Property Law

Paul F. Sherman, Esquire

Notice, not duty, is required for inverse condemnation based on nuisance. Miller v. City of Wentzville, Missouri, No. 97251 (Mo. App. E.D., April 17, 2012), Crane, J.

Plaintiffs Miller filed suit for inverse condemnation to recover for cracks in their garage and house foundation caused by “street creep” the movement and expansion of the concrete street built without adequate expansion joints. Their home has its driveway abutting Blue Lake Drive, a concrete street accepted and maintained by the City of Wentzville (“City”). Plaintiffs allege the City failed to adequately maintain Blue Lake Drive. The City filed for summary judgment asserting causation was lacking, no duty and improper maintenance was insufficient grounds for inverse condemnation. The trial court granted the City summary judgment and this appeal followed.

Inverse condemnation is the exclusive remedy when property is taken or damaged due to nuisance by an entity that has the power of eminent domain. Regard causation, this element is met for nuisance by showing the offending property was used in a manner that caused injury to claimants’ property, “but for” the street creep the Plaintiffs’ foundation would not have been damaged. Facts remain controverted, distinguishing this case from Zumalt v. Boone County, 921 S.W.2d 12 (Mo.App. 1996), an earlier “street creep” case.

As for improper maintenance, the City’s reliance on Zumalt again fell short. Is duty an essential element necessary for a cause of action of inverse condemnation based on nuisance?  No. While it is true that notice of the problem is necessary to hold the City liable, there is no question notice had been provided. Genuine issues of fact remain.

Held: Summary judgment is reversed and the case remanded.

An agent for undisclosed principal can bring a rent and possession action and can enforce a lease, but cannot necessarily rely that title may not be raised as a defense because there is no  clear statutory preclusion. Kavanaugh v. Ealy, No. 96974 (Mo. App. E.D., April 17, 2012), Dowd, Jr., J.

Kavanaugh filed this action for rent and possession alleging Ealy was delinquent $14,400 in rent, plus damages to premises. Judgment for Kavanaugh for $15,000 plus possession against Ealy. Ealy requested trial de novo, but posted no bond and was evicted September 28, 2010. Ealy then moved to vacate judgment and dismiss, claiming Kavanaugh was not the real party in interest – overruled. After trial de novo Kavanaugh was awarded $13,450 in damages, which included $250 for property damages (front door). Ealy sought JNOV, or new trial, on grounds that Kavanaugh was agent for the Fergusons and the Fergusons did not own the property, which was denied. This appeal follows.

This was an action for rent and possession under the statutory scheme of Chapter  535. Is Ealy precluded from raising title to the property as a defense under Chapter 535?  Not necessarily, but under these facts of Ealy having been evicted for failing to post a bond, title was unrelated to eviction.

Was Kavanaugh entitled to bring the suit as an agent even though the Fergusons did not own the property?  Yes, an agent for an undisclosed principal is enabled, and personally liable and has the corresponding right to enforce. All payments had been made to Kavanaugh. However, damage to the property is to be excluded in accord once with § 535.220, RSMo., so that the judgment was reduced the front door damage of $250.

Held: Judgment affirmed as modified.