Cook v. Desoto Fuels, Inc., No. ED 84514.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtGlenn A. Norton
Citation169 S.W.3d 94
Docket NumberNo. ED 84514.
Decision Date02 August 2005
PartiesMary Jeanne COOK, Mary Jeanne Cook as Trustee of the Mary Jeanne Cook, Inter Vivos Trust Dated February 6, 1986 and Cook Limited Partnership, Appellants, v. DeSOTO FUELS, INC., Respondent.
169 S.W.3d 94
Mary Jeanne COOK, Mary Jeanne Cook as Trustee of the Mary Jeanne Cook, Inter Vivos Trust Dated February 6, 1986 and Cook Limited Partnership, Appellants,
v.
DeSOTO FUELS, INC., Respondent.
No. ED 84514.
Missouri Court of Appeals, Eastern District, Division Three.
August 2, 2005.

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Kurt D. Breeze, Festus, MO, for respondent.

Morry S. Cole, St. Louis, MO, for appellant.

OPINION

GLENN A. NORTON, Judge.


Property owners sued DeSoto Fuels, Inc., alleging that gasoline leaking from tanks at DeSoto's gas station had contaminated their land and groundwater. The trial court granted summary judgment in favor of DeSoto based on the statute of limitations, and the property owners appeal. We reverse and remand.

I. BACKGROUND

DeSoto owned and operated an Amoco gas station located near property owned by Claude and Mary Jeanne Cook. At some point, a leak allegedly developed in at least one of the three underground storage tanks ("USTs") that supplied the station

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with gasoline, resulting in the contamination of the Cooks' property.

The Cooks had two wells on their property. One well provided water for the Cooks' own residence and the other supplied water to a residence that the Cooks rented out to tenants. One of the Cooks' tenants noticed a strong odor of gasoline and a rainbow sheen in the water and reported this to the Missouri Department of Natural Resources. In July of 1993, the Department tested the well supplying the rental property for contamination. At some point during that year, Claude Cook also noticed that the water had an odor and he became aware that the Department's tests showed the presence of contaminants.

The Department tested the water in both of the wells in December of 1993. The Department's Preliminary Report, issued on March 25, 1994, indicated that the water from both of the Cooks' wells was contaminated with constituents of gasoline. The report identified four nearby gas station sites, including DeSoto's gas station, as possible sources of the pollution. The Department concluded that additional work was needed to determine which of those four sites was the source of the contamination. Also in March of 1994, the Cooks drilled a new well on the property "as a precaution." This new well became contaminated within a month, so the Cooks had their residence connected to the city water supply.

On March 8, 1996, the Department issued its Final Report. It described the existence of contamination and again identified the same four potentially responsible parties, including DeSoto, which by then had ceased operating its gas station. The following year, the Department installed two groundwater monitoring wells in an effort to identify the cause and source of the contamination. In September of 1997, the Department issued an addendum to its Final Report, this time identifying DeSoto's former Amoco station as the sole source of the contamination.

The record does not reveal when the Cooks had actual notice of any of the Department's reports. But in August of 2000, the Cooks entered into a contract to sell their property, and the prospective buyer's investigation revealed an unacceptable level of contamination. After the contract was cancelled, the Cooks hired counsel, who discovered and reviewed the Department's files.

The Cooks1 filed their petition against DeSoto and two other defendants on March 30, 2001, claiming negligence, trespass and private nuisance.2 The Cooks alleged that the defendants "failed to undertake adequate measures to prevent or to detect the releases" that caused the contamination of the Cooks' property and that the defendants knew or should have known about the releases. The Cooks further alleged that they did not know about the extent of the damage to their property until they attempted to sell it in 2000. The Cooks claimed that the defendants' conduct resulted in the continuing entry, trespass, or intrusion onto their property and that the defendants continued to unreasonably

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interfere with the Cooks' use and enjoyment of their property by releasing chemicals onto their property.

Amoco, one of the original defendants, moved for summary judgment based on the statute of limitations. DeSoto filed a separate motion, stating that it "affirmatively adopts as its own and joins in" Amoco's motion for summary judgment. While Amoco's motion was pending and before it was noticed for hearing, Amoco was dismissed from the lawsuit and withdrew its motion for summary judgment. Subsequently, DeSoto withdrew its motion for summary judgment, but later filed another motion seeking to "readopt and reassert" Amoco's motion for summary judgment as DeSoto's own, including the arguments and assertions in Amoco's supporting memorandum and exhibits. The Cooks filed a motion to strike DeSoto's motion based on a failure to comply with Rule 74.04, which the trial court denied. The court granted summary judgment in favor of DeSoto based on the five-year statute of limitations in section 516.120 RSMo 2000.3 The Cooks appeal.

II. DISCUSSION

Whether summary judgment is appropriate is a question of law, and therefore our review is de novo. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The criteria for testing the propriety of summary judgment on appeal are the same as those employed by the trial court. Id. We must determine whether DeSoto, as the party seeking summary judgment, has established an undisputed right to judgment as a matter of law. See id. at 380. "Insofar as the movant's right to judgment as a matter of law depends upon the presence or absence of certain facts, the movant must also establish . . . that there is no genuine dispute about those material facts." Id. We review the record in a light most favorable to the party against whom judgment was entered, here the Cooks. See id. at 376. Nevertheless, the facts set forth in support of DeSoto's motion for summary judgment are taken as true unless contradicted by the Cooks' response. See id.

DeSoto, as a defending party, may establish a right to judgment as a matter of law by showing that there is no genuine dispute about each of the facts necessary to support a properly-pled affirmative defense. See id. at 381. If DeSoto made this prima facie showing under Rule 74.04(c), then the Cooks bore the burden of responding with specific facts showing the existence of a genuine issue for trial. See id.

A. Adoption of Another Party's Motion for Summary Judgment

The Cooks argue that DeSoto's motion for summary judgment was procedurally deficient in that it did not follow the requirements of Rule 74.04 and contend that the court should not be expected to "sift through" the abandoned motion of a dismissed defendant to determine which facts support DeSoto's motion.

The Cooks do not cite, and we cannot find, any authority that would have precluded DeSoto from adopting Amoco's motion for summary judgment as its own. Nor do the Cooks explain how they suffered any prejudice because of this procedure. As the trial court noted, this practice is not uncommon. See, e.g., Hudson v. Riverport Performance Arts Centre, 37 S.W.3d 261, 263 (Mo.App. E.D.2000) (acknowledging one party's adoption of another party's motion for summary judgment, without addressing the propriety of this

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procedure); Southwest Bank of Polk County v. Hughes, 883 S.W.2d 518, 519 (Mo.App. S.D.1994) (same). Under the circumstances of this case — where the same facts and reasoning applied to Amoco's and DeSoto's arguments and where Amoco's motion complied with Rule 74.04 — the adoption of a former co-defendant's motion for summary judgment was not inappropriate. In fact, permitting DeSoto to adopt Amoco's abandoned motion promoted efficiency and judicial economy without imposing any additional burden on opposing counsel or the Cooks.

Point denied.

B. Statute of Limitations

Whether the statute of limitations bars a lawsuit depends on the nature of the cause of action and when the action accrued. Schwartz v. Mills, 685 S.W.2d 956, 958 (Mo.App. E.D.1985). Here, the parties disagree about both. DeSoto argues that the five-year statute of limitations in section 516.120 governs this action and that the Cooks' alleged damages were capable of ascertainment more than five years before the lawsuit was filed. While the Cooks do not challenge whether that five-year period of limitation applies, they do claim that the record is insufficient to prove that the damage to their property was capable of ascertainment more than five years prior to the filing of their petition. They claim that there was no evidence of when the Department's reports were received by the Cooks or made available to the public and that they filed their petition less than five years after the Department released the document identifying DeSoto as the responsible party. Further, the Cooks argue that their claims are separable as to each accrued injury because the contamination of their property constitutes a continuing trespass or a temporary nuisance.4 DeSoto responds that the facts of this case do not support either a continuing trespass or a temporary nuisance theory because there was only "one leak of gasoline, which has remained in the ground."

We conclude that the Cooks' causes of action initially accrued more than five years before they filed this lawsuit because the damage to their property and its cause were capable of ascertainment more than five years prior to this lawsuit. Nevertheless, DeSoto has not established that the Cooks' claims are totally time-barred because they have asserted claims for a continuing trespass and a temporary nuisance and therefore can recover for those damages that accrued within the statutory period preceding this lawsuit — namely, five years for the...

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20 practice notes
  • Christian v. Atl. Richfield Co., DA 14-0015
    • United States
    • Montana United States State Supreme Court of Montana
    • September 1, 2015
    ...Modern Tractor & Supply Co. v. Leo Journagan Constr. Co., 863 S.W.2d 949, 951 (Mo. Ct. App. 1993) with Cook v. De Soto Fuels, Inc., 169 S.W.3d 94, 105 (Mo. Ct. App....
  • Christian v. Atl. Richfield Co., No. DA 14–0015.
    • United States
    • Montana United States State Supreme Court of Montana
    • September 1, 2015
    ...compare Modern Tractor & Supply Co. v. Leo Journagan Constr. Co., 863 S.W.2d 949, 951 (Mo.Ct.App.1993)with Cook v. De Soto Fuels, Inc., 169 S.W.3d 94, 105...
  • Alston v. Hormel Foods Corp., No. S-05-1488.
    • United States
    • Supreme Court of Nebraska
    • April 20, 2007
    ...omitted) (emphasis supplied). 24. See Russo Farms, supra note 18. 25. See Bostick, supra note 18. 26. See Cook v. DeSoto Fuels, Inc., 169 S.W.3d 94 (Mo.App.2005), citing Laclede Gas Co., supra note 18. 27. Compare, e.g., Ambling Management Co., supra note 17; Biglioli v. Durotest Corp., 44 ......
  • Wilson Rd. Dev. Corp. v. Fronabarger Concreters, Inc., Case No. 1:11–CV–84 (CEJ).
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • September 11, 2013
    ...claim of continuing nuisance, which is governed by a ten-year period of prescription. Mo.Rev.Stat. § 516.120; Cook v. DeSoto Fuels, Inc., 169 S.W.3d 94, 108 (Mo.Ct.App.2005) (“Missouri courts have repeatedly held ... that a ten-year period of limitation applies to temporary nuisances.”). Th......
  • Request a trial to view additional results
20 cases
  • Christian v. Atl. Richfield Co., DA 14-0015
    • United States
    • Montana United States State Supreme Court of Montana
    • September 1, 2015
    ...Modern Tractor & Supply Co. v. Leo Journagan Constr. Co., 863 S.W.2d 949, 951 (Mo. Ct. App. 1993) with Cook v. De Soto Fuels, Inc., 169 S.W.3d 94, 105 (Mo. Ct. App....
  • Christian v. Atl. Richfield Co., No. DA 14–0015.
    • United States
    • Montana United States State Supreme Court of Montana
    • September 1, 2015
    ...compare Modern Tractor & Supply Co. v. Leo Journagan Constr. Co., 863 S.W.2d 949, 951 (Mo.Ct.App.1993)with Cook v. De Soto Fuels, Inc., 169 S.W.3d 94, 105...
  • Alston v. Hormel Foods Corp., No. S-05-1488.
    • United States
    • Supreme Court of Nebraska
    • April 20, 2007
    ...omitted) (emphasis supplied). 24. See Russo Farms, supra note 18. 25. See Bostick, supra note 18. 26. See Cook v. DeSoto Fuels, Inc., 169 S.W.3d 94 (Mo.App.2005), citing Laclede Gas Co., supra note 18. 27. Compare, e.g., Ambling Management Co., supra note 17; Biglioli v. Durotest Corp., 44 ......
  • Wilson Rd. Dev. Corp. v. Fronabarger Concreters, Inc., Case No. 1:11–CV–84 (CEJ).
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • September 11, 2013
    ...claim of continuing nuisance, which is governed by a ten-year period of prescription. Mo.Rev.Stat. § 516.120; Cook v. DeSoto Fuels, Inc., 169 S.W.3d 94, 108 (Mo.Ct.App.2005) (“Missouri courts have repeatedly held ... that a ten-year period of limitation applies to temporary nuisances.”). Th......
  • Request a trial to view additional results

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