 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Moore v. Missouri Highway & Transportation Commission8/24/2005
deration. Appellant argued that Respondent's use of an aerial photograph of the curve in the September 28, 2004 hearing constituted introduction of evidence outside of the pleadings and turned the motion to dismiss into a motion for summary judgment. The judge "didn't think" the use of the aerial photograph at the earlier hearing was "wrong." On November 15, 2004, the court overruled Appellant's motion. Notice of Appeal was filed on November 23, 2004. On December 6, 2004, the court entered judgment dismissing Appellant's petition.
It is our initial duty to ascertain whether this court has appellate jurisdiction of the case. Agribank FCB v. Allison, 907 S.W.2d 229, 230 (Mo.App. 1995). The notice of appeal was filed before judgment was issued in compliance with Rule 74.01(a). When notice of appeal has been filed prematurely, the notice shall be considered as filed immediately after the time the judgment becomes final for the purposes of appeal. L.J.B. v. L.W.B., 908 S.W.2d 349, 350 (Mo.banc 1995). The notice of appeal was prematurely filed, but the trial court entered judgment and the notice took effect thereafter. This Court has jurisdiction.
Appellant contends the trial court erred in considering facts and arguments included in Respondent's written suggestions in support of its motion to dismiss and "factual renditions not contained in the pleadings" in Respondent's oral argument before the trial court at the September 28, 2004 hearing on Respondent's motion to dismiss. Appellant also challenges Respondent's "presentation to the Court of a 3' X 4' aerial photograph of the highway area in question." This photograph presented by Respondent, Appellant contends, was "outside of the pleadings." However, Appellant concedes " here is nothing in the record to clearly show us what consideration the Circuit Court gave to these alleged facts and arguments."
Appellant also contends the trial court based its decision to grant Respondent's motion to dismiss on the "belief that the mere existence of a curve without a warning sign does not provide a basis for a finding of dangerous condition in property." Appellant appears to argue that the trial court determined that the dangerous condition alleged did not meet the criteria for the dangerous-condition exception to the sovereign immunity statute. Respondent counters by stating Appellant failed to state a claim pursuant to the appropriate statute.
As the trial court did not treat the motion to dismiss as one for summary judgment and give the notice required by Rule 55.27(a), we review the judgment as based solely on a motion to dismiss for failure to state a claim for which relief can be granted. The standard of appellate review of an order sustaining a motion to dismiss differs from the standard applied when reviewing a summary judgment. Dent Phelps R-III Sch. Dist. v. Hartford Fire Ins. Co., 870 S.W.2d 915, 917 (Mo.App. 1994). "In reviewing an order sustaining a motion to dismiss, all facts alleged in the petition are deemed true and plaintiff is given the benefit of every reasonable intendment." Id. "When reviewing a summary judgment, an appellate court looks not just to the petition but to all pertinent materials presented to the trial court to determine if there is any material fact issue and that the moving party was entitled to judgment as a matter of law." Id.
In reviewing a dismissal for failure to state a claim upon which relief could be granted, this Court deems the facts pleaded in the petition to be true. Monroe v. Mo. Dep' t of Corr., 105 S.W.3d 915, 917 (Mo.App. 2003). We review the allegations set forth in the petition in order to determine whether principles of substantive law invoked would entitle petition
Page 1 2 3 Missouri Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|