Rosenfeld v. Thoele

• Citation: 28 S.W.3d 446
• Parties: (Mo.App. E.D. 2000) Donald Rosenfeld, Plaintiff/Appellant, v. Virginia A. Thoele, Defendant/Respondent. ED77403 0
• Decision Date: 26 September 2000
• Court: Court of Appeal of Missouri (US)

28 S.W.3d 446 (Mo.App. E.D. 2000)

Donald Rosenfeld, Plaintiff/Appellant, v. Virginia A. Thoele, Defendant/Respondent.

ED77403

Missouri Court of Appeals Eastern District

09/26/2000

Appeal From: Circuit Court of St. Charles County, Hon. Grace M. Nichols

Counsel for Appellant: Lewis C. Green

Counsel for Respondent: John G. Enright

Opinion Summary: Plaintiff Donald Rosenfeld sued defendant Virginia Thoele, individually and in her capacity as personal representative of the estate of Leonard Thoele, for trespass and nuisance, seeking both an injunction and damages. Defendant Thoele moved to dismiss plaintiff Rosenfeld's petition for failure to state a claim upon which relief can be granted. The trial court granted Thoele's motion and dismissed the petition without prejudice, and the plaintiff appeals.

Division Two holds: (1) Plaintiff Rosenfeld's petition states a claim for trespass and for nuisance.

(2) The trustee and beneficiaries, as legal and equitable owners of the adjacent land, have an interest in the subject of the action and are necessary parties.

Clifford H. Ahrens, Presiding Judge

Plaintiff, Donald Rosenfeld, sued defendant, Virginia Thoele, individually and in her capacity as personal representative of the estate of Leonard Thoele, for trespass and nuisance, seeking both an injunction and damages. Defendant moved to dismiss plaintiff's petition for failure to state a claim upon which relief can be granted. The trial court granted this motion and dismissed plaintiff's petition without prejudice; plaintiff appeals. We reverse and remand.

As a preliminary matter, we note that we have jurisdiction over this appeal. Although not challenged by defendant, we have an affirmative duty to determine our jurisdiction, Nooney v. NationsBank, N.A., 996 S.W.2d 783, 787 (Mo.App.1999). The general rule is that a dismissal without prejudice is not a final judgment and, therefore, is not appealable. State ex rel. State of Illinois v. Jones, 920 S.W.2d 116, 117 (Mo.App.1996). There are exceptions, however. As our Supreme Court said in Hasemeier v. Smith, 361 S.W.2d 697 (Mo.banc 1962):

When a petition is dismissed on the ground that it fails to state a claim upon which relief can be granted, the ensuing judgment of dismissal is final and appealable. The fact that the plaintiff may, if he chooses, bring another action for the same cause does not alter the fact that that judgment was a final adjudication as to that petition and if plaintiff chose to stand on that petition, the judgment was final and appealable.

Id. at 699. See also Jones, 920 S.W.2d at 117. Thus, the judgment in the case at bar is final and appealable.

Plaintiff contends defendant's motion to dismiss presented matters beyond the scope of his petition. Plaintiff further claims the trial court erroneously considered these matters without employing the procedures set forth in Rule 74.04 (pertaining to summary judgment), as required by Rule 55.27(a). Indeed, Rule 55.27(a) provides that where a motion to dismiss presents matters outside the pleadings, "the motion shall be treated as one for summary judgment and disposed of as provided in Rule 74.04." We agree that defendant's motion to dismiss presented matters outside the pleadings and that the trial court did not treat the motion as one for summary judgment. However, plaintiff raises the issue for the first time on appeal, and, therefore, has failed to preserve it for appellate review. We will not convict the trial court of error not brought to its attention. Sextro v. Burkey, 950 S.W.2d 523, 525 (Mo.App.1997).

Plaintiff's other point of error challenges the propriety of the dismissal. A motion to dismiss for failure to state a claim upon which relief can be granted is a test of the adequacy of the plaintiff's petition. Geiger v. Bowersox, 974 S.W.2d 513, 515 (Mo.App.1998). Accordingly, we review the grant of such a motion in a light most favorable to the plaintiff, that is, we allow the averments in the petition their broadest intendment, assume the facts alleged therein are true, and determine whether the petition invokes principles of substantive law.¹ Gray v. Ward, 950 S.W.2d 232, 234 (Mo.banc 1997).

The first substantive cause of action advanced by plaintiff was for trespass. Where real estate is involved, "[t]respass is the unauthorized entry by a person upon the land of another, regardless of the degree of force used, even if no damage is done, or the injury is slight." Crook v. Sheehan Enter., Inc., 740 S.W.2d 333, 335 (Mo.App.1987). Although we can find no Missouri case to this effect, the term "entry by a person" certainly includes entry by a structure or object as a result of that person's actions. See Restatment (Second) of Torts section 158 (1965); W. Page Keeton et al., Prosser and Keeton on the Law of Torts section 13, at 70-71 (5th ed. 1984).

Plaintiff's petition contains the following relevant allegations: (1) defendant constructed and maintained upon plaintiff's land "debris, a fill area consisting of dirt and debris, and a tie wall consisting of wood and debris approximately 11 feet in height;" and (2) such debris, fill area, and tie wall have been constructed and maintained "over plaintiff's objection." The first allegation, taken as true, shows that defendant entered upon plaintiff's land, while the second shows such entry was unauthorized. Plaintiff's petition states a claim for trespass.

Defendant contends dismissal of the trespass claim was proper because the claim is barred by the statute of limitations.² This argument is meritless. Plaintiff originally filed an action for trespass in 1992, which was ultimately dismissed without prejudice on June 15, 1998. Section 516.230 RSMo (1994) allows a plaintiff who has suffered a "nonsuit," e.g., dismissal without prejudice, see Korman v. Lefholz, 890 S.W.2d 771, 774 (Mo.App.1995), to refile the action within one year, provided it was originally filed within the period of limitations. Defendant contends the petition at issue was not filed within that one-year period such that it "is irreparably flawed and does not state a claim." However, the St. Charles County Circuit Court docket sheet shows the petition at issue was filed on October 15, 1998, well within the one-year period.³

Plaintiff's second cause of action was for nuisance. Nuisance is the unreasonable, unusual, or unnatural use of one's property so that it substantially impairs the rights of another to peacefully enjoy his property. Frank v. Envtl. Sanitation Mgmt., Inc., 687 S.W.2d 876, 880 (Mo.banc 1985). Plaintiff's petition alleges: (1) defendant was the owner of a tract of land adjacent to his; (2) defendant placed and maintained upon her land--as well as plaintiff's--debris, a fill area, and a tie wall; (3) such debris, fill area, and tie wall were placed and maintained in an "extremely shoddy and ugly form" which adversely affects the commercial value of plaintiff's land; (4) such debris, fill area, and tie wall were placed and maintained in a manner that "adversely affects the water table upon plaintiff's said tract of land, causes a displacement of the water reservoir and the flood plain upon plaintiff's said tract of land, and has obstructed a natural drain of surface waters and diverted surface waters onto plaintiff's tract of land."

"There is no exact rule or formula by which the existence of a nuisance or the nonexistence of a nuisance may be determined. 'Necessarily each case must stand upon its own special circumstances, and no definite rule can be given that is applicable in all cases . . .'" Id. at 881. The questions of whether a use is "unreasonable" and whether it "substantially" impairs the rights of another to use his or her property are particularly fact intensive and, therefore, best suited for jury resolution. Williams v. Monsanto Co., 856 S.W.2d 338, 341 (Mo.App.1993). We conclude the foregoing allegations, when taken as true, sufficiently permit a reasonable juror to conclude that defendant's placement and maintenance of debris, a fill area, and a tie wall was both unreasonable and a substantial impairment of plaintiff's ability to peacefully enjoy his property.

We note the fact that the debris, fill area, and tie wall are unsightly does not, without more, create an actionable nuisance. Ness v. Albert, 665 S.W.2d 1, 1-2 (Mo.App.1983). That such unsightliness adversely affects the value of plaintiff's land does, however. See Frank, 687 S.W.2d at 883 ("Damages for a permanent nuisance are measured by the difference in the land's market value immediately before and after injury; damages for temporary nuisances include the decrease in rental or useable value of property during the injury."). Furthermore, regarding the diversion of water onto plaintiff's land, plaintiff's petition sufficiently pleads an exception to the modified common enemy doctrine. This doctrine shields the owner of an upper tenement from liability for trespass or nuisance to lower landowners for surface water runoff unless the upper landowner: (1) diverted the flow of surface water runoff out of its natural drainway; or (2) caused the flow of surface water runoff to exceed the capacity of the natural drainway. Hansen v. Gary Naugle Const. Co., 801 S.W.2d 71, 74, 75 (Mo.banc 1990). Plaintiff's petition does not specifically allege the debris, fill area, and tie wall caused surface water runoff to circumvent or exceed the capacity of its natural drainway. Giving the averments their broadest intendment, however, we think they suffice.

Defendant raises two new arguments on appeal.⁴ First, defendant contends plaintiff's claim for injunctive relief is moot because the tie wall has already been removed.⁵ The record reflects plaintiff's stipulation that the majority of the tie wall was removed in 1998 while the remainder was removed in 1999. A case is moot where an event has occurred which makes the court's decision unnecessary or makes it impossible for the court to grant...