Modern Tractor and Supply Co. v. Leo Journagan Const. Co., Inc., 18469

• Decision Date: 03 November 1993
• Docket Number: No. 18469,18469
• Citation: 863 S.W.2d 949
• Parties: MODERN TRACTOR and SUPPLY COMPANY, Plaintiff-Appellant, v. LEO JOURNAGAN CONSTRUCTION COMPANY, INC., Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 949

863 S.W.2d 949

MODERN TRACTOR and SUPPLY COMPANY, Plaintiff-Appellant, v. LEO JOURNAGAN CONSTRUCTION COMPANY, INC., Defendant-Respondent.

No. 18469.

Missouri Court of Appeals,

Southern District,

Division Two.

Nov. 3, 1993.

Michael K. Cully, Greggory D. Groves, Lowther, Johnson, Joyner, Lowther, Cully & Housley, Springfield, for plaintiff-appellant.

Thomas W. Millington, Schroff, Glass & Newberry, P.C., Springfield, for defendant-respondent.

FLANIGAN, Presiding Judge.

On November 29, 1989, plaintiff filed this action against defendant, seeking actual and punitive damages based on an alleged trespass committed by defendant in 1983 on land in Springfield then owned by plaintiff's predecessor in title. Defendant filed a motion for summary judgment, based on § 516.120(3), ¹ the five-year statute of limitation pertaining to an action for trespass on real estate. An additional ground in the motion was that plaintiff lacked standing to sue because plaintiff did not acquire title to the land until 1984. The trial court sustained the motion. Plaintiff appeals.

Plaintiff contends that the trial court erred in sustaining defendant's motion for summary judgment because:

1. Plaintiff's cause of action for trespass was not barred by the statute, in that (a) the trespass was of a continuing nature, and plaintiff had a separate cause of action for each day the trespass continued, or (b) the damages were not capable of ascertainment until March 1989, when scientific tests were performed, and the statute did not commence to run until March 1989, and

2. Plaintiff had standing to sue because: (a) the trespass was of a continuing nature and created separate causes of action after plaintiff purchased the land, or (b) the effect of the trespass did not manifest itself until scientific tests were performed in March 1989, at which time plaintiff was the owner.

In ITT Commercial Finance v. Mid-Am. Marine, 854 S.W.2d 371 (Mo. banc 1993), the court said, at 376:

When considering appeals from summary judgments, the Court will review the record in the light most favorable to the party against whom judgment was entered. Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion. We accord the non-movant the benefit of all reasonable inferences from the record.

Our review is essentially de novo. The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially. The propriety of summary judgment is purely an issue of law. As the trial court's judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court's order granting summary judgment. (Authorities omitted.)

At the trial court, prior to the filing of defendant's motion for summary judgment, the parties stipulated to the following facts:

Defendant, from August 1983 to approximately September 1983, caused a certain amount of gumbo fill dirt to be placed upon the land then owned by plaintiff's predecessor in title. The gumbo fill dirt was contoured and spread across the land and has continuously remained there. Defendant has had no contact with the land since September 1983. Plaintiff purchased the land on April 26, 1984. In March 1989, after scientific tests had been performed, plaintiff discovered that the gumbo fill dirt was located on the land. This action "for trespass attributable to the dumping of fill dirt" was filed by plaintiff on November 29, 1989. The "fill material" could have been seen in 1983 "[if] someone walked over that portion of [the land] where the gumbo fill dirt was placed." The fill material could not be seen from Battlefield Road as it existed in 1983. The portion of the land where the fill material was placed was covered by vegetation "within six months of Plaintiff's (sic) placement of the gumbo fill dirt." ²

Defendant's motion for summary judgment incorporated the stipulation of facts and pleaded that the action was barred by § 516.120(3). The motion also pleaded that plaintiff did not become the owner of the land "until seven months after the acts allegedly constituting the trespass had occurred" and thus plaintiff "does not have legal standing to pursue the claim for trespass."

In response to the motion, plaintiff filed the affidavits of the following three witnesses:

Fred E. Palmerton: I am a licensed engineer specializing in soil testing to determine the suitability of soil for construction purposes, including roads, utilities, buildings, and parking lots. Commencing March 3, 1989, and ending on July 8, 1989, I performed tests of the soil located on plaintiff's land. My testing revealed that "gray to black silty soil, commonly referred to as gumbo" was located on the property in the area shown on the attached plat. ³ The area is approximately 1,580 feet north of Battlefield Road. Plaintiff retained me to determine the suitability of the soil for development purposes. Gumbo fill dirt is of an inferior quality and is not desirable for fill material in that it increases construction costs over and above that which is experienced with ordinary soil or clay because of the difficulty in compaction, the presence of organics, and susceptibility to changes in moisture content. In order to plan adequately for the construction of roads, utilities, buildings, and parking lots, it is necessary to determine the degree of compaction "of soil and/or other fill materials" on plaintiff's land. The degree of compaction can be determined only through the use of physical tests performed by experienced soil engineers or technicians.

Robert B. Murray, Jr.: I am a licensed real estate broker. The existence of gumbo fill material, as opposed to normal fill dirt or clay, reduces the fair market value of the land. I am familiar with plaintiff's land and I have been advised of the existence and location of the gumbo fill dirt. If ordinary soil or clay had been used as fill material, rather than the gumbo fill dirt, the fair market value of the land would have been increased as a result of the fill dirt being placed thereon. Use of the gumbo fill dirt material instead of ordinary soil or clay has reduced the fair market value of plaintiff's land.

Lester B. Cox: I am vice president of plaintiff and I am also vice president of the corporation which was plaintiff's predecessor in title. Plaintiff does not now have, nor has it ever had, any officer, director, or employee who was knowledgeable about the suitability of dirt or other fill materials for the construction of buildings, utilities, parking lots, and roads, nor did plaintiff's predecessor in title have any such officer, director, or employee. Plaintiff did not acquire knowledge of the placing of the gumbo fill dirt on the land until after March 1989, and the same is true of plaintiff's predecessor in title. In 1983, the only road adjacent to the land was Battlefield Road, which was then a two-lane blacktop road running along the southern boundary of the land.

For the reasons which follow, this court holds that plaintiff's cause of action for trespass was barred by § 516.120(3), the five-year statute of limitation pertaining to actions for trespass on real estate. It is unnecessary to consider whether plaintiff had standing to sue, because the action is barred even if plaintiff had such standing.

Plaintiff makes the following contentions: The limitation question is determined by the type of trespass which has been committed; the instant trespass is a continuing trespass, and plaintiff is entitled to recover for a period of time not to exceed the statutory period immediately preceding the institution of the action, that is, for the five years immediately preceding November 29, 1989; each day that the trespass continues starts a separate cause of action and the date of ascertainment of damages is irrelevant; even if the trespass is not a continuous trespass, the date that the damages were capable of ascertainment becomes critical; plaintiff was not aware it had sustained an injury until it had the fill dirt tested by Fred Palmerton; neither plaintiff nor its predecessor in title had any knowledge of the suitability of the dirt for construction purposes until March 1989, when Palmerton performed his tests; the damages were not capable of ascertainment and did not manifest themselves until March 1989, when the tests were performed; the statute of limitation did not begin to run until March 1989, and the action was timely filed.

In Davis v. Laclede Gas Co., 603 S.W.2d 554 (Mo. banc 1980), the court dealt with § 516.100, which reads:

Civil actions, other than those for the recovery of real property, can only be commenced within the periods prescribed in the following sections, after the causes of action shall have accrued; provided, that for the purposes of sections 516.100 to 516.370, the 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, and, if more than one item of damage, then the last item, so that all resulting damage may be recovered, and full and complete relief obtained. (Emphasis added.)

In Davis, the petition alleged that on November 18, 1965, defendant gas company installed a vent pipe which ran from the gas meter inside plaintiff's cleaning and pressing plant to the exterior of the plant. The vent pipe interfered with the supply of gas and caused plaintiff's presses to be inoperable. Plaintiff had to take his pressing to be done elsewhere and lost profits from the time of the installation until July 13, 1970, when defendant moved the meter to the exterior of the plant. Plaintiff filed suit on January 17, 1973. The trial court held that the...