Windorf v. Malco

A statute of limitations defense must be raised in a responsive pleading or in a motion before filing the pleading or the defense is waived by the party attempting to assert it.

Defendant appealed a judgment that dismissed defendant’s counterclaim for intentional infliction of emotional distress (IIED). The trial court erred because Plaintiff did not properly assert her statute of limitations defense in either a responsive pleading or in a motion filed before pleading; consequently plaintiff waived her defense. Defendant asserted counterclaims in Plaintiff’s lawsuit; Plaintiff’s reply did not plead a statute of limitations defense against defendant’s IIED claim. After filing her reply, Plaintiff moved to dismiss the counterclaims as time barred. The court has held in the past that statute of limitations defenses must be raised in the pleading or in a motion before filing the pleading, or the defense is waived. Plaintiff clearly failed to raise the defense properly and therefore, the defense is waived. Dismissal of IIED counterclaim is reversed and remanded.