Gardner v. City of Cape Girardeau, 65641
| Decision Date | 09 August 1994 |
| Docket Number | No. 65641,65641 |
| Parties | Robert GARDNER and Bernadette A. Gardner, Plaintiffs/Appellants, v. CITY OF CAPE GIRARDEAU, Defendant/Respondent. |
| Court | Missouri Court of Appeals |
Jonah T. Yates, Oliver, Oliver & Waltz, P.C., Cape Girardeau, for appellants.
Warren L. Wells, City Atty., Cape Girardeau, for respondent.
Robert and Bernadette Gardner ("landowners") filed suit for "common law damage/inverse condemnation" against the City of Cape Girardeau ("City") for wrongful appropriation of their property because the City conducted a pre-condemnation survey. The trial court dismissed the petition with prejudice. However, it considered matters outside the pleadings. Landowners argue on appeal the trial court erred with respect to two points: 1) granting the City's motion to dismiss since the trial court treated the motion as a summary judgment and summary judgment was not authorized; and 2) denying landowners' request for leave to amend their petition filed after the dismissal. We affirm.
Landowners formerly owned a tract of land located immediately northwest of the intersection of Christine Street and Bloomfield Road on the east side of the Cape LaCroix Creek in Cape Girardeau, Missouri. A fully occupied office building owned by landowners was situated on the property.
The City sought to condemn a portion of landowners' property for the purpose of rebuilding a bridge and changing a road grade. In November, 1989, the City began its pre-condemnation process which consisted of marking right-of-way boundary lines with orange spray paint and placing survey stakes flagged with orange tape behind landowners' building.
The condemnation case proceeded to the circuit court where the court appointed commissioners entered their award. On March 29, 1991, the City paid the award to the court, marking the official date of taking. The City condemned a portion of landowners' property lying west of the building and extending to the creek; however, it did not condemn the office building. A jury heard the condemnation case on the issue of damages and rendered a verdict in the amount of $75,000 on October 16, 1992. A judgment on the verdict was not appealed. On January 8, 1993, landowners sold the remainder of property, including the office building.
On June 18, 1993, landowners filed a petition against the City for "common law damage/inverse condemnation". Landowners allege the City's pre-condemnation survey constituted a "wrongful taking" of their property, namely the office building, because it became "unrentable" due to the loss of tenants and the inability of landowners to secure new tenants. On January 11, 1994, the City filed a motion to dismiss based on the following grounds: 1) the claim was barred by res judicata or collateral estoppel; 2) the petition did not state a cause of action for which relief could be granted; 3) the action was moot; and, 4) landowners failed to join all necessary and proper parties. By agreement of both parties, the motion to dismiss was heard on January 27, 1994. The trial court granted the City's motion to dismiss on January 28, 1994. On February 4, 1994, landowners filed a motion to withdraw the order of dismissal and for leave to file a first amended petition. The trial court denied the motion.
On their first point, landowners contend the trial court erred in granting the City's motion to dismiss because the court treated the motion as a summary judgment.
A motion to dismiss is ordinarily confined to the pleadings and construed in the light favorable to the plaintiff. Counts v. Morrison-Knudsen, Inc, 663 S.W.2d 357, 363 (Mo.App.1983). However when matters outside the pleadings are considered and not excluded by the court, the court shall treat a motion to dismiss as a motion for summary judgment. Id.; Rule 55.27(b). Furthermore, all parties must be given notice and a reasonable opportunity to present relevant material for a motion for summary judgment. Id.; Rule 55.27(b).
We hold landowners failed to state a cause of action for which relief could be granted. Our supreme court has held initial condemnation proceedings and pre-condemnation surveys are part of the eminent domain process and are considered neither a "taking nor damaging" within the meaning of the Missouri Constitution, Art. I, § 26. State ex rel. Washington University v. Gaertner, 626 S.W.2d 373, 376 (Mo. banc 1982); State ex rel. Rhodes v. Crouch, 621 S.W.2d 47, 48 (Mo. banc 1981). State ex rel. Highway Commission v. Edelen, 872 S.W.2d 551, 558 (Mo.App.E.D.1994). There is no procedure under Missouri condemnation law to compensate the landowner for the diminution of value in his property. State ex rel. Washington University Medical Center Redevelopment Corp. v. Gaertner, 626 S.W.2d 373, 376 (Mo. banc 1982).
We also find the trial court did not confine itself to the face of the petition, but rather treated the motion as a request for summary judgment. The trial court considered and took judicial notice of Jury Instruction No. 5 and the circuit court records, both emanating from the previous condemnation case. Further, the parties presented and defended the motion to dismiss as a motion for summary judgment. At the hearing, landowners did not object to the admission of the jury instruction and the circuit court records in support of the motion, nor did they request an opportunity to submit evidence. The trial court's acceptance and consideration of this evidence, in essence, transformed the motion to dismiss into one of summary judgment.
We review a summary judgment in the light most favorable to the party against whom the judgment was entered. ITT Commercial Finance v. Mid-Am. Marine, 854 S.W.2d 371, 376 (Mo. banc 1993). The non-movant is entitled to the benefit of all reasonable inferences from the record. Id.
The City argues landowners' petition for damages is barred by the doctrine of collateral estoppel or res judicata because the matter has previously been litigated. Collateral estoppel precludes relitigation of an issue by the same parties or those in privity. Atlanta Casualty Co. v. Stephens, 825 S.W.2d 330, 334 (Mo.App.1992). We consider the following in determining whether collateral estoppel applies: 1) whether the issue decided in the prior adjudication was identical to the issue presented in the present action; 2) whether the prior adjudication resulted in a judgment on the merits; 3)...
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