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Altidor v. Broadfield

Court of Appeals of Missouri, Eastern District, Second Division

May 21, 2019


          Appeal from the Circuit Court of St. Louis County, Hon. Joseph L. Walsh Judge.


         This is an appeal from the entry of summary judgment in favor of the defendants on the plaintiffs' tort claims. We reverse in part and affirm in part.


         Since 1957, a metal fabrication facility has been operated at 9970 Page Avenue ("the Site") in the Elmwood Park neighborhood in St. Louis County. It is undisputed that prior to 1988, toxic chemicals were dumped, spilled, leaked or otherwise released at the Site, which contaminated the soil and groundwater on the Site. Some of these contaminants have migrated off the Site, as shown by what the parties call a "migratory plume" of contaminants in the groundwater. The plume sits at the edge of the Site and partway into the Elmwood Park neighborhood. After 1988, the Site was owned by PerkinElmer Inc. and operated by Missouri Metals LLC. PerkinElmer was made aware of the existing contamination at the Site and it has been engaged in remedial efforts with the Missouri Department of Natural Resources and the Environmental Protection Agency.

         In the summer of 2015, several homeowners[1] in the Elmwood Park neighborhood filed individual petitions seeking damages for diminished property values caused by the migration of toxic chemicals and noise and dust from the Site onto their properties. Plaintiffs sued PerkinElmer, Missouri Metals and Edward Broadfield, as president of Missouri Metals. Plaintiffs claimed that toxic chemicals-specifically, perchloroethylene ("PCE") and trichloroethylene ("TCE") used for degreasing metal components-were spilled at the Site, contaminated the soil and groundwater at the Site and then migrated underground and onto Plaintiffs' properties. They alleged the air inside their homes was also contaminated via vapor intrusion. Plaintiffs also asserted that the Site produced excessive noise and dust that interfered with the enjoyment of their property.

         The petitions asserted counts for premises liability, permanent and temporary nuisance, trespass and negligence against all three Defendants and a negligent supervision count against Broadfield, all relating to the alleged toxic contamination (the "toxic tort claims"). Plaintiffs asserted two distinct theories for holding these Defendants liable for the toxic contamination that ended up on their properties: (1) Defendants spilled contaminants at the Site after 1988, and for pre-1988 spills, Defendants were the corporate successor of the pre-1988 owner and (2) even if Defendants did not spill any contaminants at the Site, they had a duty upon acquiring the Site in 1988 to clean up and prevent the existing contamination from migrating into Plaintiffs' neighborhood, which they failed to do.

         Plaintiffs also asserted a private nuisance count against Missouri Metals relating solely to allegedly unreasonable amounts of noise and non-toxic dust coming from the operations at the Site (the "noise and dust claim"). They claimed that this unreasonable use of the Site by Missouri Metals was interfering with the enjoyment of their property and caused damages.

         The cases were consolidated for discovery. Over the next several years, Defendants filed multiple motions for summary judgment on various grounds with respect to all claims against all Defendants. One of which was filed by all Defendants collectively and was titled "Motion for Summary Judgment on Causation" and was only directed at the toxic tort claims. Therein, Defendants argued their right to judgment on both of the alternate theories of liability: (1) there was no evidence that they caused any spills, all the spills at the Site occurred before 1988, and any spills after 1988 would not yet have reached Plaintiffs' property anyway and (2) there was no legal authority for holding Defendants liable for migration even if they did not cause the original spills and their actions in response to the contamination found on their property was reasonable anyway. This "Motion for Summary Judgment on Causation" was not directed at the noise and dust claim against Missouri Metals. The noise and dust claim was addressed in a separate motion filed by Missouri Metals only, in which Missouri Metals argued (1) Plaintiffs had no evidence that operations at the Site were an unreasonable use of the land and (2) the claim was barred by the statute of limitations.

         The court entered summary judgment in favor of all Defendants on all claims, in other words on all the toxic tort claims and the noise and dust claim. As to the toxic torts claims, it is clear the judgment was based on the grounds set forth in Defendants' collective motion titled "Motion for Summary Judgment on Causation" because the court expressly granted that motion in its judgment. That was the only motion expressly ruled on by the court. [2] Nevertheless by also entering summary judgment on the noise and dust claim, we must presume the court did so on one of the grounds set forth in the only motion for summary judgment directed at that claim-the one filed separately by Missouri Metals. See Phillips v. Drury Southwest, Inc., 524 S.W.3d 228, 230 (Mo. App. E.D. 2017) (holding that where trial court does not specify reasons for summary judgment, we presume it was done on grounds specified in movant's motion.)

         This appeal follows.

         Scope of Appeal

         This case involves multiple claims on multiple theories against multiple defendants who have asserted multiple reasons for summary judgment. Thus, before we can address the merits, we must clarify what is and is not properly before us in this appeal.

         First, Defendants suggest that we should dismiss the entire appeal due to numerous violations of Rule 84.04 in Plaintiffs' brief-primarily related to the lack of proper citations to the record-which they contend substantially impede our review. Plaintiffs counter that we should disregard Defendants' brief because of its numerous misrepresentations of fact in violation of Rule 84.04. The noted deficiencies have neither impeded our review nor the parties' ability to understand and respond to substantive arguments. We decline to dismiss the appeal or disregard the briefs in their entirety, preferring as always to address the merits of the appeal. But, with respect to both parties' factual assertions, where there is either no citation to the record, a citation that does not include a specific page reference or a citation that directs us to a place in the record that does not contain that fact, we will not act as either parties' advocate and search for support for that assertion among the almost 100 documents filed in connection with the summary judgment motion.[3]

         Second, it is important to note what has not been challenged on appeal. In Points I, II and III, Plaintiffs challenge the judgment on the negligence, nuisance and trespass respectively. Plaintiffs have not raised any challenge on appeal to the summary judgment entered on the premises liability claim against all Defendants nor the negligent supervision claim against Broadfield. Their attempt, in a footnote, to make Point I applicable to "all claims" is insufficient to preserve any claim of error as to judgment on the premise liability or negligent supervision claims. See Mothershead v. Greenbriar Country Club, Inc., 994 S.W.2d 80, 83 (Mo. App. E.D. 1999). There being no claim of error asserted as to those counts, the judgment thereon remains unchallenged.

         Similarly, in Point IV, Plaintiffs challenge only one of the two bases for entering judgment on the noise and dust claim that were asserted in Missouri Metals's motion for summary judgment on that claim, leaving the other basis unchallenged. As noted above, Missouri Metals's motion asserted that summary judgment was proper because (1) Plaintiffs lacked evidence of the "unreasonable use" element of a nuisance claim and (2) the claim was barred by the statute of limitations. Plaintiffs only argue on appeal that they did, in fact, present evidence of an unreasonable use; they say nothing about the statute of limitations. To reverse the entry of judgment on this noise and dust claim, we would have to find that no basis existed for entering it. In other words, even if we agreed with Plaintiffs that there was evidence of the unreasonable use element-and thus that ground was not a proper basis for judgment-we would have "no choice but to presume, in the absence of arguments to the contrary," that the statute of limitations ground was a proper basis for entering judgment. See City of Peculiar v. Hunt Martin Materials, LLC, 274 S.W.3d 588, 591 (Mo. App. W.D. 2009); see also Houston v. Roadway Express, Inc., 133 S.W.3d 173, 178 (Mo. App. S.D. 2004); McGathey v. Matthew K. Davis Trust, 457 S.W.3d 867, 877- 79 (Mo. App. W.D. 2015). As such, we need not address the merits of the unreasonable use element argument and must affirm the judgment on the noise and dust claim without further discussion.

         Third, certain issues have simply not been preserved. Point V, in its entirety, preserves nothing for our review. It states:

The trial court erred in granting [Defendants'] motion for summary judgment as [Plaintiffs] because the summary judgment did not consider the weight of the evidence that show a material fact did exist for a jury to find [Defendants] liable on [Plaintiffs'] claims and the cumulative affect of the courts ruling deprived [Plaintiffs] of a fair trial.

(grammatical and spelling errors in original). The argument on this point begins with citations to multiple inconsistent standards of review-for summary judgments, for court-tried cases, for granting a new trial on cumulative trial errors-only one of which is applicable. Plaintiffs then assert various disjointed legal arguments, some of which are clearly misplaced under the standards for a summary judgment.[4] We cannot-without acting as their advocate and reconstructing this point and argument for Plaintiffs-decipher any basis for relief amidst this legal nonsense. See generally Nicol v. Nicol, 491 S.W.3d 266, 270-71 (Mo. App. W.D. 2016); see also Avis Rent-A-Car Systems, Inc. v. Howard, 133 S.W.3d 122, 124 (Mo. App. E.D. 2004). Any arguments in Point V relating to an error in the granting of summary judgment have been abandoned, and we will not review this point.

         Also unpreserved are issues raised for the first time on appeal in a reply brief. Defendants filed a motion to strike a portion of Plaintiffs' reply brief, which raised a claim of error relating to corporate successor liability that was not raised in Plaintiffs' opening brief. See Hollins v. Capital Solutions Investments I, Inc., 477 S.W.3d 19, 23 n. 3 (Mo. App. E.D. 2015). That motion is granted, but we discuss the merits of that important issue ex gratia herein.

         We now proceed to review the merits of only those arguments properly raised in the opening brief in Points I through III with respect to the entry of summary judgment on the toxic tort claims ...

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