In the Missouri Court of Appeals Eastern District DIVISION FOUR
SHARON WATSON, AS TRUSTEE OF THE ) ED109525 GEORGE T. AND MARY E. WATSON ) TRUST DATED NOVEMBER 18, 1997, ) Appeal from the Circuit Court of ) St. Louis County Appellant, ) 19SL-CC03157 ) v. ) Honorable Thomas C. Albus ) MENARD, INC. D/B/A MENARDS, AND ) Filed: November 23, 2021 CITY OF RICHMOND HEIGHTS, MISSOURI, ) ) Respondents. )
Plaintiff, Sharon A. Watson, as Trustee of the George T. and Mary E. Watson Trust,
(Appellant) appeals from the trial court’s dismissal of Appellant’s Amended Petition for
Damages against defendants City of Richmond Heights (the City) and Menard, Inc. (Menards)
(collectively, Respondents). We affirm.
BACKGROUND
In July 2006, the City passed an ordinance approving a redevelopment project in a
blighted area, which included property at 1705 Berkley Avenue, Richmond Heights, Missouri
(the Property), owned by Appellant. The Property consists of 0.3 acres of land and a one-story
1,220-square-foot house. In December 2007, the City filed a condemnation action against the
Property, naming all interested parties as defendants, including Appellant. In March 2008, pursuant to Section 99.820 of the Real Property Tax Increment Allocation Redevelopment Act,
Sections 99.800-99.865, RSMo., 1 (TIF Act), the trial court entered an Order of Condemnation
for property in the City’s redevelopment area, which included the Property. However, the
developer Michelson Commercial Realty and Development L.L.C. (Michelson) was unable to
obtain financing for the redevelopment project and breached the redevelopment agreement with
the City. The City then entered into a redevelopment agreement with Menards. The City paid
$429,962.74 for damages into the court registry, as required by the TIF Act, on December 2,
2013. The next day, the City recorded a deed to Appellant’s Property in the name of Menards.
Appellant refused to vacate the Property, and the City filed a Writ of Possession in
February 2014. The trial court granted the City’s writ with an effective date of March 5, 2014,
but Appellant applied for a Writ of Prohibition from this Court, which was granted on March 4,
2014, and made absolute on July 8, 2014. State ex rel. Watson v. Sherry, 436 S.W.3d 718 (Mo.
App. E.D. 2014). This Court’s decision ended the condemnation proceeding because the City
failed to pay the commissioner’s award until after the five-year period for acquisition had
expired, under the TIF Act. Id. at 723-24. Thus, the trial court dismissed the City’s Writ of
Possession and the condemnation action with prejudice and ordered title to the Property restored
to Appellant on August 1, 2014. The redevelopment project was subsequently redesigned to
exclude the Property.
On February 20, 2014, while the City’s Writ of Possession was pending, Appellant
discovered significant weather damage to the roof of the house on the Property, and made an
insurance claim with her insurer, American Family (Insurer), on March 5, 2014. Appellant also
alleged the house suffered interior water damage, and theft damage. Insurer denied Appellant’s
1 All statutory references are to RSMo 2016, unless otherwise indicated.
2 claim, citing that the policy was in Appellant’s name but the deed recorded was in the name of
Menards. Appellant informed Menards that Insurer denied her claim because of the recorded
deed showing Menards purchased the Property on December 2, 2013. Insurer also denied
coverage because Appellant cancelled the policy on March 18, 2014, retroactive to December 2,
2013, which was prior to the date of the alleged loss. Insurer issued a refund check to Appellant
on April 14, 2014.
On July 29, 2019, Appellant filed this lawsuit alleging, inter alia, that Menards was
negligent in failing to insure the Property (Count III). Appellant also sought injunctive relief to
remove overgrowth from Appellant’s Property. Menards filed its Motion to Dismiss the Petition,
with suggestions in support of its motion. On March 4, 2020, the trial court denied dismissal of
Appellant’s injunctive relief but granted the Motion to Dismiss Appellant’s negligence claim
without prejudice, giving Appellant thirty days to file an amended petition.
On March 31, 2020, Appellant filed an Amended Petition for Damages, asserting:
(Count I) ordinary negligence against the City; (Count II) recklessness against the City; (Count
III) ordinary negligence against Menards “for failing to respond to Plaintiff’s inquiry regarding
the recorded deed and by failing to take reasonable measures to ensure that Plaintiff suffered no
additional property damage; including failing to resolve the recorded deed in favor of Plaintiff”
during the pendency of the prior legal proceedings; and (Count IV) injunctive relief for Menards’
neglect of an easement. Menards again moved to dismiss the negligence claim and for a more
definite statement of the injunction claim. The City also moved to dismiss the two counts
against it.
Ultimately, Menards cooperated with Appellant to address the nuisance allegations, so
Appellant did not oppose a motion to dismiss the request for injunctive relief as moot. On
3 February 19, 2021, the trial court entered an Order and Judgment disposing of all of Appellant’s
claims, specifically the negligence claims in Counts I, II, and III, and the injunctive relief in
Count IV. This appeal follows.
DISCUSSION
Appellant raises three points on appeal, each alleging the trial court erred in granting
Respondents’ Motion to Dismiss because Appellant’s petition stated a claim for which relief
could be granted. Appellant’s first point alleges the trial court erred in that Respondents owed
Appellant a duty of care, which they breached, and substantial damage resulted to Appellant.
Second, Appellant alleges the trial court erred in that Appellant’s petition was filed within the
five-year statute of limitations for negligence. Third, Appellant alleges the trial court erred in
that Appellant pled that City waived sovereign immunity to the extent of the City’s insurance
policy limits and that the City should not be shielded because the City’s Writ of Possession was a
proprietary act done solely for the benefit of Menards. We find Point II dispositive; thus, we do
not reach Appellant’s other points on appeal.
Standard of Review
The standard of review for a trial court's grant of a motion to dismiss is de novo. Lang v.
Goldsworthy, 470 S.W.3d 748, 750 (Mo. banc 2015). In determining the appropriateness of the
trial court's dismissal of a petition, an appellate court reviews the grounds raised in the
defendant’s motion to dismiss. In re Estate of Austin, 389 S.W.3d 168, 171 (Mo. banc 2013). If
the motion to dismiss cannot be sustained on any ground alleged in the motion, the trial court’s
ruling will be reversed. Id. However, the trial court's ruling must be affirmed “if the motion [to
dismiss] could have been sustained on any of the meritorious grounds raised in the motion,”
4 regardless of whether the trial court relied on that particular ground. Breeden v. Hueser, 273
S.W.3d 1, 6 (Mo. App. W.D. 2008).
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In the Missouri Court of Appeals Eastern District DIVISION FOUR
SHARON WATSON, AS TRUSTEE OF THE ) ED109525 GEORGE T. AND MARY E. WATSON ) TRUST DATED NOVEMBER 18, 1997, ) Appeal from the Circuit Court of ) St. Louis County Appellant, ) 19SL-CC03157 ) v. ) Honorable Thomas C. Albus ) MENARD, INC. D/B/A MENARDS, AND ) Filed: November 23, 2021 CITY OF RICHMOND HEIGHTS, MISSOURI, ) ) Respondents. )
Plaintiff, Sharon A. Watson, as Trustee of the George T. and Mary E. Watson Trust,
(Appellant) appeals from the trial court’s dismissal of Appellant’s Amended Petition for
Damages against defendants City of Richmond Heights (the City) and Menard, Inc. (Menards)
(collectively, Respondents). We affirm.
BACKGROUND
In July 2006, the City passed an ordinance approving a redevelopment project in a
blighted area, which included property at 1705 Berkley Avenue, Richmond Heights, Missouri
(the Property), owned by Appellant. The Property consists of 0.3 acres of land and a one-story
1,220-square-foot house. In December 2007, the City filed a condemnation action against the
Property, naming all interested parties as defendants, including Appellant. In March 2008, pursuant to Section 99.820 of the Real Property Tax Increment Allocation Redevelopment Act,
Sections 99.800-99.865, RSMo., 1 (TIF Act), the trial court entered an Order of Condemnation
for property in the City’s redevelopment area, which included the Property. However, the
developer Michelson Commercial Realty and Development L.L.C. (Michelson) was unable to
obtain financing for the redevelopment project and breached the redevelopment agreement with
the City. The City then entered into a redevelopment agreement with Menards. The City paid
$429,962.74 for damages into the court registry, as required by the TIF Act, on December 2,
2013. The next day, the City recorded a deed to Appellant’s Property in the name of Menards.
Appellant refused to vacate the Property, and the City filed a Writ of Possession in
February 2014. The trial court granted the City’s writ with an effective date of March 5, 2014,
but Appellant applied for a Writ of Prohibition from this Court, which was granted on March 4,
2014, and made absolute on July 8, 2014. State ex rel. Watson v. Sherry, 436 S.W.3d 718 (Mo.
App. E.D. 2014). This Court’s decision ended the condemnation proceeding because the City
failed to pay the commissioner’s award until after the five-year period for acquisition had
expired, under the TIF Act. Id. at 723-24. Thus, the trial court dismissed the City’s Writ of
Possession and the condemnation action with prejudice and ordered title to the Property restored
to Appellant on August 1, 2014. The redevelopment project was subsequently redesigned to
exclude the Property.
On February 20, 2014, while the City’s Writ of Possession was pending, Appellant
discovered significant weather damage to the roof of the house on the Property, and made an
insurance claim with her insurer, American Family (Insurer), on March 5, 2014. Appellant also
alleged the house suffered interior water damage, and theft damage. Insurer denied Appellant’s
1 All statutory references are to RSMo 2016, unless otherwise indicated.
2 claim, citing that the policy was in Appellant’s name but the deed recorded was in the name of
Menards. Appellant informed Menards that Insurer denied her claim because of the recorded
deed showing Menards purchased the Property on December 2, 2013. Insurer also denied
coverage because Appellant cancelled the policy on March 18, 2014, retroactive to December 2,
2013, which was prior to the date of the alleged loss. Insurer issued a refund check to Appellant
on April 14, 2014.
On July 29, 2019, Appellant filed this lawsuit alleging, inter alia, that Menards was
negligent in failing to insure the Property (Count III). Appellant also sought injunctive relief to
remove overgrowth from Appellant’s Property. Menards filed its Motion to Dismiss the Petition,
with suggestions in support of its motion. On March 4, 2020, the trial court denied dismissal of
Appellant’s injunctive relief but granted the Motion to Dismiss Appellant’s negligence claim
without prejudice, giving Appellant thirty days to file an amended petition.
On March 31, 2020, Appellant filed an Amended Petition for Damages, asserting:
(Count I) ordinary negligence against the City; (Count II) recklessness against the City; (Count
III) ordinary negligence against Menards “for failing to respond to Plaintiff’s inquiry regarding
the recorded deed and by failing to take reasonable measures to ensure that Plaintiff suffered no
additional property damage; including failing to resolve the recorded deed in favor of Plaintiff”
during the pendency of the prior legal proceedings; and (Count IV) injunctive relief for Menards’
neglect of an easement. Menards again moved to dismiss the negligence claim and for a more
definite statement of the injunction claim. The City also moved to dismiss the two counts
against it.
Ultimately, Menards cooperated with Appellant to address the nuisance allegations, so
Appellant did not oppose a motion to dismiss the request for injunctive relief as moot. On
3 February 19, 2021, the trial court entered an Order and Judgment disposing of all of Appellant’s
claims, specifically the negligence claims in Counts I, II, and III, and the injunctive relief in
Count IV. This appeal follows.
DISCUSSION
Appellant raises three points on appeal, each alleging the trial court erred in granting
Respondents’ Motion to Dismiss because Appellant’s petition stated a claim for which relief
could be granted. Appellant’s first point alleges the trial court erred in that Respondents owed
Appellant a duty of care, which they breached, and substantial damage resulted to Appellant.
Second, Appellant alleges the trial court erred in that Appellant’s petition was filed within the
five-year statute of limitations for negligence. Third, Appellant alleges the trial court erred in
that Appellant pled that City waived sovereign immunity to the extent of the City’s insurance
policy limits and that the City should not be shielded because the City’s Writ of Possession was a
proprietary act done solely for the benefit of Menards. We find Point II dispositive; thus, we do
not reach Appellant’s other points on appeal.
Standard of Review
The standard of review for a trial court's grant of a motion to dismiss is de novo. Lang v.
Goldsworthy, 470 S.W.3d 748, 750 (Mo. banc 2015). In determining the appropriateness of the
trial court's dismissal of a petition, an appellate court reviews the grounds raised in the
defendant’s motion to dismiss. In re Estate of Austin, 389 S.W.3d 168, 171 (Mo. banc 2013). If
the motion to dismiss cannot be sustained on any ground alleged in the motion, the trial court’s
ruling will be reversed. Id. However, the trial court's ruling must be affirmed “if the motion [to
dismiss] could have been sustained on any of the meritorious grounds raised in the motion,”
4 regardless of whether the trial court relied on that particular ground. Breeden v. Hueser, 273
S.W.3d 1, 6 (Mo. App. W.D. 2008).
Point II
Appellant’s second point alleges the trial court erred in granting Respondents’ motion to
dismiss because Appellant’s petition stated a claim for which relief could be granted, in that
Appellant’s petition was filed within the five-year statute of limitations for negligence.
The applicable statute of limitations for a negligence action is five years pursuant to
Section 516.120. In Missouri, the statute of limitations begins to run “when the evidence places
‘a reasonably prudent person on notice of a potentially actionable injury.’” Aguilar v. Thompson
Coburn LLP, 540 S.W.3d 910, 914 (Mo. App. E.D 2018). The test is not when Appellant
subjectively “discovers his or her damages, and their causes, in the normal course of events
while exercising reasonable diligence.” Id. at 915. Instead, the date of accrual, determined by
the “capable-of-ascertainment test,” is when “a reasonable person would have been put on notice
that an injury and substantial damages may have occurred and would have undertaken to
ascertain the extent of the damages.” Id. at 914. This is an objective test and “damages are
ascertainable ‘when the fact of damage can be discovered or made known, not when the plaintiff
actually discovers injury or wrongful conduct.’” Id. at 915 (quoting Farrow v. St. Francis Med.
Ctr., 407 S.W.3d 597, 599 (Mo. banc 2013)).
Appellant filed this action on July 29, 2019, and alleges her right to bring her cause of
action against Respondents did not arise until August 1, 2014, when the trial court dismissed the
condemnation action against Appellant and ordered title be restored to Appellant. Although
Appellant admits she discovered the first instance of damage to the Property on February 20,
2014, she argues she was in dispute with Respondents at that time and would not have been able
5 to bring an action against Respondents for damages until the condemnation case had been
resolved on August 1, 2014. Appellant argues the City purported to have a valid interest in
Appellant’s Property through eminent domain between December 2, 2013, and August 1, 2014,
and the payment of the commissioner’s award on December 2, 2013, dispossessed Appellant of
title to the Property until title was restored to Appellant on August 1, 2014. Appellant therefore
contends the petition filed on July 29, 2019, was within the five-year statute of limitations for
negligence and the trial court’s judgment should be reversed. We disagree.
Appellant appears to predicate her argument on a lack of standing due to the
condemnation proceeding. She only cites to a footnote in Conseco Finance Servicing Corp. v.
Missouri Department of Revenue, 195 S.W.3d 410, 413 n.3 (Mo. banc 2006), without any
analysis to support her position. That case is unpersuasive because it involves an abandoned
manufactured home, unlike this case where Appellant refused to give up possession of the
Property. In fact, she fought the condemnation proceedings to the Eastern District Court of
Appeals where she ultimately prevailed. Instead, we find the damages were clearly ascertainable
on March 5, 2014, when she filed a claim for damages with the Insurer, and arguably could have
started to toll on February 20, 2014, where the record undisputedly shows Appellant discovered
the injury. Moreover, Appellant had applied for a Writ of Prohibition on March 4, 2014, to stop
the court from acting on the possession action that was occurring in the trial court. This Court
preliminarily granted Appellant’s Writ of Prohibition on March 4, 2014, effectively agreeing
with her claim that she had a right to possess and hold title in the Property. We find nothing
precluded Appellant from pursuing her claim for damages to the Property as soon as they were
“capable of ascertainment.” Aguilar, 540 S.W.3d at 914.
6 In conclusion, we hold it is undisputed that Appellant discovered the damages at issue
here as early as February 20, 2014, and filed a claim for damages with the insurer on March 5,
2014. Thus, the statute of limitations began to toll and expired at the latest on March 5, 2019,
well before Appellant filed suit on July 29, 2019. Thus, the negligence claim was time-barred
and the trial court properly dismissed it. Point II is denied.
We find the Point II dispositive in that the motion to dismiss could have been sustained
on that meritorious ground raised in the motion, and we don’t reach the merits of Appellant’s
remaining points. Breeden, 273 S.W.3d at 6.
CONCLUSION
The judgment of the trial court is affirmed.
____________________________________ Lisa P. Page, Judge
Michael E. Gardner, P.J. and James M. Dowd, J., concur.