Ward Builders v. City of Lee's Summit

• Decision Date: 23 November 2004
• Docket Number: No. WD 63347.,WD 63347.
• Citation: Ward Builders v. City of Lee's Summit, 157 S.W.3d 644 (Mo. App. 2004)
• Parties: GEORGE WARD BUILDERS, INC., and Robert Allen, Appellants, v. CITY OF LEE'S SUMMIT, Missouri, Respondent.
• Court: Missouri Court of Appeals

157 S.W.3d 644

GEORGE WARD BUILDERS, INC., and Robert Allen, Appellants, v. CITY OF LEE'S SUMMIT, Missouri, Respondent.

No. WD 63347.

Missouri Court of Appeals, Western District.

November 23, 2004.

Motion for Transfer to Supreme Court Denied February 1, 2005.

Application for Transfer Denied April 5, 2005.

Anthony L. Gosserand, Kansas City, MO, for appellants.

James H. Ensz, Kansas City, MO, for respondents.

Before ELLIS, P.J., BRECKENRIDGE and SMITH, JJ.

PATRICIA BRECKENRIDGE, Judge.

George Ward Builders, Inc., and Robert Allen (referred to collectively as "Ward Builders") appeal the dismissal of its two-count petition for nuisance and injunction against the City of Lee's Summit. Specifically, Ward Builders alleged that the lighting system at a park located next to its properties creates an extreme level of light pollution that interferes with the use and enjoyment of its properties. In its sole point on appeal, Ward Builders claims that the trial court erred in dismissing its petition for failure to state a claim for relief because a municipality can be sued for a temporary nuisance under Missouri law.

This court finds that the trial court properly dismissed Ward Builders' petition for a temporary nuisance because the exclusive and proper remedy for damage to private property caused by a nuisance maintained by a public entity having the power of eminent domain is an action in inverse condemnation. Equity requires this court to remand this case and give Ward Builders the opportunity to amend its petition to plead a claim of inverse condemnation. The trial court's order granting the dismissal is vacated, and the cause is remanded for further proceedings consistent with this opinion.

Factual and Procedural Background

Although the trial court's judgment was entered in response to the City's motion for summary judgment, in its judgment dismissing Ward Builders' petition, the trial court ruled as a matter of law and "[w]ithout respect to disputed facts" that Ward Builders' petition failed to state a cause of action. Therefore, the trial court's ruling will be reviewed as a grant of a motion to dismiss. Chandler v. Allen, 108 S.W.3d 756, 764 (Mo.App.2003). In reviewing the grant of a motion to dismiss, this court takes as true the facts alleged in the petition. Johnson ex rel. Wilken v. Jones, 67 S.W.3d 702, 704 n. 2 (Mo.App.2002).

According to Ward Builders' petition, George Ward Builders owns improved and unimproved lots and develops single-family homes in the Windsor Subdivision Development ("Windsor") in Jackson County. Robert Allen resides in and owns other improved and unimproved lots in Windsor. While Windsor is not within the city limits of Lee's Summit, the subdivision is next to a park that the City owns and is developing. The park contains several sports and baseball fields that abut Windsor. To illuminate the ball fields, the City installed an outdoor lighting system.

On August 10, 2002, Ward Builders filed a two-count petition against the City. In this petition, Ward Builders alleged that the lighting system for the ball fields has lights that are located and positioned in such a manner as to shine directly into several homes in Windsor, including properties owned by Ward Builders. Ward Builders further alleged that the lights create an extreme level of light pollution that interferes with Windsor residents' and Ward Builders' use and enjoyment of their property and, therefore, the lighting system negatively impacts Windsor's marketability. In Count I, Ward Builders sought damages for common law nuisance. In Count II, Ward Builders sought to permanently enjoin the City from operating the lighting system at the park.

In response, the City filed a motion for summary judgment, asserting that, "where a governmental entity is involved, what might be a nuisance claim against a private entity is an inverse condemnation claim against the governmental entity."¹ Following Ward Builders' response to the City's motion for summary judgment, the trial court entered its "Judgment" dismissing Ward Builders' petition, as a matter of law, based on its interpretation of Heins Implement Co. v. Missouri Highway & Transportation Commission, 859 S.W.2d 681 (Mo. banc 1993), and Byrom v. Little Blue Valley Sewer District, 16 S.W.3d 573 (Mo. banc 2000). Specifically, the trial court found that Ward Builders could not state a cause of action for common law nuisance against the City. The court stated that "in light of [Ward Builders'] denial of their intent to seek relief by way of inverse condemnation in [Ward Builders'] Response to the Summary Judgment Motion, [Ward Builders'] Petition fails to state a cause of action." This appeal followed.

Standard of Review

As noted above, even though the trial court's judgment was entered in response to the City's motion for summary judgment, because the trial court relied on only Ward Builders' petition in dismissing the petition, this court reviews the trial court's ruling as a grant of a motion to dismiss. A motion to dismiss for failure to state a claim upon which relief can be granted is an attack on the plaintiff's pleadings. Bosch v. St. Louis Healthcare Network, 41 S.W.3d 462, 463-64 (Mo. banc 2001). When reviewing the grant of a motion to dismiss for failure to state a claim, this court considers that:

"A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiff's petition. It assumes that all of plaintiff's averments are true, and liberally grants to plaintiff all reasonable inferences therefrom. No attempt is made to weigh any facts alleged as to whether they are credible or persuasive. Instead, the petition is reviewed 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."

Id. (quoting Nazeri v. Mo. Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993) (internal citations omitted)).

Judgment Is Final and Appealable

Before reaching Ward Builders' point on appeal, this court must determine, sua sponte, whether it has jurisdiction to hear the appeal. Chromalloy Am. Corp. v. Elyria Foundry Co., 955 S.W.2d 1, 3 (Mo. banc 1997). The trial court dismissed Ward Builders' petition without stating whether the dismissal was with or without prejudice. Therefore, the dismissal was without prejudice. Rule 67.03 (stating that "[a]ny involuntary dismissal shall be without prejudice unless the court in its order for dismissal shall otherwise specify"). "The general rule is that a dismissal without prejudice is not a final judgment and, therefore, is not appealable." Chromalloy, 955 S.W.2d at 3.

An exception to this rule is "where the dismissal has the practical effect of terminating the litigation in the form cast by the plaintiff." Masonic Temple Ass'n of St. Louis v. Soc'y for Pres. of Masonic Temple, 70 S.W.3d 24, 26 (Mo.App.2002). "When the effect of the order is to dismiss the plaintiff's action and not the pleading merely, then the judgment entered is final and appealable." Mahoney v. Doerhoff Surgical Servs., Inc., 807 S.W.2d 503, 506 (Mo. banc 1991). "[T]hat 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." Hasemeier v. Smith, 361 S.W.2d 697, 699 (Mo. banc 1962).

Here, the trial court ruled that Ward Builders' petition failed to state a cause of action under the holdings of Heins and Byrom. The trial court did not find that Ward Builders failed to plead the required elements of its claim. Rather, the trial court effectively ruled that, under Missouri Supreme Court precedent, no cause of action for nuisance exists against municipalities with condemning authority. Instead of bringing another action for the same cause, Ward Builders chose to stand on its petition alleging a nuisance action. Thus, the trial court's dismissal of that petition was final and appealable.

No Claim for Nuisance Against Municipality

In its sole point on appeal, Ward Builders argues that the trial court erred in dismissing its petition because it stated a cause of action against the City for common law nuisance. Specifically, Ward Builders claims that a municipality can be sued for a temporary nuisance, and the use of the lighting system at the ballpark is a temporary nuisance. The trial court, however, found that, under Heins and Byrom, there is no cause of action for damages or the abatement of a temporary nuisance against municipalities with condemning authority under Missouri law.

In Heins, landowners sued the Missouri Highway & Transportation Commission (the "MHTC") and others after a highway bypass project caused flooding on their property. 859 S.W.2d at 684. Against the MHTC, the landowners asserted claims of inverse condemnation, negligence, and nuisance. Id. The trial court granted summary judgment in favor of the MHTC on the landowners' negligence and nuisance claims. Id. After a jury verdict for landowners on their inverse condemnation claim, the trial court granted a judgment notwithstanding the verdict in MHTC's favor on that claim. Id.

In the landowners' appeal to the Supreme Court, the Court determined that the evidence was sufficient to permit a jury to find inverse condemnation, and the Court reversed and remanded that claim. Id. at 691-92. The Court affirmed the summary judgment in favor of the MHTC on the landowners' negligence and nuisance claims, however. Id. at 694. The Court found that the MHTC was empowered to exercise the right of eminent domain and, "when private property is damaged by a nuisance operated by an entity having the power of eminent domain, the proper remedy is an action in inverse condemnation." Id. at 693.

Nevertheless, Ward Builders argues that, because the alleged damage in Heins was caused by...