DocketNumber: WD 81326
Citation Numbers: 567 S.W.3d 211
Judges: Mitchell
Filed Date: 11/13/2018
Status: Precedential
Modified Date: 1/21/2022
Robert C. Smock, as trustee of the Robert C. Smock Revocable Living Trust; T & K Smock, LLC; and Joshua and Jessie Smock (collectively, the Smocks) appeal an order granting summary judgment to Associated Electric Cooperative, Inc. (Cooperative) on the grounds that the Smocks' claims are time-barred. The Smocks argue that the motion court erred in granting summary judgment because their claims fall within the continuing-wrong exception to accrual of the limitations periods. If applicable, the exception would allow the Smocks to recover for damage occurring during the limitations period immediately preceding the filing of their petition. The Smocks further argue that the motion court erred in granting summary judgment on their contract claim because it accrued when Cooperative refused payment *215and, thus, was timely filed. Because we find that the Smocks' claims are barred by the applicable statutes of limitations, we affirm the motion court's grant of summary judgment on all counts.
Background
On December 20, 1990, William and Jeanette Smock granted Cooperative a 150-foot-wide electric-transmission-line easement over a portion of their farm in Holt County, Missouri.
a perpetual easement right, privilege and authority to enter upon the lands of the Grantor to construct, reconstruct, erect, add to, rebuild, modify, level, repair, replace, patrol, operate and maintain on, over and under the described lands, ... an electric transmission line of one or more circuits, including, but not limited to, poles, towers, wires, buried cable, guys, brace poles, guy wires, anchors and other appurtenances necessary thereto....
Other pertinent provisions of the easement agreement include the following:
Grantor does also hereby grant, bargain, sell and convey to Cooperative the perpetual right to clear and keep clear by cutting, trimming, spraying or removing by any other manner all brush, trees and timber within seventy-five (75) feet of the centerline of said electric transmission line and all other trees which, in the opinion of the Cooperative, would endanger or be a hazard to the operation and maintenance of the lines.
The sole consideration to be paid by Cooperative to Grantor for the rights and privileges herein granted shall be thirteen thousand two hundred thirty dollars ($13,230.00 ) to be paid within ninety (90) days from the execution of this instrument. No construction on this easement shall be commenced until said amount is paid.
Cooperative agrees to pay additional to Grantor the actual damages to Grantor's real property, growing annual crops and fences when and if such damage occurs, occasioned by the exercise of any of the rights granted herein, it being understood that this agreement for further payment is not intended to and shall not provide additional payment for the cutting and trimming of trees, nor for the exercise of any of the rights of the easement itself, which rights are granted for the sole consideration specified in the paragraphs set forth above.
(Emphasis in original.)
After the easement was executed, Jeanette granted Cooperative's contractor access to the area covered by the easement agreement to begin the clearing process, which was completed by early 1992. Robert observed the clearing of several large oak trees from the pasture area and of "many more" trees from the area closer to the Nodaway River, which borders the *216Smocks' farm to the east. The contractor cleared only those trees that were within the easement's boundaries.
A portion of the easement covers a slope of ground on the Smock farm leading down to the river. Over time, the root systems of the cleared trees deteriorated, and without roots to hold the soil in place, the land in that area of the easement destabilized and began sliding into the river. By or before the spring of 2005, the Smocks became aware of damaging erosion of the slope within the easement boundaries as is evidenced by the fact that they moved the part of their livestock fence that was on the easement back from the river to prevent the fence from collapsing. Robert testified that he thinks "it was 2005 ... where [he] started to really see the damage start." Later he clarified that it was "probably spring" of 2005. Both Travis and Joshua testified that erosion of the slope became an issue for the family in 2005.
Robert and Joshua testified that the rate of erosion accelerated in 2012. Sometime in the last five years, the erosion extended beyond the boundaries of Cooperative's easement. And the eroded area continues to grow, encroaching on additional tillable farmland.
In 2014, Robert demanded that Cooperative address the erosion pursuant to the easement, but Cooperative declined, concluding that its clearing activities were not the cause of the erosion.
The Smocks filed their initial Petition on September 11, 2015,
*217Standard of Review
Whether the circuit court properly entered summary judgment "is purely an issue of law which th[e c]ourt reviews de novo. " Hill v. Ford Motor Co. ,
Analysis
The Smocks raise four points on appeal. They argue that the motion court erred in granting summary judgment (1) on their trespass claim because that claim falls within the continuing-wrong exception to the statute of limitations (Point I); (2) on their temporary nuisance claim because it also falls within the continuing-wrong exception (Point II); (3) on their negligence, trespass, and temporary nuisance claims because Cooperative violated its common law duty to repair the existing erosion and to maintain the easement so as to prevent future erosion, which constitutes a continuing wrong (Point III); and (4) on their contract claim because it was timely filed pursuant to the easement agreement and, alternatively, the continuing-wrong exception applies to that claim.
*218Because most of the Smocks' claims of error involve the continuing-wrong exception to the statute of limitations, we begin by discussing claim accrual and the continuing-wrong exception.
"Generally, 'a statute of limitation[s] begins to run when the cause of action has accrued to the person asserting it, the accrual being whenever such a breach of duty has occurred, or such a wrong has been sustained, as will give a right then to bring and sustain a suit.' " D'Arcy & Assocs., Inc. v. K.P.M.G. Peat Marwick, L.L.P. ,
Accrual takes place not "when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment." § 516.100. "Damage is capable of ascertainment when it can be discovered or is made known, even if its extent remains unknown." D'Arcy ,
Under the continuing-wrong exception to traditional accrual, "each continuation or repetition of wrongful conduct may be regarded as a separate cause of action for which suit must be brought within the period beginning with the occurrence." Lake St. Louis Cmty. Ass'n v. Oak Bluff Pres. ,
In applying the continuing-wrong exception, this court has held that "[d]amages resulting from one completed, wrongful act, although they may continue to develop, are not adequate." D'Arcy ,
We now turn to the Smocks' specific points on appeal.
I. The Smocks' claims for trespass and injunctive relief are time-barred.
In Point I of their appeal, the Smocks argue that the motion court erred in granting summary judgment on their trespass and injunctive relief claims because Cooperative's trespass is continuing in nature, and therefore the continuing-wrong exception applies and the Smocks may seek recovery for damages incurred during the limitations period immediately preceding initiation of their lawsuit. We disagree.
"[T]respass involves interference with the plaintiffs' possessory rights and requires an intentional act that results in a physical invasion of the plaintiffs' property...." Cook v. DeSoto Fuels, Inc. ,
Under traditional accrual, the undisputed material facts establish that these claims are time-barred. Robert, Travis, and Joshua testified that they were aware of the damage to the easement by the spring of 2005, as is evidenced by the fact that they moved the fence back from the river due to erosion.
The continuing-wrong exception does not apply to the Smocks' trespass and injunctive relief claims, however, because the injury emanates from a completed act-the removal of trees and brush from the easement in 1991 and 1992. Even if Cooperative's conduct in clearing the easement was tortious, a finding we do not make, that conduct was completed by 1992, according to the undisputed material facts in the record. The wrong, if any, therefore, was not continuing. The damage or injury allegedly inflicted has continued to develop over the years, but it did not result from repeated wrongful conduct.
The Smocks rely primarily on Cook v. DeSoto Fuels, Inc. ,
The circuit court granted summary judgment on the trespass claim in the gas station's favor based on the statute of limitations, but the Eastern District of this court reversed, finding that the plaintiffs had sufficiently pleaded a continuing or repeated invasion of their property.
Of particular relevance for the present case, the defendant in Cook asserted that there had been only a single release of gasoline from its tanks.
The record in the present case shows that there was one act, completed by 1992, that allegedly caused the damage at the heart of the Smocks' suit. And, the fact that the alleged effects of that act are continuing and even expanding does not transform the act into a continuing trespass.
We likewise find unavailing the Smocks' arguments that Cooperative's trespass is ongoing because Cooperative has exceeded the scope of its transmission-line easement and because the alleged damage has expanded beyond the easement's boundaries.
The easement expressly authorized Cooperative to remove all trees and brush in the easement, which is what Cooperative did, according to the undisputed evidence.
Because the Smocks were aware, by the spring of 2005, that the family farm had sustained damage, and tort claims accrue when damage can be ascertained-not when the precise amount of damage is known-the motion court correctly granted Cooperative's motion for summary judgment on the Smocks' trespass and injunctive relief claims. Point I is denied.
II. The Smocks' claims for temporary nuisance and injunctive relief are time-barred.
In Point II, the Smocks argue that the motion court erred in granting summary judgment on their temporary nuisance and injunctive relief claims because they also fall within the continuing-wrong exception.
"Nuisance is the unreasonable, unusual, or unnatural use of one's property so that it substantially impairs the right of another to peacefully enjoy his [or her] property." Miller v. City of Wentzville ,
The Smocks' second point is premised on this alleged nuisance being temporary. "A nuisance is temporary if it may be abated, and it is permanent if abatement is impractical or impossible." McGinnis v. Northland Ready Mix, Inc. ,
"The character of the source of the injury and not the character of the injury determines whether a nuisance is permanent or temporary."
Even if the alleged nuisance, under the facts of this case, were temporary, the Smocks misconstrue the application of the statute of limitations
Point II is denied.
III. Cooperative does not have a common-law duty to repair the existing erosion or to prevent future erosion so as to provide a basis for a continuing-wrong exception to the applicable statute of limitations.
In Point III, the Smocks argue that the motion court erred in granting summary judgment on their negligence, trespass, and temporary nuisance claims and their associated claims for injunctive relief because Cooperative violated its common-law duty to repair the existing erosion and to maintain the easement so as to prevent future erosion. The Smocks claim that this failure constitutes a basis for the continuing-wrong exception to the applicable statutes of limitations.
The Smocks assert that, under Missouri law, the holder of an easement has a common-law duty to repair and maintain the easement. While it is true that, under Missouri law, the dominant estate (in this case Cooperative) has a common-law duty to maintain and repair an easement, that duty is no broader than the easement itself. See Rollins v. Schwyhart ,
The easement at issue in this case provides:
a perpetual easement right, privilege and authority to enter upon the lands of the Grantor to construct, reconstruct, *224erect, add to, rebuild, modify, level, repair, replace, patrol, operate and maintain on, over and under the described lands, ... an electric transmission line of one or more circuits, including, but not limited to, poles, towers, wires, buried cable, guys, brace poles, guy wires, anchors and other appurtenances necessary thereto....
The easement granted Cooperative the right to place its electrical transmission line on a 150-foot-wide strip of ground owned by the Smocks and to "clear and keep clear by cutting, trimming, spraying or removing by any other manner all brush, trees and timber within seventy-five (75) feet of the centerline of said electrical transmission line...." The Smocks characterize the easement as granting Cooperative complete control of and responsibility for the 150-foot strip of land upon which they placed their power transmission line. But this is inaccurate. Cooperative has only the rights granted by the easement, i.e. , to place a power line over the portion of the Smocks' property and to remove trees and brush to facilitate the operation of the power line. In all other respects, the Smocks retain their right to use the property over which the easement runs. As a result, Cooperative's duties are similarly limited.
Further, the easement agreement speaks directly to Cooperative's duty to maintain. The agreement provides that Cooperative shall, among other things, "rebuild, modify, ... repair, replace, ... and maintain ... an electric transmission line on, over and under" the Smocks' farm, including all "poles, towers, wires, buried cable, guys, brace poles, guy wires, anchors and other appurtenances necessary thereto...." The easement imposes no duty upon Cooperative to maintain or repair the ground surface over which the easement runs, which makes sense because Cooperative's only rights relate to running power lines, and the Smocks retained and used the right to conduct livestock and farming operations within the easement's boundaries. Under the terms of the easement, Cooperative has only a limited right to use, and no duty to repair or prevent erosion on, the property to which the easement applies. See Rollins ,
The Smocks cite three easement cases in support of their claim that the holder of the dominant estate has a common law duty to repair and maintain the easement- Kibbons v. Union Electric Company ,
Applying the holdings in Kibbons , Gnau , and Heffernan to a situation in which the claim is against the dominant estate holder, it appears that the dominant estate holder has a common law duty to repair and maintain aspects of the easement that are in its sole control. Thus, in the present case, had the Smocks sued for an injury arising from devices placed on the easement by Cooperative that were under Cooperative's exclusive control, the grant of summary judgment would have been inappropriate. But, here where the claims were based on the failure to maintain the property over which the easement runs and over which Cooperative does not have exclusive control, no common law duty exists.
Point III is denied.
IV. The Smocks' contract claim is time-barred.
In their final point on appeal, the Smocks argue that the motion court erred in granting summary judgment on their claim for breach of contract because it was timely filed pursuant to the easement agreement and, alternatively, the continuing-wrong exception applies. We reject both arguments.
The Smocks' breach of contract claim is based on the following provision of the easement agreement: "Cooperative agrees to pay additional to Grantor the actual damages to Grantor's real property ... when and if such damage occurs, occasioned by the exercise of any of the rights granted herein...." The parties disagree about which statute of limitations governs the Smocks' contract claim. The Smocks argue that their claim is subject to the ten-year limitations period in § 516.110(1) because the claim is based upon a writing for the payment of money.
Cooperative argues that, if it has an obligation to pay damages under the terms of the easement, that obligation arises "when and if such damage occurs" and, thus, the Smocks' cause of action accrued at the time the damage occurred and was ascertainable, rather than when the Smocks' demand was rejected.
Generally, in Missouri, a cause of action accrues and the statute of limitations begins to run when damage is sustained and ascertainable and when the right to sue thereon arises. Northern Farms, Inc. v. Jenkins ,
Because the easement has no language that requires a demand by the Smocks and a rejection by Cooperative before payment is due, the question is whether such a requirement can be read into the easement as a precondition on the Smocks' right to sue. In support of reading into the easement such a precondition to suit, the Smocks rely primarily on Spalding v. Stewart Title Guaranty Company ,
*227The policy covered loss or damage sustained by reason of a defect in the title and delineated several different ways that the insurer could address a claim; the insurer elected to pay the difference between the value of the property as insured and the value of the property subject to the defect, as determined by an appraisal ($10,000).
Relying on the fact that the claim was one for indemnification by an insurer, the Spalding court held that the 2007 date applied for purposes of the statute of limitations even though the insured learned of the possible title defect in 2006.
Spalding is not a rejection of the general standard for determining when a contractual claim accrues; instead, the Spalding court simply applied that standard to the contract at issue. We decline to extend its holding to the facts of the present case for several reasons. First, Spalding involved the obligation to indemnify under a title insurance policy. The Spalding court rejected the insurer's claim that "the mere existence of a possible title defect" triggered accrual "in light of the terms of th[e] title insurance policy and the particular facts of th[e] case."
The Spalding holding makes sense, as insurance policies generally require an insured to make a claim with the insurer in order to trigger the insurer's obligations. In contrast, assuming the Smocks have a contract claim-a finding we do not make-their claim accrued when the damage occurred and was ascertainable, rather than when payment was denied. Cooperative agreed to pay "when and if such damage occurred," and thus the Smocks' claim accrued when they discovered the damage *228in 2005 because that is when they "could first [have] maintain[ed] the action successfully." Modern Tractor ,
In addition, unlike the insured in Spalding , who acted promptly upon learning of the potential title defect, the Smocks waited nine years after they discovered the damage in 2005 to contact Cooperative in 2014 and demand payment. To interpret accrual as the Smocks suggest would allow them to postpone accrual of their contract claim indefinitely by delaying their demand for payment. That would undermine the purpose of statutes of limitations, which is to require claimants "to seasonably file and to vigilantly prosecute ... claims for relief" while evidence and witnesses remain available. Dorris v. State ,
Point IV is denied.
Conclusion
The motion court properly determined that all causes of action asserted in the Second Amended Petition are barred by the applicable statutes of limitations. Accordingly, we affirm the motion court's grant of summary judgment on all counts.
Victor C. Howard, Judge, and George E. Wolf, Special Judge, concur.
On appeal from summary judgment, we review the record in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp. ,
Title to the Smock farm is currently held by William and Jeanette's son, Robert, through the Robert C. Smock Revocable Living Trust; Robert's son, Travis, and his wife, through T & K Smock, LLC; and Joshua and his wife, Jessie. For ease of reference, we refer to the individual appellants by their first names, but in doing so, we mean no disrespect.
All provisions of the easement agreement run with the land and are binding on the parties, their heirs, and successors; Robert, Travis, and Joshua are heirs and successors of William and Jeanette.
In response to Cooperative's statement of uncontroverted facts, the Smocks asserted an additional material fact that "[t]he damage started in 2005," citing their own deposition testimony in support.
All evidence in the record indicates that the Smocks were aware of the erosion by the spring of 2005; there is no evidence in the record that the Smocks first learned of the damage at a later date. Thus, there is no genuine dispute as to when the Smocks became aware of the damage.
The Smocks' initial Petition is not part of the legal file in this case.
All statutory references are to the Revised Statutes of Missouri (2017), unless otherwise noted.
The Smocks sought leave to file a Second Amended Petition to add an injunctive relief count. The court granted the Smocks' motion, but did not require Cooperative to amend its summary judgment motion, which was originally directed to the Smocks' First Amended Petition, because the court determined that the claims in the Second Amended Petition were essentially identical to those in the First Amended Petition. Accordingly, the court considered the summary judgment motion to be directed to the Second Amended Petition.
"Even though not raised by the parties, an appellate court is obliged to notice, sua sponte, matters preventing it from obtaining jurisdiction." Boatright v. Boatright ,
All rule references are to the Missouri Supreme Court Rules (2017), unless otherwise noted.
Count III of the Second Amended Petition purports to state a claim for violation of § 537.340, and Count IV purports to state a claim for inverse condemnation. None of the four points relied on challenges the motion court's award of summary judgment on these claims. An issue not presented in a point relied on is not preserved for review. Lusher v. Gerald Harris Constr., Inc. ,
In his deposition, Robert testified that his parents, William and Jeanette, still owned the Smock farm in 2005. The Smocks have not offered evidence as to when they acquired the property, nor do they claim that, because they did not yet own the property in 2005, accrual of the limitations periods on their claims was thereby delayed. Therefore, we do not consider that issue on appeal.
See also Modern Tractor & Supply Co. v. Leo Journagan Constr. Co., Inc. ,
The Smocks misinterpret Cooperative's argument. According to the Smocks, Cooperative argues that, because the easement agreement gave Cooperative the right to remove trees and brush within the easement boundaries, any damage resulting therefrom is within the scope of the easement agreement. But, Cooperative does not argue that the damage is within the scope of the easement. Instead, Cooperative argues that any claims must be pursued within the applicable limitations period.
The Smocks do not cite any authority for their proposition that "a continuing trespass occurs when the holder of an easement exceeds the scope of the easement they are granted." Appellants' Brief, p. 23.
Cooperative bargained for and received the unconditional right to remove all trees and brush within the 150-foot-wide easement. Contrary to the Smocks' interpretation, the provision in the easement agreement requiring Cooperative to first opine that trees pose a danger to the operation or maintenance of the power line before removing them applies to trees only outside of the easement.
Cooperative also argues that, because there is no competent evidence in the record that the erosion can be repaired and prevented, the Smocks failed to establish the "capable of being terminated" component of a continuing trespass. Because we find no continuing wrong, we need not address the "capable of being terminated" component of the continuing-wrong exception.
Despite referencing their negligence claim in their second point relied on, the error alleged in the Smocks' second point pertains to their temporary nuisance claim only. An issue not presented in a point relied on is not preserved for review. Lusher ,
An action for a temporary, abatable nuisance is governed by a ten-year statute of limitations. § 516.010; see Campbell v. Anderson ,
The Smocks assert, without citation to legal authority, that Cooperative failed to attack the sufficiency of their temporary nuisance claims and that, therefore, "the continuing[-]wrong exception automatically applies." Appellants' Brief, p. 30. This assertion misses the point of Cooperative's summary judgment motion, which is based on expiration of the applicable statutes of limitations. In support of its motion for summary judgment, Cooperative presented uncontroverted facts regarding the terms of the easement, the removal of trees and brush, and the timing and nature of the erosion on the Smocks' property. In other words, all facts necessary to address the Smocks' claim of a temporary nuisance were presented. In addition, Cooperative made its legal arguments challenging the Smocks' temporary nuisance claim in its legal suggestions in support of its motion for summary judgment.
As noted above, the statutes of limitations for trespass and temporary nuisance are five and ten years, respectively. §§ 516.120(3) and 516.010. The limitations period for negligence is five years. § 516.120(4).
The Smocks cite two additional cases in support of their claim that an easement holder's failure to repair or maintain its easement is a continuing wrong, but those cases are distinguishable and, as a result, do not support the Smocks' position. Lake St. Louis Community Association v. Oak Bluff Preserve ,
In relevant part, § 516.110(1) provides, "[a]n action upon any writing ... for the payment of money" must be brought within ten years.
In pertinent part, § 516.120 states, "[a]ll actions upon contracts ... except those mentioned in section 516.110, ..." must be brought within five years.
The parties also dispute the scope of Cooperative's contractual obligation to pay additional sums, but because the only issue before us is the affirmative defense of statute of limitations, we do not address the parties' respective arguments about Cooperative's payment obligation.
Alternatively, the Smocks argue that the continuing-wrong exception applies to their contract claim. While that exception can apply to a contract claim, Davis v. Laclede Gas Co. ,