Armstrong v. Bromley Quarry & Asphalt, Inc.

• Decision Date: 09 September 2016
• Docket Number: No. 109,864,109,864
• Citation: 378 P.3d 1090
• Court: Kansas Supreme Court
• Parties: Willis L. Armstrong and Stephanie J. Prohaska, Appellants, v. Bromley Quarry & Asphalt, Inc., et al., Appellees.

378 P.3d 1090

Willis L. Armstrong and Stephanie J. Prohaska, Appellants,

v.Bromley Quarry & Asphalt, Inc., et al., Appellees.

No. 109,864

Supreme Court of Kansas.

Opinion filed September 9, 2016

Allen A. Ternent, of Ternent Law Office, of Atchison, argued the cause and was on the brief for appellants.

Patrick R. Miller, of Miller Law LLC, of Overland Park, argued the cause and was on the brief for appellees.

The opinion of the court was delivered by Biles

, J.:

This is a civil trespass and conversion case in which plaintiffs seek monetary damages for the unauthorized subsurface mining of 855,500 tons of limestone. Bromley Quarry & Asphalt, Inc., admits it extracted some rock but disputes the extent of its liability. We must decide: (1) if the statute of limitations began to run because the conversion was reasonably ascertainable by the plaintiffs more than two years prior to the lawsuit's filing; (2) whether the district court properly excluded from evidence certain survey maps argued to be relevant to the damages claim; and (3) whether Bromley Quarry proved it was a good-faith trespasser, allowing it to deduct its operating expenses in calculating the damages award. The lower courts' rulings on these last two questions conflict.

We hold that the lower courts erred by relying on an incomplete summary judgment record to determine when the statute of limitations began running on the plaintiffs' claims. This decision necessarily requires reversing the order restricting the damages computation to a two-year period starting from the lawsuit's filing. And since the statute of limitations period remains in question, the evidentiary ruling regarding the survey maps also needs to be reconsidered on remand with due regard given to the Court of Appeals' analysis as to that ruling.

We affirm the Court of Appeals decision that Bromley Quarry did not prove it was a good-faith trespasser and therefore is liable for $1,733,920 as the enhanced value of the rock it admits taking during the two years immediately preceding the lawsuit. Armstrong v. Bromley Quarry & Asphalt, Inc. , No. 109864, 2015 WL 1310066, at *9 (Kan. App. 2015)

(unpublished opinion). The case is remanded for further proceedings.

Factual and Procedural Background

Bromley Quarry operated an underground limestone mine abutting the plaintiffs' property. The main entrance is on company land. The area in controversy is directly east of Bromley Quarry's property and jointly owned by Willis L. Armstrong and Stephanie J. Prohaska (collectively “Armstrong”). A separate tract owned by the Prohaska family lies directly north of Armstrong's property. During the relevant times, Bromley Quarry actively mined the Prohaska family property under a lease agreement. Bromley Quarry once had a lease for the Armstrong property, but it was terminated in 1996 after disputes arose.

In 1992, Armstrong sued, alleging Bromley Quarry was not paying for all the rock mined. In 1996, while the first suit was pending, Armstrong brought an action against Bromley Quarry again, this time for access to the mine to ascertain whether it was encroaching on the Armstrong property. Access was not granted, but the court ordered Bromley Quarry not to trespass or mine the Armstrong property.

The 1992 lawsuit was dismissed with prejudice by agreement in 1999. The stipulation of dismissal recites that Armstrong “cannot prove that any actual damages were caused to them by [Bromley Quarry], based on the 1992 Survey map.” It further states Bromley Quarry “agrees and affirms that [it] conducted no mining on [Armstrong's] property, since the time of the prior court orders in this matter in 1992 and further affirms that the map made in 1992 accurately represents the condition and status of the mine on [Armstrong's] property.”

Various maps depicting the mine's supposed status over the years figure prominently in this lawsuit. Bromley Quarry had a practice of commissioning surveys detailing its mining activities. Dunn and Stout Surveying created such a map in 1981, which was updated over the years including in 1992. Dunn and Stout's 1992 update is the “1992 Survey map” referenced in the 1999 stipulation.

After 1992, Dunn and Stout no longer performed survey updates, so Bromley Quarry's employees began doing it. From 2000 to 2010, the company filed updated maps with the Kansas Geological Survey and the federal Mine Safety and Health Administration. These maps, last revised in 2009 and 2010, depict the rock now at issue as being in place under Armstrong's property. In other words, the maps prepared by Bromley Quarry showed no mining activity in the area in controversy.

In 2010, Bromley Quarry commissioned an outside firm to create a new map. In approximately March 2011, while their work was still in progress, the surveyors showed Barbara Bromley, Bromley Quarry's sole shareholder, the mine's actual perimeter. She later testified she “knew immediately we were on the Armstrong property” and instructed the mine superintendent to “get off of it immediately and go back north.” But she also concealed the trespass from Armstrong when trying to negotiate a mining lease with Stephanie Prohaska that would have covered the area where the trespass and rock removal had already occurred.

In contrast to Bromley Quarry's 2010 map, the completed 2011 survey shows the limestone area now at issue as mined out, i.e ., the limestone was gone. This area is directly south of the Prohaska family property and borders an underground haul road known as “the Zero Aisle” because it established the boundary line with the Armstrong property. The Zero Aisle was a path used to get equipment to the mine's face. According to a former Bromley Quarry supervisor, the Zero Aisle was clearly marked. This supervisor, who left his employment in January 2009, testified he instructed drivers during training they were not to go south of the Zero Aisle.

But the Zero Aisle was repeatedly relocated as portions of it deteriorated, resulting in further and further encroachment onto the Armstrong property. By late 2009, the Zero Aisle crossed its western border and continued through its middle before turning north. Bromley Quarry stopped all mining around May 2011.

The district court proceedings

On May 20, 2011, Armstrong sued Bromley Quarry claiming trespass and conversion of 855,500 tons of limestone. The lawsuit alleged unauthorized mining occurred from February 1996, when the parties' lease terminated, through March 2011.

In response, Bromley Quarry admitted it had recently gone “off course” in its mining activities, trespassed onto the Armstrong property, and removed 173,392 tons of rock in the preceding two years—the limitations period generally applicable to trespass and conversion claims. See K.S.A. 60–513(a)(1), (2)

. But it denied liability for the remainder, which it referred to as the “disputed rock.” Bromley Quarry claimed it did not know when it took this disputed rock but contended it must have been well past the limitations period.

Following discovery, Bromley Quarry moved for summary judgment on Armstrong's claim relating to the disputed rock. It contended this rock was actually taken before 1992, even though that contradicted its earlier stipulation that the 1992 map accurately depicted unmined solid rock in the controverted area, as well as the maps it had prepared and filed with government agencies. Alternatively, Bromley Quarry argued the rock must have been mined before 1996, when it acquired trucks too tall to access the area from which the disputed rock was taken. Either way, the company summarized, the disputed rock claim was outside the applicable two-year statute of limitations because the fact of injury was reasonably ascertainable or the injury occurred beyond the 10-year statute of repose. See K.S.A. 60–513

.

The district court granted Bromley Quarry's motion. In doing so, it side-stepped deciding when the disputed rock was actually taken. It simply found any mining was reasonably ascertainable more than two years prior to the filing of suit, so the statute of limitations barred all claims accruing before May 20, 2009. The court further held that Armstrong's evidence at trial “shall be limited based upon the applicable statute of limitations and statute of repose.” And from this ruling, the district court decided to exclude from evidence two survey maps Armstrong hoped to use as evidence supporting its damages claim.

Following a bench trial, the district court awarded Armstrong $127,039.60 in damages. This included $10,000 in nominal damages for the haul road's use. The remaining $117,039.60 was for 173,392 tons of limestone that the court found—and Bromley Quarry admits—was converted during the limitations period.

To compute the award for the rock, the district court found the company was a good-faith trespasser. The court said Bromley Quarry did not realize it was mining on the Armstrong property and instead mistakenly or negligently believed the property at issue was on the Prohaska family land, where it was authorized to be. The court limited Armstrong's recovery to a net-profit calculation of $1 per ton, reducing the damages-per-ton by Bromley Quarry's expenses. The court then further decreased the award to account for 10 percent waste in the extraction process and Armstrong's partial ownership interest (75 percent) in the property.

Armstrong appealed, arguing the district court erred by: (1) limiting the claims based on the two-year statute of limitations; (2) excluding the maps from evidence; and (3) ruling Bromley Quarry was a good-faith trespasser. The Court of Appeals affirmed on the first two issues and reversed on the third.

The Court of Appeals proceedings

The panel agreed with the district court that the two-year statute of limitations applied because Bromley Quarry's subsurface trespass and conversion was reasonably ascertainable to Armstrong. See K.S.A. 60–513(b)

; Armstrong , 2015 WL 1310066, at *6. The panel also held the district court...