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Category Archives: Ozarks

Kimberling City’s acceptance of sewer system didn’t negate contractor’s warranty

Kimberling City occupies several ridges and valleys where Missouri Highway 13 crosses the heart of Table Rock Lake. You would have a hard time finding a place where the installation of a sewer system was more difficult and expensive per customer, due to the steep and rocky terrain and the necessity of pumping the wastewater collected in each valley over the hills to eventually reach the treatment plant.

Kimberling City grew from almost nothing to a population of nearly 5,000 since the completion of the dam that created Table Rock Lake in 1959. Permanent residents and vacationers are attracted to Read the rest of this entry

Where am I? Still in Branson?

When we awake, we have to figure out where we are. This may be easy for you, but it’s not for me, because I am apparently an extreme systemizer and cannot keep from thinking about things in the way I’ll present here.

When I press my internal on button and begin to log my brain onto to the consciousness server, I’ll be on my second cup of coffee before I know my place in the universe. There are many connections to verify, a process that takes a few minutes.

Geography

First, I need to locate myself geographically, based on latitude: 36° 38.5, longitude: -94° 44.6.

Galaxy: Milky Way

Solar system: Sun

Planet: Earth

Hemispheres: Northern and Western

Continent: North America

Physiographic Region: Ozark Highlands

Physiographic sub-region White River Hills

Climate zone: Humid sub-tropical

USDA Plant Hardiness zone: 6b

Watershed: Atlantic Ocean

Sub-watershed Mississippi River

Sub-Sub-watershed White River

Time Zone UTC-6

I should have gone into considerably more detail on geography, especially biomes.

Political

Geography is the best part of the answer to the question of where am I, but I also live in a political world, subject to governmental authorities, which control and tax me; issue currency; provide me with roads, mail service and drinking water; collect and treat my wastewater; and stand ready to extinguish a house fire, educate my kids (I’m not sure that the school system taught my kids where they were at the level of detail that I think is appropriate), and haul me to the jail or hospital when I need to go.

Country: United States of America

US Congressional District:  Seventh

Zip Code 65616-3114

Census Tract: 9801

State: Missouri

State senate district: 29

State representative district: 62

County: Taney

City: Branson, Ward 2

School District Branson R-IV

Ambulance District Taney County Ambulance District

Where am I in the Cyber World?

All of the foregoing is important, but I live and work in a cybernetic world, defined by communication systems. My location from a geographic and political perspective is mostly defined by a fixed point (the latitude and longitude of my property and my person), but location in the cyberworld has to do with membership in domains and connections to fluid networks, some of which change in the course of a day.

Languages: American English. I’m on the border between two dialect groups, Midland and Mountain Southern. In my work, I speak to other lawyers, using that kind of language, as well as people from around the country and people who have come to the Ozarks from other places. I have to pay attention to how we use spoken and written language and non-verbal signals.

Landline telephone: I have a 417 334-XXXX home number, which originated in Branson, Missouri, but it has been ported from the old carrier to a CLEC. I can take the number anywhere.

Cell phone: My Verizon cell phone connects to towers wherever in Verizon’s CDMA system that I go. Because it is a BlackBerry, it also connects to the BlackBerry radio system. In remote areas, I may have Verizon phone service, but no BlackBerry radio connection for data.

Office phone: When I closed my Branson office, I kept my Branson phone number, which rings at the Ozark office, but is forwarded to my Verizon cell phone. My office phone system uses VOIP, which means my phones are plugged into the internet, so that I could get local calls from Branson, even if I plugged my phone in an internet connection in Africa.

Computer networks: I have a network in my house, which is wired and wireless (protected by encryption). I can connect my laptop from home, via the internet, to my office network.

While my iPad, Mac, BlackBerry and Windows computers don’t always connect well with one another though my networks, my Gmail is equally accessible from all of them, using IMAP to keep my inboxes synchronized. I also use Dropbox.com to share and synchronize files across the various kinds of devices that I use.

Television: DirectTV satellite.

Next time you see me, you probably won’t ask, “How are you?”

Never mind, Missouri cities can charge different tap fees in different parts of town

Earlier this year, I wrote that the Eastern District of the Missouri Court of Appeals, in  City of Sullivan v. Sites,  had struck down an ordinance of the City of Sullivan that established a higher tap fee for connecting to the city’s sewer main in a particular part of town. The voters of the City of Sullivan had approved a $3.3 million bond issue to extend sewers to a part of  the city without sewer service. The city’s board  of aldermen adopted an ordinance imposing a connection fee in the newly-served area that was higher than the connection fee charged in the remainder of the city.

The Sites trust challenged the constitutionality of the ordinance establishing the higher connection fee, claiming that the ordinance violated Article III, section 40(30), which prohibited the passage of local or special laws where a general law would suffice. A general law relates to persons or things as a class, while a special or local law relates to particular persons or places.

However, Missouri Supreme Court’s opinion in City of Sullivan v. Sites, reversed the Court of Appeals decision and affirmed the trial court’s decision upholding the ordinance. The Supreme Court reviewed court decisions that recognize that prohibitions against special or local laws “should not prevent necessary geographic classifications premised on legitimate distinguish characteristics.” The Supreme Court determined that the Site trust’s property was not singled out, but was a part of a geographic area n area that was defined as a class.

The Supreme Court held that “the city was justified in creating the class of new sewer connections charged higher connection fees,” having demonstrated good financial and practical reasons for requiring property in the newly-served area, noting that the imposition of higher fees in the new area “contributed to the City’s ability to fund the sewer project as a whole.”

Pen-raised whitetail deer are domestic animals, under Missouri law

If a court told me that I had to kill my dog for killing a deer, I’d be upset. But it could happen.

When a dog kills or maims a “domestic animal” in Missouri,  the statutory penalties (section 273.020 RSMo) are harsh. The owner or keeper of the bad dog is liable for the full amount of monetary damages and is obligated to kill the bad dog. But can whitetail deer be considered domestic animals?

Three dogs, alleged to have been owned by Lange, broke into Oak Creek’s pen and killed 21 bucks, does and fawns, all hand-raised and kept for the ultimate purpose of creating bucks with massive racks. When Oak Creek sued Lange, Lange asked the court to rule, in a motion for summary judgment, that the words “sheep and other domestic animals” in section 273.020 applied to livestock typically raised on farms, such as cattle, swine, chickens and horses.

The Missouri court of appeals in Oak Creek Whitetail Ranch v. Lange disagreed with the Osage County trial judge, looking to a dictionary definition, which included the phrase “which have been domesticated by man so as to live and breed in a tame condition.” The court of appeals noted that the slain deer had never been in the wild, but “were all penned and hand-fed, raised in an environment that did not allow them to move freely beyond their confined area.”  The court’s logic is apparently that whether an animal (other than a sheep) is domestic is determined by the individual animal’s status, not the species. Oak Creek’s deer were apparently defenseless in their confinement, unable to flee and perhaps unable to survive in the wild. Cats, dogs and hogs often become feral, regardless of their previous condition of confinement.

The offspring of breeding stock, such as those killed in Oak Creek’s pen, are apparently not domestic animals when placed on game ranches to be killed by trophy-seeking hunters, who pay handsomely for the privilege of slaughtering them. You can see an example of the ideal rack on the Farming for Wildlife website.

When Billy meets Nancy

We’re so desperate for economic conditions to improve, we voted for people who may be no more effective than the bums we threw out. But the new ones say they’ll try something, at least getting us back on track to somewhere in the past when America stood tall.

The bag on the window of a Casey’s convenience store reminds me of Read the rest of this entry

Judge corrected for merging both Carroll County judicial districts


Eureka Springs and Berryville, both towns in Carroll County, Arkansas, are just eight miles apart, separated by the valley of the Kings River. The Arkansas legislature in 1883 created a judicial district for the county west of the Kings River and the another judicial district on the east side of the river.

But in 2010, for reasons not explained in the Arkansas Supreme Court’s opinion, Parker v. Crow, Eastern District Judge Gerald Crow ruled that henceforth there would be only one judicial district in Carroll County.

Eureka Springs, west of the Kings River, is a tourist town and art colony, known for its Victorian architecture, with bathhouses, galleries and restaurants in a setting of steep hills and narrow streets, all maintained with strict building controls.
Berryville sits on a stretch of prairie east of the Kings River, surrounding by rolling hills and cattle and poultry farms. A Tysons poultry processing plant and a Walmart Supercenter are among the town’s largest employers.

In 1869, as northern Arkansas began to recover from the ravages of the Civil War, Boone County was created from the eastern portion of Carroll County, with Harrison as the county seat. Carrollton, a settlement 20 miles southeast of Berryville, was no longer at the center of Carroll County, and Berryville’s boosters succeeded in having the county seat established in Berryville in 1875.

In 1883, the Eureka Springs Railway was extended south from Missouri, and Eureka Springs quickly blossomed into a small city of hotels (quaint and magnificent) and bathhouses, fed by the waters of dozens of springs. The same year, the Arkansas General Assembly passed Act 74, creating two judicial districts for Carroll County.

Judge Crow’s bold attempt to merge the two districts probably left the Arkansas Supreme Court dumbfounded, but the opinion restoring the two districts simply cites some basic principles of American government to indicate the degree that Judge Crow’s opinion was off-base.

Judge Crow’s first contention was that the 1883 act of the legislature creating the two districts was unconstitutional because it attempted to create a new county, even though the language of the statute specified that the districts were to keep separate records as though they were in different counties, but that Carroll County should in all other respects “be one entire and undivided county.”

Judge Crow also determined that at 1997 legislative act, among other laws, repealed the 1883 act by implication. The Arkansas Supreme Court recited the rule that repeal by implication “is never allowed except where there is such an invincible repugnancy” that the old and new laws “cannot both stand together.” The 1997 law, and the others, may be messy and partially inconsistent, but they did not specifically repeal the 1883 act.

Almost as an afterthought, the Arkansas Supreme Court examined the Arkansas constitution, noting that the power to establish or dissolve judicial districts was a legislative power, not something that a judge could do.  Quashing Judge Crow’s attempt to merge the two judicial districts, the Supreme Court said that his order “shows a plain, manifest, clear and gross abuse of discretion.”

When you sue, you’d better ask for everything

Johnny Ray Chadd was the city administrator for Lake Ozark. City administrators in Missouri are always a vote or two away from getting fired, and Chadd was on the brink. On a vote to fire him in 2005, after he had served less than one year, the aldermen were deadlocked and the mayor cast the tie-breaking vote to let him go.

Chadd sued, claiming that the applicable Missouri statute and the city ordinance required the vote of a majority of the aldermen to remove him as a city officer. The mayor’s vote was irrelevant. In 2007, the appellate court ordered that Chadd be reinstated. He was rehired and immediately fired by the unanimous vote of the aldermen.

Chadd sued again, seeking back wages for the period between his first firing and the second, also alleging that he was wrongfully terminated. Apparently because Missouri law characterizes the employment relationship as at the will of the employer, Chadd alleged that his termination fell under the vague term “prima facie tort,” a legal theory that has never gotten any traction in Missouri courts.

The trial court threw out Chadd’s suit on Lake Ozark’s motion for summary judgment.

Chadd didn’t sue for back wages in the first suit, so he was barred from bringing up the issue now under the principle of res judicata. This principle means that courts will not consider claims that either were or could have been raised in a previous suit between the same parties. The trial court indicated that Chadd had been obligated make his claim for back wages in his first suit, where he was successful.

The prima facie tort claim also failed. Missouri’s at-will employment doctrine applies to situations where there is no employment contract for a specific term. A worker cannot win a suit for damages resulting from termination unless the termination violates some other statute, such as a statute protecting whistle-blowers or persons who are fired for filing workers’ compensation or racial discrimination claims, for example.  Calling a wrongful termination claim a prima facie tort doesn’t get around the at-will employment doctrine.

The Court of Appeals upheld the summary judgment in this opinion, Chadd v. Lake Ozark.

Check out these new Ozarks news channels

Two journalism professors in Springfield–Andrew Cline of Missouri State and Jonathan Groves of Drury–have guided their students (and others, in Groves’s case) to create online publications presenting local news and views. Both got off the ground and online this month.

Cline’s project is Ozarks News Journal, which describes itself as:

a laboratory for discovering how to make the best use of the World Wide Web and social media for producing journalism. Students in the JRN378 Multimedia Journalism class seek to understand more than just how to make the web and social media tools work for news gathering and publishing. They seek to understand how to use these tools to fulfill  the primary purpose of journalism: To give citizens the information they need to be free and self-governing.

Professor Groves has taken a different tack with SGF News, seeking content from members of the community. Groves hopes that SGF News will serve as a community forum on specific topics (currently 2010 elections), but with explicit guidelines, called Ground Rules:

  • No profanity.
  • Be civil. Don’t resort to personal attacks.
  • Support your arguments. Offer links to supporting material, and support your conclusions with facts.
  • Join the community. As citizens of the Ozarks, join the conversation and offer your thoughts so the best will bubble to the top.

It’s about time and about money: Missouri’s Sentencing Advisory Commission’s cost analysis

While I have staked out the territory of Ozarks law and economy for this blog, I’m humbled that the New York Times is doing a great job of researching and writing stories on my turf. The quality of the reporting is superb; those whose opinion of the Times is based on aversions to the biases of its op-ed writers (David Brooks, Gail Collins, Maureen Dowd, Paul Krugman, Tom Friedman and Nicholas Kristof) will find the news stories about Missouri to be evenhanded and well-sourced.

Ten days ago, the Times reported on Missouri’s public defenders refusing to take more cases, a situation that came to a head in Christian County, Missouri, across the street from my office in Ozark.

Today, the Times reported on the Missouri Sentencing Advisory Commission’s provision of cost information to judges, so that judges can  Read the rest of this entry

Purchase option is assignable without consent, but there can still be a fight

The Hulls signed a real estate lease with a purchase option and put down a deposit of $56,000, which could be applied to the $198,500 purchase price, but would otherwise be non-refundable. The Hulls created a limited liability company (LLC) called Briar Road, and Briar Road attempted to exercise the purchase option. Stenger, the seller, refused, claiming that it had not approved the assignment of the purchase option by the Hulls to Briar Road.

What difference does the identity of the purchaser make? Read the rest of this entry

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