Miller v. City of Wentzville

Citation371 S.W.3d 54
Decision Date29 May 2012
Docket NumberNo. ED 97251.,ED 97251.
PartiesBret MILLER and Natalie Miller, Plaintiffs/Appellants, v. CITY OF WENTZVILLE, Missouri, Defendant/Respondent.
CourtCourt of Appeal of Missouri (US)

OPINION TEXT STARTS HERE

Application for Transfer Denied

Aug. 14, 2012.

Michael J. Rolwes, Cockriel & Christifferson, LLC, St. Louis, MO, for appellants.

W. Dudley McCarter, Behr, McCarter & Potter, P.C., for respondent.

KATHIANNE KNAUP CRANE, Presiding Judge.

Plaintiffs, Bret Miller and Natalie Miller, appeal from the entry of summary judgment in favor of defendant, the City of Wentzville, Missouri, on their inverse condemnation claim to recover damages for cracks in their garage and house foundation, which they alleged had been caused by “street creep,” the movement and expansion of the concrete street in the absence of adequate expansion joints. We reverse and remand.

In their inverse condemnation count, plaintiffs alleged that they owned the property at 2212 Blue Lake Drive, which was improved with a home, an attached garage, and a driveway that abutted Blue Lake Drive; that Blue Lake Drive was a concrete street accepted by and maintained by the city; that [o]ver time, due to the nature of concrete streets and the absence of adequate expansion joints in the street, Blue Lake Drive has experienced ‘street creep’—the street has moved and expanded;” and that [a]s a result of the ‘street creep,’ Blue Lake Drive has pushed against the [plaintiffs'] driveway and caused resulting damage to the [plaintiffs'] garage and foundation.” Plaintiffs further alleged that the city had twice attempted to repair their driveway by placing expansion joints in the driveway, but the repairs failed to correct the prior damage or halt the “street creep.” They alleged that the damage would not have occurred if the city had adequately maintained Blue Lake Drive.

The city filed an answer in which it alleged as affirmative defenses (1) the failure to state a cause of action in that plaintiffs failed to allege that the city performed an affirmative act causing the injury; (2) that plaintiffs' injury was caused by the “imposition” of their concrete driveway and/or their failure to have adequate expansion joints in the driveway; and (3) plaintiffs' failure to mitigate damages by installing appropriate and adequate expansion joints.

Defendant filed a motion for summary judgment. As grounds for its motion, it contended that it was entitled to judgment as a matter of law because plaintiffs could not show causation; improper maintenance is insufficient to support an inverse condemnation claim; and no duty arose.

The following facts were uncontroverted for purposes of the summary judgment motion. Plaintiffs have owned real property at 2212 Blue Lake Drive, Wentzville, Missouri, including an attached garage and concrete driveway, since approximately November 9, 1998. The concrete driveway is located entirely within plaintiffs' property and abuts Blue Lake Drive. Blue Lake Drive was paved before plaintiffs built their home and driveway. Defendant possesses a public right-of-way for the street of Blue Lake Drive. The street right-of-way extends more than 11 feet from the curb line of Blue Lake Drive towards plaintiffs' property. Blue Lake Drive does not extend beyond the limits of the 50–foot street right-of-way line, and it has remained within that right-of-way at all times.

In 1999, plaintiffs began experiencing leaks in their basement as a result of cracks in the foundation of their residence. In 2002, plaintiffs notified defendant about the “street creep” and damage to their home. Defendant installed an expansion joint at the bottom of plaintiffs' driveway where it met the curb line by removing six inches of concrete from the driveway and replacing it with asphalt. In 2004, after plaintiffs again complained, defendant replaced the asphalt expansion joint by cutting out additional concrete from the driveway. Plaintiffs again contacted defendant a third time to solve the problem.

The trial court entered summary judgment on the inverse condemnation count in favor of defendant “for the reasons stated in Defendant's Motion for Summary Judgment.” Plaintiffs appeal from this judgment.

DISCUSSION

We review the entry of summary judgment de novo. ITT Commercial Finance v. Mid–Am. Marine, 854 S.W.2d 371, 376 (Mo. banc 1993). Summary judgment is appropriate when no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. Rule 74.04(c)(6); ITT Commercial Finance, 854 S.W.2d at 377. We view the record in the light most favorable to the party against whom summary judgment is entered and accord the non-movant the benefit of all reasonable inferences from the record. Id. at 376. We take as true every fact set forth by affidavit or otherwisein support of the moving party's summary judgment motion unless the non-movant has denied it in its response. Id. The non-moving party's response must show the existence of some genuine dispute about one of the material facts necessary to the plaintiffs right to recover. Id. at 381. A genuine issue of material fact exists when “the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts.” Id. at 382. The question is whether essential facts are disputed, not whether those facts are more likely to be true. Id. Even if the facts alleged by the movant in a summary judgment motion are uncontradicted, they must establish a right to judgment as a matter of law. Kinnaman–Carson v. Westport Ins. Corp., 283 S.W.3d 761, 765 (Mo. banc 2009). The key to summary judgment is the undisputed right to judgment as a matter of law, not simply the absence of a fact question. ITT Commercial Finance, 854 S.W.2d at 380.

Summary Judgment Procedure

When the movant is a defendant, a right to summary judgment can be established by showing that: (1) facts exist that negate any one of the plaintiff's elements; (2) the plaintiff has not produced and will not be able to produce sufficient evidence for the trier of fact to find the existence of any one of the plaintiff's elements; or (3) there is no genuine dispute about each of the facts necessary to support any one of the defendant's properly pleaded affirmative defenses. Id. at 381. Once the movant has made a prima facie showing by one of those means, “the non-movant's only recourse is to show—by affidavit, depositions, answers to interrogatories, or admissions on file—that one or more of the material facts shown by the movant to be above any genuine dispute is, in fact, genuinely disputed.” Id. (emphasis in original). SeeRule 74.04(c).

Inverse Condemnation Elements

Inverse condemnation is the exclusive remedy when private property is taken or damaged without compensation as a result of a nuisance operated by an entity that has the power of eminent domain. Heins Implement v. Hwy. & Transp. Com'n, 859 S.W.2d 681, 693 (Mo. banc 1993); Rader Family Ltd. v. City of Columbia, 307 S.W.3d 243, 247, 252 (Mo.App.2010); Christ v. Metropolitan St. Louis Sewer Dist., 287 S.W.3d 709, 711 (Mo.App.2009); Basham v. City of Cuba, 257 S.W.3d 650, 653 (Mo.App.2008). ‘Nuisance is the unreasonable, unusual, or unnatural use of one's property so that it substantially impairs the right of another to peacefully enjoy his [or her] property.’ Basham, 257 S.W.3d at 653 (quoting Byrom v. Little Blue Valley Sewer Dist., 16 S.W.3d 573, 576 (Mo. banc 2000)). The elements of an inverse condemnation action based on nuisance are (1) notice, (2) an unreasonable operation in spite of that notice, (3) injury, (4) damage, and (5) causation. Rader, 307 S.W.3d at 247;Christ, 287 S.W.3d at 711;Basham, 257 S.W.3d at 653.

Analysis

In their two points on appeal, plaintiffs contend that the trial court erred in entering summary judgment in defendant's favor on any of the grounds asserted in defendant's motion. We take these two points together, and consider each of the grounds that were raised in defendant's motion for summary judgment.

I. Causation

Defendant's first ground for summary judgment was lack of causation. Defendant claimed that plaintiffs could not show causation because (1) the fact that the driveway was built after the street was constructed constituted a voluntary act by plaintiffs that precluded recovery as a matter of law; (2) the driveway was maintained solely by plaintiffs; (3) the street remained within its right of way and did not invade plaintiffs' residence; and (4) plaintiffs' failure to install expansion joints in their driveway and maintain their driveway caused their damages.

The one claiming damages can prove the causation element of a nuisance claim by showing that the offending property was used in a manner that caused injury to the claimant's property. Basham, 257 S.W.3d at 653. Further, the “but for” causation test applies. Zumalt v. Boone County, 921 S.W.2d 12, 15 (Mo.App.1996). Under this test, plaintiffs would have the burden to prove that the damage to the foundation of their home would not have occurred but for the “street creep.” Id. at 16.

In Zumalt, we affirmed a trial court's determination, after a trial on the merits, that the trial evidence was insufficient to support “but for” causation in an inverse condemnation case based on “street creep.” Defendant argues that the following facts bring this case under Zumalt and show no “but for” causation: The driveway was built after the street; the driveway was maintained solely by plaintiffs and their predecessors; and the damage would not have occurred if plaintiffs had installed additional expansion joints or properly maintained their driveway. We disagree. Zumalt does not require a finding of no causation on the undisputed facts developed in the summary judgment record in this case.

In Zumalt, we observed that the trial evidence was “susceptible to two interpretations as to causation,...

To continue reading

Request your trial
10 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT