 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
George Ward Builders11/23/2004
Opinion Vote: VACATED AND REMANDED.
Ellis, P.J., and Smith, J., concur.
Opinion:
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 " 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." Following Ward Builders' response to the City's motion for summary judgment, the trial court entered its "Judgment" dismissing Ward Bu
Page 1 2 3 4 5 6 Missouri Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|