No. ED74239
OPINION FILED: March 9, 1999
APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY, HON. PATRICK CLIFFORD, JUDGE.
Harold G. Johnson, Mitchell D. Johnson, 500 Northwest Plaza, Suite 715, St. Ann, MO 63074, for appellant.
Lindsay A. Dibler, Wuestling James, L.C., 1015 Locust St., Suite 730, St. Louis, MO 63101, for respondents.
Lawrence G. Crahan, J., concurs.
Richard B. Teitelman, J., concurs.
JAMES R. DOWD, Presiding Judge
On Motion for Rehearing and/or Transfer
[3] In a motion for rehearing and/or transfer, counsel for Betty Ann argues, among other things, that because Shirley failed to plead section 516.350 RSMo 1994 as an affirmative defense, we erred in holding that section 516.350 precluded Betty Ann's claim for insurance proceeds and pension benefits. Indeed, Shirley failed to plead section 516.350 as an affirmative defense in her answer. However, beginning in a motion for summary judgment and continuing in this appeal, Shirley has consistently argued that Betty Ann's claim was barred by section 516.350. Rather than objecting to this argument on the ground that Shirley failed to plead section 516.350 as an affirmative defense, Betty Ann's counsel chose to address the substantive merits of the argument. Accordingly, the issue was tried by implied consent of the parties and must be treated as though it had been raised in the pleadings. Heins Implement Co. v. Missouri Highway Transp. Comm'n, 859 S.W.2d 681, 685 (Mo. banc 1993); Rule 55.33(b). Thus, our reliance on section 516.350 was appropriate. The motion is denied in all respects.