City of Carthage v. Union Pac. R.R. Co.

• Decision Date: 01 March 2023
• Docket Number: 22-2238
• Parties: City of Carthage, Missouri Plaintiff-Appellant v. Union Pacific Railroad Co. Defendant-Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

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City of Carthage, Missouri Plaintiff-Appellant
v.
Union Pacific Railroad Co. Defendant-Appellee

No. 22-2238

United States Court of Appeals, Eighth Circuit

March 1, 2023

Submitted: January 10, 2023

Appeal from United States District Court for the Western District of Missouri - Joplin

Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges.

BENTON, CIRCUIT JUDGE

The City of Carthage sued Union Pacific Railroad Co. for breach of contract, claiming UP failed to maintain several bridges. On summary judgment, the district court^[1] ruled that the City's breach-of-contract claim was barred by the five-year

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statute of limitations, § 516.120(1), RSMo 2016. The City appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

In the late 1800s, the City of Carthage, by seven ordinances, granted Missouri Pacific Railway Company ("MPRC") the right to "construct and keep in repair" several bridges and crossings. The ordinances required MPRC to, in the words of one ordinance, "keep all such crossings and approaches in good condition for the safe and convenient passage of animals, teams and persons." In 1990, UP acquired MPRC. By the early 2000s, some of the bridges had deteriorated and become unsafe for use. In 2002, the Missouri Department of Transportation informed the City that the bridges needed to be repaired. In 2011, the City and UP met to discuss repairing the bridges. UP did not make any repairs. On February 15, 2013, the City wrote UP demanding repair of the bridges as required by the ordinances. More than five years later, on January 2, 2019, the City sued UP seeking specific performance and a declaratory judgment that it must make the repairs.

Both parties moved for summary judgment. The district court granted UP's motion, ruling that the City's breach-of-contract claim was barred by the five-year statute of limitations and that the continuing wrong rule did not preserve the claim. The City appeals.

This court reviews de novo the grant of summary judgment and the district court's conclusions of law. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc); Selective Ins. Co. South Carolina v. Sela, 11 F.4th 844, 851 (8th Cir. 2021). Summary judgment is proper if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). On summary judgment, this court views all evidence and reasonable inferences most favorably to the non-moving party. Meier v. St. Louis, 934 F.3d 824, 827 (8th Cir. 2019).

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II.

"Missouri has two statutes of limitations relating generally to contract actions: sections 516.110(1) and 516.120(1), RSMo." Hughes Dev. Co. v. Omega Realty Co., 951 S.W.2d 615, 616 (Mo. banc 1997). By section 516.120(1): "All actions upon contracts, obligations or liabilities, express or implied, except those mentioned in section 516.110" must be brought within five years. § 516.120(1), RSMo 2016. "Section 516.110(1) is an exception to the general five-year limitations period established by 516.120(1)." Rolwing v. Nestle Holdings, Inc., 437 S.W.3d 180, 182 (Mo. banc 2014). Section 516.110(1) requires "an action upon any writing . . . for the payment of money or property" must be brought within 10 years. § 516.110(1), RSMo 2016.

The ten-year statute applies only if the "plaintiff seeks a judgment from the defendant for payment of money the defendant agreed to pay in a written contract." Hughes Dev. Co., 951 S.W.2d at 617. See Community Title Co. v. Stewart Title Guar. Co., 977 S.W.2d 501, 502 (Mo. banc 1998) (applying ten-year statute of limitations when "the promise to pay a specified amount of money is in the contract, and the suit seeks to enforce this promise of the contract."); Rolwing, 437 S.W.3d at 183 (holding the ten-year statute of limitations does not apply because the contract lacked a promise to make a payment). The promise to pay must "arise from the writing's explicit language; extrinsic evidence cannot supply the promise." DiGregorio Food Prod., Inc. v. Racanelli, 609 S.W.3d 478, 481 (Mo. banc 2020). The promise to pay must be explicit and unconditional. J &M Sec., LLC v. Aziz, 626 S.W.3d 863, 867 (Mo. App. 2021).

The City argues that the ten-year statute of limitations applies here because its claim seeks an equitable remedy. The City cites a Missouri appellate court decision applying the ten-year statute of limitations to a partner's equitable claims against the partnership. See Armistead v. A.L.W. Grp., 60 S.W.3d 25, 27 (Mo. App. 2001). To the contrary, this court declined to apply the ten-year statute of limitations to an equitable claim for specific performance.

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Lackawanna Chapter of Ry. & Locomotive Hist. Soc'y, Inc. v. St. Louis Cnty., 606 F.3d 886, 890 (8th Cir. 2010) (applying Missouri law). See generally Mader v. United States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc) ("It is a cardinal rule in our circuit that one panel is bound by the decision of a prior panel."). This court relied on the fact that there was not an "express written obligation providing] for the payment of money or the delivery of property . . . ." Lackawanna, 606 F.3d at 890, citing Lato v. Concord Homes, Inc., 659 S.W.2d 593, 594 (Mo. App. 1983). The determinative factor for applying the ten-year statute is whether the written obligation is for the payment of money (or delivery of property).

The ordinances here required MPRC to "construct, maintain and keep in repair, suitable, safe and convenient crossings . . . ." The ordinances do not have a written promise for the payment of money. The ten-year statute of limitations does not apply. The five-year statute of limitations, for contracts generally, governs the City's claim.

III.

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The statute of limitations begins to run once the cause of action accrues. See Jepson v. Stubbs, 555 S.W.2d 307, 311 (Mo. banc 1977). "[T]he cause of action shall not be deemed to accrue 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, RSMo 2016. "Capable of ascertainment" "refers to the fact of damage, rather than to the exact amount of damage." Business Men's Assurance Co. of Am. v. Graham, 984 S.W.2d 501, 507 (Mo. banc 1999). See Dixon v. Shafton, 649 S.W.2d 435, 438 (Mo. banc 1983) (claim accrues in a malpractice action when a plaintiff learns of the attorney's mistake, even though the extent of damage is unknown). Damage is "capable of ascertainment" when the "evidence [is] such to place a reasonably prudent person on notice of a potentially actionable injury." Business Men's Assurance Co. of Am., 984 S.W.2d at 507.

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See Sheehan v. Sheehan, 901 S.W.2d 57, 58-59 (Mo. banc 1995), quoting Chemical Workers Basic Union, Local No. 1744 v. Arnold Savings Bank, 411 S.W.2d 159, 164 (Mo. banc 1966) ("Damage is ascertainable when the fact of damage 'can be discovered or made known,' not when a plaintiff actually discovers injury or wrongful conduct."). "The capable of ascertainment standard is an objective one; therefore, when relevant facts are uncontested, the statute of limitations issue can be decided by the court as a matter of law." State ex rel. Marianist Province of U.S. v. Ross, 258 S.W.3d 809, 811 (Mo. banc 2008).

The City's claim accrued in February 2013, at the latest. On February 15, 2013, the City wrote UP demanding repair of the bridges-establishing that the City was on notice of a potentially actionable injury. The City waited until 2019-over five years later-to sue UP. The City's claim is...