Fenlon v. Union Elec. Co.

• Decision Date: 14 October 2008
• Docket Number: No. ED 90877.,ED 90877.
• Citation: 266 S.W.3d 852
• Parties: Gregory FENLON, Appellant, v. UNION ELECTRIC COMPANY, Respondent.
• Court: Missouri Court of Appeals

266 S.W.3d 852 Gregory FENLON, Appellant,
v.
UNION ELECTRIC COMPANY, Respondent. No. ED 90877. Missouri Court of Appeals, Eastern District, Division One. October 14, 2008.

[266 S.W.3d 853]

Gregory G. Fenlon, Clayton, MO, pro se.

Matthew H. Noce, St. Louis, MO, for respondent.

PATRICIA L. COHEN, Judge.

Introduction

Gregory Fenlon appeals from the judgment of the Circuit Court of St. Louis County granting Respondent Union Electric Company's motion to dismiss Fenlon's petition. Fenlon claims that the trial court erred in granting the motion to dismiss because Union Electric Company ("UE") had a duty to maintain the easement on

266 S.W.3d 854

which its electrical lines were located and that duty obligated UE to remove any trees or branches that might interfere with those lines.

Factual and Procedural Background

On May 9, 2007, Fenlon filed a petition in the Small Claims Division of the Circuit Court of St. Louis County claiming damages in the amount of $2,800. Fenlon alleged that he notified UE on several occasions that there was a "very large dying, diseased tree" in UE's easement in Fenlon's backyard. According to Fenlon's petition, the tree's branches extended over UE's electrical lines, creating a dangerous condition. In response to Fenlon's complaints, UE sent an agent to remove one or two branches that were actually touching the wires, but refused to remove the remainder of the tree or those branches that hung over but did not touch the power lines. Fenlon therefore hired a service to remove the tree and sought damages for the cost of removal.

UE filed a motion to dismiss the petition for failure to state a cause of action arguing that it did not have a duty to remove the tree because it was located in UE's easement. The small claims court heard arguments on UE's motion to dismiss prior to the hearing. Without ruling on the motion to dismiss, the small claims court held a trial and entered a judgment in favor of UE.

Following entry of the judgment, Fenlon filed an application for trial de novo in the Circuit Court of St. Louis County pursuant to Mo.Rev.Stat. Section 482.365. In response, UE filed a motion to dismiss Fenlon's petition arguing that: (1) Fenlon failed to state a cause of action because UE did not owe Fenlon a duty to remove the entire tree from his property, and (2) the doctrine of res judicata precluded Fenlon from applying for a trial de novo. After hearing both parties' arguments, the trial court granted UE's motion to dismiss. Fenlon appeals.

Standard of Review

Review of a circuit court's order granting a motion to dismiss is de novo. Gibbons v. J. Nuckolls, Inc., 216 S.W.3d 667, 669 (Mo.2007) (en banc). A motion to dismiss for failure to state a claim assumes that all averments in plaintiff's petition are true and tests only the adequacy of plaintiff's petition. Reynolds v. Diamond Foods & Poultry, Inc., 79 S.W.3d 907, 909 (Mo.2002). We assume the factual allegations contained in the petition are true and make no attempt to weigh their credibility or persuasiveness. Rychnovsky v. Cole, 119 S.W.3d 204, 208 (Mo.App. W.D.2003). "It is not the function of the trial court on a motion to dismiss or of this court on appeal from a judgment of dismissal to determine on the merits whether Appellant is entitled to relief." Moore v. Missouri Highway & Transp. Comm'n, 169 S.W.3d 595, 599 (Mo.App. S.D.2005).

Discussion

Where, as here, the trial court does not provide reasons for its dismissal of the petition, we presume the dismissal was based on at least one of the grounds stated in the motion to dismiss, and we will affirm if dismissal was appropriate on any grounds stated therein.¹ Lueckenotte v. Lueckenotte, 34 S.W.3d 387, 391 (Mo.2001) (en banc). Thus, the question on appeal is whether or not Fenlon's petition alleged facts upon which relief could be...