Randolph v. Missouri Highways and Transp.
| Decision Date | 24 April 2007 |
| Docket Number | No. WD 66269.,Nos. WD 66289.,WD 66269.,s. WD 66289. |
| Citation | 224 S.W.3d 615 |
| Parties | Houston RANDOLPH and David S. Randolph, Individuals, d/b/a Randolph Farm Equipment, et al., Appellants-Respondents, v. MISSOURI HIGHWAYS AND TRANSPORTATION COMMISSION, Respondent-Appellant. |
| Court | Missouri Court of Appeals |
John W. Koenig, Jr., Regional Counsel, MHTC, Sikeston, MO, for respondent-appellant.
Before HOWARD, C.J., and ELLIS and EDWIN H. SMITH, JJ.
Appellants ("Property Owners") own real and personal property in and around Carrollton, Missouri. They appeal the decision of the trial court in dismissing their personal property claims in an inverse condemnation action as being untimely and the denial of an award of attorney fees and costs in their inverse condemnation case for property damages. On cross-appeal, the Missouri Highways and Transportation Commission ("MHTC") appeals the trial court's grant of prejudgment interest. For the reasons set forth below, the judgment of the trial court is affirmed.
In 1977, MHTC constructed a highway bypass for Highway 65 around Carrollton, Missouri.1 In 1993, Missouri experienced one of the worst floods in its history. During this flood, the Property Owners suffered damage to real and personal property and on May 24, 1999, the Property Owners brought an inverse condemnation action against MHTC. The Property Owners alleged that the construction around Highway 65 had materially changed and altered the flow of the surface water in and around the highway and Wakenda Creek resulting in the flooding of their property in 1993 and again in 1998.
On March 19, 2004, MHTC filed a motion to dismiss, arguing that a five-year statute of limitations barred the Property Owners' personal property claims. At a pre-trial conference, the trial court ruled that the Property Owners would be precluded from making any claims for damages that related to personal property.
On May 26, 2005, a jury returned verdicts in favor of Property Owners for real estate damages. The Property Owners filed a Memorandum in Support of Plaintiffs' Proposed Judgment that included a request for attorneys' fees under 49 C.F.R. 24.107 and prejudgment interest. The trial court entered its judgment on August 24, 2005, awarding the Property Owners prejudgment interest but denying the request for attorney fees and costs. Both the Property Owners and MHTC filed motions to amend and/or modify the judgment and motions for a new trial, which were all denied. This appeal follows.
Property Owners argue on appeal that the trial court erred in granting the motion to dismiss in regard to the personal property claims based on the five-year statute of limitations and that the court erred in denying attorney fees and costs. MHTC cross-appeals, arguing that the trial court erred in awarding prejudgment interest. All of these issues regard the application of statutes and are questions of law. We review questions of law de novo, and no deference is given to the trial court's judgment. McKinney v. State Farm Mut. Ins., 123 S.W.3d 242, 245 (Mo. App. W.D.2003) (citations omitted).
In their first point on appeal, Property Owners argue that the trial court erred when it granted MHTC's motion to dismiss regarding the personal property claims based on a five-year statute of limitations. They argue that Shade v. Missouri Highway & Transportation Commission, 69 S.W.3d 503 (Mo.App. W.D. 2001)2 was wrongly decided in that: (1) a ten-year statute of limitations should apply and (2) subsequent flooding, such that occurred in 1998 in this case, should constitute a new cause of action. We disagree.
Similar to the case at bar, Shade involved flooding that was caused by a MHTC highway construction project. Id. at 506. The plaintiffs alleged that the construction project materially changed and altered the flow of surface water surrounding their properties. Id. at 507. They filed a lawsuit against MHTC under the theory of inverse condemnation for damages to their personal and real property. Id. MHTC filed a motion for summary judgment based on the affirmative defense of the statute of limitations. Id. The trial court granted the motion and the plaintiffs appealed. Id.
On appeal, this court recognized the fact that Heins Implement Company v. Missouri Highway & Transportation Commission, 859 S.W.2d 681, had "remove[d] inverse condemnation actions from the realm of tort liability and set them in a constitutional context." Shade, 69 S.W.3d at 510. After an extensive review of the conflicting precedent on inverse condemnation actions, we held that the statute of limitations in inverse condemnation cases for real property was ten years. Id. at 513. This decision was based on the time period required for an entity with the power of eminent domain to obtain a prescriptive easement. Id. at 512-13.
In regard to personal property, we acknowledged that the eminent domain statute, section 227.120, RSMo 1994, only spoke of "lands," but that the prohibition of taking or damaging personal property stemmed from the constitution and not statutory law. Id. at 516. However, unlike the taking of real property, the time period regarding a prescriptive easement could not be applied to personal property. Id. at 517. We also noted that unlike real property, a specific statute of limitations, section 516.120(4), RSMo 1994, applied to injury to personal property. Id. Section 516.120(4) requires that "[a]n action for taking, detaining or injuring any goods or chattels, including actions for the recovery of specific personal property, or for any other injury to the person or rights of another, not arising on contract and not herein otherwise enumerated" was to be brought within five years.
Nothing has changed since our holding in Shade. Section 516.120(4)3 still imposes a five-year statute of limitations to actions for injuring personal property. There is still no statute that prescribes a specific time limit to inverse condemnation claims. See Shade, 69 S.W.3d at 512. Therefore, the Property Owners' personal property claims in this case were required to be brought within five years. The date of taking in this case was determined to be July 18, 1993. Therefore, in order for the suit for personal property damages to be timely, it had to be filed by July 18, 1998. However, the Property Owners did not file their petition for damages until May 24, 1999. Thus, the claim was not timely, and the trial court did not err in granting MHTC's motion to dismiss for failure to state a claim.
Anticipating that we would not overturn Shade, the Property Owners also argue that even if the five-year statute of limitations were to apply, the subsequent flooding in 1998 would constitute a new cause of action. Yet, once again, whether or not subsequent flooding constitutes a new cause of action was answered in Shade.
In Shade we held that a "cause of action for inverse condemnation accrues once the fact of damage is capable of ascertainment." 69 S.W.3d at 514 (citations omitted). An injury will accrue at the "`completion of installation'" or "`when the effect of the injury becomes manifest.'" Id. (quoting Rebel v. Big Tarkio Drainage Dist. of Holt City, 602 S.W.2d 787, 792 (Mo.App. W.D.1980)). The determination depends on the facts of each case, but in situations involving successive floods:
the damage may not be ascertainable on the date of the first flood. It may well be that it would only become "apparent by the passage of time that the intermittent flooding was of a permanent nature." Accrual date of a cause of action does not arise until the damages and the cause of the damages are reasonably ascertainable. Damages are capable of ascertainment to initiate the running of the limitation period when a plaintiff with a recognized theory of recovery sustains damage.
Id. (internal citations omitted). In Shade, the case was remanded because no determination had been made at the summary judgment stage of when the different causes of actions were capable of ascertainment. Id. at 515. That is not the situation in the case at bar. Here, the date of ascertainment was in 1993.4 The highway construction that caused the flooding at issue in this case was a permanent one that had been completed in 1977. The Property Owners admit that none of them experienced a personal property loss for the first time in 1998. Therefore, the five-year statute of limitations was triggered in 1993. The trial court's grant of the motion to dismiss is affirmed.
In their second point on appeal, Property Owners argue that the trial court erred in denying their motion for assessment of litigation expenses. They argue that pursuant to the Uniform Policy on Real Property Acquisition Practices, 42 U.S.C. 4651, et seq., and 49 C.F.R. 24.107 ("the Act"), attorney fees and costs can be awarded in inverse condemnation cases.5 In response, MHTC argues that no error was committed because Missouri law does not authorize the award of attorney fees in inverse condemnation cases. We agree with MHTC.
Missouri courts are not allowed to award attorney fees unless provided for by statute, contract or "when needed to balance benefits in a court of equity." Moore v. Weeks, 85 S.W.3d 709, 723 (Mo. App. W.D.2002) (quoting Killion v. Bank Midwest, N.A., 987 S.W.2d 801, 809 (Mo. App. W.D.1998)). Missouri follows the "American Rule" which requires each party to bear the expense of their own attorney fees. Id. (citing Fisher v. Fisher, 874 S.W.2d 543, 546 (Mo.App. W.D.1994)).
The Property Owners argue that the Act provides the required statutory authorization of attorney fees. They allege that through case law, Missouri courts have fully adopted the...
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