City of Kan. City v. Archer Daniels Midland Co.
| Decision Date | 26 February 2019 |
| Docket Number | WD 81650 |
| Citation | 575 S.W.3d 270 |
| Parties | CITY OF NORTH KANSAS CITY, Appellant, v. ARCHER DANIELS MIDLAND COMPANY, Respondent. |
| Court | Missouri Court of Appeals |
Steven E. Mauer, Kansas City, for Appellant.
David M. Skeens, Kansas City, for Respondent.
Before Division Two: Edward R. Ardini, Jr., Presiding Judge, Alok Ahuja, Judge and Gary D. Witt, Judge
The City of North Kansas City, Missouri (NKC) filed suit in the Circuit Court of Clay County against Gary Tauvar and Archer-Daniels-Midland Company (ADM) alleging public nuisance and negligence. The trial court granted summary judgment in favor of ADM finding that (1) ADM was not, as a former owner of the property in question, liable for any nuisance because Tauvar knew the condition of the property when he purchased it; and (2) NKC’s claims were barred by the applicable statutes of limitations. NKC appeals. Finding no error, we affirm.
ADM owned property located at 1400 Nodaway in North Kansas City, Missouri. This property contained a grain elevator and was surrounded by operating railroad tracks owned by Norfolk Southern Railway. In 2002, ADM sold the property by quit claim deed for $1.00 to Tauvar. The property was not being used as a functioning grain elevator when ADM sold it to Tauvar.
NKC completed an inspection of the property on October 28, 2003. The inspection was conducted by NKC’s senior building code inspector and was in response to a complaint that salvage material was being dumped on the property.
The day after the inspection, NKC sent Tauvar a notice of abatement stating that "the above-mentioned structure has been found to be unsafe." It further stated that the structure was "dangerous to life, property and safety of the public." The notice did not specifically identify the referenced structure; instead, the subject of the notice was "Property located on E. 14th (unsafe structure)." The notice listed a number of dangerous conditions, required Tauvar to close and secure the structure within ten days, and required him to submit a plan to NKC within 30 days to repair or demolish the structure. The city posted the notice of abatement and a notice of condemnation on the property.
Two weeks later, officials from NKC again inspected the property. A few days after this inspection, NKC’s senior building code inspector sent a memo to NKC’s chief of police stating, in part, as follows:
The property has been placarded by NKC Code Enforcement as "CONDEMNED" Unsafe For Occupancy. This is due to structural alterations made to one of the metal silos without obtaining a building permit and the generally dilapidated condition of all of the structures on the property. No person should be allowed to enter any of the buildings on the property, as this is a code violation.
The following week, NKC cited Tauvar for failing to comply with the previously issued notice of abatement. NKC also generated several reports documenting the condition of the property, including that the notice of abatement "gave Mr. Tauvar 10 days to have the structures closed and secured[,]" but "it is evident that Mr. Tauvar is still dumping and occupying this property and has failed to close or secure the structures."
In June 2004, NKC performed another inspection of the property. The following month, Tauvar applied for a permit "to provide structural support to opening in metal grain bin and to repear [sic] openings/support to effect drive thru." NKC denied Tauvar’s permit application.
In September 2004, an additional inspection was performed by the city resulting in a second abatement notice being sent to Tauvar. This abatement notice declared the property a nuisance based on "numerous safety violations." The abatement notice also ordered Tauvar to take action within ten days to correct the violations, including that "[s]tructures and property shall be maintained in good repair, structurally sound and sanitary so as not to pose a threat to the public[,]" and "[a]ccess to all structures and property must be secured."
Tauvar attempted to resolve some of the violations found by NKC by hiring a contractor to demolish metal silos and by obtaining a razing permit from NKC.
However, the demolition produced an even more dangerous condition for the neighboring railroad prompting NKC to revoke the razing permit and render the structure safe at its own expense.
In the early part of 2005, NKC twice inspected the property. A third notice of abatement was issued by NKC in the summer of that year. This notice of abatement found "the property to be in violation of the City Code and hereby declared a nuisance." The notice again listed numerous violations and stated that "[s]tructures and property shall be maintained in good repair, structurally sound and sanitary so as not to pose a threat to the public." The notice warned that "[f]ailure to bring [the] property in to [sic] compliance with the code will result in legal action." In August 2005, Tauvar indicated to NKC that he was in the process of removing materials that were located on the property and that, after those materials were removed, he would begin "demolition of facilities." No facilities were demolished.
Nearly eight years later, in January 2013, NKC again inspected the property and sent Tauvar a Notice of Violation/Order of Demolition.1 This notice stated that "the referenced structure is hereby deemed to be dangerous and unsafe." No specific structure was mentioned. The following violations were noted:
The notice then indicated specific issues with the property and concluded that No structures were demolished by that deadline.
In May 2014, an engineer submitted a report to NKC expressing his opinion concerning the dangers on the property, including
A year later, the community development director for NKC conducted a hearing about the structures on the property. Following the hearing, the community development director declared that the structures on the property constituted a dangerous public nuisance and needed to be demolished.
On September 29, 2016, NKC filed its petition against ADM and Tauvar2 for public nuisance3 and negligence.4 In its petition, NKC alleged that the property at 1400 Nodaway had been vacant since 2002, when it was acquired by Tauvar from ADM. NKC also alleged that, "[u]nbeknownst to the City, ... at the time the [p]roperty was transferred to Mr. Tauvar, ADM had allowed the [p]roperty to fall into disrepair and the [p]roperty constituted a public nuisance." NKC alleged that its Code Enforcement Division "for the first time [on January 15, 2013,] conducted an inspection of the [p]roperty and discovered multiple violations of the Code of the City of North Kansas City, Missouri[.]"
ADM moved for summary judgment,5 alleging that because it had sold the property in 2002, and because Tauvar knew of the condition of the property when he purchased it, ADM could not be held liable for any defective conditions on the property. ADM also alleged that both claims brought by NKC were barred by the relevant statutes of limitations. The trial court granted summary judgment on both grounds. NKC appeals.
"Summary judgment shall be entered if ‘there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.’ " Powel v. Chaminade Coll. Preparatory, Inc. , 197 S.W.3d 576, 580 (Mo. banc 2006) (quoting Rule 74.04(c)(6) ).6 "Appellate review of summary judgment is essentially de novo. " Mo. Landowners All. v. Grain Belt Express Clean Line LLC , 561 S.W.3d 39, 43-44 (Mo. App. W.D. 2018) (citing ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp. , 854 S.W.2d 371, 376 (Mo. banc 1993) ). We view the facts and any inferences "in the light most favorable to the party against whom judgment was entered[.]" Farrow v. Saint Francis Med. Ctr. , 407 S.W.3d 579, 587 (Mo. banc 2013) (citing Lewis v. Gilmore , 366 S.W.3d 522, 524 (Mo. banc 2012) ).
NKC raises two points on appeal. In its first point, NKC alleges that the trial court erred in granting summary judgment in favor of ADM because there was a genuine issue of material fact regarding whether ADM had concealed the property’s condition from Tauvar. In its second point, NKC claims that the trial court erred in granting summary judgment because there was a genuine issue of material fact concerning when the statute of limitations began to run on each claim alleged in its Petition. Because resolution of NKC’s second point is dispositive, we address only it.
The expiration of the statute of limitations is an affirmative defense. Rule 55.08. "A party who moves for summary judgment on the basis of a statute of limitations bears the burden of showing that the statute bars the plaintiff’s claims." White v. Zubres , 222 S.W.3d 272, 274 (Mo. banc 2007) (citing Powel , 197 S.W.3d at 580 ) (additional citations omitted). "But once the movant shows that the plaintiff’s claim would be barred by the statute of limitations, the plaintiff bears the burden of...
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