Rychnovsky v. Cole, No. WD 62061.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtLisa White Hardwick
Citation119 S.W.3d 204
PartiesFrancis J. RYCHNOVSKY, Appellant, v. Robin M. COLE, et al., Respondent.
Decision Date28 October 2003
Docket NumberNo. WD 62061.
119 S.W.3d 204
Francis J. RYCHNOVSKY, Appellant,
v.
Robin M. COLE, et al., Respondent.
No. WD 62061.
Missouri Court of Appeals, Western District.
October 28, 2003.

[119 S.W.3d 207]

Robert W. Wheeler, Keytesville, MO, for appellant Rychnovsky.

Ronald N. Sweet, Columbia, MO, for Robin Cole, Anthony and Cornia Stephenson and Celeste Burgin.

Lorna L. Hilt, Columbia, MO, for respondent Tom Stewart.

Wade H. Ford, Jr. Columbia, MO, for Scott and Gregory Robinson.

Bernard T. Schmitt, Kansas City, MO, for Charles and Jane Roads.

Lawrence W. Ferguson, Columbia, MO, for Virgil and Rebecca Passmeyer.

Michael E. McCausland, Kansas City, MO, for Denise Davis.

Before HARDWICK, P.J., BRECKENRIDGE and SPINDEN, JJ.

LISA WHITE HARDWICK, Judge.


Francis Rychnovsky appeals the trial court's judgment dismissing all six counts of his petition for failure to state a claim. In the petition, Rychnovsky sought relief against his neighbors for property damage allegedly caused by their inadequate maintenance of a private gravity flow sewer line. Rychnovsky contends the court erred in dismissing his claims for determination of heirs, nuisance, strict liability, trespass, ejectment, and negligence because all substantive elements and essential facts were properly pled. We affirm in part and reverse in part.

FACTUAL AND PROCEDURAL HISTORY

Francis Rychnovsky is the owner of a home located at 634 West Logan in the West Logan Place Addition of Moberly, Missouri. The home sits at the bottom of a hill and shares a private gravity flow sewer line with at least seven other subdivision homes located up on the hill. In July 1999, the sewer line began draining raw sewage into the basement of Rychnovsky's home. The City of Moberly notified subdivision landowners, in February 2000, that leaks in the private sewer line had resulted in sewage running across the sidewalk and into a storm grate. By July 2000, Rychnovsky's basement was filled with untreated sewage.

On May 30, 2002, Rychnovsky filed a petition seeking damages and injunctive relief against the property owners ("defendants") who shared the private sewer line.1 In Count I, the petition sought a "determination of heirs and ownership of property" regarding a decedent property owner, Eleanor Robinson. In Counts II through VI, the petition alleged Rychnovsky's home was damaged as a result of the property owners' collective failure to maintain the sewer line and sought relief under theories of nuisance, strict liability, trespass, ejectment, and negligence.

Rychnovsky voluntarily dismissed the petition against one of the defendants, Estella Stuart, after learning she no longer was a property owner in West Logan Place Addition at the time the alleged tortious acts occurred. All of the remaining defendants filed motions to dismiss the petition for failure to state a claim on which relief can be granted. The trial court sustained the motions and entered judgment dismissing the petition as to all counts and all

119 S.W.3d 208

defendants. Rychnovsky appeals the judgment of dismissal with regard to all defendants except Estella Stuart.

STANDARD OF REVIEW

A motion to dismiss is an attack on the petition and solely a test of the adequacy of the pleadings. Wheeler v. Sweezer, 65 S.W.3d 565, 568 (Mo.App. W.D.2002). Upon review of a judgment granting a motion to dismiss, we must determine if the facts pleaded and the reasonable inferences therefrom state any grounds for relief. In re Estate of Clark, 83 S.W.3d 699, 702 (Mo.App. W.D.2002). We assume the factual allegations are true and make no attempt to weigh credibility or persuasiveness. Johnson ex rel. Wilken v. Jones, 67 S.W.3d 702, 705 (Mo.App. W.D.2002). We review the petition in an almost academic manner to determine if the facts alleged meet the elements of a recognized cause of action or of a cause that might be adopted in that case. Nazeri v. Mo. Valley Coll., 860 S.W.2d 303, 306 (Mo. banc 1993). Our review is a de novo examination of whether the petition invokes principles of substantive law. In re Estate of Clark, 83 S.W.3d at 702.

Where, as here, the trial court does not provide reasons for dismissal of the petition, we presume the decision was based on grounds stated in the dismissal motions and will affirm if dismissal was appropriate on any grounds stated therein. Duvall v. Lawrence, 86 S.W.3d 74, 78 (Mo.App. E.D.2002).

ANALYSIS OF CLAIMS

Determination of Heirs

In Count I of his petition, Rychnovsky sought a determination of the heirs of Eleanor Robinson pursuant to Section 473.6632 of the probate code. The petition alleged Eleanor Robinson was one of the uphill property owners who failed to maintain the private gravity flow sewer line, and the resulting sewage seepage caused damage to Rychnovsky's home. Eleanor Robinson died on May 3, 2000, well after the damage from the sewage leaks began. Rychnovsky requested the court to determine the decedent's heirs so that he could assert the tort claims in Counts II through VI against the current owners of her property. The petition named Eleanor Robinson's sons, Scott and Gregory Robinson, as the putative heirs and defendants in interest.

In their motions to dismiss, defendants Scott and Gregory Robinson argued Section 473.663 does not entitle Rychnovsky to assert a probate claim for determination of heirs in this proceeding. Section 473.663 is a part of the probate code pertaining to the administration of decedent's estate. The statute permits an action to determine heirship of property where no administration was commenced on a decedent's estate, nor any will offered for probate, within one year after decedent's death. Section 473.663; Estate of Fox, 955 S.W.2d 945, 947-48 (Mo.App. S.D.1997). It provides that the heirship action may be brought in probate court by "any person claiming an interest in [decedent's] property as an heir or through an heir." Section 473.633.

The trial court properly determined that Rychnovsky's petition failed to state a claim under Section 473.663. As an initial matter, the court lacked jurisdiction because the claim was not filed in probate court. Beyond that, the pleading itself was fatally deficient. No facts were alleged to establish that Rychnovsky claimed an interest in Eleanor Robinson's property as an heir or through an heir. The petition

119 S.W.3d 209

merely sought to identify heirs to the property in order to bring claims for damages and injunctive relief against those heirs. Eleanor Robinson's property was not the subject of Rychnovsky's claim; rather the complaint arose because of Eleanor Robinson's alleged failure to maintain the private sewer line running across her property. Rychnovsky could only acquire an interest in the decedent's property if his damage claims were successful and he was allowed to levy against the property to collect on his judgment. This contingent interest was not based on his right of inheritance and, thus, did not give rise to a claim for determination of heirs pursuant to Section 473.633.

By virtue of his damage claims, Rychnovsky is essentially a creditor seeking satisfaction of disputed claims against the estate of Eleanor Robinson. Section 473.444 establishes a procedure for creditors to file such claims within one year of the decedent's death, after which the claims are "unenforceable and ... forever barred against the estate ... [and] the heirs." Rychnovsky's damage claims against Scott and Gregory Robinson were extinguished by this statute because he failed to file them within one year of Eleanor Robinson's death. His petition seeks to avoid the limitations period by alternatively invoking Section 473.663 to seek damages against the decedent's heirs.

Our court has declined to interpret other provisions of the probate code to create an exception to the one-year time bar of Section 473.444 unless explicitly stated in the statute. State of Mo., Dep't. of Soc. Servs., Div. Of Med. Servs. v. Brundage, 85 S.W.3d 43, 49 (Mo.App. W.D.2002). We discern no language or legislative intent in Section 473.663 to provide an alternative cause of action for a creditor whose claim is "forever barred" by Section 473.444. The plain language of Section 473.663 indicates it was only intended to provide relief for persons claiming an interest in the decedent's property as an heir or through an heir. Rychnovsky's status as a potential creditor does not qualify him for such relief. Count I of the petition was properly dismissed as to defendants Scott and Gregory Robinson because it failed to state a claim for determination of heirs.3

Nuisance

In Count II, Rychnovsky sought injunctive relief and damages against the defendants under a theory of "sewage nuisance." The petition alleged the defendants "failed to repair or remedy their defective sewage and waste systems," and thereby caused raw sewage to drain from the private gravity flow sewer line into Rychnovsky's basement. A dye test was used to determine that the basement sewage flowed from the defendants' properties. Count II further alleged that Rychnovsky's use and enjoyment of his property was "substantially and offensively invaded" by the odor and sight of the raw sewage. On appeal, Rychnovsky contends this pleading was sufficient to state a nuisance claim under Missouri law.

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10 practice notes
  • Pikey v. Bryant, No. 27570.
    • United States
    • Court of Appeal of Missouri (US)
    • October 30, 2006
    ...was appropriate on any grounds stated therein." Solberg v. Graven, 174 S.W.3d 695, 699 (Mo.App.2005) (quoting Rychnovsky v. Cole, 119 S.W.3d 204, 208 (Mo.App.2003)). In the instant case, Defendant's motion to dismiss alleged, among other things, that the "[p]etition fails to state......
  • Greenwood v. Martin Marietta Materials, No. WD 69690.
    • United States
    • Court of Appeal of Missouri (US)
    • August 11, 2009
    ...with the community's use and enjoyment of their land or a community asset, such as, here, a public road. See Rychnovsky v. Cole, 119 S.W.3d 204, 209-10 (Mo.App.2003). The citizens' testimony as to how the excessive dust, noise, and fumes interfere with the use and enjoyment of their propert......
  • ROBINSON v. HOOKER, No. WD 71207.
    • United States
    • Court of Appeal of Missouri (US)
    • August 3, 2010
    ...grounds for its decision, we must consider whether the dismissal was appropriate under any of the grounds asserted. Rychnovsky v. Cole, 119 S.W.3d 204, 208 (Mo.App.2003).323 S.W.3d 422 III. Issues on AppealA. Workers' Compensation Act In her Motion to Dismiss, Hooker argued the circuit cour......
  • In re Estate of Conard, No. WD 68624.
    • United States
    • Court of Appeal of Missouri (US)
    • October 21, 2008
    ..."A motion to dismiss is an attack on the petition and solely a test of the adequacy of the pleadings." Rychnovsky v. Cole, 119 S.W.3d 204, 208 (Mo.App. W.D.2003). "Upon review of a judgment granting a motion to dismiss, we must determine if the facts pleaded and the reasonabl......
  • Request a trial to view additional results
10 cases
  • Pikey v. Bryant, No. 27570.
    • United States
    • Court of Appeal of Missouri (US)
    • October 30, 2006
    ...was appropriate on any grounds stated therein." Solberg v. Graven, 174 S.W.3d 695, 699 (Mo.App.2005) (quoting Rychnovsky v. Cole, 119 S.W.3d 204, 208 (Mo.App.2003)). In the instant case, Defendant's motion to dismiss alleged, among other things, that the "[p]etition fails to state......
  • Greenwood v. Martin Marietta Materials, No. WD 69690.
    • United States
    • Court of Appeal of Missouri (US)
    • August 11, 2009
    ...with the community's use and enjoyment of their land or a community asset, such as, here, a public road. See Rychnovsky v. Cole, 119 S.W.3d 204, 209-10 (Mo.App.2003). The citizens' testimony as to how the excessive dust, noise, and fumes interfere with the use and enjoyment of their propert......
  • ROBINSON v. HOOKER, No. WD 71207.
    • United States
    • Court of Appeal of Missouri (US)
    • August 3, 2010
    ...grounds for its decision, we must consider whether the dismissal was appropriate under any of the grounds asserted. Rychnovsky v. Cole, 119 S.W.3d 204, 208 (Mo.App.2003).323 S.W.3d 422 III. Issues on AppealA. Workers' Compensation Act In her Motion to Dismiss, Hooker argued the circuit cour......
  • In re Estate of Conard, No. WD 68624.
    • United States
    • Court of Appeal of Missouri (US)
    • October 21, 2008
    ..."A motion to dismiss is an attack on the petition and solely a test of the adequacy of the pleadings." Rychnovsky v. Cole, 119 S.W.3d 204, 208 (Mo.App. W.D.2003). "Upon review of a judgment granting a motion to dismiss, we must determine if the facts pleaded and the reasonabl......
  • Request a trial to view additional results

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