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Cook v. DeSoto Fuels8/2/2005
ceding 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.
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