Scott Family Props., LP v. Mo. Highways & Transp. Comm'n

• Decision Date: 13 February 2018
• Docket Number: No. ED 105836,ED 105836
• Parties: SCOTT FAMILY PROPERTIES, LP, Plaintiff/Appellant, v. MISSOURI HIGHWAYS AND TRANSPORTATION COMMISSION, Defendant/Respondent.
• Court: Missouri Court of Appeals

546 S.W.3d 605

SCOTT FAMILY PROPERTIES, LP, Plaintiff/Appellant,
v.
MISSOURI HIGHWAYS AND TRANSPORTATION COMMISSION, Defendant/Respondent.

No. ED 105836

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

Filed: February 13, 2018
Motion for Rehearing and/or Transfer to Supreme Court Denied March 22, 2018
Application for Transfer Denied May 22, 2018

Timothy E. Hayes, Daniel R. Schramm—co-counsel, 231 S. Bemiston Ave., Suite 950, St. Louis, Missouri 63105, for Appellant.

Peter J. Dunne, Robert T. Plunkert–co-counsel, 100 South Fourth Street, Suite 400, St. Louis, Missouri 63102, Greg H. Dohrman—Amicus Curiae, 100 North Third, Suite 216, St. Charles, Missouri 63301, for Respondent.

OPINION

Lisa Van Amburg, Judge

546 S.W.3d 607

Scott Family Properties appeals from the trial court's judgment dismissing with prejudice its petition against the Missouri Highways and Transportation Commission for inverse condemnation. We affirm.

Background

Scott owns an office building adjacent to Interstate 64 in Chesterfield. In 2015, the Commission built a sound wall on its own property between the highway and Scott's building without first providing Scott notice or an opportunity to comment as provided by Missouri Department of Transportation policy.¹ Scott promptly filed a petition for inverse condemnation based on nuisance, pleading that the sound wall impaired Scott's ability to attract tenants, resulting in $5 million in damages.² The Commission responded with a motion to dismiss the petition for failure to state a claim, arguing that Missouri law doesn't recognize a protectable interest or right in the public visibility of one's property.

The trial court granted the Commission's motion to dismiss, citing Missouri precedent holding that landowners have no legally enforceable right to the public's access to or visibility of their property. Scott appeals and asserts that such precedent doesn't apply where, as here, the Commission's action was unlawful.

Standard of Review

The standard of review for a trial court's grant of a motion to dismiss is de novo , accepting the facts alleged in the petition as true and construing them liberally in favor of the plaintiff. Lynch v. Lynch , 260 S.W.3d 834, 836 (Mo. 2008). If the petition sets forth any set of facts that, if proven, would entitle the plaintiffs to relief, then the petition states a claim. Id. The petition is reviewed in an almost academic manner to determine if the facts alleged meet the elements of a recognized cause of action. Keveney v. Missouri Military Academy , 304 S.W.3d 98, 101 (Mo. 2010)

Discussion

In its sole point, Scott contends that the trial court erred in relying on Missouri precedent governing traditional inverse condemnation cases rather than determining the adequacy of the petition on the elements of inverse condemnation based on nuisance. 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

546 S.W.3d 608

domain. Miller v. City of Wentzville , 371 S.W.3d 54, 57 (Mo. App. E.D. 2012). 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 property. Id. The elements are: (1) notice by the complaining landowner, (2) the other's unreasonable operation in spite of notice, (3) injury, (4) damage, and (5) causation. Id. Specifically, here, Scott asserts...