Smock v. Associated Elec. Coop., Inc.

• Decision Date: 13 November 2018
• Docket Number: WD 81326
• Parties: Robert C. SMOCK, as Trustee of the Robert C. Smock Revocable Living Trust Dated March 19, 1996, T & K Smock, LLC, Joshua Smock and Jessie Smock, Appellants, v. ASSOCIATED ELECTRIC COOPERATIVE, INC., Respondent.
• Court: Missouri Court of Appeals

567 S.W.3d 211

Robert C. SMOCK, as Trustee of the Robert C. Smock Revocable Living Trust Dated March 19, 1996, T & K Smock, LLC, Joshua Smock and Jessie Smock, Appellants,

v.ASSOCIATED ELECTRIC COOPERATIVE, INC., Respondent.

WD 81326

Missouri Court of Appeals, Western District.

OPINION FILED: November 13, 2018

MODIFIED December 18, 2018

Motion for Rehearing and/or Transfer to Supreme Court Denied December 18, 2018

Application for Transfer Denied March 5, 2019

Benjamin S. Creedy, St. Joseph, MO, Attorney for Appellants.

Christiaan D. Horton and John E. Price, Springfield, MO, Attorneys for Respondent.

Before Division Four: Karen King Mitchell, Chief Judge, Victor C. Howard, Judge, and George E. Wolf, Special Judge

Karen King Mitchell, Chief Judge

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 and, 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.

Background¹

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.² Under the easement agreement, William and Jeanette, as Grantors, granted Cooperative

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.)³

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 Smocks' 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 2005.⁴ Travis believed that the livestock fence had been moved back from the river even before 2005.⁵ Robert had to replace the fence three times, moving the fence line back roughly twenty feet each time. Eventually, the Smocks decided to exit the livestock business; in 2015, they began planting crops in this portion of their farm, including within the easement boundaries along the Nodaway River.

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, 2015,⁶ and later filed a First Amended Petition that included four counts: (1) breach of contract, (2) negligence, (3) trespass and violation of § 537.340,⁷ and (4) temporary nuisance and inverse condemnation. Cooperative moved for summary judgment on all claims.⁸ The court heard arguments on Cooperative’s motion and, on December 12, 2017, issued an "Order Granting Summary Judgment" on all counts.⁹ This appeal follows.

Standard 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. , 277 S.W.3d 659, 664 (Mo. banc 2009) (citing ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp. , 854 S.W.2d 371, 376 (Mo. banc 1993) ). Under the de novo standard of review, appellate courts use the same decision criteria as the lower courts. Id. Thus, we will affirm summary judgment if there is no genuine dispute as to any material fact and the moving parties are entitled to judgment as a matter of law. Rule 74.04(c)(6);¹⁰ ITT Commercial Fin. Corp. , 854 S.W.2d at 376. For defendants seeking summary judgment on a properly pleaded affirmative defense, the facts required to support the defense must not be genuinely disputed. Id. at 381. "The statute of limitations is an affirmative defense, and respondents who move for summary judgment on that basis bear the burden of showing that it bars plaintiff’s claims." Powel v. Chaminade Coll. Preparatory, Inc. , 197 S.W.3d 576, 580 (Mo. banc 2006) (internal citation omitted).

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.¹¹

Because 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. , 129 S.W.3d 25, 29 (Mo. App. W.D. 2004) (quoting Davis v. Laclede Gas Co. , 603 S.W.2d 554, 555 (Mo. banc 1980) ); see also § 516.100 ("Civil actions ... can only be commenced within the periods prescribed in the following sections, after the causes of action shall have accrued...."). "A cause of action initially accrues, under § 516.100, when a party could first maintain the action successfully." Modern Tractor & Supply Co. v. Leo Journagan Constr. Co., Inc. , 863 S.W.2d 949, 952 (Mo. App. S.D. 1993).

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 , 129 S.W.3d at 29. "Accrual requires only that some damage be sustained and be capable of being ascertained. That further damage may occur does not matter." Id. (internal citation omitted). In other words, "a cause of action accrues when a plaintiff has some notice or...