author: GLENN A. NORTON, Judge.

text:
    Mary Jeanne COOK, Mary Jeanne Cook as Trustee of the Mary Jeanne Cook, Inter Vivos Trust Dated February 6, 1986 and Cook Limited Partnership, Appellants, v. DeSOTO FUELS, INC., Respondent.
    No. ED 84514.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 2, 2005.

      Kurt D. Breeze, Festus, MO, for respondent.
    Morry S. Cole, St. Louis, MO, for appellant.
   OPINION

GLENN A. NORTON, Judge.

Property owners sued DeSoto Fuels, Inc., alleging that gasoline leaking from tanks at DeSoto’s gas station had contaminated their land and groundwater. The trial court granted summary judgment in favor of DeSoto based on the statute of limitations, and the property owners appeal. We reverse and remand.

I. BACKGROUND

DeSoto owned and operated an Amoco gas station located near property owned by Claude and Mary Jeanne Cook. At some point, a leak allegedly developed in at least one of the three underground storage tanks (“USTs”) that supplied the station with gasoline, resulting in the contamination of the Cooks’ property.

The Cooks had two wells on their property. One well provided water for the Cooks’ own residence and the other supplied water to a residence that the Cooks rented out to tenants. One of the Cooks’ tenants noticed a strong odor of gasoline and a rainbow sheen in the water and reported this to the Missouri Department of Natural Resources. In July of 1993, the Department tested the well supplying the rental property for contamination. At some point during that year, Claude Cook also noticed that the water had an odor and he became aware that the Department’s tests showed the presence of contaminants.

The Department tested the water in both of the wells in December of 1993. The Department’s Preliminary Report, issued on March 25, 1994, indicated that the water from both of the Cooks’ wells was contaminated with constituents of gasoline. The report identified four nearby gas station sites, including DeSoto’s gas station, as possible sources of the pollution. The Department concluded that additional work was needed to determine which of those four sites was the source of the contamination. Also in March of 1994, the Cooks drilled a new well on the property “as a precaution.” This new well became contaminated within a month, so the Cooks had their residence connected to the city water supply.

On March 8, 1996, the Department issued its Final Report. It described the existence of contamination and again identified the same four potentially responsible parties, including DeSoto, which by then had ceased operating its gas station. The following year, the Department installed two groundwater monitoring wells in an effort to identify the cause and source of the contamination. In September of 1997, the Department issued an addendum to its Final Report, this time identifying DeSo-to’s former Amoco station as the sole source of the contamination.

The record does not reveal when the Cooks had actual notice of any of the Department’s reports. But in August of 2000, the Cooks entered into a contract to sell their property, and the prospective buyer’s investigation revealed an unacceptable level of contamination. After the contract was cancelled, the Cooks hired counsel, who discovered and reviewed the Department’s files.

The Cooks filed their petition against DeSoto and two other defendants on March 30, 2001, claiming negligence, trespass and private nuisance. The Cooks alleged that the defendants “failed to undertake adequate measures to prevent or to detect the releases” that caused the contamination of the Cooks’ property and that the defendants knew or should have known about the releases. The Cooks further alleged that they did not know about the extent of the damage to their property until they attempted to sell it in 2000. The Cooks claimed that the defendants’ conduct resulted in the continuing entry, trespass, or intrusion onto their property and that the defendants continued to unreasonably interfere with the Cooks’ use and enjoyment of their property by releasing chemicals onto their property.

Amoco, one of the original defendants, moved for summary judgment based on the statute of limitations. DeSoto filed a separate motion, stating that it “affirmatively adopts as its own and joins in” Amoco’s motion for summary judgment. While Amoco’s motion was pending and before it was noticed for hearing, Amoco was dismissed from the lawsuit and withdrew its motion for summary judgment. Subsequently, DeSoto withdrew its motion for summary judgment, but later filed another motion seeking to “readopt and reassert” Amoco’s motion for summary judgment as DeSoto’s own, including the arguments and assertions in Amoco’s supporting memorandum and exhibits. The Cooks filed a motion to strike DeSoto’s motion based on a failure to comply with Rule 74.04, which the trial court denied. The court granted summary judgment in favor of DeSoto based on the five-year statute of limitations in section 516.120 RSMo 2000. The Cooks appeal.

II. DISCUSSION

Whether summary judgment is appropriate is a question of law, and therefore our review is de novo. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The criteria for testing the propriety of summary judgment on appeal are the same as those employed by the trial court. Id. We must determine whether DeSoto, as the party seeking summary judgment, has established an undisputed right to judgment as a matter of law. See id. at 380. “Insofar as the movant’s right to judgment as a matter of law depends upon the presence or absence of certain facts, the movant must also establish ... that there is no genuine dispute about those material facts.” Id. We review the record in a light most favorable to the party against whom judgment was entered, here the Cooks. See id. at 376. Nevertheless, the facts set forth in support of DeSoto’s motion for summary judgment are taken as true unless contradicted by the Cooks’ response. See id.

DeSoto, as a defending party, may establish a right to judgment as a matter of law by showing that there is no genuine dispute about each of the facts necessary to support a properly-pled affirmative defense. See id. at 381. If DeSoto made this prima facie showing under Rule 74.04(c), then the Cooks bore the burden of responding with specific facts showing the existence of a genuine issue for trial. See id.

A. Adoption of Another Party’s Motion for Summary Judgment

The Cooks argue that DeSoto’s motion for summary judgment was procedurally deficient in that it did not follow the requirements of Rule 74.04 and contend that the court should not be expected to “sift through” the abandoned motion of a dismissed defendant to determine which facts support DeSoto’s motion.

The Cooks do not cite, and we cannot find, any authority that would have precluded DeSoto from adopting Amoco’s motion for summary judgment as its own. Nor do the Cooks explain how they suffered any prejudice because of this procedure. As the trial court noted, this practice is not uncommon. See, e.g., Hudson v. Riverport Performance Arts Centre, 37 S.W.3d 261, 263 (Mo.App. E.D.2000) (acknowledging one party’s adoption of another party’s motion for summary judgment, without addressing the propriety of this procedure); Southwest Bank of Polk County v. Hughes, 883 S.W.2d 518, 519 (Mo.App. S.D.1994) (same). Under the circumstances of this case — where the same facts and reasoning applied to Amoco’s and DeSoto’s arguments and where Amoeo’s motion complied with Rule 74.04 — the adoption of a former co-defendant’s motion for summary judgment was not inappropriate. In fact, permitting De-Soto to adopt Amoco’s abandoned motion promoted efficiency and judicial economy without imposing any additional burden on opposing counsel or the Cooks.

Point denied.

B. Statute of Limitations

Whether the statute of limitations bars a lawsuit depends on the nature of the cause of action and when the action accrued. Schwartz v. Mills, 685 S.W.2d 956, 958 (MoApp. E.D.1985). Here, the parties disagree about both. DeSoto argues that the five-year statute of limitations in section 516.120 governs this action and that the Cooks’ alleged damages were capable of ascertainment more than five years before the lawsuit was filed. While the Cooks do not challenge whether that five-year period of limitation applies, they do claim that the record is insufficient to prove that the damage to their property was capable of ascertainment more than five years prior to the filing of their petition. They claim that there was no evidence of when the Department’s reports were received by the Cooks or made available to the public and that they filed their petition less than five years after the Department released the document identifying DeSoto as the responsible party. Further, the Cooks argue that their claims are separable as to each accrued injury because the contamination of their property constitutes a continuing trespass or a temporary nuisance. DeSoto responds that the facts of this case do not support either a continuing trespass or a temporary nuisance theory because there was only “one leak of gasoline, which has remained in the ground.”

We conclude that the Cooks’ causes of action initially accrued more than five years before they filed this lawsuit because the damage to their property and its cause were capable of ascertainment more than five years prior to this lawsuit. Nevertheless, DeSoto has not established that the Cooks’ claims are totally time-barred because they have asserted claims for a continuing trespass and a temporary nuisance and therefore can recover for those damages that accrued within the statutory period preceding this lawsuit — namely, five years for the trespass claim and ten years for the nuisance claim.

We begin our discussion by noting that, while there are differences between a trespass and a nuisance cause of action, the two are neither mutually exclusive nor inconsistent. Restatement (Second) of ToRts section 821D cmt. e (1979). Thus, where the elements of both actions are fully present, plaintiffs may choose to proceed upon one or both theories. Id. While trespass involves interference with the plaintiffs’ possessory rights and requires an intentional act that results in a physical invasion of the plaintiffs’ property, nuisance involves an unreasonable land use that interferes with the plaintiffs’ right of enjoyment and does not require an intentional act. See Frank v. Environmental Sanitation Management, Inc., 687 S.W.2d 876, 879-80 (Mo. banc 1985); Looney v. Hindman, 649 S.W.2d 207, 212-14 (Mo. banc 1983); Thomas v. City of Kansas City, 92 S.W.3d 92, 97-98 (Mo.App. W.D. 2002); Maryland Heights Leasing, Inc. v. Mallinckrodt, Inc., 706 S.W.2d 218, 221, 224-26 (Mo.App. E.D.1985). A nuisance can be based on the defendant’s negligence or on the existence of a “continuing known invasion” that the defendant failed to remedy despite the plaintiffs’ complaints. Frank, 687 S.W.2d at 881-82. Certain types of physical invasions can constitute both a trespass and a nuisance. See Maryland Heights, 706 S.W.2d at 221, 224-26 (use of radioactive materials resulting in emission of radiation can constitute both trespass and nuisance); Rosenfeld v. Thoele, 28 S.W.3d 446, 449-50 (Mo.App. E.D.2000) (placement of debris on neighbor’s property can constitute both trespass and nuisance). The Cooks’ allegations that DeSoto caused gasoline to enter their property can constitute a claim for both trespass and nuisance because that contamination involves a direct physical invasion that interferes with both the right to possession and the use and enjoyment of property. We now consider whether these claims are time-barred.

1. Trespass

The Cooks’ trespass claim is governed by the five-year statute of limitations in section 516.120. Thomas, 92 S.W.3d. at 100. This type of action does not accrue “when the wrong is done,” but rather “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.” Section 516.100. “In common parlance, ‘capable of ascertainment’ may be construed to mean capable of being ascertained by a reasonable person using reasonable diligence.” Lockett v. Owens-Corning Fiberglas, 808 S.W.2d 902, 907 (MoApp. E.D.1991). Whether damages are capable of ascertainment is an objective test, ordinarily decided as a matter of law. Carr v. Anding, 793 S.W.2d 148, 150 (Mo.App. E.D. 1990). It is met when the plaintiffs’ right to sue arises and they could have first maintained the action successfully. Id. This occurs when the damage is substantially complete and the fact of damage can be discovered or made known, even if the exact amount of damage is not yet ascertainable, even if some additional damage may occur in the future and even if the plaintiffs have not actually discovered the injury. See Lockett, 808 S.W.2d at 907; Modern Tractor and Supply Co. v. Leo Journagan Construction Co., Inc., 863 S.W.2d 949, 952 (MoApp. S.D.1993); Jordan v. Willens, 937 S.W.2d 291, 294 (Mo. App. W.D.1996). It has been said that knowledge of a trespass is sufficient to begin the running of the statute of limitations. Jordan, 937 S.W.2d at 295 n. 6.

Here, the Cooks had actual knowledge of the fact that their property had been damaged by April of 1994 when their new well became contaminated, if not sooner. But, when viewing the record in a light most favorable to the plaintiffs, it appears that the plaintiffs were not kept informed about the status of the Department’s investigations and were not immediately made aware that the Department’s reports identified DeSoto as one of four parties potentially responsible for causing the contamination. Although it is not clear from the record when the plaintiffs had actual notice of those reports, actual notice is not required under the “capable of ascertainment” test.

We find that the Cooks were capable of ascertaining DeSoto’s identity as one of four possible tortfeasors by early March in 1996, if not sooner, since by then the Department had finished its second report suggesting that DeSoto may be the source of the contamination, and almost two years had elapsed since the Cooks began using the municipal water supply instead of their own well. Even if the Department failed to keep the Cooks informed about who might have been responsible for the contamination, a reasonable person would have inquired about the status of the investigation by that time.

We note that there is some authority for the proposition that a cause of action does not accrue until both the damages and the cause of those damages are reasonably ascertainable. See, e.g., Elmore v. Owens-Illinois, Inc., 673 S.W.2d 434, 436 (Mo. banc 1984); Shade v. Missouri Highway and Transportation Commission, 69 S.W.3d 503, 514 (Mo.App. W.D.2001); but see, e.g., King v. Nashua Corp., 763 F.2d 332, 333 (8th Cir.1985) (stating that “Missouri courts have made it clear that [section 516.100] focuses on the damage and not the discovery of its cause”). But even if an action does not accrue until the cause of the damage is capable of ascertainment, in this case the Cooks certainly should have known about both the damage (groundwater contamination) and its cause (gasoline from nearby USTs) more than five years prior to this lawsuit.

The Cooks suggest that the action did not accrue until after the Department released its addendum in 1997 that identified DeSoto as the sole source of the contamination. We disagree. While neither party cites any case where the plaintiffs knew what caused their injuries but were temporarily unable to ascertain precisely who was responsible for the damage, at least one Missouri case has rejected the argument that the plaintiffs inability to discover the identity of the tort-feasor should delay the accrual of the cause of action. See Frazee v. Partney, 314 S.W.2d 915, 916-17, 920-21 (Mo.1958) (wrongful death action resulting from an automobile accident where the defendant, who caused the accident but then drove away, was not identified within the limitations period). Given the small number of reasonably ascertainable potentially responsible parties identified by the Department in this case, we find that the accrual of this action should not be delayed by the Cooks’ failure or inability to ascertain precisely which of the four potentially responsible parties actually caused their damages.

Therefore, with respect to the initial invasion of contaminants, the Cooks’ cause of action accrued before March 30, 1996, more than five years before this lawsuit was filed. Thus, unless the Cooks have also alleged a continuing trespass, their trespass claim would be totally barred by the statute of limitations.

2. Continuing Trespass

In the “peculiar and particular circumstances” where a “continuing or repeated wrong” is involved, an additional layer of analysis is required to determine when the cause of action accrued with respect to each successive trespass under section 516.100:

if the wrong done is of such a character that it may be said that all of the damages, past and future, are capable of ascertainment in a single action so that the entire damage accrues in the first instance, [then] the statute of limitation begins to run from that time. If, on the other hand, the wrong may be said to continue from day to day, and to create a fresh injury from day to day, and the wrong is capable of being terminated, [then] a right of action exists for the damages suffered within the statutory period immediately preceding suit.

Davis v. Laclede Gas Co., 603 S.W.2d 554, 556 (Mo. banc 1980) (construing section 516.100 RSMo 1969). In order for this analysis to apply, “the wrong must be continuing or repeating.” D’Arcy and Associates, Inc. v. K.P.M.G. Peat Marwick, L.L.P., 129 S.W.3d 25, 30 (Mo.App. W.D. 2004). As this Court has stated, when there is only one wrong that results in continuing damage, the cause of action accrues once that wrong has been committed and the resulting damage becomes capable of ascertainment. Arst v. Max Barken, Inc., 655 S.W.2d 845, 847 (Mo.App. E.D. 1983). But when there are continuing or repeated wrongs that are capable of being terminated, successive causes of action accrue every day the wrong continues or each time it gets repeated, the end result being that the plaintiff is only barred from recovering those damages that were ascertainable prior to the statutory period immediately preceding the lawsuit. See Davis, 603 S.W.2d at 556; Cacioppo v. Southwestern Bell Telephone Co., 550 S.W.2d 919, 925 (Mo.App.1977). The continuing wrong doctrine has been applied in both nuisance and trespass cases:

A continuing trespass upon real property creates separate causes of action, which are barred only by the running of the statute against the successive trespasses, and not by the running of the statute from the time of the original trespass. So, also, if a trespass is followed by injury constituting a continuing nuisance, the damages for the original trespass must all be recovered in one action, but successive actions may be brought to recover damages for the continuation of the wrongful conditions, and in these the damages are estimated only to the date of the bringing of each suit, and the statute of limitations does not begin to run from the date of the original trespass. In the case of a continuing trespass the statute does not begin to run from the date of the original entry, but recovery may be had for a period of time not exceeding the statutory period immediately preceding the institution of the action. Thus, in case of a continuous trespass for a series of years, the action is barred as to so much only of the wrong as was committed prior to the term of limitation.

Cacioppo, 550 S.W.2d at 925 (quotation marks omitted).

In this case, the Cooks have alleged that DeSoto’s negligence has caused an underground flow or migration of contaminants onto their property. But DeSoto’s negligence is not the relevant wrong for purposes of analyzing whether the Cooks have alleged a continuing trespass. Rather, the wrong is the actual physical invasion of the Cooks’ property. Thus, the relevant question is whether the Cooks have alleged a continuous or repeated invasion of their property. The Cooks claim that DeSoto’s conduct resulted in the “continuing entry, trespass, and intrusion onto Plaintiffs’ property by the petroleum products from the Station without Plaintiffs’ permission.” The petition also refers to “the releases” in the plural form. Although the petition is not very specific, we find that the Cooks have adequately alleged the existence of a continuous, ongoing, intermittent, or repeated flow or migration of contaminants from DeSoto’s property onto their property. In this way, the Cooks have alleged the type of “fresh injury from day to day” described in Davis. See 603 S.W.2d at 556. They seek damages for the cleanup and restoration of their property, and there is nothing in the record to suggest that this is the type of wrong that is not capable of being terminated.

In its brief, DeSoto asserts that this case involves only a single leak of gasoline. We agree that the existence of a single leak or migration of contaminants would not constitute a continuing wrong, even if the contaminants remained present in the ground. See Modern Tractor, 863 S.W.2d at 951-54 (unauthorized presence of fill dirt on plaintiffs property did not constitute continuing trespass). The mere presence of contaminants does not reveal whether there was one wrong resulting in continuing damage, or whether there were continuous or repeated wrongs that created fresh injuries from day to day and were capable of being terminated. See Davis, 603 S.W.2d at 556. But as explained above, the Cooks have alleged the existence of a continuous or repeated migration of contaminants onto their property. And we find nothing in DeSoto’s motion for summary judgment or elsewhere in the record that supports its factual assertion about the nature of the leak.

Therefore, the Cooks have adequately presented a continuing trespass claim, which, if proven, would permit them to recover for those damages that accrued within the five-year period preceding this lawsuit. But under their trespass theory, they are barred from recovering any damages that were capable of ascertainment more than five years before the lawsuit; that is, before March 30,1996.

3. Temporary Nuisance

The parties disagree about how to characterize the Cooks’ nuisance claim. A nuisance can be either permanent or temporary. Rebel v. Big Tarkio Drainage District of Holt City, 602 S.W.2d 787, 792-93 (Mo.App. W.D.1980), overruled on other grounds by Frank v. Environmental Sanitation Management, Inc., 687 S.W.2d 876, 880 n. 3 (Mo. banc 1985). This distinction has important consequences, yet determining “[w]hether a particular nuisance is ‘permanent’ or ‘temporary, continuing or abatable’ is one of the most baffling areas of the law.” Spain v. City of Cape Girardeau, 484 S.W.2d 498, 503-504 (Mo.App.1972). A nuisance is temporary if it is abatable; it is permanent if abatement is impracticable or impossible. Hanes v. Continental Grain Co., 58 S.W.3d 1, 3 (Mo.App. E.D.2001). It need not be shown that the entire nuisance can be eliminated in order for the nuisance to be characterized as temporary; rather, it is only necessary that the nuisance can be reduced or lessened to the point that it no longer constitutes a “substantial” interference. Id. at 4.

In determining whether a nuisance is permanent or temporary, the character of the source of the injury — not the character of the injury itself — is determinative. Rebel, 602 S.W.2d at 793. The fact that an injury stems from a permanent structure, however, does not necessarily mean that the resulting nuisance is a permanent one. Id. If the source of the injury is a permanent construction that is necessarily injurious as installed, such that the inherent character of the structure will cause injury even in its usual and lawful operation, then the nuisance is characterized as permanent. Id. at 793-94; Shelley v. Ozark Pipe Line Corporation, 327 Mo. 238, 37 S.W.2d 518, 519 (1931). But if the source of the injury is a structure that is not inherently injurious but only becomes harmful through its use — such as, through negligence or failure to maintain the structure — then the nuisance is characterized as temporary. Shelley, 37 S.W.2d at 519-20; Rebel, 602 S.W.2d at 793-94; Schwartz, 685 S.W.2d at 959.

Nuisance claims involving environmental contamination have sometimes been characterized as permanent and other times as temporary. See, e.g., Frank, 687 S.W.2d at 883 (finding that an award of permanent damages was appropriate where leachate had escaped from defendant’s landfill and caused permanent damage to the plaintiffs property despite expensive and sophisticated leachate control plans); but see, e.g., Hanes, 58 S.W.3d at 3-4 (finding that odors and contamination from the defendant’s hog farms constituted a temporary and abatable nuisance); Shelley, 37 S.W.2d at 520 (leak in oil pipeline caused by the defendant’s negligence was deemed a temporary nuisance). Although the cases distinguishing between temporary and permanent nuisances are not always consistent, there appears to be at least one constant: “a nuisance created by negligence is a temporary one.” Spain, 484 S.W.2d at 504. And where the nature of the cause of action is doubtful as between a temporary or permanent nuisance, courts should treat it as temporary. Thomas, 92 S.W.3d. at 101; Schwartz, 685 S.W.2d at 958.

The effect of characterizing a nuisance as permanent is to “give the defendant, because of his wrongful act, the right to continue the wrong; a right equivalent to an easement.” Schwartz, 685 S.W.2d at 958. But if a nuisance is characterized as temporary, then the defendant is under the legal obligation to terminate the injury. Rebel, 602 S.W.2d at 792-93 (citing Shelley, 37 S.W.2d at 521). For each type of nuisance, different types of damages are recoverable, and the relevant statute of limitations is applied differently. For a permanent nuisance, there can be only one recovery for what is deemed to be a single tortious act, and the limitations period begins immediately upon the creation of the nuisance — such as when the structure is completed or installed — or once the tortious effect manifests itself. See Schwartz, 685 S.W.2d at 959 (citing Rebel, 602 S.W.2d at 792). But for a temporary nuisance, much like a continuing trespass, the continuance of the nuisance each day is considered a repetition of the original wrong, and successive actions accrue as to each injury:

The period of limitations as to a temporary nuisancef ] runs anew from the accrual of injury from every successive invasion of interest. The recovery is for the damage actually sustained to the commencement of suit, but not for prospective injury.... The right to a successive action for the continuance of a nuisance rests on the principle that the tort-feasor ... is under [a] legal obligation to remove, change, or repair the structure or thing complained of, and thereby terminate the injury to his neighbor; and, failing so to do, each day’s continuance of the nuisance is a repetition of the original wrong, and a new action will lie therefor.

Rebel, 602 S.W.2d at 792-93 (quotation marks omitted). And, again similar to a continuing trespass theory, the plaintiffs’ recovery for a temporary nuisance is limited to those damages that accrued within the relevant limitations period immediately preceding the lawsuit.

Claims of permanent nuisance are governed by the five-year statute of limitations in section 516.120. Thomas, 92 S.W.3d. at 100. Although the parties have failed to address whether this statute also applies to claims of temporary nuisance, Missouri courts have repeatedly held — often citing section 516.010 — that a ten-year period of limitation applies to temporary nuisances. Moore v. Weeks, 85 S.W.3d 709, 719 (Mo.App. W.D.2002); Thomas, 92 S.W.3d. at 100; Shade, 69 S.W.3d at 509-10; Campbell v. Anderson, 866 S.W.2d 139, 142 (Mo.App. W.D.1993); Rebel, 602 S.W.2d at 794 n. 7; City of Fredericktown v. Osborn, 429 S.W.2d 17, 24 (Mo.App. 1968). Our own research revealed only one case suggesting that the five-year period of limitation in section 516.120 applies to temporary nuisance claims, but that suggestion was not dispositive because in that case, the lawsuit was not even barred under the shorter limitations period. See Scantlin v. City of Pevely, 741 S.W.2d 48, 50 (Mo.App. E.D.1987). We find that the ten-year limitations period applies.

Here, the Cooks have alleged that DeSo-to continues to unreasonably interfere with their use and enjoyment of their property by “releasing” chemicals onto it. They claim that the source of their injury is one or more of DeSoto’s leaking USTs and that DeSoto knew or should have known about the releases. These allegations could constitute a nuisance resulting from either negligence or a continuing known invasion. See Frank, 687 S.W.2d at 881-82. Instead of alleging that an underground gasoline storage tank inherently causes injury to nearby property in the course of its usual and lawful operation, the Cooks assert that the leaking USTs that caused the contamination have become injurious because of DeSoto’s negligence in operating its gas station. See, e.g., Shelley, 37 S.W.2d at 520 (leak in oil pipeline caused by the defendant’s negligence was deemed a temporary nuisance). Therefore, the Cooks have adequately presented a temporary nuisance claim. See Spain, 484 S.W.2d at 504 (“a nuisance created by negligence is a temporary one”). If proven, they are allowed to recover those damages that accrued within the ten-year period preceding this lawsuit, that is, since March 30, 1991, which appears to- encompass all of their damages from the nuisance.

Point granted.

C. Summary and Disposition

In sum, DeSoto has failed to establish the facts necessary to support its affirmative defense that the Cooks’ claims are barred by the statute of limitations. Therefore, summary judgment was inappropriate. See ITT, 854 S.W.2d at 381. The Cooks may proceed with their claims to the following extent. Under the trespass count, the Cooks can no longer recover for damages resulting from the initial invasion of contaminants, but they are entitled to seek damages arising from any continued migration or seepage of contaminants onto their property within the five-year period preceding this lawsuit. Under the temporary nuisance count, the Cooks are entitled to seek damages arising from the continued unreasonable interference with their enjoyment of the property within the ten-year period preceding this lawsuit. We express no opinion as to whether the damages recoverable under these two counts are the same.

III. CONCLUSION

The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.

CLIFFORD H. AHRENS, P.J. and NANNETTE A. BAKER, J. concurring.

      . The original plaintiffs were Claude and Mary Jeanne Cook, in their individual capacities and as trustees of their separate inter vivos trusts, and the Cook Limited Partnership. The Cooks have since died, and the Partnership currently owns the property. For ease of reference, we will refer to the plaintiffs collectively as the Cooks.

      . The other defendants later settled with the Cooks or were dismissed from the action, leaving DeSoto as the sole remaining defendant. The Cooks' unjust enrichment claim was dismissed, and is not at issue on appeal. Since there is no claim of a public nuisance in this case, any further references to nuisance law pertain to private nuisances.

      . All statutory references are to RSMo 2000, unless otherwise noted.

      . On appeal, the Cooks do not challenge the propriety of summary judgment as to their negligence claim.

      . In fact, the concept of a temporary nuisance appears to be essentially an application of continuing wrong principles to situations involving nuisances.

      . Under section 516.010, "[n]o action for the recovery of any lands, tenements or heredita-ments, or for the recovery of the possession thereof, shall be commenced, had or maintained by any person ... unless it appear that the plaintiff, his ancestor, predecessor, grant- or or other person under whom he claims was seized or possessed of the premises in question, within ten years before the commencement of such action.”


source: Caselaw Access Project

author: HAROLD L. LOWENSTEIN, Judge.

license: Public Domain

text:
    In the Interest of G.F.M., D.J.M, C.M.M. and J.M.M. Juvenile Officer, Missouri Children’s Division, Respondents, v. F.M. (Mother/Grandmother), Appellant, P.M. (Father/Grandfather); J.B. (Father), Defendant; T.S. (Mother), Respondent.
    Nos. WD 64535, WD 64536, WD 64537, WD 64538.
    Missouri Court of Appeals, Western District.
    Aug. 2, 2005.

      David Buffo, Kansas City, MO, for Appellant F.M.
    Anna M. Merritt, Kansas City, MO, for Respondent Juvenile Officer.
    Stephen B. Millin, Jr., Kansas City, MO, for Defendant, P.M.
    Phillip A. Miller, Kansas City, MO, for Defendant J.B.
    Anastacia R. Adamson, Kansas City, MO, for Guardian.
    Gary L. Gardner, Jefferson City, MO, for Respondent MO Children’s Division.
    Laurie V. Snell, Kansas City, MO, for Respondent T.S.
    Before SMITH, C.J., LOWENSTEIN and ELLIS, JJ.
   HAROLD L. LOWENSTEIN, Judge.

Following trial, the Jackson County family court found that P.M. physically and sexually abused both his daughter, G.M., and granddaughter, C.M. It also found that F.M. (Appellant), P.M.’s wife and mother/grandmother of the respective children, failed to protect the children from this abuse. Two other grandchildren of P.M. and Appellant also lived in their home: D.M., a fourteen-year-old female and J.M., a twelve-year-old male. All three grandchildren were there under a guardianship granted to Appellant on December 21, 2001. P.M. is now in jail for the sexual abuse of his daughter, G.M., and his granddaughter, C.M., and does not contest the judgment. Instead, Appellant appeals from the order that removed her daughter and three grandchildren from her home and terminated her guardianship rights over the grandchildren, claiming that (1) the trial court had insufficient evidence to exercise jurisdiction over the children, and (2) the trial court did not enter the requisite findings of why reasonable efforts could not have prevented the removal of the children from her home.

The order of the trial court is affirmed as to invocation of jurisdiction under Section 211.031.1, and reversed and remanded for the trial court to enter findings on why removal of the children for their protection was necessary.

Facts

At trial, the court heard testimony from several witnesses that P.M. sexually and physically abused his daughter and granddaughter, and that Appellant failed to protect them. In particular, P.M. and Appellant’s seventeen year-old daughter, G.M., testified that he once attacked her with a broom, striking her several times. Although G.M. told her mother about this incident, Appellant said she “didn’t care.” After this event, the Department of Family Services (DFS) became involved, leading to the conviction of P.M. for child abuse and the implementation of several safety plans designed to sever contact between P.M. and his child and three grandchildren.

G.M. further testified her father sexually abused her and his granddaughter C.M. (age thirteen). Although the safety plans instituted by DFS were in effect, P.M. violated those plans by coming back to the home and eventually spending the night. According to G.M., when she reminded Appellant that P.M. was not supposed to be around and refused to go in the house, Appellant threw her on the ground and started beating her.

Marty Rowe, an investigator with the Children’s Division, confirmed part of G.M.’s testimony by witnessing one of Appellant’s safety plan violations. After Rowe received information that P.M. physically and sexually abused his daughter and granddaughter and that he was again having contact with the children, Rowe went to the house. While there, Rowe observed P.M. leave his truck, inside which Appellant was sitting, and enter the house. The police were contacted and another safety plan was instituted to keep P.M. from coming into contact with the children.

Rowe referred P.M. to the Metropolitan Organization to Counter Sexual Assault (MOCSA), but he refused to go, stating he had been through MOCSA before and considered it a “form of brainwashing.” At the conclusion of the testimony, the trial court found that P.M. physically and sexually abused his daughter and granddaughter, and that Appellant failed to protect the children. The trial court then ordered that the children be committed to the Children’s Division for appropriate placement.

STANDARD OF REVIEW

Review of juvenile proceedings is analogous to review of other court-tried cases. The trial court’s order is sustained unless no substantial evidence supports it, it is against the weight of the evidence, or it erroneously declares or applies the law. In the Interest of T.B., 936 S.W.2d 913, 914 (Mo.App.1997); In the Interest of R.G., 885 S.W.2d 757, 763 (Mo.App.1994). The reviewing court defers to the trial court on issues of fact and the credibility of witnesses. Id.

Analysis

Jurisdiction-Section 211.031.1

Appellant asserts in her first point that the trial court lacked jurisdiction over the children because there was not sufficient evidence for the court to determine that she failed to protect them from P.M.’s abuse. She contends that “there is clearly not overwhelming evidence in favor of a finding that [Appellant] knew of the alleged abuse of the children and did nothing.” She urges this court to overrule the decision of the trial court finding that it could exercise jurisdiction.

Section 211.031.1 confers exclusive original jurisdiction to the juvenile court when the proceedings involve any child who is alleged to be in need of care because the parent or person responsible neglects or refuses to provide proper support or other care necessary for his or her well being. The purpose of a petition filed in juvenile court is to state facts that bring the child within the jurisdiction of that court. In the Interest of T.B., 936 S.W.2d at 915. When a petition alleges that a child is in need of care and protection as the basis for jurisdiction, the standard of proof is clear and convincing evidence. In the Interest of A.L.W., 773 S.W.2d 129, 131 (Mo.App.1989).

Here, the trial court’s exercise of jurisdiction was proper under Section 211.031 because the evidence was clear and convincing that Appellant failed to protect the children from sexual and physical abuse. See In the Interest of E.J., 741 S.W.2d 892, 894 (Mo.App.1987) (“The juvenile court has jurisdiction when there is clear and convincing evidence the child is in need of care.”); In the Interest of K.H., 652 S.W.2d 166, 167 (Mo.App.1983). G.M., the daughter, testified that her father sexually abused her and C.M. over a period of years. Marty Rowe, among others, witnessed P.M. violate various safety plans in the presence of Appellant. Further, Appellant knew that P.M. had been convicted of child abuse, yet still allowed him to come into contact with the children. Point I is denied.

Specificity of OrdeR — § 211.183

In Appellant’s second point, she contends the trial court did not comply with Section 211.183, which requires the trial court to include in its order a determination of whether DFS made reasonable efforts to prevent the need for removal of the children. She asserts that the trial court must make findings of why further efforts could not have prevented the separation of the family before the children are removed. Respondent conceded this point at oral argument.

Section 211.183.1 mandates that a trial court’s order include a determination of whether DFS made reasonable efforts to prevent the removal of a child. Reasonable efforts means the exercise of reasonable diligence and care to utilize all available services related to meeting the needs of the family. § 211.183.2. In support of its determination, the trial court shall enter findings, including a brief description of what preventive efforts were made and why further efforts could not prevent the removal of the children. § 211.183.3. “The determination to remove the child from the parent must be preceded by a finding that removal of the child was necessary to protect the child and a detail of the evidence on which that ultimate finding rest.” In the Interest of A.L.W., 773 S.W.2d at 133, 135 (setting aside the trial court’s order for failing to enter specific findings pursuant to Section 211.183). This requirement to detail the evidence “expresses the legislative concern for the integrity of the family consonant with the welfare of the child.” Id. at 134; In the Interest of C.L.M., 625 S.W.2d 613, 617 (Mo. banc 1981). The legislative concern implicates the fundamental right of a parent to raise his or her child free of undue governmental interference. In the Interest of A.L.W., 773 S.W.2d at 134.

In this case, the trial court’s order simply reads,

The Court finds that reasonable efforts have been made to prevent the removal of the child[ren] from the home, but removal is necessary to protect the child[ren] and continuation in the home is contrary to the interest of the children] based on the needs of the family and the child[ren].

The trial court did not state: (1) the reasons why removal was necessary; (2) the services available to the family before the removal of the children; (3) the efforts made to provide services before the children’s removal; (4) why efforts made to provide family services did not prevent the removal of the children; or (5) why further efforts could or could not have prevented the separation of the family. Section 211.183.5. A trial court’s order should include all of these elements. See Section 211.183.5. “They are designed to safeguard against the arbitrary removal of a child from the parental home and ensure that where removal is necessary, reasonable efforts to reunite the family are undertaken by DFS.” In the Interest of T.B., 936 S.W.2d at 916 (reversing a trial court’s judgment for failing to enter findings pursuant to Section 211.183); In the Interest of R.G., 885 S.W.2d 757, 765 (Mo.App. 1994).

Accordingly, the judgment is affirmed as to jurisdiction of the court over the children, and the judgment is reversed, and the cause remanded for specific findings of fact as required by Section 211.183 and for entry of a judgment consistent with those findings.

All concur.

      . All statutory references are to RSMo. (2000) unless otherwise indicated.

      . Section 211.031 provides, in pertinent part:
      1. Except as otherwise provided in this chapter, the juvenile court or the family court in circuits that have a family court as provided in sections 487.010 to 487.190, RSMo, shall have exclusive original jurisdiction in proceedings:
      (1) Involving any child or person seventeen years of age who may be a resident of or found within the county and who is alleged to be in need of care and treatment because:
      (a) The parents, or other persons legally responsible for the care and support of the child or persons seventeen years of age, neglect or refuse to provide proper support, education which is required by law, medical, surgical or other care necessary for his or her well-being; except that reliance by a parent, guardian or custodian upon remedial treatment other than medical or surgical treatment for a child or person seventeen years of age shall not be construed as neglect when the treatment is recognized or permitted pursuant to the laws of this state.


author: PATRICIA BRECKENRIDGE, Judge.

text:
    Mark Q. CERUTTI, Appellant, v. Theresa M. CERUTTI, Respondent.
    No. WD 64253.
    Missouri Court of Appeals, Western District.
    Aug. 2, 2005.
    Daniel E. Hunt, Jefferson City, MO, for appellant.
    Lewis Z. Bridges, Lake Ozark, MO, for respondent.

      Before NEWTON, P.J., LOWENSTEIN and BRECKENRIDGE, JJ.
   PATRICIA BRECKENRIDGE, Judge.

Mark Q. Cerutti (“Father”) appeals from the judgment dissolving his marriage to Theresa M. Cerutti (“Mother”). The judgment included an award of joint legal custody to their minor child and an award of physical custody to Mother, with reasonable visitation to Father. On appeal, Father raises two claims of error concerning the custody orders. In his first point, Father asserts the trial court erred in its award to Mother of physical custody because there was insufficient evidence that this custody order was in the child’s best interest. In his second point, Father claims the trial court erred in failing to make written findings detailing the specific statutory factors relevant to its determination that its physical custody arrangement was in the best interest of the parties’ child, as required by section 452.375.6, RSMo Cum.Supp.2004. Section 452.375.6 requires the trial court to make written findings detailing the specific relevant factors supporting its custody award, which the trial court failed to do. The judgment is reversed and remanded for the trial court to make the mandatory written findings and take whatever other action is appropriate.

Factual and Procedural Background

Father and Mother were married on July 3, 1981, in Farmington. The parties adopted one child during their marriage, MacKenzie, born December 26, 1994. On May 10, 2002, Father filed a petition for the dissolution of his marriage to Mother. In his petition, Father asked for sole physical custody of MacKenzie, with Mother being awarded reasonable visitation. In her answer, Mother denied that an award of sole custody to Father was in the best interest of MacKenzie. Additionally, both parents filed proposed parenting plans, each giving the filing party sole physical custody of MacKenzie.

At trial, the issue of physical custody of MacKenzie was contested. At the conclusion of the trial, the court awarded physical custody to Mother, with reasonable visitation by Father, and adopted Mother’s amended parenting plan. The trial court found in its judgment that “[rjespondent is the proper person to have the custody and control of said minor child, subject to Petitioner’s reasonable rights of visitation as specifically set forth in the Parenting Plan.... ” The court made no other findings on the issue of child custody.

Father appeals.

Standard of Review

The standard of review in this case is established by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Doynov v. Doynov, 149 S.W.3d 917, 922 (Mo.App. 2004). “This court will affirm the trial court’s judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.” Id.

Judgment Lacks Mandatory Findings

On appeal, Father raises two claims of trial court error. In his first point, he claims that the trial court erred in its award of custody because there is no substantial evidence to support the award of sole physical custody to Mother as being in Mackenzie’s best interest. In his second point, he asserts that the trial court erred because the court failed to make the written findings required by section 452.375.6. As Father’s second point is dis-positive, only that point will be addressed.

When awarding child custody, the court must determine the best interests of the child. In making its determination of best interest, section 452.375 requires that the court consider the public policy stated in section 452.375.4 and the eight statutory factors included in section 452.375.2. Speer v. Colon, 155 S.W.3d 60, 61 (Mo. banc 2005); Belcher v. Belcher, 106 S.W.3d 601, 603 (Mo.App.2003). Section 452.375 further requires in subsection 6 that, when child custody is contested, written findings be made in the judgment based on the public policy and the eight factors. Section 452.375.6 reads, in relevant part:

If the parties have not agreed to a custodial arrangement, ... the court shall include a written finding in the judgment or order based on the public policy in subsection 4 of this section and each of the factors listed in subdivisions (1) to (8) of subsection 2 of this section detailing the specific relevant factors that made a particular arrangement r in the best interest of the child.

Section 452.375.6 does not require written findings for all eight statutory factors, but it does require written findings of all relevant factors be included in the opinion. Speer, 155 S.W.3d at 62 (emphasis added).

In this case, although the parties had not agreed to a custodial arrangement, the only finding in the judgment regarding child custody is that Mother is the proper person to have custody and control of the minor child. The trial court did not address the public policy in section 452.375.4 or any of the eight factors in section 452.375.2(l)-(8). Under the statute, written findings are mandatory. Section 452.375.6. Because the trial court failed to comply with the statutory requirements, the judgment is legally deficient. Belcher, 106 S.W.3d at 603.

The trial court’s judgment is reversed with regard to its custody determination, and the cause is remanded to the trial court so that it can make the required written findings in compliance with section 452.375 and take whatever other action is appropriate. On remand, the court shall also enter a modified parenting plan, in conformity with section 452.375.1, because Missouri’s statutory scheme does not allow for an order appointing a “primary physical custodian.” Speer, 155 S.W.3d at 62. Additionally, the court’s modified parenting plan shall not include the statement that its custody arrangement “approach[es] joint physical custody,” if this language is inconsistent with the custody provisions of the judgment.

All concur.

      . All statutory references are to the 2004 Cumulative Supplement to the Revised Statutes of Missouri 2000, unless otherwise indicated.

      . The judgment awards Mother “physical custody” of MacKenzie, with reasonable visitation to Father. It is clear from the court’s order that it intended to order sole physical custody to Mother. That term will be utilized when referring to the court’s order. Mother's amended parenting plan, however, which the trial court adopted and incorporated into its judgment, refers to Mother as the "primary physical custodian.” "Primary physical custodian” does not describe a custodial arrangement authorized under law. Loumiet v. Loumiet, 103 S.W.3d 332, 336-38 (Mo.App. 2003) (noting that section 452.375.1(1), RSMo 2000, does not provide for "primary physical custody" or a "primary physical custodian”).

      . A change in Rule 78.07(c), effective January 1, 2005, requires that "[i]n all cases, allegations of error relating to the form or language of the judgment, including the failure to make statutorily required findings, must be raised in a motion to amend the judgment in order to be preserved for appellate review.” Although this rule was not yet in effect, Father filed a Motion for New Trial and Motion to Reopen on February 27, 2004. In his motion, Father stated, among other concerns, that the court's judgment does not comply with section 452.375 in that if failed to include the required written findings indicating how the custody arrangement is in the child's best interests. The trial court held an oral hearing on April 15, 2004, and requested that Mother provide an amended judgment for the court’s consideration. The court took the matter under advisement until receipt of the amended judgment. No amended judgment was filed within ninety days following the filing of Father’s motion, so Father filed this appeal.


author: GARY M. GAERTNER, Sr., Presiding Judge.

text:
    In the Matter of: Steven PRYE,
    No. ED 85576, ED 85777.
    Missouri Court of Appeals, Eastern District, Division One.
    Aug. 2, 2005.

      Anthony E. Rothert, Alton, IL, for appellant.
    Lee Clayton McMurray, St. Louis, MO, for ad litem.
    Andrew G. Toennies, Gerald A. Nester, Office of Public Adm., Jeremiah W. (Jay) Nixon, Attorney General, Woodie J. Curtis, Jr., Assistant Attorney General, St. Louis, MO, for Respondent.
   GARY M. GAERTNER, Sr., Presiding Judge.

Appellant, Steven M. Prye (“Prye”), whose interests are represented by the Illinois Office of State Guardian (“IOSG”) appeals from the judgment of the Circuit Court of the City of St. Louis ordering IOSG to take custody and control of Prye and to place him in an appropriate treatment setting in Illinois. We reverse in part and dismiss in part.

Prye is approximately fifty-two years old. He was born and raised in Memphis, Tennessee. Prye has degrees from Yale University, Harvard Law School, and New York University School of Law. After law school, Prye worked in New York City law firms for several years. Then he was a law professor in Vermont and at the University of Illinois.

While at the University of Illinois, Prye began to show signs of mental illness, and he eventually lost his job there and returned to Memphis, Tennessee. In Memphis, Prye was hospitalized in January of 2001 and received inpatient treatment at least four more times at the Memphis Mental Health Institute between April 25, 2001 and October 1, 2002.

In October of 2002, Prye went to visit a friend in Champaign, Illinois and upon his arrival, his friend took him to a hospital for treatment. In January of 2003, Prye was committed under Illinois law to McFarland Mental Health Center (“McFarland”) in Springfield, Illinois. Prye was transferred in August of 2003 to the Chester Mental Health Center (“Chester”) in Chester, Illinois, which was a high security mental health care facility. Prye was transferred to Chester because of his attempts to elope and an incident with a staff member at McFarland. At Chester, Prye was diagnosed with Pick’s syndrome.

While Prye was at Chester, a guardianship proceeding was commenced in Sanga-mon County, Illinois, and the Sangamon County court issued an order appointing IOSG as “plenary guardian” of Prye.

When Prye was at Chester, he was often placed in physical restraints due to his combative and uncontrolled behavior. Further, he received no medication to treat Pick’s disease. IOSG facilitated an evaluation at Washington University in St. Louis, Missouri, which revealed Prye suffered from Sehizo affective Disorder, Bipolar type. IOSG transferred Prye out of Chester on March 31, 2004, before his physician there had treated him for the new diagnosis.

IOSG placed Prye in Park Haven Care Center (“Park Haven”), a nursing home in Smithton, Illinois. Shortly thereafter, he was discharged due to an incident at a nearby grade school, and IOSG transferred him to the psychiatric ward at St. Alexius Hospital (“StAlexius”) in the City of St. Louis. On April 15, 2004, Prye was discharged from St. Alexius and transferred back to Park Haven. After repeated instances of inappropriate behavior, IOSG removed Prye from Park Haven on April 20, 2004 and readmitted him to the psychiatric ward at St. Alexius. Numerous types of treatment have been attempted, although none have been successful. Prye has refused any kind of care and has refused to allow physicians to examine him.

On September 20, 2004, St. Alexius filed a petition for appointment of a guardian, seeking that Prye be declared incapacitated and a Missouri guardian appointed for him pursuant to Chapter 475, RSMo (2000). On October 20, 2004, St. Alexius filed an application for detention of Prye, asking that in the alternative to the guardianship petition, Prye be involuntarily committed at the Missouri Psychiatric Center (“MPC”) for treatment of his mental illness. St. Alexius alleged that Prye had been diagnosed with Schizoaffective Disorder, Bipolar type, and was a danger to himself and employees of St. Alexius. St. Alexius stated that Prye had already injured several employees and asked that he be detained, evaluated, and treated immediately pursuant to section 632.305. St. Alexius also attached affidavits from ten employees who attested to his violent behavior.

On November 4, 2004, St. Alexius amended its guardianship petition. This petition indicated that Penny Rausch was serving as the Guardian of Prye pursuant to an order issued in Sangamon County, Illinois on or about December 12, 2003. The petition also stated that Prye had resided in Missouri at St. Alexius for the last six months and that the need for a Missouri guardian had become necessary. The petition asserted that Prye needed a guardian to be responsible for healthcare decisions, appropriate residential care, and overseeing and arranging for necessary personal care because Prye was unable to take care of these matters due to his schizophrenia, depression, delusional behavior, take care of these matters due to his schizophrenia, depression, delusional behavior, hallucinations, and poor judgment. St. Alexius’s petition sought to have Gerard Nester, the Public Administrator for the City of St. Louis, appointed as Prye’s guardian. St. Alexius attached several exhibits to its amended petition. The first exhibit showed that Prye’s closest relative was a half-sister in Memphis, Tennessee. Another exhibit detailed Prye’s assets. Also attached were a letter of guardianship granting IOSG control and custody over Prye, an order adjudicating the need for and appointment of a guardian, the report of a guardian ad litem recommending a guardianship for Prye, and the underlying petition seeking an adjudication of disability and an appointment of a guardian filed by James E. Myers, Psy.D., in Sangamon County, Illinois.

Several parties were allowed to intervene in the proceedings. Gerard Nester was allowed to intervene as an interested party because no other natural person formally consented to act as a prospective Missouri guardian. The IOSG filed a motion to intervene because it had an interest in that it was already the legally appointed guardian pursuant to the court order in Sangamon County, Illinois. This motion was granted “as a matter of comity.” The Missouri Department of Mental Health (“MDMH”) also filed a motion to intervene, which was granted.

Prye waived his right to be present at trial and also waived his right to a jury trial. St. Alexius was represented by private counsel at trial. On December 13, 2004, the Circuit Court of the City of St. Louis issued its “Order And Judgment On Petition For Appointment Of Guardian Or In The Alternative Application For Detention (Involuntary Civil Commitment).” The trial court found St. Alexius’s application for detention was not filed under oath as required by section 632.305.1. Therefore, it was not properly before the trial court, and it was denied. Further, the trial court found Prye had not changed his state of domicile or legal residence to Missouri either through his own acts or the acts of his Illinois guardian. However, the trial court found that even though Prye was not a Missouri resident and already had a guardian in Illinois, it still had jurisdiction to appoint a Missouri guardian for Prye pursuant to section 475.035. The trial court also found that the Illinois guardianship had “no extraterritorial legal effect” in Missouri, and further, that the Illinois guardian had no legal authority to admit or keep Prye in a mental health facility in Missouri or Illinois without Prye’s actual, willing consent. The trial court denied the motions to dismiss of both IOSG and the Public Administrator. The trial court found Prye met the criteria justifying appointment of a guardian, but elected not to appoint a guardian in this case. According to the trial court, Prye’s physical presence in Missouri was “artificially and improperly created” by IOSG, which exceeded its legal authority in moving Prye to Missouri. Finally, the trial court ordered IOSG to take physical custody and control of Prye and to place him in an appropriate treatment setting in Illinois, the only place it had jurisdiction. Further, the trial court issued a writ of habeas corpus and directed St. Alexius to produce the body of Prye for a show cause habeas corpus hearing.

This appeal followed.

On January 14, 2005, we entered an order staying all further proceedings in the trial court pending resolution of this appeal. On March 21, 2005, we clarified that order stating that until the appeal is resolved, the IOSG is the only recognized court-appointed guardian for Prye. On June 17, 2005, we issued an order lifting the stay in part to allow IOSG to take custody of Prye and find an appropriate placement for him other than in Missouri. After the case was argued and submitted, this Court was notified on July 7, 2005, that Prye had been discharged from St. Alexius and moved outside the State of Missouri.

Initially, we must determine whether the controversy in this matter has been rendered moot. An appeal may be rendered moot if an event occurs that makes a court’s decision unnecessary or makes granting effectual relief by the court impossible. Kinsky v. Steiger, 109 S.W.3d 194, 195 (Mo.App. E.D.2003), quoting Local Union 1287 v. Kansas City Area Transp. Auth., 848 S.W.2d 462, 463 (Mo. banc 1993).

Missouri courts have only recognized two narrow exceptions to the mootness doctrine. First, if a case becomes moot after argument and submission, dismissal is within our discretion. Kinsky, 109 S.W.3d at 196. The second exception applies if a case presents an issue that (1) is of general importance and public interest, (2) will recur, and (3) will elude appellate review in future live controversies. Id. If this exception applies, dismissal is also within our discretion. Id. The second exception “is very narrow ... and if an issue of public importance in a moot case is likely to be present in a future live controversy practically capable of review, the ‘public interest’ exception does not apply.” Id., quoting In re Southwestern Bell Tel. Co.’s Pro. Rev., 18 S.W.3d 575, 577 (Mo. App. W.D.2000).

In this case, Prye has been moved from the state of Missouri, which renders this case moot. However, before dismissing the case, we must determine if an exception to the mootness doctrine applies. The second exception to the mootness doctrine is inapplicable because there is no reason that this issue would elude appellate review in future live controversies. However, Prye was moved out of the state of Missouri after argument and submission of this appeal. Thus, this situation falls within an exception to the mootness doctrine, and we have discretion to decide whether to dismiss the appeal. We decline to dismiss the appeal in whole, however, and exercise our discretion to address the second point of the IOSG’s appeal, due to the significance of the trial court’s decision in this regard.

In its second point on appeal, IOSG argues the probate court erred in refusing to recognize and give effect to the Illinois guardianship order under the Full Faith and Credit Clause of the United States Constitution, and in refusing to dismiss the guardianship and detention petitions.

Review of a probate court’s rulings in a proceeding to appoint a guardian or conservator is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). Oliva v. Oliva, 113 S.W.3d 269, 273 (Mo. App. W.D.2003), quoting Keyser v. Keyser, 81 S.W.3d 164, 168 (Mo.App. W.D.2002). As a result, we will sustain the trial court’s judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy, 536 S.W.2d at 32. In determining the sufficiency of the evidence, we accept as true the evidence and all inferences favorable to the court’s decision and disregard all contrary evidence and inferences. In re Estate of Ferguson, 130 S.W.3d 656, 660 (Mo. App. E.D.2004).

The probate court’s judgment is premised, in large part, on its conclusion that the Illinois guardianship order is not enti-tied to Ml faith and credit and; therefore, IOSG is not afforded extraterritorial jurisdiction in Missouri. Because Prye had no Missouri guardian, the trial court recognized that the criteria to justify appointment of a Missouri guardian were present. Instead of appointing a Missouri guardian, however, the trial court fashioned its own remedy and directed IOSG to take custody of Prye and move him to Illinois, the only jurisdiction where it believed IOSG had legal authority to act.

Missouri is compelled to give full faith and credit to a judgment of another state unless the judgment of the rendering state is void for lack of jurisdiction over the person or subject matter, or is obtained by fraud. Phillips v. Fallen, 6 S.W.3d 862, 864 (Mo.banc 1999). No party to these proceedings offers any argument that the Illinois judgment falls within these exceptions or that the Illinois judgment appointing the guardian is not valid.

The probate court relied upon a case from the Southern District of the Missouri Court of Appeals from 1982 that held the rights and powers of guardians are considered as strictly local and do not entitle them to exercise any authority over the person or personal property of their wards in other States. Turner v. Turner, 637 S.W.2d 764, 767 (Mo.App. S.D.1982). This conclusion was premised upon the same general reasoning that has circumscribed the rights and authorities of executors and administrators and relied upon dicta in a United States Supreme court case from 1881, Hoyt v. Sprague, 103 U.S. 613, 13 Otto 613, 26 L.Ed. 585 (1881). Turner, 637 S.W.2d at 767.

However, the issue in the Turner appeal concerned the capacity of a foreign conservator to maintain a suit in Missouri on behalf of the alleged incapacitated person. Id. at 766. It did not address the issue of whether a foreign judgment appointing a guardian is entitled to Ml faith and credit. Id. In addition, the Turner case relied upon an interpretation of section 475.335, which was subsequently rewritten. Indeed, the Missouri guardianship code was revised in 1983 and now recognizes foreign conservators and guardians. Section 475.055 was rewritten in 1983, and the revision included subsection 3, which states:

A person becomes a guardian or conservator of a minor or incapacitated or disabled person upon issuance of letters of guardianship or conservatorship by the court. A person so appointed need not reside within this state in order to accept or serve as guardian or conservator, unless the court finds that such person, taking into consideration his place of residence, is unable to effectively perform the duties of guardian or conservator as provided by this code. The guardianship or conservatorship status continues until terminated, without regard to the location from time to time, whether within or outside of this state, of the guardian and ward or conservator and protectee.

Section 475.055.3. Previously, this section had stated that “no person who is a nonresident of this state shall be appointed guardian of the person or of the estate.” Section 475.055.2 RSMo (1982).

In addition, other provisions of Chapter 475 provide:

If no local conservator has been appointed and no petition in a conservatorship proceeding is pending in this state, a domiciliary foreign guardian, curator, committee or conservator may file with a court of a county in this state in which property belonging to the minor or disabled person is located, authenticated copies of his appointment and of any official bond he has given. Thereafter, he may exercise as to assets in this state all powers of a local conservator and may maintain actions and proceedings in this state subject to any conditions imposed upon nonresident parties generally-

Section 475.836.

A foreign guardian ... submits personally to the jurisdiction of the courts of this state in any proceeding relating to ... doing any act as a guardian or conservator in this state which would have given the state jurisdiction over him as an individual.

Section 475.337. Thus, while there is a paucity of Missouri case law on this issue, these Missouri statutes indicate a willingness to recognize guardianship judgments without regard to the location of the guardian or ward.

In this case, IOSG removed Prye from Illinois where it was appointed as Prye’s guardian. IOSG filed a certified copy of its “Letters of Guardianship” in Missouri. Further, IOSG arranged for psychiatric consultations in Missouri and signed Missouri hospital admissions papers on behalf of Prye. Thus, IOSG has submitted itself to the jurisdiction of Missouri courts through these actions. As mentioned above, Missouri law expresses an intent to continue a guardianship without regard to the location from time to time, whether within or outside of this state, of the guardian and ward. Finding that IOSG has no authority to act with regard to its ward, who was located in Missouri, would be contrary to the intent of section 475.055.3, which seeks to give Missouri guardianships such power in other jurisdictions.

Therefore, the Illinois guardianship status of IOSG is entitled to recognition and enforcement by the Missouri courts under the Full Faith and Credit Clause. The probate court’s conclusion that the Illinois guardianship had no extraterritorial effect outside of Illinois, and that the Illinois guardian had no legal authority to admit Prye to a Missouri mental health facility erroneously applied the law. The Illinois guardian was entitled to recognition in Missouri. Point granted.

We exercise our discretion to dismiss IOSG’s remaining points on appeal as moot.

The judgment of the trial court is reversed. The rest of the appeal is dismissed.

SHERRI B. SULLIVAN, J. and BOOKER T. SHAW, J., concur.

      . In later evaluations, it was determined that this was an incorrect diagnosis, and Prye did not have Pick's disease, a form of dementia.

      . All further statutory references are to RSMo (2000) unless otherwise indicated.

      . The trial court recognized that if IOSG complied with the order to take custody and control of Prye and return him to Illinois, the habeas corpus hearing order would become moot.


text:
    Sarah PANZAU, Appellant, v. JDLB, INC., Respondent.
    No. ED 85615.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 9, 2005.

      Daniel R. Schramm, Chesterfield, MO, for respondent.
    Paul F. Keeven, Chesterfield, MO, for appellant.
   OPINION

GLENN A. NORTON, Judge.

Sarah Panzau appeals the Labor and Industrial Relations Commission’s decision that her injuries did not arise out of or in the course of her employment. We affirm.

I. BACKGROUND

Panzau was seriously injured in a one-vehicle accident just before 4:30 a.m. on a Saturday. Blood taken from her at the hospital shortly after the accident showed that her blood alcohol level was .306 milligrams per deciliter. The parties have stipulated that her alcohol intoxication was a substantial factor in causing the accident. Panzau was employed by JDLB, Inc., doing business as DB’s Sports Bar, as a waitress, hostess and bartender. On the day before the accident, Panzau worked from 10:00 a.m. to 3:00 p.m. After clocking out, she left DB’s and met up with friends at a different bar at 6:00 p.m. Panzau had two alcoholic drinks, and then she and her friends took a shuttle bus to the Cardinals baseball game. She had another drink on the bus and beer at the game.

Panzau and her friends left the game early and went to DB’s, arriving around 10:00 p.m. An employee testified that Panzau was stumbling and yelling and appeared drunk. Panzau and her friends sat down to eat, and a beer was ordered for Panzau. One of DB’s owners told Panzau that she was drunk and would not be served alcohol; he told the staff not to serve her alcohol. After Panzau and her friends finished eating, they left DB’s and went to another bar in the area. Panzau testified that she has memory blackouts from the evening, particularly from this time on. There was other testimony, however, that Panzau consumed two or three beers and two or three shots of alcohol at the other bar. They stayed there for approximately ninety minutes.

Panzau returned to DB’s around 1:30 a.m. A few witnesses testified that she looked more sober at this time than she had earlier. Panzau sat with two of the owners and a group of the owners’ friends, all of whom were at DB’s socially. Neither of the owners was working at that point. They did not encourage Panzau to sit with them; in fact, both were concerned that she may embarrass herself and them and felt that she imposed on their group. According to witnesses, Pan-zau drank only water while at the owners’ table. At one point, one of the owners ordered drinks for his friends, but not for Panzau, and Panzau voluntarily carried the tray of drinks from the bar to the table. Panzau did not receive — nor did she expect — any compensation for that act. DB’s customers commonly carried their orders from the bar to their tables if the staff was busy. In the course of the evening, Panzau persuaded one of the owners to consume a shot of alcohol from her belly. Panzau did not drink any alcohol herself during this activity.

The owners and their group left DB’s at 2:45 a.m., 15 minutes before closing time. Panzau also left, as one of the owners had instructed, but returned while the staff was closing the bar. During the closing procedures, Panzau poured shots and took them to the office for herself, a manager and another employee who was counting the day’s till. Panzau drank one shot. She left before the other employees were finished closing and was involved in the accident approximately ten miles from DB’s.

Panzau filed a claim for workers’ compensation, arguing that she became intoxicated in the course and scope of her employment at DB’s and that her injuries resulted from the intoxication. The Administrative Law Judge found that the accident did not arise out of or in the course of her employment and denied her claim. See section 287.120.1 RSMo 2000. The Commission adopted the ALJ’s decision, and Panzau appeals.

II. DISCUSSION

We review the decision of the ALJ as adopted by the Commission. Reidelberger v. Hussman Refrigerator Co., 135 S.W.3d 431, 433 n. 2 (Mo.App. E.D. 2004). The Missouri constitution, article V, section 18 provides that judicial review of the Commission’s award is to determine whether the award is supported by competent and substantial evidence upon the whole record. See Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003). “This standard would not be met in the rare case when the award is contrary to the overwhelming weight of the evidence.” Id. at 223. By statute, we “shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the award upon any of the following grounds and no other:

(1) That the commission acted without or in excess of its powers;
(2) That the award was procured by fraud;
(3) That the facts found by the commission do not support the award;
(4) That there was not sufficient competent evidence in the record to warrant the making of the award.”

Section 287.495.1. The Commission’s interpretations of law are reviewed for correctness without deference to the Commission’s judgment. Ming v. General Motors Corp., 130 S.W.3d 665, 667 (Mo.App. E.D. 2004). We review these decisions independently, and, if we disagree with the Commission, then we may reverse because of the error of law. Id. at 667.

The only issue on appeal is whether the Commission erred in finding that Pan-zau’s injuries did not arise out of and in the course of her employment. This is a question of law. Blades v. Commercial Transport, Inc., 30 S.W.3d 827, 828 (Mo. banc 2000). Panzau argues that the mutual benefit doctrine and special hazard doctrine apply in this case and establish that, even though she was off-duty at the time, her accident arose out of and in the course of her employment. We disagree.

A. Mutual Benefit Doctrine

An injury that occurs during an activity mutually beneficial to the employer and the employee arises out of and in the course of employment. Scullin Steel Co. v. Whiteside, 682 S.W.2d 1, 2 (Mo.App. E.D.1984). “[A]n injury suffered by an employee while performing an act for the mutual benefit of the employer and the employee is usually compensable.” Blades, 30 S.W.3d at 829. The applicability of the doctrine turns on the facts of each case, and not all injuries arising from acts that have only remote or attenuated benefits to the employer are compensable. Id. Panzau alleges that by serving drinks and drinking alcohol at DB’s on the night of the accident, she provided a benefit to her employer and that her injuries arose out of and in the course of those mutually beneficial activities.

The Commission found that Panzau voluntarily retrieved one tray of drinks and that she served one tray of shots to other employees during closing and concluded that neither act was beneficial to the employer. Contrary to Panzau’s argument, these findings are supported by sufficient competent and substantial evidence and the conclusion of law is correct.

Panzau points to the testimony of one employee who stated that Panzau helped by carrying trays to “tables” as overwhelming evidence contradicting the Commission’s findings. We do not reweigh the evidence; the Commission judges the weight to be given to conflicting evidence and the credibility of witnesses. DeLong v. Hampton Envelope Co., 149 S.W.3d 549, 554 (Mo.App. E.D.2004). Moreover, this single reference to more than one table does not outweigh testimony by Panzau and both owners that Pan-zau had voluntarily carried only one tray of drinks to her own table as any other customer might have done. Although the employer’s written policy provided that off-duty employees are expected to perform employment activities if requested to do so by a customer, voluntarily retrieving a tray of drinks for the group with whom she was socializing was not an employment activity. In fact, customers commonly retrieved their own drinks from the bar, Panzau did not expect compensation for this act and she admitted that she was at DB’s socially and not as an employee. The benefit to the employer by this act, if any, was remote, and even if the injuries arose out of and in the course of this act, it was not compensable. Additionally, drinking by employees during or after closing was forbidden, and employees had been fired for the practice. No benefit was provided to the employer by serving drinks to the closing employees.

The Commission also found that Panzau consumed one beer and one shot at DB’s over the course of the night. This finding was also supported by competent and substantial evidence. Other than testimony that a beer was ordered for her and that she consumed a shot during closing procedures, the evidence showed that Panzau drank only water at DB’s that night. Pan-zau argues that because of her high level of intoxication at 4:30 a.m., “commonly understood alcohol elimination factors” and testimony that she appeared more sober when she returned to DB’s at 1:30 a.m. than she had when she had been there earlier in the evening support an inference that she drank heavily from 1:30 to 4:30 a.m. while at DB’s. We decline to draw that inference based on allegedly common understanding and in light of evidence that Panzau consumed four to six drinks at the bar she was at before returning to DB’s the second time. Nor is Panzau s own testimony that she consumed shots of hard liquor with the owners overwhelming evidence contradicting the Commission’s findings because that testimony was cast in doubt by her self-professed blackouts during that time period. See Wester v. Missouri Department of Labor & Industrial Relations, 134 S.W.3d 757, 761 (Mo.App. S.D.2004) (the Commission has the right to believe or disbelieve none, all, or part of any witness’s testimony).

In any case, any alcohol consumption by Panzau at DB’s served no benefit to the employer. Panzau’s claim that the workplace environment encouraged drinking on and off duty is belied by the record. The employer had a general policy against consuming alcohol on the job, and competent and substantial evidence shows that this policy was enforced in all but the rare instance that an owner or manager gave permission. Permission was not given to Panzau that night; in fact, one of the owners discouraged her from drinking at DB’s by refusing to serve her alcohol. Panzau has made no plausible argument that the employer benefited by her drinking activities at DB’s.

The mutual benefit doctrine does not apply in this case.

B. Special Hazard Doctrine

The special hazard doctrine applies when an employee is exposed to a peculiar or abnormal peril whose, risk is incident to or inseparable from the scene of employment. Snowbarger v. Tri-County Electric Coop., 793 S.W.2d 348, 350 (Mo. banc 1990). The doctrine can be used to circumvent the general rule that injuries occurring during travel to or from work are not compensable. Id. at 349. In Snowbarger, for instance, a utilities employee was required to perform physical work for his employer during 86 hours of a 100.5 hour emergency shift. Id. On his way home after the shift, fatigue caused the employee to fall asleep at the wheel of his vehicle, and he was killed in an accident. Id. The Court reasoned that because the employee’s extremely long work hours exposed him to an abnormal risk and because the work was required by his employer, the accident was compensable. Id. at 350. Panzau argues that drinking was a special hazard incident to and inseparable from her employment.

The risks Panzau took in drinking excessively and driving under the influence of alcohol were entirely separable from her work. Again, the evidence showed that she drank, at most, one beer and one shot at DB’s that night. All other alcohol was consumed elsewhere. But more importantly, Panzau presented absolutely no evidence or plausible argument that her drinking that night was required or encouraged by her employer. Rather, the decisions to drink excessively and then drive home were independently made by Panzau alone. See Hilton v. Pizza Hut, 892 S.W.2d 625 (Mo.App. W.D.1994) overruled on other grounds by Hampton, supra (special hazard doctrine did not apply where employee, after regular shift, made independent decision to drive while drowsy).

The special hazard doctrine does not apply to this case.

The Commission’s decision is supported by sufficient competent and substantial evidence on the whole record, and there are no errors of law.

III. CONCLUSION

The Commission’s decision is affirmed.

CLIFFORD H. AHRENS, P.J., and NANNETTE A. BAKER, J., concurring.

      . All statutory references are to RSMo 2000.


author: MARY K. HOFF, Judge.

text:
    Michael J. JABLONOWSKI and Cheri L. Jablonowski, Appellants/Cross-Respondents, v. Lloyd B. LOGAN and Lottie A. Logan, Respondents/Cross-Appellants.
    No. ED 85009.
    Missouri Court of Appeals, Eastern District, Division Four.
    Aug. 9, 2005.

      Martin Wayne Blanchard, Clayton, MO, for Appellant.
    Paul Gregory Henry, Clayton, MO, for Respondent/Cross-Appellant.
   MARY K. HOFF, Judge.

Michael J. Jablonowski and Cheri L. Jablonowski (hereinafter collectively referred to as the Jablonowskis) appeal from the trial court’s judgment in favor of Lloyd B. Logan and Lottie A. Logan (the Lo-gans) on the Jablonowskis’s petition for declaratory judgment. The Logans cross-appeal. We affirm the judgment as modified.

The Jablonowskis raise two issues on appeal. However, the Logans concede the Jablonowskis’s second claim of error as to the trial court’s ruling concerning the location of the Logans’s alleged easement. Given the Logans’s concession on this point and our resolution of the remaining points on appeal, we need not analyze the Jablonowskis’s second point in any detail.

Our standard of review in declaratory judgment actions is the same as in any other court-tried case. State v. Reproduct. Health Servs. of Planned Parenthood of St. Louis Reg., Inc., 97 S.W.3d 54, 56 (Mo.App. E.D.2002). We will affirm the trial court’s decision unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. However, we determine questions of law de novo, giving no deference to the trial court’s judgment in such matters. Id.

The record on appeal reveals the following. The Jablonowskis are owners of certain real property located in Franklin County, Missouri (hereinafter referred to as the Property). Armstead and Mary Finney (the Finneys) were owners of the Property on August 7, 1980. The Logans own certain real property that is adjacent to and immediately west of the property.

On August 7,1980, the Finneys executed a deed (Easement Deed) purporting to convey to the Logans an easement (Easement) across the Property. The Easement Deed contained the following language, as pertinent to the appeal:

Granting, extending and conferring to the [Logans] the exclusive right to build, maintain, reconstruct and use, without any restrictions, a road (or roads), sewers, electric and water service and to perform other related activity on the strip or strips of ground described and to use such additional space adjacent to the right-of-way so granted as may be required for working room during the construction period.
over the following described Real Estate, situate in the County of Franklin and State of Missouri, to-wit:
In Section 29 of Township 43 North, Range 2 East of the 5th P.M., a 60 ft. strip of land on either side of a center line extending from a point twenty chains North of the Southwest corner of said Section, run thence, due East to a point on the West bank of the Meramec River.

On October 29, 2003, the Jablonowskis filed a petition for declaratory judgment, asking, among other things, that the trial court declare them fee simple owners of the Property, free and clear of the Easement, and declare that the Easement was null, void, and of no effect due to impossibility and/or uncertainty. Following a bench trial, the trial court entered judgment in favor of the Logans and declared the Logans possessed a valid sixty-foot-wide easement per the recorded Easement Deed.

In their first point, the Jablonow-skis claim the trial court erred by entering judgment in favor of the Logans and ruling that the Logans have a valid easement over the Jablonowskis’s property because the Easement Deed contains a patent ambiguity rendering it void and because the description and purpose stated in the Easement Deed is impossible to accomplish. Their argument concerning the “purpose” of the Easement presumes the Easement’s purpose was to reach the Mer-amec River, a purpose that is impossible to accomplish because the property did not extend to the Meramec River. We disagree with this characterization of the Easement’s purpose, as the Deed expressly states that the Easement was granted for the purpose of constructing a road and sewers and establishing electric and water service. The language referencing the Meramec River merely fixes the location of the center line.

The Jablonowskis’s argument that the Easement Deed contains a patent ambiguity focuses on the Easement Deed’s description of the Easement’s center line. During trial, both parties stipulated that the centerline, drawn as described, continues past the Property. The Jablonowskis contend the Finneys attempted to convey an easement over property they did not own, in that the Easement Deed describes the Easement as terminating at a point on the west bank of the Meramec River, and the Property did not border the river. They assert that because it was impossible for the Finneys to grant an easement reaching the Meramec, the Easement Deed is a nullity. However, if a grantor owns any real estate that corresponds in part to a described conveyance, we may reject an interpretation that conveys nothing in favor of one that conveys something. Massachusetts Gen. Life Ins. Co. v. Sellers, 835 S.W.2d 475, 480-81 (Mo.App. S.D. 1992). Validity is favored over invalidity. Id.; Hobbs v. Yeager, 263 S.W. 225, 229 (Mo.1924).

We will declare a deed void for uncertainty of description only where, after resorting to oral or other extrinsic proof, that which was intended by the parties remains a “mere matter of conjecture.” Hamburg Realty Co. v. Woods, 327 S.W.2d 138, 150 (Mo.1959), quoting 26 C.J.S. Deeds Section 30, 644-45. Extrinsic evidence is always admissible to explain boundary calls. Id. Generally, a deed’s description is sufficient if it affords the means of identification of the property. Id. “A land description is sufficiently definite if one reasonably skilled in determining land locations can locate it.” Braun v. Petty, 31 S.W.3d 521, 524 (Mo.App. E.D. 2000).

Significantly, a boundary survey of the Property that depicted the location of the described centerline was admitted during trial. The surveyor who participated in preparing the boundary survey testified that the boundary survey accurately depicted the location of the Easement on the Property. Given the ability of the surveying company to locate and depict the Easement’s centerline, we conclude the Easement deed’s description was sufficiently definite to identify the Easement. We agree with the trial court that the Logans have a valid easement per the recorded Easement Deed. Point denied.

In their cross-appeal, the Logans argue the trial court erred in ruling the Easement was 60 feet in width because the Easement Deed and the evidence adduced at trial established the Easement was 120 feet in width. The parties’ dispute regarding the width of the Easement arises from the use of the word “either” in the Easement Deed description: “a 60 ft. strip of land on either side of a centerline.... ” The Logans contend “either” side of the centerline, as used in the description, means 60 feet on each side of the center-line, resulting in an easement measuring 120 feet in width.

Although a different issue was considered by the Missouri Supreme Court in Clevenger v. Chicago, M. & St. P. Ry. Co., 210 S.W. 867 (Mo.1919), the Court’s analysis is instructive to our determination of the meaning of “either” as used in the Easement Deed. In Clevenger, the deed under consideration purported to convey a strip of land 100 feet wide. Id. at 867. The description of the conveyance stated: “Hereby conveying a strip of land fifty (60) feet wide on each side of the center line of the railway of said company as now located.... ” Id. In analyzing the question presented, the Court clearly considered the word “each” to be interchangeable with the word “either.” After stating, “Beyond all doubt the language of the deed vested a fee in the defendant in and to 50 feet on each side of its railroad track, starting at the center,” the Court declared, “In effect, the language of the deed, in referring to this extraneous strip of 100 feet on either side of the right of way....” Id. at 868. Courts from other jurisdictions, considering the use of “either” when used as an adjective, determined that “either” can mean “both.” See Miles v. Miles, 303 S.C. 33, 397 S.E.2d 790, 790-91 (Ct.App.1990) (when considering a statute that provided that a divorce could be granted on the application of “either” spouse, the court affirmed a decision granting a divorce to “both” parties); Kibler v. Parker, 191 Ark. 475, 86 S.W.2d 925, 926-27 (1935) (use of word “either” in lease option agreement transferring a strip of land “on either side of said Highway 25” was used in the sense of “both”); see also State ex rel. State Highway Comm. v. Fajen, 570 S.W.2d 765, 767 (Mo.App.1978) (when discussing 140 feet-wide access road, Court noted it was shown to have a width of 70 feet on “either” side of its center line).

Missouri’s long-standing, cardinal rule of construction is that a deed must be construed as nearly as may be by the parties’ intentions, to be ascertained within the four corners of the instrument, the surrounding circumstances and conditions. Snadon v. Gayer, 566 S.W.2d 483, 489 (Mo.App.1978). During trial, Lloyd Logan testified that when he and Armstead Fin-ney discussed the Logans’s desire for an easement, Lloyd Logan suggested that 120 feet would be adequate; afterward, Arm-stead Finney presented him with the Easement Deed. No other evidence of the parties’ intent was adduced.

We find the interpretation of “either” proposed by the Logans persuasive and in accordance with the case law discussed herein, particularly with the interchangeable usage of “either” and “each” found in Clevenger. Therefore, construing the Deed as nearly as may be ascertained by the intention of the parties, to be ascertained within the four corners of the Deed, the surrounding circumstances and conditions, we conclude the Easement conveyed to the Logans was 120 feet in width, 60 feet of which was located on each side of the described centerline.

A judgment that is inconsistent or contradictory on a material matter, or that is based on conclusions at variance with the facts, cannot stand. Barrett v. Barrett, 963 S.W.2d 454, 457 (Mo.App. E.D. 1998). While such judgments may be reversed and remanded, Rule 84.14 authorizes this court to “affirm the judgment ... of the trial court, in whole or in part, or give such judgment as the court ought to give.” The trial court’s determination that the Easement was only 60 feet in width is at variance with the facts adduced during trial. Point granted.

We accordingly modify the judgment only by declaring the Easement to be 120 feet in width, 60 feet of which shall be located on each side of the Easement’s centerline. As so modified, the judgment of the trial court is affirmed.

LAWRENCE E. MOONEY, Presiding Judge and SHERRI B. SULLIVAN, Judge, concur.