Avery Contracting, LLC v. Niehaus, ED101592

• Decision Date: 14 April 2015
• Docket Number: No. ED101592,ED101592
• Parties: AVERY CONTRACTING, LLC, Appellant, v. RICHARD NIEHAUS, LISA J. NIEHAUS ALICIA NIEHAUS, CREEKSTONE HOMEOWNERS ASSOCIATION, and MISSOURI HIGHWAYS AND TRANSPORTATION COMMISSION, Respondents.
• Court: Missouri Court of Appeals

AVERY CONTRACTING, LLC, Appellant, v. RICHARD NIEHAUS, LISA J. NIEHAUSALICIA NIEHAUS, CREEKSTONEHOMEOWNERS ASSOCIATION, andMISSOURI HIGHWAYS ANDTRANSPORTATION COMMISSION, Respondents.

No. ED101592

Missouri Court of Appeals Eastern District DIVISION III

April 14, 2015

Appeal from the Circuit Court of Jefferson County

Honorable Nathan B. Stewart

Introduction

Appellant Avery Contracting, LLC ("Avery") appeals from the judgment of the trial court dismissing its lawsuit against Respondent Missouri Highways and Transportation Commission ("MHTC") and Respondents Richard, Lisa, and Alicia Niehaus and Creekstone Homeowners Association (collectively referred to as "the Creekstone parties"). Avery filed a petition in the trial court seeking the creation of a private roadway through neighboring property in order to provide access from a landlocked parcel owned by Avery to a public road, Route M. Because Avery failed toallege all of the required elements to establish a cause of action under Section 228.342¹ for a private roadway of necessity, we affirm the judgment of the trial court granting the Creekstone parties' motion to dismiss. Because Chapter 228 does not allow for the establishment of a private roadway of necessity over public land, we affirm the judgment of the trial court granting MHTC's motion to dismiss.

Factual and Procedural History

In 1995, the Raebel Living Trust ("the Raebel Trust") owned a parcel of real estate located in Jefferson County. That same year, MHTC brought an action in eminent domain to condemn certain property interests in the parcel. The MHTC sought to acquire the land for a highway construction project on Route M. On December 4, 1995, the Jefferson County Circuit Court entered an order of condemnation ("the Raebel Condemnation"). Pursuant to the Raebel Condemnation, MHTC acquired land and access rights from the Raebel Trust. Specifically, MHTC acquired nearly 15 acres of land and a permanent easement. The Raebel Condemnation left the Raebel Trust with a roughly 50-acre landlocked parcel of land ("the Property"). MHTC also acquired all access rights to the Property, as the Raebel Condemnation ordered that all direct access from the Property to Route M was "prohibited or limited" upon acquisition by MHTC. The Raebel Trust received $494,340 in compensation for the land and property rights ceded to MHTC in the Raebel Condemnation. All parties agree that the Raebel Condemnation left the Property without access to any public road.

In 2003, the Raebel Trust conveyed its remaining interests in the Property to Mullins Custom Homes, LLC by warranty deed. In 2013, Mullins Custom Homes, LLC conveyed the Property to Avery by general warranty deed.

After acquiring the Property but prior to filing the instant suit, Avery met informally with representatives of MHTC to discuss the possibility of obtaining access to Route M from the Property.Avery left the meeting with a belief that his request to obtain access to Route M from the Property had been denied. MHTC has a formal permit process to review and consider requests for access to public roadways from neighboring properties. Avery never applied for such a permit.

Avery subsequently filed a petition in the Circuit Court of Jefferson County against the Creekstone parties and MHTC seeking the establishment of a private roadway of necessity to allow the Property access to Route M. In Count I of its petition, Avery asserted a claim against the Creekstone parties for the establishment of a private road pursuant to Section 228.342, which provides for the establishment or widening of a private road upon a showing of strict necessity. In Count II, Avery re-alleged and reasserted the same claim against MHTC, requesting that MHTC provide Avery with a private road from the Property to Route M. Avery's petition sought to establish a single private road that would be constructed on property owned by both the Creekstone parties and MHTC. Avery alleged that the requested private road would run over the portion of Lot 3 held by MHTC, as well as over property within Creekstone subdivision owned by the Creekstone parties.

Avery alleged in its petition that Mullins Custom Homes, LLC conveyed the Property to Avery in 2013. Avery further alleged that the Property "is located adjacent to Relocated Route M," and that the Raebel Condemnation "prohibited or limited" all abutter's rights of access to Route M from the Property. Finally, Avery alleged that the Property "has no recorded means of ingress or egress to a public road," that the Property "has no recorded legal right of access... to a public road," that "there is an absence of a reasonably practical way to and from the [Property] to a public road," and that "[t]he establishment of the private road petitioned for is a way of strict necessity."

In Count II of its petition, Avery also requested a declaratory judgment requiring MHTC to provide it limited access to Route M under the theory that MHTC has no authority to completely prohibit Avery's access to the Property. Specifically, Avery alleged that nothing in the MissouriConstitution gives MHTC the authority to "completely prohibit access to, from and across state highways so as to completely and permanently land lock" real estate. Avery further alleged that the Raebel Condemnation was vague, uncertain, and irregular because the language "prohibiting or limiting" direct access from the Property to Route M is ambiguous.

Both the Creekstone parties and MHTC filed motions to dismiss Avery's petition for failure to state a claim upon which relief can be granted pursuant to Rule 55.27.² The Creekstone parties specified four grounds in support of their motion to dismiss: first, that Avery's petition fails to state a claim upon which relief can be granted; second, that Avery's claim is barred by the doctrine of res judicata; third, that Avery's claim is barred by the statute of limitations; and fourth, that Avery's claim is not ripe for adjudication. MHTC offered two grounds in support of its motion to dismiss: first, that MHTC is not subject to the provisions of Chapter 228, including Section 228.342 which allows the establishment of a private roadway upon a showing of strict necessity; and second, that MHTC was not required to provide Avery access to Route M because the Raebel Condemnation previously determined Avery's access rights to Route M.

The trial court conducted a hearing on the motions to dismiss. Following the hearing, the trial court granted both motions to dismiss without prejudice. The trial court's judgment did not specify its grounds for granting the motions to dismiss. This appeal follows.

Points on Appeal

Avery presents eight points on appeal. Avery's first four points on appeal challenge the trial court's judgment granting the Creekstone parties' motion to dismiss. Avery's remaining four points on appeal address the trial court's judgment granting MHTC's motion to dismiss.

1. Creekstone Parties

In its first point on appeal, Avery asserts that the trial court erred in granting the Creekstone parties' motion to dismiss on any ground that Avery failed to allege that no public road passes through or alongside the Property. Avery maintains that Section 228.342 does not require him to plead such facts, and that he sufficiently states a cause of action by pleading that it has no access to public roads. In its second point on appeal, Avery argues that the trial court erred in granting the Creekstone parties' motion to dismiss on any ground that Avery's claims are barred by the doctrine of res judicata because no counterclaim for a private road could have been raised in the prior condemnation case. In its third point on appeal, Avery contends that its claims are not barred by the statute of limitations because a way of necessity is an appurtenant right that runs with the land and cannot be extinguished so long as the necessity continues to exist. Lastly, Avery challenges the trial court's dismissal of its claims against the Creeksone parties on the ground that Avery's petition is not ripe for adjudication because the issues presented in Count I of Avery's petition are appropriate for judicial determination and the hardship on Avery caused by dismissal is obvious, imminent, and certain.

2. MHTC

With regard to the trial court's dismissal of its claims against the MHTC, Avery first argues that the trial court erred in granting MHTC's motion to dismiss on any ground that MHTC is not subject to the provisions of Chapter 228 allowing for the establishment of a private roadway in cases of strict necessity. Avery next argues that the trial court erred in granting MHTC's motion to dismiss on any ground relating to the prior condemnation of the property at issue because the prior condemnation did not give MHTC the right to completely land lock the condemned Property and permanently deprive the condemned property of access to public roads. In its seventh point onappeal, Avery asserts that the trial court erred in dismissing its petition on any purported basis that Avery failed to exhaust its administrative remedies because no such requirement exists given the facts of this case. In its final point on appeal, Avery asserts that the trial court erred in dismissing its petition on any purported basis that the "subdivision road exemption" in Section 228.341 applies because said exemption is not applicable if the private road can be described by metes and bounds without reference to any subdivision plat, declaration, or indenture.

Standard of Review

We review a trial court's grant of a motion to dismiss de novo. Conway v. CitiMortgage, Inc., 438 S.W.3d 410, 413 (Mo. banc 2014). A motion to dismiss for failure to state a claim tests the adequacy of a plaintiff's petition. Id. at 413-14. We will review the petition in an almost academic manner to determine if the plaintiff has alleged facts that meet the elements of a recognized cause of action or of a cause that might be adopted in that...