this statute, a legal malpractice action based in negligence accrues five years from the date of the injury.  Klemme v. Best, 941 S.W.2d 493, 497 (Mo. 1997) (en banc).  Accord Chicago Title Ins. Co. v. Jackson, Brouillette, Pohl & Kirley, P.C., 930 S.W.2d 22, 25 (Mo. Ct. App. 1996) (cause of action for negligent misrepresentation against attorney accrued when the plaintiff was advised that it had a claim against the defendant).  When the plaintiff sustains damage that is capable of ascertainment the plaintiff has a right to sue and the statute of limitations is triggered.  Business Men’s Assurance Co. of Am. v. Graham, 984 S.W.2d 501, 507 (Mo. 1999) (en banc).  Thus, under Missouri law, the would-be plaintiff’s failure to discover the right to sue does not toll the statute of limitations, id. at 507; rather, when the fact of damage is not capable of being ascertained until after expiration of the statute of limitations, the cause of action is said to accrue only upon ascertainment, id. at 107-08.

For example, in Anderson v. Griffin, Dysart, Taylor, Penner & Lay, P.C., 684 S.W.2d 858 (Mo. Ct. App. 1984), the appellate court applied the capable-of-ascertainment rule in a legal malpractice action.  The defendant attorney failed […]