Metropolitan St. Louis Sewer District v. City of Bellefontaine Neighbors, 022415 MOCAE, ED101713

Docket NºED101713
Opinion JudgeGARY M. GAERTNER, JR., JUDGE
Party NameMETROPOLITAN ST. LOUIS SEWER DISTRICT, Appellant, v. CITY OF BELLEFONTAINE NEIGHBORS, et al., Respondents.
Judge PanelKurt S. Odenwald, P J, concurs. Robert G Dowd, Jr, J, concurs.
Case DateFebruary 24, 2015
CourtCourt of Appeals of Missouri

METROPOLITAN ST. LOUIS SEWER DISTRICT, Appellant,

v.

CITY OF BELLEFONTAINE NEIGHBORS, et al., Respondents.

No. ED101713

Court of Appeals of Missouri, Eastern District, Third Division

February 24, 2015

Appeal from the Circuit Court of St. Louis County 13SL-CC03760 Honorable Mark D. Seigel

GARY M. GAERTNER, JR., JUDGE

Introduction

This case involves a construction error during the City of Bellefontaine Neighbors' (City) street improvement project that resulted in damage to Metropolitan St. Louis Sewer District's (MSD) sewer lines under the street. The issues are whether one political subdivision may sue another political subdivision for inverse condemnation and whether sovereign immunity applies in a tort action between two such entities. MSD appeals the trial court's dismissal of all of its claims against the City. MSD argues that its petition properly stated claims in inverse condemnation, negligence, and trespass against the City for the cost of replacing sewer lines damaged by the City's street project. We would affirm in part and reverse in part, but because of the general interest and importance of the question presented, we transfer this case to the Missouri Supreme Court pursuant to Rule 83.02.1

Background

According to MSD's petition, in 2009, the City undertook a street improvement and resurfacing project (Project). The City hired P.H. Weis & Associates, Inc., d/b/a Weis Design Group (Weis) as the engineer for the Project, and Sherrell Construction, Inc. (Sherrell) as the general contractor. Lift Rite, Inc. (Lift Rite) performed mudjacking services for the Project. Mudjacking consists of pumping a pressurized, concrete-like slurry into voids beneath streets and other concrete slabs.

During this mudjacking process, slurry flowed into MSD's sewer lines, instead of the voids under the street. The slurry hardened inside MSD's sewer lines, causing those lines to be out of service until MSD repaired or replaced them. The total cost of restoring the damaged sewer lines was $66, 860.25.

MSD filed suit against the City, Weis, Sherrell, and Lift Rite to recover this sum. MSD asserted claims of trespass (Count I) and negligence (Count II) against Weis, Sherrell, and Lift Rite. In Count III, MSD raised a claim of inverse condemnation against the City. The City moved to dismiss Count III, arguing MSD lacked standing to bring an inverse condemnation action against the City, because MSD is a political subdivision and the City has no power of eminent domain over property already devoted to public use. The City also argued MSD did not plead an affirmative act by the City that damaged MSD's property. The trial court granted the City's motion to dismiss Count III.

MSD sought leave to file an amended petition, which the trial court granted. MSD's first amended petition expanded the factual pleadings to include several acts by the City, including supervising and directing Weis and Sherrell, participating in planning conferences regarding the Project, and coordinating with MSD and other utilities to avoid damage to any utility systems. MSD's first amended petition reasserted Count III for inverse condemnation against the City, and also joined the City as a defendant on Counts I and II for trespass and negligence, respectively.

The City again moved to dismiss MSD's petition, raising the same arguments regarding Count III and asserting sovereign immunity and lack of a tortious act by the City regarding Counts I and II. The trial court granted the City's motion to dismiss, removing the City as a defendant from the suit.2 This appeal follows.

Standard of Review

"A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiffs petition." City of Lake St. Louis v. City of O'Fallon, 324 S.W.3d 756, 759 (Mo. banc 2010) (quoting Reynolds v. Diamond Foods & Poultry, Inc., 79 S.W.3d 907, 909 (Mo. banc 2002)) (internal alteration omitted). In ruling on such a motion, a court views the facts alleged in the petition as true and grants all reasonable inferences in favor of the plaintiff, determining whether the petition sufficiently alleges facts that meet the elements of a recognized cause of action. City of Lake St. Louis, 324 S.W.3dat759.

We review a trial court's grant of a motion to dismiss de novo. Id. We consider only the grounds raised in the motion to dismiss, and we do not consider matters outside the pleadings. Id.

Point I

MSD contests the trial court's dismissal of its claim of inverse condemnation. The trial court did not specify its grounds for dismissal, but one of the grounds raised in the City's motion to dismiss is dispositive. The issue is whether one political subdivision has standing to bring a claim of inverse condemnation against a municipality, another political subdivision. The City argues that MSD lacks standing to bring such a claim because as a political subdivision, MSD operates sewer lines that are already devoted to public use, and the City has no power to condemn such property. MSD argues that the City's power of eminent domain does extend to public property, and therefore a corresponding action in inverse condemnation is available to MSD for damage caused by the City during the Project.

First, the power of eminent domain "is inherent in the sovereignty of the state[, but] does not inhere naturally in...

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