Heins Implement Co. v. Missouri Highway & Transp. Com'n

• Citation: 859 S.W.2d 681
• Decision Date: 17 August 1993
• Docket Number: No. 75313,75313
• Court: United States State Supreme Court of Missouri
• Parties: HEINS IMPLEMENT COMPANY, et al., Appellants, v. MISSOURI HIGHWAY & TRANSPORTATION COMMISSION, et al., Respondents.

Page 681

859 S.W.2d 681

62 USLW 2128

HEINS IMPLEMENT COMPANY, et al., Appellants, v. MISSOURI HIGHWAY & TRANSPORTATION COMMISSION, et al., Respondents.

No. 75313.

Supreme Court of Missouri,

En Banc.

Aug. 17, 1993.

Ed Dougherty, Lynne J. Bratcher, Philip R. Holloway, Kansas City, for appellants.

John W. Koenig, Jr., Sikeston, Rich Tiemeyer, Jefferson City, Roy A. Larson, Kansas City, Werner A. Moentmann, Richmond, for respondents.

PRICE, Judge.

The principal issue raised by this appeal is whether the modified common enemy doctrine should be applied to bar recovery by landowners and tenants whose property was flooded because a culvert under a highway bypass was not designed to handle the normal overflows from a nearby creek. We conclude that the common enemy doctrine no longer reflects the appropriate rule in situations involving surface water runoff and adopt a doctrine of reasonable use in its stead. We reverse the trial court's grant of judgment notwithstanding the verdict and remand.

I. Background

A defendant's motion for judgment notwithstanding the verdict tests whether the plaintiff made a submissible case. Granting the judgment n.o.v. is the equivalent of directing a verdict at the close of all the evidence. Glover v. Atchison, Topeka & Santa Fe R.R., 841 S.W.2d 211, 212 (Mo.App.1992). Judgment n.o.v. is proper as a matter of law, even though the defendant has not moved for a directed verdict, when the plaintiff's evidence establishes that an affirmative defense bars recovery. Vinson v. Vinson, 725 S.W.2d 121, 123 (Mo.App.1987). In making that determination, the Court takes the evidence in the light most favorable to the verdict, giving to the prevailing party all reasonable beneficial inferences that can be drawn from the verdict and disregarding the unfavorable evidence. Duren v. Kunkel, 814 S.W.2d 935, 936 (Mo. banc 1991). The facts thus established by the record are as follows.

Appellants own or rent commercial and agricultural property along the bottomlands of Wakenda Creek, near the intersection of State Route 10 and U.S. Route 65 south of Carrollton. At this location, Route 10 runs east-west and Route 65 runs north-south. Before the obstructing bypass was built, Wakenda Creek regularly escaped its banks after heavy rainfalls. The floodwaters ran south over Route 10 and collected in a small artificial lake. When the lake's capacity was exceeded, the waters headed east over portions of appellants' lands before crossing Route 65 and returning to the creek farther downstream. These floods were always brief and had never reached any of appellants' buildings.

The Missouri Highway & Transportation Commission (MHTC) condemned some of the property owned by each of the appellants, or their predecessors in title, to build a bypass for Route 65. Mel Downs was the chief design engineer for this project. Downs testified that, although he knew Wakenda Creek was prone to flooding toward the north, he did not know that it also commonly overflowed to the south across Routes 10 and 65. Consequently, he designed a five-foot culvert under the bypass to handle normal rainfall drainage from the area west of the bypass. Downs admitted that this culvert was inadequate to drain the creek's other normal overflows.

Work on the bypass project began in 1975 and ended in 1977. The late 1970s happened to be a period of severe drought in the area. But in July 1981, heavy rains swelled Wakenda Creek once more. The errant waters coursed south and east over appellants' lands as they had done before. However, when they reached Route 65 they met the new bypass arching above Route 10. The raised bypass with its inadequate drainage culvert acted as a dam, pooling the water on appellants' lands, where it remained for seven days. Commercial buildings were invaded by up to thirty inches of water. Numerous items of business and farm equipment and hundreds of acres of crops were destroyed. Similar floods recurred in June 1982, April 1983, February 1985, October 1985, and June 1990.

Appellants filed suit in 1985 against MHTC; Mel Downs; Frank Trager & Sons, the general contractor for the bypass project; and Carroll County Recreation Club, owner of the lake through which the floodwaters passed on their way to appellants' lands. The trial court granted summary judgment on all claims against the contractor, the engineer, and the club, and on the claims of negligence and nuisance against MHTC. The two remaining counts alleging inverse condemnation against MHTC were tried to a jury.

The jury returned verdicts in favor of appellants and assessed their damages at $298,175. Appellants filed motions to increase the jury's award or for a new trial on the issue of damages only. MHTC filed a motion for judgment n.o.v., arguing that appellants' action was barred by the original condemnation proceedings and by the common enemy doctrine. The trial court sustained MHTC's motion and entered judgment in its favor.

II. Res Judicata

Appellants first challenge the grant of MHTC's motion for judgment n.o.v., asserting that their action was not barred by res judicata ¹ by reason of the original condemnation proceedings for the construction of the bypass. They argue that MHTC waived this defense by failing to plead it in its answer. ² MHTC contends that listing laches, estoppel, and waiver as defenses in its answer had the same effect as pleading res judicata. MHTC is wrong. Res judicata is a separate and distinct affirmative defense that must be specifically pleaded. ³ Rule 55.08.

MHTC first raised the issue of claim preclusion in an oral motion to dismiss at trial, more than five years after the filing of its answer. The issue was not preserved in the answer, nor was any motion to amend the pleadings or other filing made which would timely notify appellants of MHTC's intent to present this defense. See Rules 55.08, 55.33.

Res judicata is not among the defenses explicitly authorized to be brought by motion pursuant to Rule 55.27(a). We have allowed it to be raised by motion to dismiss when uncontroverted facts demonstrate that a suit is groundless, ⁴ King General Contractor v. Reorganized Church of Jesus Christ of Latter Day Saints, 821 S.W.2d 495, 498-99 (Mo. banc 1991), although in practical effect the introduction of proof of the prior judgment transforms such a motion into one for summary judgment. See Rule 55.27(a).

This Court has acknowledged a similarity between res judicata and the defense of failure to state a claim upon which relief can be granted. See King, 821 S.W.2d at 498. The court of appeals, expanding the scope of this perceived relationship, has permitted a defendant to bring up claim preclusion by a motion to dismiss made after an answer had been filed, but well before trial. See Johnson v. Raban, 702 S.W.2d 134, 135-36 (Mo.App.1985). Neither of these cases, however, can be read to allow the raising of this defense so late in the trial process.

The facts that give rise to res judicata, by their very nature, are known to the defendant from the inception of a lawsuit. Accordingly, a defendant should not be able to hold preclusion in reserve as a "stealth defense" long after the time for raising substantive defenses has passed. See Rule 55.27(f). Res judicata, as well as other affirmative defenses, must be pleaded in the answer, Rule 55.08; or raised by amendment to the pleadings, Rule 55.33; or presented by a timely motion filed in compliance with Rule 55.27(f) or otherwise.

MHTC took no affirmative steps to raise its claim preclusion defense in a timely fashion. Appellants, however, did not object to the motion on this ground but simply addressed its substantive merits. Appellants also did not object to the introduction of evidence at trial regarding the prior condemnation proceedings. Consequently, the issue is deemed to have been tried by the implied consent of the parties and must be treated as though it had been raised in the pleadings. Rule 55.33(b).

Nonetheless, MHTC cannot prevail on this issue because no preclusion arises from the previous condemnation. MHTC argues that all damages "incidental or consequent" to the construction of the bypass should have been asserted in the condemnation action, and that appellants were put on notice as to the potential flooding problem by the description of the bypass project in the condemnation petition and the construction plans. See Owen v. City of Springfield, 741 S.W.2d 16, 19 (Mo. banc 1987), cert. denied, 486 U.S. 1043, 108 S.Ct. 2036, 100 L.Ed.2d 620 (1988). However, MHTC cannot rely on Owen given the facts of this case.

The construction plans in Owen specified that the sewer plant to be built in that case would use heavy pumps and would vent fumes into the atmosphere. The Court held that, in these circumstances, the plaintiffs could anticipate noise and odor problems before the condemnation took place. For this reason, the plaintiffs were precluded from maintaining a second action seeking damages for these same factors after the plant was built. Id. at 19. In this case, MHTC presented no evidence that the parties expected an increased risk of flooding at the inception of the project. To the contrary, Mel Downs testified that he did not anticipate any backup problems when he designed the drainage culvert, other than on a fifty-year average frequency.

Appellants could not be expected to discern in the bypass plans a consequence that the designer himself did not foresee. It is true that appellants possessed a crucial bit of knowledge that Downs did not--the fact that the Wakenda regularly flooded Routes 10 and 65. However, appellants could not be aware of, and are not responsible for, this omission. The public has a right to expect that the designers of major public works projects will consider all relevant factors, especially when the necessary information is readily available. ⁵

Moreover, the risk of subsequent flooding could not have been asserted in the original...