Shade v. Missouri Highway and Transp. Com'n, No. WD 58652.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtVictor C. Howard
Citation69 S.W.3d 503
PartiesRandall J. SHADE, et al., Appellants, v. MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, et al., Respondents.
Docket NumberNo. WD 58652.
Decision Date30 October 2001
69 S.W.3d 503
Randall J. SHADE, et al., Appellants,
v.
MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, et al., Respondents.
No. WD 58652.
Missouri Court of Appeals, Western District.
October 30, 2001.
As Modified March 5, 2002.
Motion for Rehearing and/or Transfer to Supreme Court Denied March 5, 2002.

[69 S.W.3d 506]

Philip R. Holloway, Kansas City, for appellants.

William D. Farrar, Sr. Asst. Counsel, Jay L. Smith, Asst. Chief Counsel, Lee's Summit, for respondent MHTC.

Before: LAURA DENVIR STITH, P.J.,1 and SMART and HOWARD, JJ.

VICTOR C. HOWARD, Judge.


Appellants2 appeal from the trial court's grant of the Missouri Highway and Transportation Commission's motion for summary judgment on Appellants' petition for damages resulting from flooding on Appellants' property. Appellants raise three points on appeal. First, Appellants contend that the trial court erred in granting summary judgment in favor of the Commission because the court erroneously held that the statute of limitations that applies to a cause of action for inverse condemnation is five years pursuant to § 516.120,3 and rather should have applied a statute of limitations of ten years, as set forth by the Missouri Supreme Court in Doyle v. Kansas City and Southern Railway Company, 113 Mo. 280, 20 S.W. 970 (1892). Second, Appellants contend that the trial court erred in granting summary judgment in favor of the Commission because the trial court erroneously held that the flood events in 1996 and 1998 did not establish new causes of action against the Commission, and further erroneously held that the statute of limitations began to run when the 1993 flood event occurred. Third, Appellants claim that the trial court erred in granting summary judgment in favor of the Commission against the subsequent purchasers, Randall Shade, Jennie Shade, Jeffrey Haynes, and Joyce Haynes, holding that they have no cause of action, because the court failed to consider their cause of action for damages based on the personal property taken by the Commission as a result of the 1996 and 1998 flood events.

We affirm in part, reverse in part, and remand.

Facts

This case arises from a construction project engaged in by the Respondent Missouri Highway and Transportation Commission on Missouri Highway 210 west of Fishing River and east of the City of Orrick in Ray County, Missouri. This reconstruction project by the Commission involved elevating a new portion of Missouri Highway 210 to a height that exceeded the elevation of old Missouri Highway 210. The permanent grading was completed and accepted on April 10, 1987.

Appellants Tula D. Jeffries, Robert D. Claypole, Doris L. Claypole, Edgar Lee Easley, Lola L. Easley, and Randall L.

69 S.W.3d 507

Easley were the owners of real property adjacent to the Commission's right of way and the new construction of Missouri Highway 210.

On August 12, 1993, Appellants' property adjacent to the reconstruction of Missouri Highway 210 was flooded under a substantial amount of water, and Appellants suffered substantial damage in personal property and real property.

On April 9, 1994, Tula D. Jeffries sold her property to Randall J. Shade and Jennie A. Shade.

On June 17, 1996, Appellants' property adjacent to the reconstruction of Missouri Highway 210 was flooded under a substantial amount of water, and Appellants suffered substantial damage in personal property and real property.

On May 22, 1997, Robert D. Claypole and Doris L. Claypole sold their real property to Jeffrey D. Haynes and Joyce A. Haynes.

On October 4, 1998, there was a third flood, which put Appellants' property under a substantial amount of water and caused substantial damage to Appellants' personal property and real property.

Appellants filed a petition for damages on February 17, 1999, and subsequently amended that petition on July 12, 1999. Appellants' lawsuit was pursued under a theory of inverse condemnation against the Commission, alleging that the reconstruction of Missouri Highway 210 materially changed and altered the flow of surface water from Appellants' property and property surrounding Appellants' property. Appellants further alleged that the material change in surface water by the Commission's reconstruction project resulted in the flooding of Appellants' property on August 12, 1993, June 17, 1996, and October 4, 1998. Appellants further alleged that the change in the flow of surface water by the Commission was unreasonable and constituted a wrongful appropriation of Appellants' property in violation of Article I, § 26 of the Constitution of Missouri.

On July 19, 1999, the Commission filed its answer to Appellants' amended petition, raising the affirmative defense that the statute of limitations, § 516.120, barred Appellants' cause of action.

On July 28, 1999, Appellants filed a motion to strike the paragraphs of the Commission's answer setting forth the statute of limitations as an affirmative defense.

The issues were briefed and argued before the court on August 20, 1999. The court denied Appellants' motion to strike the paragraphs of the Commission's answer setting forth the affirmative defense of the statute of limitations. The Commission filed a motion for summary judgment as to each count of Appellants' first amended petition for damages. On April 26, 2000, the trial court entered its order granting the Commission's motion for summary judgment on each count of Appellants' petition. This appeal follows.

Standard of Review

Summary judgment will be affirmed on appeal if this court determines that no genuine issues of material fact exist and the movant has a right to judgment as a matter of law. Bryan v. Mo. State Highway Patrol, 963 S.W.2d 403, 406 (Mo.App. W.D.1998). "Appellate review of the propriety of summary judgment is de novo." Id. We view the record in the light most favorable to the party against whom summary judgment was entered, and that party is afforded all reasonable inferences that may be drawn from the evidence. Id.

Point I

The first point on appeal is that the trial court erred in granting summary judgment

69 S.W.3d 508

in favor of the Commission because the court erroneously held that the statute of limitations that applies to a cause of action for inverse condemnation is five years pursuant to § 516.120, and rather should have applied a statute of limitations of ten years, as set forth by the Missouri Supreme Court in Doyle v. Kansas City & Southern Railway Co., 113 Mo. 280, 20 S.W. 970 (1892).

The trial court held that the statute of limitations that applies to the inverse condemnation claims in this case bars Appellants from recovery because more than five years passed from the date of the first flood and the filing of Appellants' petition for damages. The main issue to be decided is what statute of limitations applies to inverse condemnation actions.

Appellants contend that the trial court's reliance on § 516.120 is erroneous, and the ten-year statute of limitations set forth in Doyle is the correct one. In Doyle v. Kansas City & Southern Railway Co., 113 Mo. 280, 20 S.W. 970 (1892), a railroad constructed a road across the plaintiffs' property, damaging it. The plaintiffs brought an action against the railroad seeking to recover the value of the land taken by the railroad for a right of way, and for damages to the residue of the land. Doyle, 20 S.W. at 970. The trial court found that the statute of limitations for the plaintiffs' action was five years. Id. at 971. The supreme court disagreed, finding that the action, if successful, would vest in the railroad an easement in the land, as in a normal condemnation proceeding. Id. The court held that "the five-years bar, which may be appropriately invoked in simple actions of trespass, does not apply, and cannot apply, to a case of this sort, where the result of the judgment and its satisfaction will be to vest the title in the defendant company as effectually as if resultant from regular proceedings for condemnation." Id. Instead, the court applied a ten-year limitation period, which, in effect, afforded the plaintiffs a legal recourse within the ten years it would take for the defendant to obtain an easement through adverse possession. Id. Appellants argue that Doyle is similar to the case at bar, in that their action in this case, if successful, would serve to vest in the Commission a flowage easement in the land.

The Commission argues that Doyle is distinguishable from the present case for two reasons: 1) the source of the injury in Doyle was located on the landowners' property; and 2) the railroad in Doyle was taking the title to the property from the landowner. The Commission argues that because in the present case, the alleged source of the injury is located on lands owned by the entity with the power of eminent domain with the resulting injury occurring on the abutting landowners' property, and because title would not be taken from the landowners, the trial court properly applied the five-year statute of limitations.

The Commission contends that DeGeofroy v. Merchants' Bridge Terminal Railway Company, 179 Mo. 698, 79 S.W. 386 (1903), rather than Doyle, is the controlling case. In DeGeofroy, the appellants brought an action for damages to their property resulting from the construction and operation of a railroad in front of their property. DeGeofroy, 79 S.W. at 387. The trial court sustained a demurrer to the appellants' petition on the ground that the petition did not state facts sufficient to constitute a cause of action. Id. The supreme court considered whether the appellants' action was barred by the statute of limitations. Id. at 394. The court found that the railroad's structure was of a permanent character, and the injury to the appellants' property was susceptible of ascertainment

69 S.W.3d 509

when it was completed. Id. The court stated as follows:

In James v. Kansas City, 83 Mo. 567, it was said, "Where the damage is complete by the...

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3 practice notes
  • Metro. St. Louis Sewer Dist. v. City of Bellefontaine Neighbors, No. SC 94831
    • United States
    • United States State Supreme Court of Missouri
    • January 12, 2016
    ...the right to sue for inverse condemnation arises solely from the state constitution. Shade v. Missouri Highway & Transp. Comm'n, 69 S.W.3d 503, 510 (Mo.App. W.D.2001), citing Heins Implement Co. v. Highway & Transp. Comm'n, 859 S.W.2d 681 (Mo. banc 1993), abrogated in part on other ......
  • Hull v. Pleasant Hill Sch. Dist., WD 79302 and WD 79318.
    • United States
    • Court of Appeal of Missouri (US)
    • June 6, 2017
    ...a factual determination as to when the damage was capable of ascertainment. 526 S.W.3d 283 Shade v. Mo. Highway & Transp. Comm'n, 69 S.W.3d 503 (Mo. App. W.D. 2001). In this regard, we stated,A cause of action for inverse condemnation accrues once the fact of damage is capable of ascert......
  • Cook v. Desoto Fuels, Inc., No. ED 84514.
    • United States
    • United States State Supreme Court of Missouri
    • August 2, 2005
    ...See, e.g., Elmore v. Owens-Illinois, Inc., 673 S.W.2d 434, 436 (Mo. banc 1984); Shade v. Missouri Highway and Transportation Commission, 69 S.W.3d 503, 514 (Mo.App. W.D.2001); but see, e.g., King v. Nashua Corp., 763 F.2d 332, 333 (8th Cir.1985) (stating that "Missouri courts have made......
3 cases
  • Metro. St. Louis Sewer Dist. v. City of Bellefontaine Neighbors, No. SC 94831
    • United States
    • United States State Supreme Court of Missouri
    • January 12, 2016
    ...the right to sue for inverse condemnation arises solely from the state constitution. Shade v. Missouri Highway & Transp. Comm'n, 69 S.W.3d 503, 510 (Mo.App. W.D.2001), citing Heins Implement Co. v. Highway & Transp. Comm'n, 859 S.W.2d 681 (Mo. banc 1993), abrogated in part on other ......
  • Hull v. Pleasant Hill Sch. Dist., WD 79302 and WD 79318.
    • United States
    • Court of Appeal of Missouri (US)
    • June 6, 2017
    ...a factual determination as to when the damage was capable of ascertainment. 526 S.W.3d 283 Shade v. Mo. Highway & Transp. Comm'n, 69 S.W.3d 503 (Mo. App. W.D. 2001). In this regard, we stated,A cause of action for inverse condemnation accrues once the fact of damage is capable of ascert......
  • Cook v. Desoto Fuels, Inc., No. ED 84514.
    • United States
    • United States State Supreme Court of Missouri
    • August 2, 2005
    ...See, e.g., Elmore v. Owens-Illinois, Inc., 673 S.W.2d 434, 436 (Mo. banc 1984); Shade v. Missouri Highway and Transportation Commission, 69 S.W.3d 503, 514 (Mo.App. W.D.2001); but see, e.g., King v. Nashua Corp., 763 F.2d 332, 333 (8th Cir.1985) (stating that "Missouri courts have made......

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