No. 22-2238 ___________________________

City of Carthage, Missouri

Plaintiff - Appellant

v.

Union Pacific Railroad Co.

Defendant - Appellee ____________

Appeal from United States District Court for the Western District of Missouri - Joplin ____________

Submitted: January 10, 2023 Filed: March 1, 2023 ____________ Before GRUENDER, BENTON, and SHEPHERD, Circuit Judges. ____________ BENTON, Circuit Judge.

The City of Carthage sued Union Pacific Railroad Co. for breach of contract, claiming UP failed to maintain several bridges. On summary judgment, the district court1 ruled that the City’s breach-of-contract claim was barred by the five-year

1 The Honorable W. Brian Gaddy, United States Magistrate Judge for the Western District of Missouri, to whom the case was referred for final disposition by consent of the parties pursuant to 28 U.S.C. § 636(c). statute of limitations, § 516.120(1), RSMo 2016. The City appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

In the late 1800s, the City of Carthage, by seven ordinances, granted Missouri Pacific Railway Company (“MPRC”) the right to “construct and keep in repair” several bridges and crossings. The ordinances required MPRC to, in the words of one ordinance, “keep all such crossings and approaches in good condition for the safe and convenient passage of animals, teams and persons.” In 1990, UP acquired MPRC. By the early 2000s, some of the bridges had deteriorated and become unsafe for use. In 2002, the Missouri Department of Transportation informed the City that the bridges needed to be repaired. In 2011, the City and UP met to discuss repairing the bridges. UP did not make any repairs. On February 15, 2013, the City wrote UP demanding repair of the bridges as required by the ordinances. More than five years later, on January 2, 2019, the City sued UP seeking specific performance and a declaratory judgment that it must make the repairs.

Both parties moved for summary judgment. The district court granted UP’s motion, ruling that the City’s breach-of-contract claim was barred by the five-year statute of limitations and that the continuing wrong rule did not preserve the claim. The City appeals.

This court reviews de novo the grant of summary judgment and the district court’s conclusions of law. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc); Selective Ins. Co. South Carolina v. Sela, 11 F.4th 844, 851 (8th Cir. 2021). Summary judgment is proper if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). On summary judgment, this court views all evidence and reasonable inferences most favorably to the non-moving party. Meier v. St. Louis, 934 F.3d 824, 827 (8th Cir. 2019).

-2- II.

“Missouri has two statutes of limitations relating generally to contract actions: sections 516.110(1) and 516.120(1), RSMo.” Hughes Dev. Co. v. Omega Realty Co., 951 S.W.2d 615, 616 (Mo. banc 1997). By section 516.120(1): “All actions upon contracts, obligations or liabilities, express or implied, except those mentioned in section 516.110” must be brought within five years. § 516.120(1), RSMo 2016. “Section 516.110(1) is an exception to the general five-year limitations period established by 516.120(1).” Rolwing v. Nestle Holdings, Inc., 437 S.W.3d 180, 182 (Mo. banc 20