Mark and Sherry Davis, and David and Denise Kamm; Kevin Laughlin vs. City of Kearney, Missouri

MARK and SHERRY DAVIS, and ) DAVID and DENISE KAMM, ) ) Respondents, ) ) KEVIN LAUGHLIN, ) ) Appellant-Respondent, ) ) WD87389 v. ) consolidated with WD87408, ) WD87467, and WD87497 CITY OF KEARNEY, MISSOURI, ) ) Filed: December 16, 2025 Respondent-Appellant. )

Appeal from the Circuit Court of Clay County The Honorable Shane Terril Alexander, Judge

Before Division Three: Alok Ahuja, P.J., and Mark D. Pfeiffer and Thomas N. Chapman, JJ. Mark and Sherry Davis, David and Denise Kamm, and Kevin Laughlin (collectively, the "Property Owners") filed suit for inverse condemnation against the City of Kearney in the Circuit Court of Clay County. Property Owners own neighboring residential properties in Kearney. Their homes back onto an open stormwater drainage channel or creek maintained by the City. The Property Owners contended that the City's operation of its storm water drainage system had resulted in substantial and ongoing soil erosion in the backyards of their homes.

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The circuit court conducted a jury trial on the Property Owners' inverse condemnation claims. The court granted the City's motion for directed verdict on Laughlin's claim at the close of the evidence, finding that the City had not been put on notice of any erosion problem on Laughlin's property. The jury found in favor of the Davises and the Kamms on their inverse condemnation claims, and awarded them compensatory damages reflecting the diminution in value of their properties caused by the City's operation of its stormwater system. The City and Laughlin appeal. We affirm. Factual Background Property Owners each own homes on Meadowlane Street in the White Gates subdivision in Kearney. Their residential lots neighbor each other, with Laughlin's home on the west, the Davises' home in the middle, and the Kamms' home on the east. An open drainage channel or creek runs behind their homes, on the south side of their properties. The creek flows from west to east – which means that Laughlin's home is upstream of both the Davis and Kamm properties. The open creek begins at a 48-inch outfall pipe which is upstream of all three properties. The drainage channel collects stormwater runoff from multiple residential neighborhoods in the area. A 24-inch stormwater discharge pipe is located between the Davis and Kamm properties, downstream of Laughlin's property. The outlet of this discharge pipe is located several feet back from the creek, although the discharged stormwater flows into the drainage channel. The discharge pipe is connected to a stormwater drainage box at street level, which captures storm

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water runoff on Meadowlane Street. The discharge pipe was installed sometime after the Davises purchased their home in 1993. Although the outfall, discharge pipes, and channel were originally constructed by the subdivision's developer, under a City ordinance Kearney assumed maintenance responsibility for the stormwater system two years after the approval of the subdivision plat and the system's construction. The Davises purchased their home on Meadowlane Street in September

1. When the Davises first purchased the home, their backyard consisted of

thirty-to-fifty feet of manicured grass that gently sloped down to a small "hop- across creek." In the Spring of 2000, the Davises leveled the grade of the backyard, and installed a retaining wall, fencing, and a koi pond. At the time they finished the renovation, the Davises could still easily cross the creek on foot. The Kamms have resided on Meadowlane Street since 2011. When the Kamms purchased their home, their backyard was surrounded by a chain link fence and had a slight slope downward to the creek. Denise Kamm testified that, when they purchased their property, there was about five feet of level ground between their fence and the creek, which David Kamm would occasionally mow. Laughlin purchased his property in August 2014. Laughlin testified that, until the Fall of 2015, his backyard was a manicured flat grassy lawn that extended to a terraced flower bed, with bushes and trees bordering the creek. The testimony at trial indicated that, as new residential development occurred in the area, additional stormwater runoff was discharged into the creek, increasing the volume and velocity of the water flow and causing erosion problems. Although the drainage channel had been a small creek that could be

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stepped across in 1993, by 2015 it was a ditch ten-to-thirteen feet across, and eight feet deep. Sherry Davis testified that during rain events, the volume and velocity of water in the creek would become like a raging "Colorado River." The Property Owners testified that they first noticed erosion of their property adjoining the creek in 2015. Laughlin testified that, in 2015, a friend attending a party at Laughlin's home went to pick berries off of a bush in Laughlin's backyard, only to discover that the bush had fallen into the creek. Since that time, Laughlin also testified that mosquitoes breed in the stagnant water which is ever-present in the drainage channel, diminishing his ability to be outdoors. Significantly, unlike the Davises and the Kamms, Laughlin never directly complained to the City about the drainage channel's effect on his property. Denise Kamm testified that, in 2015, she noticed that a concrete slab between the discharge pipe's outlet and the creek had washed away. In June or July of 2015, Sherry Davis became aware of erosion of the soil below the discharge pipe, and around the retaining wall behind her property. Sherry Davis notified the Kearney City Administrator 1 of the erosion, and contacted a local landscaping company to assess the problem. On July 28, 2015, Sherry Davis' complaint was logged by the City, with the following description: "Sinkholes from curb back between houses. Drainage ditch in rear yard eroding away from their yard. Area around storm pipe eroding."

1 Pursuant to § 509.520.1, RSMo and Supreme Court Operating Rule 2.02(c), we do not provide the names of any non-party witnesses in this opinion.

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Landscaping professionals informed Sherry Davis that to address the erosion problems, the City would need to extend the discharge outlet pipe further towards the creek. In September 2015, the City's Water and Street Utilities Director, and the City's Planning Director (who was also an Assistant City Manager) visited the area, and observed the discharge pipe between the Davis and Kamm properties, as well as the 48-inch stormwater outfall which is located upstream of all three of Property Owners' properties. The City employees observed erosion around the discharge pipe, and stated that something needed to be done to address the issue. David Kamm informed the City employees that the Kamms would grant the City an easement and "whatever you need" to address the issue. Following the site visit, Mark Davis and David Kamm believed the City was going to hire professionals to make repairs to the discharge pipe. After hearing nothing further from the City, Sherry Davis wrote a letter to the City Administrator, copied to the Mayor and Aldermen, on March 23, 2016. Davis' letter stated that she was "writing concerning the street drain located between our property" and the Kamms' property. Davis' letter noted that "the ground at the end of the drain tube had washed away and/or collapsed," and "all the dirt surrounding our retaining wall had been washed away." Davis' letter explained that, during their site visit in September 2015, the City employees had expressed the opinion that a "tree left across the creek directly across from the outlet of the storm drain was the cause of the water 'swirling' and washing away our land surrounding the retaining wall." Davis expressed her concern that, if

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work to resolve the problem were not done soon, "my wall will come down due to the damage caused by the drain washing away the ground." In response, Sherry Davis was advised to attend the Board of Aldermen's meeting on April 4, 2016. At the end of that meeting, the Board of Aldermen stated that the City would send a contractor to conduct a site inspection. In May or June 2016, Engineering Contractor and the same two City employees conducted a further site visit. During the 2016 site visit, Engineering Contractor observed erosion and scouring around the discharge pipe. Engineering Contractor also examined the 48-inch stormwater outfall upstream of all three of Property Owners' homes. Engineering Contractor concluded that concrete and decorative rock which had been placed around the stormwater outfall had increased the velocity of the water flowing from the outfall. After the site inspection the Engineering Contractor completed a report on July 6, 2016, entitled "Meadowlane Street Storm Improvements." The report addressed two stormwater discharge outlets: the one between the Davis and Kamm properties; and a second outlet further downstream. The report stated that both stormwater discharges had a common problem: "[t]he storm sewer outlet location is too short and causing erosion and scour problems for adjacent property owners." With respect to the discharge pipe between the Davis and Kamm properties, the engineering report proposed three potential solutions. Two of the three proposed fixes involved extending the 24-inch discharge pipe all the way down to the drainage channel; replacing the Davises' retaining wall, or providing additional support for it; and performing additional grading work. The third

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solution proposed that the creek be entirely enclosed in a 48-inch pipe from the outfall upstream of all three of Property Owners' properties, downstream to the discharge pipe. The engineering report described this potential remedy as follows: • Extend Upstream Pipe A 48 inch pipe upstream of the storm sewer at the Davis' property will be extended to the east approximately 285 feet. The 24 inch pipe [which discharges between the Davis and Kamm properties] will be extended to the 48 inch pipe and connected using a 6 ft. junction box. The pipe will have an end section that includes a toe wall with riprap revetment. The adjacent properties['] backyards will be brought to an appropriate grade and sodded. As of the time of trial in April 2022, the City had not implemented any of the three solutions proposed in the July 2016 engineering report. By July of 2016, a crack had formed in the Davises' retaining wall. In September 2016, the wall broke open, and portions of the wall collapsed into the creek. Davis emailed the members of the Board of Alderman, and texted the City Administrator, detailing the damage. The City Administrator came to the Davises' property for another site visit, and took pictures of the damage. The City Administrator implied that the City would address the situation. On October 17, 2016, Sherry Davis attended another meeting of the City's Board of Aldermen. During that meeting the Board of Aldermen discussed, among other things, whether the Davises' retaining wall had been built without a permit, and had been constructed beyond the Davises' property line. The Board was also informed that the City had not been granted the easements which would be required for it to access the drainage outlet and creek at that location.

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Ultimately, the Board of Aldermen concluded that the erosion issues were a private matter which the City had no obligation to address. Property Owners filed suit against the City in the Circuit Court of Clay County on December 11, 2017. They were granted leave to file a First Amended Petition on November 24, 2020. The First Amended Petition asserted claims for inverse condemnation, negligence, nuisance, and trespass. Property Owners voluntarily dismissed their negligence and nuisance claims, and the circuit court dismissed the trespass claim in a ruling which Property Owners do not challenge on appeal. With respect to Property Owners' claims for inverse condemnation, the First Amended Petition alleged that the City's failure to adequately construct and maintain the sewer system and channel and manage the flow of water into the channel has caused water to scour and erode Plaintiffs' properties and deprive Plaintiffs of their property rights including the collapse of Plaintiffs Mark and Sherry Davis' retaining wall. The First Amended Petition alleged that the City's actions had resulted in "a diminution of value" of Property Owners' properties; had "substantially impaired Plaintiffs' use and enjoyment of their properties"; and had caused Property Owners to incur consequential damages by undermining the Davises' retaining wall and all Property Owners' landscaping. The First Amended Petition's prayer for damages included a request for "[j]ust compensation for the diminution of the value of Plaintiffs' real properties, which is [sic] now worthless on the open market." The circuit court conducted a jury trial on Property Owners' inverse condemnation claims on April 25-28, 2022. At the close of the evidence, the

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court granted the City's motion for a directed verdict with respect to Laughlin's inverse condemnation claim, finding that Laughlin had failed to present sufficient evidence that the City was on notice of an erosion problem on his property. The circuit court submitted the inverse condemnation claims of the Davises and the Kamms to the jury. The jury returned verdicts in favor of the Davises and the Kamms, awarding the Davises $180,000, and the Kamms $145,000. The circuit court entered a judgment on May 3, 2022, reflecting its directed verdict on Laughlin's claim, and the jury verdicts in favor of the Davises and the Kamms. The May 2022 judgment also stated that, "pursuant to RSMo Section 523.045 and the stipulation of the parties, prejudgment interest will be calculated by the Court." All of the parties appealed. Nos. WD85669, WD85670, and WD85688. In an opinion issued on December 26, 2023, this Court dismissed the appeals, finding that the judgment was not final because the circuit court had not determined the amount of prejudgment interest to which the Davises and the Kamms were entitled. Davis v. City of Kearney, 681 S.W.3d 358, 362-63 (Mo. App. W.D. 2023). Following our dismissal of the parties' original appeals, the circuit court entered amended judgments on April 15, 2024, and on July 31, 2024. In the July 31, 2024 judgment, the circuit court determined that the date of taking was October 17, 2016, and that the Davises and the Kamms were entitled to prejudgment interest at the annual rate of 6% from that date. The court accordingly awarded prejudgment interest of $84,151.23 to the Davises, and $67,788.50 to the Kamms. The July 2024 amended judgment denied the City's

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request that the court order that the Davises and the Kamms quitclaim their properties to the City upon the City's satisfaction of the judgment. The City and Laughlin appeal. Discussion I. "Before addressing the merits of an appeal, this Court must first determine whether it has jurisdiction." Matthews v. Harley-Davidson, 685 S.W.3d 360, 365 (Mo. 2024) (citing Wilson v. City of St. Louis, 600 S.W.3d 763, 765 (Mo. 2020)). We begin by addressing claims made by the City, and by the Davises and the Kamms, that this Court lacks appellate jurisdiction. First, the City suggests that the circuit court's July 2024 amended judgment is not final, because it does not contain a legal description of the property which the jury found that the City had taken. According to the City, by failing to contain a legal description, the July 2024 amended judgment failed to fully dispose of the inverse condemnation claims on which the Davises and the Kamms prevailed. "When a judgment determines title to real estate, the judgment must 'describe with reasonable certainty the land adjudicated therein.'" Brownfield v. Heman, 711 S.W.3d 386, 398 (Mo. App. W.D. 2025) (quoting Tillman v. Hutcherson, 154 S.W.2d 104, 110 (Mo. 1941)). Missouri courts have found judgments not to be final where the judgments purported to quiet title to particular property, or purported to create property interests such as easements, but failed to contain a legal description of the property at issue. Id. at 399 (collecting cases). These cases reason that, where a judgment determines title to

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real estate, but "fails to adequately describe the affected property[,] . . . the judgment fail[s] to resolve all the issues before the trial court" and is accordingly not final. Maune v. Beste, 292 S.W.3d 528, 530 (Mo. App. E.D. 2009). In this case, however, Property Owners did not ask the circuit court to determine title to real property, or to create any new property interests. Instead, Property Owners' inverse condemnation claims sought compensatory damages for injuries to their property caused by the City's operation of its stormwater management system. Inverse condemnation is a cause of action against a governmental agency to recover the value of the property taken by the agency, though no formal exercise of the power of eminent domain has been completed. Inverse condemnation is a shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when condemnation proceedings have not been instituted. Cnty. of Scotland v. Mo. Pub. Entity Risk Mgmt. Fund, 537 S.W.3d 358, 364–65 (Mo. App. W.D. 2017) (cleaned up). Given that the Property Owners sought only money damages, the circuit court fully and finally resolved their inverse condemnation claims when it entered its July 2024 amended judgment. Indeed, our opinion dismissing the earlier appeal in this case recognized that the judgment would be final when the prejudgment interest issue was resolved; our opinion nowhere suggested that finality also required the addition of legal descriptions to the judgment. Davis, 681 S.W.3d at 362-63. Moreover, as we explain in § IV, below, the City failed to make any request, either in the circuit court or on appeal, that the judgment include a legal description of the portion of the Davises' and the Kamms' property which has been physically taken by erosion. In these circumstances, the lack of

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any legal descriptions in the July 2024 amended judgment does not defeat its finality. For their part, the Davises and the Kamms argue that we lack appellate jurisdiction because the City failed to file a timely notice of appeal. Their argument depends on the fact that multiple parties filed post-judgment motions in May and June 2022, prior to the initial appeal in this case. In the prior appeal, we found that the circuit court's May 3, 2022 judgment was only interlocutory, because it had not finally resolved the Davises' and the Kamms' right to prejudgment interest. Our decision noted that, because the May 2022 judgment was only interlocutory, the post-judgment motions filed by the parties in May and June 2022 were premature. 681 S.W.3d at 361 n.3. The Davises and the Kamms now argue that, pursuant to Rule 78.04, the premature post-judgment motions filed in May and June 2022 were "considered as filed immediately after the time the judgment [was] finally entered" – which occurred when the first amended judgment was entered on April 15, 2024. The Davises and the Kamms assert that, by operation of Rule 81.05(a)(2)(A), the motions filed in May and June 2022 were deemed denied by the passage of time on Monday July 15, 2024, ninety days after entry of the amended judgment on April 15, 2024. Accordingly, the Davises and the Kamms assert that the circuit court lost jurisdiction to amend the judgment on July 15, 2024; that the court's July 31, 2024 second amended judgment is therefore void; and that the City's notice of appeal, filed on August 9, 2024, is accordingly untimely. The Davises' and the Kamms' byzantine jurisdictional argument is meritless. Whatever the status of the motions for new trial and judgment

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notwithstanding the verdict which the City filed in 2022, the City filed a new motion for judgment notwithstanding the verdict (or "JNOV") on May 14, 2024. "When the trial court entered the amended judgment" on April 15, 2024, "it became a new judgment for all purposes and permitted [the City] to again file a motion for JNOV." Heifetz v. Apex Clayton, Inc., 554 S.W.3d 389, 391 (Mo. 2018). The City's May 2024 motion, filed within thirty days of entry of the April 2024 amended judgment, was timely under Rule 72.01(b). Rule 81.05(a)(2)(A) provides that post-judgment motions are not deemed overruled until "[n]inety days from the date the last timely motion was filed." (Emphasis added.) The circuit court had ninety days from May 14, 2024, within which to amend its judgment in response to the City's motions – which it did by the entry of its July 31, 2024 amended judgment. The City timely appealed that judgment on August 9, 2024. The Davises and the Kamms contend that, after entry of the April 15, 2024 amended judgment, the City could not file additional post-judgment motions challenging that amended judgment. According to the Davises and the Kamms, the City was limited to the arguments asserted in the post-judgment motions it filed in 2022, and could not supplement those arguments by filing additional or supplemental motions. While the Missouri Supreme Court has observed that "'[a] motion for new trial may not be amended to add a new point after the expiration of the time provided by court rule,'" 2 the Davises and Kamms point to no rule which prevents the filing of a supplemental post-judgment motion within

2 Ross-Paige v. St. Louis Metro. Police Dep't, 492 S.W.3d 164, 171 (Mo. 2016) (emphasis added; citation omitted).

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the time allowed for such a motion. Notably, in Weiss v. Weiss, 720 S.W.3d 106 (Mo. App. E.D. 2025), an appellant filed three separate post-judgment motions – two within thirty days of the judgment's entry, and one later. While the Court refused to consider the motion filed beyond the thirty-day time limit, it did consider the issues raised in the two timely motions. Id. at 112. Because the finality of the April 15, 2024 judgment was suspended by the City's timely filing of its motion for judgment notwithstanding the verdict on May 14, 2024, we reject the Davises' and the Kamms' assertion that the City's appeal was untimely. Having rejected the objections to appellate jurisdiction raised by the City, and by the Davises and the Kamms, we proceed to the merits of the issues which the parties raise on appeal. II. Laughlin's appeal argues that the circuit court erroneously granted Kearney's motion for directed verdict on his claim for inverse condemnation. Laughlin contends that he presented evidence that the City was on notice that the unreasonable operation of its stormwater drainage system was causing damage to Laughlin's property, yet failed to remedy the situation. "Review of the trial court's decision to sustain or overrule a motion for directed verdict depends on whether the plaintiff made a submissible case. . . . [W]hether the plaintiff made a submissible case is a question of law this Court reviews de novo." Johnson v. Auto Handling Corp., 523 S.W.3d 452, 459 (Mo. 2017) (cleaned up). "A case is submissible when each element essential to liability is supported by legal and substantial evidence. This Court views the

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evidence in a light most favorable to the plaintiff [and] makes all reasonable inferences while disregarding all contrary evidence and inferences." Id. at 459- 60 (cleaned up). "A motion for directed verdict . . . should be granted if the defendant shows that at least one element of the plaintiff's case is not supported by the evidence." Ellison v. Fry, 437 S.W.3d 762, 768 (Mo. 2014) (citations omitted). The elements of inverse condemnation based on nuisance are "(1) notice by the complaining landowner, (2) the other's unreasonable operation in spite of notice, (3) injury, (4) damage, and (5) causation." Scott Fam. Props., LP v. Mo. Highways & Transp. Comm'n, 546 S.W.3d 605, 608 (Mo. App. E.D. 2018) (citation omitted). Before a municipality may be found liable for inverse condemnation based on its operation of a sewer system, it must be on notice of deficiencies in the sewer system causing harm to property owners. The existence and operation of a public sewer system does not per se constitute a nuisance. . . . [A] municipality is not an insurer of its sewer system. . . . [A] city would not be liable in damages on the basis of errors in judgment in such things as the needed size of drains or sewers to carry away sewage and surface waters. However, when it becomes evident after sewers and drains are constructed that they are inadequate to perform the functions contemplated, and when, after due notice of those shortcomings, a city fails to remedy the condition and continues to operate the system in the same manner as before so that it constitutes a nuisance, the city will be held liable. Basham v. City of Cuba, 257 S.W.3d 650, 653 (Mo. App. S.D. 2008) (citations omitted); accord Christ v. Metro. St. Louis Sewer Dist., 287 S.W.3d 709, 712 (Mo. App. E.D. 2009) (citing Basham; "there must be evidence that MSD was

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provided with notice of inadequacy of the sewer and subsequently failed to remedy the condition"; summary judgment properly granted to sewer district where "there was no evidence that MSD had knowledge of a problem prior to the back-up that MSD could or should have remedied"). Laughlin did not himself notify the City that the creek was eroding his backyard. He argues, however, that the City was put on notice of the erosion on his property based on: the complaints made by the Davises and the Kamms; the City's visits to the area in response to the Davises' and the Kamms' complaints; and the remedial plans proposed by Engineering Contractor in his July 2016 report. None of the evidence cited by Laughlin establishes that the City was on notice that its operation of the stormwater drainage system was causing erosion on his property. The complaints made by the Davises and the Kamms focused on the erosion being caused to their properties by the stormwater discharge pipe located between their properties, downstream of Laughlin's property. The Davises' and the Kamms' complaints also focused on the root ball of a tree which was in the channel of the drainage ditch, which apparently caused turbulence in the creek and exacerbated the erosion problem. This tree and its root system were, once again, downstream of Laughlin's property. Laughlin presented no evidence that the downstream stormwater discharge pipe, or the downstream tree and root ball, had any harmful effect on his property. The Kamms and the Davises complained about erosion which was localized, and downstream of Laughlin's property: soil being washed away between the mouth of the discharge pipe and the creek, and around the Davises'

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retaining wall. Sherry Davis consulted a landscaping company, which proposed that the situation could be remedied by extending the discharge pipe down to the creek, and removing the tree which was impeding water flow; there is no evidence that such a remedy would have mitigated any erosion occurring on Laughlin's upstream property. The site-specific complaints made by the Davises and the Kamms did not put the City on notice of Laughlin's erosion problems. Laughlin emphasizes that, during visits to the area, City employees and contractors traversed his property in order to examine the 48-inch stormwater outfall pipe which was upstream of all three of the Property Owners' properties. There is no indication, however, that in traversing Laughlin's property, the City was put on notice that his property was suffering from erosion issues as a result of the drainage channel. Further, while a City contractor concluded that the stormwater outfall pipe, and the concrete and decorative rock around the outfall pipe, accelerated the velocity of the stormwater entering the creek, there is once again no evidence to suggest that the City or its contractor were aware that the velocity of the water flow was causing erosion problems on Laughlin's property, upstream from the Davis and Kamm properties on which their inspections were focused. Laughlin contends that, during their site visits in 2015 and 2016, City employees observed erosion at the stormwater outfall upstream of all three of Property Owners' properties. A review of the testimony Laughlin cites shows, however, that the erosion City employees observed was on the Davis and Kamm properties, at the stormwater discharge outlet between their properties – not at the mouth of the 48-inch stormwater outfall upstream of all three properties.

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While the witnesses may have described the discharge outlet using a variety of terms (including the "pipe," the "discharge pipe," or the "storm sewer outlet"), they were referring to erosion and scouring downstream of Laughlin's property. Nor does Engineering Contractor's July 2016 report establish notice of erosion on Laughlin's property. That report was plainly focused on remedying the erosion problems being experienced by the Davises and the Kamms as a result of the stormwater discharge pipe located downstream of Laughlin's property. The report itself states at the outset that the problem Engineering Contractor was addressing was that "[t]he storm sewer outlet location is too short and causing erosion and scour problems for adjacent property owners." (Emphasis added.) Laughlin was not one of the "adjacent property owners" whose property was addressed by the report. Laughlin emphasizes that Engineering Contractor proposed an "Extend Upstream Pipe" solution to remedy the erosion that the Davises and Kamms were experiencing. That proposed remedy would have enclosed the drainage channel in a 48-inch pipe from the stormwater outfall, down to the location of the 24-inch Davis/Kamm discharge pipe. This would have had the effect of enclosing the creek behind Laughlin's property. Laughlin emphasizes that the July 2016 report states that, in order to implement this remedy, "[t]he adjacent properties['] backyards" – presumably including Laughlin's backyard – "will be brought to an appropriate grade and sodded." While the "Extend Upstream Pipe" solution proposed by Engineering Contractor may have had the effect of enclosing the creek behind Laughlin's property, and resolving any erosion issues he was facing, this was not the purpose

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of Engineering Contractor's "Extend Upstream Pipe" proposal – that proposal was suggested as a means of addressing the erosion problems being experienced by the Davises and the Kamms, not Laughlin. Engineering Contractor suggested three different solutions for a single underlying problem: the erosion occurring at the boundary of the Davis and Kamm properties. Indeed, two of the three proposed solutions would have done nothing to remedy any erosion occurring on Laughlin's property. The fact that the "Extend Upstream Pipe" proposal may have incidentally resolved any erosion Laughlin was experiencing does not support the inference that the City was aware of his erosion problems. At oral argument, Laughlin's counsel identified four specific exhibits which she asserted were pictures showing the erosion on Laughlin's property, which were provided to the City prior to the institution of this lawsuit. Two of the exhibits which counsel referenced (Exhibits 142 and 185) are letters and text messages sent to the City by Sherry Davis, in which she complained of erosion problems occurring on her property, caused by the specific conditions existing there. The other two exhibits counsel referenced (Exhibits 211 and 212) are close- up pictures of a crack in the Davises' retaining wall. None of the exhibits counsel cited support the inference that the City was aware of erosion problems on Laughlin's property. Erosion, flooding, or other harmful effects of the operation of a sanitary or stormwater sewer system may frequently be location-specific. The consequences of sewer system operations on neighboring landowners may depend, for example, on the topography of the land; on the location and design of affected structures; and on the manner in which affected structures are operated. The complaints

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made by the Davises and the Kamms in this case related to the specific features of their properties, and the specific nature of the discharge outlet and drainage channel adjoining their properties. Their properties were downstream of Laughlin's property, and there is no evidence that the discharge outlet, or tree and root ball, which were causing their erosion problems also impacted Laughlin. In these circumstances, notice to the City of the erosion problems the Davises and the Kamms were experiencing did not provide the City with notice of erosion problems on Laughlin's property. Laughlin failed to carry his burden of presenting evidence to permit the jury to find an essential element of his inverse condemnation claim: that Kearney was on notice that the operation of its stormwater system was damaging his property. Accordingly, the circuit did not err in granting a directed verdict to the City on Laughlin's claim. Given our disposition, we need not address the City's argument that the directed verdict was justified because notice was not provided by Laughlin himself, but instead by the other Property Owners. III. We turn to the City of Kearney's appeal of the judgments entered in favor of the Davises and the Kamms on their inverse condemnation claims. (In the remainder of our opinion, our references to the "Property Owners" refers solely to the Davises and the Kamms.) In its first two Points, Kearney argues that it was entitled to judgment notwithstanding the verdict (or "JNOV") because the Property Owners failed to present evidence to establish that they suffered compensable damages from a

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permanent total inverse condemnation of their properties. Because Points I and II make the same legal argument, we address them together. "A JNOV is appropriate when a plaintiff fails to make a submissible case. A plaintiff fails to make a submissible case when one or more elements of the claim are not supported by the evidence." R.M.A. v. Blue Springs R-IV Sch. Dist., 717 S.W.3d 187, 193 (Mo. 2025) (cleaned up). In determining whether there was sufficient evidence to support a jury verdict, this Court views the evidence, and all reasonable inferences from the evidence, in the light most favorable to the verdict, and disregards evidence that conflicts with the verdict. Id. (citation omitted). "A JNOV after a jury verdict is appropriate 'only whe[n] there is a complete absence of probative fact to support the jury's conclusion.'" Id. (citation omitted). As an initial matter, Property Owners contend that the City failed to preserve its argument that they failed to present adequate evidence of damages for a permanent total taking, because the City did not move for a directed verdict on this basis. As Property Owners point out: in a civil, jury-tried case, it is necessary, to preserve the question of submissibility for appellate review, to file a motion for directed verdict at the close of all evidence and to assign the error of the court in having failed to have directed such a verdict in an after-trial motion such as a motion for JNOV. Heifetz v. Apex Clayton, Inc., 554 S.W.3d 389, 395 (Mo. 2018) (cleaned up). The City adequately preserved the argument it now raises on appeal. While this argument may not have appeared in the City's written directed-verdict motion, the City orally moved for a directed verdict based on the purported

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insufficiency of Property Owners' damages evidence before the case was submitted to the jury. The issue was preserved for our review. The City's arguments in Points I and II depend on the City's contention that Property Owners were claiming a permanent total taking of their properties. Governmental takings of private property may be permanent or temporary, and may be total or partial. The Missouri Supreme Court comprehensively explained the different types of takings in Akers v. City of Oak Grove, 246 S.W.3d 916 (Mo. 2008), which we quote at length: The Missouri Constitution provides that "private property shall not be taken or damaged for public use without just compensation." Mo. Const. art. I, section 26. This concept encompasses both direct takings, wherein the government formally takes land for public use via eminent domain, and inverse takings, where the government takes or damages land, sometimes unintentionally, without going through an official process. . . . [D]irect and indirect takings are further divided by whether the taking is permanent, temporary, or partial in nature. . . . In a permanent taking the government is granted permanent ownership of the property from the date of the taking. The primary measure of damages in a permanent taking is the lost fair market value of the property. . . . . In a temporary taking the government is treated as having occupied the property for a limited amount of time before returning it to the plaintiff. Damages are calculated as the diminution in value of the use of occupancy of the property for the period taken or damaged. This amount is generally measured as the rental value of the property for the period of the taking. In addition to the rental value, if the property has been damaged as a result of the taking then damages are available to restore the property to its pre-taking condition.

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. . . . Finally, a taking is classified by whether it is partial or total in nature. This distinction exists separately from the permanent/temporary taking classification. Therefore, a taking can be classified as any combination of permanent/temporary and total/partial. . . . . The impact that a partial taking has on the calculation of damages depends on the existence of consequential damages to the remainder of the property. This is because Missouri recognizes that the taking or damage of only part of plaintiff's property by a public entity may cause consequential damage to plaintiff's remaining property. If no consequential damages exist, then the plaintiff's recovery is limited to the damaged portion of the property. However, if the non-damaged portion of the property is negatively affected by the taking, then consequential damages may allow the plaintiff to recover for the equivalent of a total taking. Id. at 919-20 (cleaned up). The City's claim that that Property Owners proceeded on the theory of a permanent total taking is unfounded. In their First Amended Petition, Property Owners argued that the erosion caused by the City's stormwater system had caused "a diminution of value" of Property Owners' properties, had "substantially impaired Plaintiffs' use and enjoyment of their properties," and had caused consequential damages including the collapse of the Davises' retaining wall, and damage to landscaping. Plainly, by referencing erosion which had caused a reduction in the value of their properties, and a "substantial impair[ment]" of their ability to use their properties, Property Owners were arguing only that a portion of their properties had been physically taken, and that the value of the remainder had been negatively affected. These were not claims for a permanent total taking.

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The City emphasizes that, in the First Amended Petition's prayer for relief, Property Owners asked that they be awarded "[j]ust compensation for the diminution of the value of Plaintiffs' real properties, which is [sic] now worthless on the open market." (Emphasis added.) The City argues that Property Owners' reference to the "worthless[ness]" of their properties indicates that they intended to proceed on the theory that the City had taken the entire value of their homes. The City's argument ignores, however, that the First Amended Petition alleges only that Property Owners' properties were "worthless on the open market." (Emphasis added.) While perhaps imprecisely worded, the First Amended Petition's reference to the properties being "worthless on the open market" can be read to allege only that Property Owners' homes could not be sold in the conventional residential real-estate market. This was supported by the testimony and appraisal report prepared by a real-estate Appraiser retained by Property Owners. In his report, Appraiser explained: The subject properties suffer from disclosure issues for a problem that cannot be permanently fix[ed] without the entire drainage area being repaired. Thus it is unlikely that the properties could be sold as typical residential property would be sold. The erosion issues will need to be disclosed and it is likely that the properties would be unable to qualify for a loan provided by the secondary mortgage market. A cash buyer or maybe a buyer with a local bank loan could be found. This is only likely if a severe discount to the properties could be obtained as the repairs would have to be facilitated. Liability with drainage easement disturbance is also an issue. It is the opinion of the appraiser that the diminution of value for the subject properties is 44%. During his trial testimony Appraiser explained that, because of the erosion issues, the properties would not qualify for conventional mortgage financing, which would limit the number of potential buyers. Property Owners' allegation that

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their homes were "worthless in the open market" was not necessarily a reference to a total taking. Property Owners' evidence at trial established that a portion of their properties had been physically taken by erosion, and that the value of their remaining property had been negatively impacted by the loss of a portion of their property, and by the ongoing erosion problems. Thus, Property Owners' retained valuation expert, Appraiser, freely acknowledged that "only a portion of the Plaintiffs' property along the southern boundaries of the Plaintiffs' three properties had been directly damaged or affected by the erosion or scouring at issue in this case." Appraiser testified that his appraisal report considered the consequential damages to the remaining property. The jury instructions contain no reference to a total taking. To the contrary, the verdict-directing instructions ask the jury to find only that erosion and scouring of the Property Owners' properties "caused or directly contributed to cause damage" to them. The damages instruction told the jury to award "such sum as you believe will fairly and justly compensate [Property Owners] for any damages you believe they sustained and are reasonably certain to sustain in the future as a direct result of defendant's unreasonable operation of its stormwater drainage system." The instructions do not ask the jury to find that the City had taken the entirety of Property Owners' properties, or to award damages for the total value of their properties. (The City does not separately challenge the correctness of the jury instructions employed by the circuit court, and we accordingly do not address the issue.)

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Property Owners' closing argument was consistent with the evidence they presented at trial: that they had suffered a significant limitation on their use and enjoyment of their properties, and a significant diminution in the value of those properties, as a result of the ongoing erosion. Property Owners did not contend that the entirety of their properties had been taken, or that their homes were entirely valueless. Finally, the amount of damages awarded by the jury is consistent with a partial taking. Although Appraiser had opined that the Davis and Kamm properties would have had a fair market value of $255,000 and $310,000 without the erosion problems, the jury awarded them $180,000 and $145,000, respectively. The record refutes the City's claim that Property Owners' theory was that the City had permanently and totally taken their properties. Instead, Property Owners contended that the existing and ongoing erosion substantially diminished – but did not wholly extinguish – the value of their homes. As our lengthy quotation from the Akers case makes clear, an inverse condemnation plaintiff is entitled to seek recovery for a partial taking, and may include within their claim any consequential damages to the remaining property (including diminution of the value of the remaining property). See also, e.g., State ex rel. Mo. Hwys. & Transp. Comm'n v. 1811 N. Broadway, LLC, 405 S.W.3d 539, 545 (Mo. App. E.D. 2013) (citing City of Maryland Heights v. Heitz, 358 S.W.3d 98, 105 (Mo. App. E.D. 2011)). The City's argument in Points I and II hinges on its contention that Property Owners' claims were for permanent total inverse condemnation of their

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properties. The City's characterization of Property Owners' claims is inaccurate, and we accordingly deny Points I and II. The City makes no separate argument that Property Owners' evidence was insufficient on a claim of a partial physical taking, with consequential damages to the remaining property. "It is not our role to act as [the City's] advocate," Phox v. Boes, 702 S.W.3d 498, 505 (Mo. App. W.D. 2024), and we will not construct an argument for the City which its own briefing fails to make. IV. In Kearney's third and fourth Points, it argues that the circuit court abused its discretion by denying the City's motion to alter or amend the April 2024 amended judgment, to order that Property Owners grant the City title to the entirety of their properties once the City had satisfied the damages award. Points III and IV rely on the principle that "[i]n a permanent taking the government is granted permanent ownership of the property from the date of the taking." Akers v. City of Oak Grove, 246 S.W.3d 916, 919–20 (Mo. 2008). While that may be true, Kearney's post-judgment motion sought only to have the entirety of Property Owners' properties transferred to it; the City did not seek to have Property Owners grant it ownership of, or an easement over, the portion of their properties which had been eroded away by the City's stormwater system. The City cannot claim ownership of the entirety of Property Owners' properties. As explained above in § III, Property Owners' claims were not for the permanent and total taking of their properties, and the jury verdicts did not award Property Owners the full value of their properties. In these circumstances,

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the circuit court did not abuse its discretion in refusing to award the City relief to which it was not entitled. V. The Missouri Municipal League filed a brief as amicus curiae, asserting three Points. The Municipal League's second Point argues that the circuit court erred in not granting Kearney title to Property Owners' entire properties – an argument we have rejected in § IV, above. In its other two Points, the Municipal League makes arguments which the City did not pursue on appeal: first, that Rule 86.04 required Property Owners' petition to include "a description of the property or right" which they contended the City had taken; and second, that Property Owners were required to prove that an affirmative act of the City, beyond mere approval of a property developer's plat, had caused their injuries. "This Court is not required to consider issues raised by amicus curiae on behalf of a party if the party's counsel did not raise those issues because an amicus curiae must take the case as he finds it, with the issues made by the parties." Brainchild Holdings, LLC v. Cameron, 534 S.W.3d 243, 246 n.7 (Mo. 2017) (cleaned up). We accordingly do not address the Municipal League's additional arguments. Conclusion The circuit court's judgment is affirmed.

_______________________ Alok Ahuja, Judge All concur.