## Facts

- DeSoto Fuels, Inc. (DeSoto) operated an Amoco gas station near property owned by Claude and Mary Jeanne Cook (the Cooks).
- The station had underground storage tanks containing gasoline, and a leak allegedly developed in one or more tanks.
- The Cooks’ property had two wells: one served their residence and the other served a rental residence.
- In or around 1993, a tenant and Claude Cook noticed a strong gasoline odor in the well water; the tenant also observed a “rainbow sheen.”
- The Missouri Department of Natural Resources (DNR) tested the well water in 1993 and detected contaminants; testing continued in 1994 and continued to indicate pollution.
- In 1994, the Cooks drilled a new well as a precaution, but it became contaminated within about a month; the Cooks then connected their residence to the city water supply.
- A DNR preliminary report dated March 25, 1994 stated that water from both wells contained gasoline constituents, identified four nearby gas station sites (including DeSoto’s) as possible sources, and stated that additional work was needed to determine the source.
- A DNR final report dated March 8, 1996 again described the contamination and identified the same four potentially responsible parties.
- In 1997, after DNR installed monitoring wells, DNR issued an addendum (September 1997) identifying DeSoto’s former station as the sole source of the contamination.
- The record did not show when the Cooks received or had actual notice of the DNR reports.
- In 2000, the Cooks attempted to sell the property, but the sale failed after the prospective buyer found unacceptable levels of groundwater contamination.
- The Cooks retained counsel and, on March 30, 2001, sued DeSoto (and others) for trespass and nuisance based on chemical contamination.
- The trial court granted summary judgment for DeSoto on statute-of-limitations grounds, applying a five-year limitations period to trespass and permanent nuisance claims.
- The Cooks appealed.

## Issues

1. Did the undisputed facts show, as a matter of law, that the Cooks’ damages were “capable of ascertainment” more than five years before March 30, 2001, so that their trespass and nuisance claims were time-barred?
2. Given the DNR’s identification of multiple possible sources and an unclear record about when the Cooks learned of agency findings, was summary judgment proper on DeSoto’s statute-of-limitations defense?

## Decision

- The Missouri Court of Appeals reversed the summary judgment and remanded.
- The court accepted that the five-year statute of limitations applied, but held the record did not conclusively establish that the Cooks’ damages were capable of ascertainment more than five years before suit.
- Because the evidence did not resolve when the Cooks could reasonably identify DeSoto as the source of the contamination (and when they had notice of information bearing on that question), a genuine dispute of material fact remained and summary judgment was improper.

## Legal Principles

- Trespass and nuisance claims of this type are governed by Missouri’s five-year limitations period in Mo. Rev. Stat. § 516.120.
- Under Mo. Rev. Stat. § 516.100, a claim accrues when the damage is sustained and is “capable of ascertainment.”
- “Capable of ascertainment” concerns when a reasonable person would be on notice of the fact of damage (not the final amount), and the accrual date often depends on the circumstances.
- When multiple potential sources exist and available information does not identify the responsible party, the time when damages become capable of ascertainment may present a fact question not suitable for summary judgment.
- Summary judgment is appropriate only when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law; the record is viewed in the light most favorable to the nonmovant.

## Conclusion

The court reversed the trial court’s limitations-based summary judgment because, although a five-year period applied, the record did not establish a single, undisputed accrual date: early evidence showed contamination but did not definitively link it to DeSoto, later agency work identified DeSoto as the sole source, and the record did not show when the Cooks received those findings—leaving a material fact dispute over when their damages were capable of ascertainment.


Cook v. DeSoto Fuels, Inc., 169 S.W.3d 94 (2005)