Family's negligence claims over erosion dismissed in appeals court due to statue of limitations

By Charmaine Little | Nov 30, 2018

KANSAS CITY — Thanks to statutes of limitations, a company sued for breach of contract and negligence over an easement allegedly causing erosion was granted its motion for summary judgement in the Missouri Court of Appeals in the Western District on Nov. 13.

Chief Judge Karen King Mitchell wrote the opinion while Victor C. Howard and George E. Wolf concurred.

Robert C. Smock, Joshua Smock and Jessie Smock were deemed to have waited too long to sue Associated Electric Cooperative, Inc. over an easement the Smocks say caused erosion on their property.

“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,” the appeals court said, siding with the Circuit Court of Holt County, Missouri.

In 1990, William and Jeanette Smock gave Cooperative a 150-foot-wide electric-transmission-line easement over a part of their Holt County farm, according to the court document. Cooperative’s contractor then had access to the area the easement covered to start the clearing process in 1992.

A part of the easement started to slope and by 2005, the family noticed severe erosion of the slope inside of the easement, the court document says. The erosion was said to have deteriorated in 2012 and by 2014, Robert Smock ordered Cooperative to fix the erosion, but Cooperative refused.

The Smocks sued for breach of contract, negligence, trespass and violation and temporary nuisance and inverse condemnation in September 2015. Cooperative motioned for a summary judgement in the lower court, which was granted. The appeals court affirmed the decision.

The appeals court made it clear the claims for trespass and injunctive relief are time-barred, pointing out that the Smocks didn’t file their first lawsuit for more than 10 years after they came across the substantial damage.

“Thus, on its face, the five-year limitations period expired before this lawsuit commenced,” the appeals court said.

The Smocks argued that they were exempt from the statute of limitations because of the continuing-wrong exception, but the court said the exception did not apply to them since the actual damage stemmed from the removal of trees and brush from the easement in 1991 and 1992, meaning the activity in question stopped in 1992.

The appeals court went on to say that their claims for temporary nuisance and injunctive relief were also time-barred.

Since the Smocks had okayed the removal of trees and bushes in the easement agreement, the complaint about it being a nuisance did not hold up in court.

Additionally, the court determined that Cooperative did not have a common-law responsibility to fix the erosion or even stop any future erosion to be the foundation of the continuing-wrong exception.

The court said that although Cooperative had a common-law responsibility to keep up and fix the easement, that did not apply outside of the border of the easement.

The breach of contract claim was also time barred, as the action that the Smocks said had caused the breach of contract happened prior to the spring of 2005. So even a 10-year statute of limitations had expired before the Smocks filed the lawsuit.

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