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Category Archives: Missouri law

St. Louis firm handles $662 collection case in West Plains, loses there and again on appeal. Why?


As we all know by now, you can often follow the money to the answer. Sometimes the trail is faint.

A one-car accident in Howell County, which sits on Missouri’s border with Arkansas about halfway across southern Missouri, resulted in a 911 call and the summoning of the Brandsville Fire Protection District (FPD) and the Missouri Highway Patrol and an ambulance. FPD personnel arrived at the scene and assisted with first aid and loading Jerry and Nina Phillips into ambulances.

FPD personnel remained at the scene for a couple of hours, providing traffic control while the wrecker loaded the Phillips’ car.

The FPD sued the Phillipses for an unpaid bill of $662. The bill was issued under the FPD’s ordinance allowing it to charge non-residents of the FPD for services. These charges are authorized by Missouri statute. When the bill wasn’t paid Read the rest of this entry

Missouri governor signs HB1103, giving courts power to order maintenance of “private roads”


The Missouri General Assembly enacted HB 1103 in the past 2012 regular session, which explicitly grants circuit court judges the authority to impose financial responsibility for maintenance of certain “private roads” onto parcels of real estate that benefit from these roads. Governor Nixon signed the bill into law on July 12, 2012. There are many problems with rural roads in Missouri. Simple questions–such as determining who owns the road, whether it is a subject to property taxes, who has the right to use it, and who is obligated to pay for its maintenance–are often impossible to answer. HB 1103’s provisions regarding private road maintenance change section 228.368 RSMo and add three new sections to Chapter 228 of the Revised Statutes of Missouri. This legislation is an attempt to solve the problem of nobody stepping forward to pay for road maintenance in situations in which no provision was made when the road was created. But its definition of “private road” greatly limits its applicability. According to the new section 228.341, a “private road” means “any private road established under this chapter or any easement of access, regardless of who created, which provides a means of ingress and egress by motor vehicle for any owner or owners of residences from such homes to a public road. A public road does not include any road owned by the United States or any agency or instrumentality thereof, or the state of Missouri, or any county, municipality, political subdivision, special district, instrumentality, or agency of the state of Missouri.” Got that? Read the rest of this entry

Getting a Missouri collector’s deed after a tax sale just became harder

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On July 3, 2012, the Missouri Supreme Court released two opinions that clarify the procedure by which purchasers of tax certificates at the annual August sales may obtain deeds to the tax-delinquent property. Both cases illuminate section 140.405 of the Revised Statutes of Missouri with respect to the content and timing of notices (“redemption notices”) required to be sent to the delinquent taxpayer (and others, such as lienholders) so that the tax sale purchaser can obtain a deed to the property for which the purchaser has paid the delinquent taxes and received a “certificate of purchase” which I refer to here as a tax certificate. These new decisions apply to first-year sales and second-year sales, not third-year sales, which have different redemption rules.

Redemption notices must be sent at least 90 days before August anniversary of sale

Harpagon MO, LLC v. Bosch overrules Read the rest of this entry

Court forces Missouri church to pay its attorney

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There’s nothing less spiritual than a bill from a lawyer, except a judgment against the church in favor of a lawyer who sued a church for an unpaid fee.

Lawyers and courts are worldly by their very nature. While churches and courts want to do what is right, they have different standards for determining rightness. The Missouri Court of Appeal’s decision in Teasdale & Associates v. Richmond Heights Church of God in Christ demonstrates just how differently courts and a church Read the rest of this entry

“Plus interest” is implied by court from contract for deed to defeat buyer’s claim


The contract for deed stated that the purchase price was $30,000, to be paid with $3,000 down and 144 monthly payments of $300. The buyers made 90 payments of $300, for a total of $27,000, and demanded a deed.

While the amount financed was stated to be $27,000, the product of 144 monthly payments of $300 would be $43,200.   On the seller’s motion for summary judgment, the trial judge held that the buyers were not entitled to the deed, because the contract required payment of 144 installments of $300, not 90 installments.

The Southern District Court of Appeals agreed  with the trial judge in Webbe v. Keel, stating:

It is not ambiguous for 144 monthly payments to exceed this contract’s sale price because the time value of money is a judicially-known concept.

Even though the contract did not specifically mention interest on the $27,000, the court apparently saw the buyer’s agreement to pay $16,200 in excess of the $27,000 balance over 12 years to be an agreement to pay interest.

Because the case involved contract interpretation, it could be ruled on by a judge without a trial on a motion for summary judgment, unless the trial judge found that the contract was ambiguous. If the trial judge found the contract to be ambiguous, a trial would be held to obtain evidence outside the text of the contract.

Many agreements to pay money over time that are prepared by amateurs fail to mention the interest rate, how interest is calculated (360-day year or 365-day year, compounding period), early payoff provisions and how payments are to be applied  (on day received or on first day of month if received by 5th, for example).

Webbe v. Keel shows how even a very simple contract can pull the parties into court.

 

Elected representatives trump democracy, as Missouri legislature overrides initiatives


When a million Missourians adopt an initiative petition, why should our elected representatives be allowed to override the voice of the people? According to Howard Wright’s blog post, it’s because they can.

Wright describes how our elected representatives have acted to undermine legislation adopted through the initiative petition process provided for in the Missouri Constitution. In particular, Missouri’s puppy mill initiative adopted in 2008 was overturned by the General Assembly in 2009. After Missouri voters approved a minimum wage law in 2006 with a 76% majority, the Missouri House of Representatives attempted to repeal this law, though the bill died in the Senate.

A citizen group called “Your Vote Counts” is attempting to amend the Missouri Constitution to impose a requirement of a 75% vote of the General Assembly to override the voters. Wright suggests that the initiative procedure is a check against the power of dominant political parties, which could otherwise block the will of the vast majority of the voters.

 

Non-compete can be enforceable without geographic limit


The basic rule is that a non-compete covenant with an employee will not be enforced unless it is reasonable in duration and with respect to the geographic area it applies to. Otherwise, employees would be trapped in jobs, because they wouldn’t be able to work if they left the employer.

But a St. Louis judge’s order was reversed by the Missouri Court of Appeals for the Eastern District in Whelan Security Co. v. Kennebrew, even though the non-compete covenant did not define the geographic area where the former employee was prohibited from competing with his former employer.

The trial judge had granted summary judgment in the employee’s favor, after having reviewed the employment contract that prohibited Kennebrew from soliciting business from Whelan’s customers or going to work for Whelan’s competitors for 12 months after leaving Whelan. Within four months after separating from Whelan, Kennebrew successfully went after one of Whelan’s customers. The trial court concluded that Kennebrew’s employment agreement was invalid, because it was “overbroad” and “not reasonable as to time and space.”

The appellate court applied a different rule of law, stating:

a restrictive covenant without geographic limitations is not per se unreasonable if the prohibition is against the solicitation of the employer’s clients and customers.

The geographic scope of Kennebrew’s contract was essentially defined by the location of Whelan’s customers.

Non-compete agreements are recognized and limited by statute in Missouri. The statute, section 431.202 RSMo,  creates a presumption that a one-year duration is reasonable, but allows an employer to prove that a longer period might be appropriate under the circumstances.

 
 

 

 

 

 

 

Taxpayers vs. Ratepayers: Taxpayers lose


St. Charles County wanted to widen a road, which required moving the gas line within the right-of-way of Pittman Hill Road. Pittman Hill Road was created by subdivision plats which designated the road’s right-of-way as a utility easement for gas lines (among other utilities), dedicating the entire right-of-way to the public. 

The County asked Laclede Gas Company to pay for the relocation of its gas lines to the right-of-way of the reconstructed road. Laclede claimed that this amounted to an unconstitutional taking of its property. On a motion for summary judgment, the trial court ruled for the County, requiring Laclede Gas to pay for the relocation. Laclede appealed directly to the Missouri Supreme Court.

On appeal, the County made four objections: Read the rest of this entry

If the plat complies with the regulations, approval is mandatory


Real estate developers (remember them?) sometimes feel as though they’ve been pulled through a knothole backwards by the time they get a proposed subdivision plat to the stage at which it can be submitted to the local government for approval. According to several Missouri appellate opinions, if a proposed plat complies with the subdivision regulations, the local government has no choice but to approve it.

But reality is different, as shown by Alexander & Lindsey v. Platte County, an opinion issued last week by the Court of Appeals for the Western District of Missouri. The court reversed the trial court’s refusal to order that the Platte County Commission approve Alexander & Lindsey’s preliminary subdivision plat. But the appellate court noted that the county government would have additional opportunities to coerce Alexander & Lindsey into making more concessions if it attempted to go beyond the preliminary plat to the submittal of a final plat.

“Preliminary plats” are not mentioned in Missouri’s statutes that authorize counties to adopt and administer subdivision regulations. But the two-stage plat approval process is valuable for developers and planning and zoning boards. The preliminary plat approval process is often the means of obtaining approval for an entire project to be constructed in phases. Once the preliminary plat is approved, the developer can proceed with some confidence that final plats of each phase of the project will be approved when submitted. The preliminary plat approval process, sometimes done in conjunction with a rezoning application, introduces the proposed project to the public and the scrutiny of neighbors and a variety of government agencies.

During the preliminary plat approval process, the developer learns that the subdivision regulations, as written, do not represent the full scope of requirements. Often the government’s preferences for stormwater control, traffic signals, intersection improvements and other expensive issues are not expressed in the regulations. The preliminary plat application doesn’t seem to move forward, until the developer has agreed to install infrastructure that is beyond the requirements of the regulations.

When Alexander & Lindsey submitted a preliminary plat for a commercial subdivision with five lots ranging in size from 2 to 4.6 acres. Alexander & Lindsey completed a traffic study and a drainage study, which were approved by the county’s engineer and the Missouri Department of Transportation (MODOT).  The Platte County planning and zoning director found that it complied with the county regulations and recommended that the P&Z board approve it.

When the preliminary plat hearing took place before the P&Z board, several persons expressed concerns. Expressing “concerns” are a common manner of objecting to a project for reasons that are not based on regulations. A public water supply district represented that it could supply drinking water, but not in adequate volume or pressure for fire-suppression. An alderman from the nearby town of Weston was concerned that the project’s building setback line was only 75 feet, rather than 100 feet, as required by Weston’s ordinance; Weston had previously rejected the developer’s annexation petition. MODOT’s engineer stated that MODOT regulations did not require the elimination of a driveway, as suggested by a P&Z board member.

Even though the proposed preliminary plat fully complied with all regulations, the P&Z board voted it down. The developer appealed to the Platte County Commission, which was not bound to follow the P&Z board’s recommendation. The Commission upheld the P&Z board’s denial, citing four reasons:

  • lack of specification of proposed uses
  • lack of water for fire suppression and lack of sewer facilities
  • potential impact of possible sewer lagoons on neighboring properties and the public
  • potential for traffic hazards from the existence two driveways

The appellate court noted that these four objections were outside the scope of the county’s subdivision regulations. Therefore, the county’s refusal to deny the preliminary plat was arbitrary, and the trial court was instructed to order the Commission to approve the preliminary plat.

Appellate court reverses trial court to affirm ban of deer-dogging in Missouri


Last August, Judge Robert L. Smith of Ripley County, Missouri, declared some state regulations regarding deer hunting to be unconstitutional. Those regulations prohibited hunting deer with the aid of dogs and from vehicles. On July 15, 2011, in Turner and Jones v. Missouri Dept of Conservation, the Missouri Court of Appeals for the Southern District reversed Judge Smith’s rulings, holding that Neil Turner and Bobby “Shannon” Jones lacked standing to challenge the constitutionality of these regulations, which are enforced by the Missouri Department of Conservation.

Turner was among those identified in a federal investigation of a group in Southeast Missouri who in 2008 apparently traveled in ATVs and used dogs to drive deer to hunters in tree stands within the Mark Twain National Forest. The dogs were equipped with radio transmitters. Jones was never charged, but was questioned by a Missouri Department of Conservation (MDC) investigator.

Turner and Jones persuaded Judge Smith that the regulations prohibiting hunting deer with “a motor-driven conveyance” or with dogs were unconstitutionally vague, so vague that they couldn’t tell what was prohibited. In addition, they claimed that the regulations were defective because they were too broad. The vagueness and overbreadth deprived Turner and Jones (and MDC) of notice of what was legal, depriving Turner and Jones of the due process protection afforded by the federal and state constitutions.

In a footnote, the court of appeals indicated that Judge Smith was striking a blow for hunting rights, rather than following the law, quoting his judgment before trashing it:

Upon consideration of all evidence and arguments of the parties, the trial court recognizes that hunting is an important right. In our area, hunting is not only for recreation, but it is a part of our way of life and any infringement of this right must be constitutional.

Turner and Jones had a couple of points. The language of the regulations in questions seems to encompass use of vehicles that is not intended to be prohibited (such as traveling to a hunting area) and only uses the plural term “dogs” not the singular form “dog.” At trial, the attorneys for Turner and Jones asked hypothetical questions of MDC agents about interpretation of the regulations and obtained inconsistent answers. The attorneys argued that not even MDC knew the meaning of its regulations.

But the Court of Appeals had no need to slice-and-dice the hunters’ legal arguments. The appellate court ruled that neither Turner nor Jones had the proper standing to bring the constitutional questions to court in the first place, because the vagueness in the regulations didn’t pertain to the acts that Turner was charged with, and Jones wasn’t charged with anything.  Courts do not have jurisdiction to consider hypothetical questions, so the trial court erred by ruling on the petition of Turner and Jones. In other words, Turner made no claim that the federal prosecution of him would end if the regulations were declared void. Turner’s group had more than one dog, so he couldn’t argue that the regulation was vague about whether use of one dog was prohibited.  Jones was not prosecuted and had nothing at stake.

The idea that the regulations were overbroad received even less respect from the Court of Appeals. MDC successfully argued that the concept of a regulation being overly broad only applies in the context of the First Amendment to the United States Constitution. To be constitutional, a regulation that restricts speech or the freedom of people to associate with whomever they wish must be narrowly focused on achieving a legitimate legislative purpose.

Deer-hunting regulations were formulated when deer were much more scarce than now, though seasons and limits have been loosened up considerably. Hunting deer with dogs was considered sporting in the 19th Century and earlier, but ATVs and radio telemetry weren’t a part of the tradition.

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