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Category Archives: Ozarks economy

Subdivision developer gets nailed for assessments and has no special developer rights


Missouri Western District Court of Appeals just affirmed a trial court’s judgment in a way that will resound with homeowners’ association (HOA) boards across the state, many of which are struggling to raise sufficient revenues to take care of streets and amenities, even though many of the developer-owned lands that benefit from the streets are apparently exempt from assessments.

Lenders that have foreclosed on developers may find that this opinion undermines the lenders’ ability to claim to enjoy the developer’s exemption from assessments on lender-owned land. Parties purchasing land from lenders, hoping to have the status of the former developer, may find themselves heavily in debt to the HOA, perhaps blaming the lenders who sold them the land.

In Woodglen Estates Association v. Dulaney, Dulaney obtained 17 parcels of land from the FDIC. This land had once been owned the original developer Braeman, then passed through the hands of a few different parties, before ending up with the FDIC, which had taken the parcels of land from a failed bank.

The Woodglen Estates Association hired an auditor to review its finances. The auditor discovered that land owned by Dulaney had not been assessed for several years. The association then sued Dulaney, and Dulaney asserted two defenses:

  • As successor to the original developer, Dulaney should be exempt from assessments on land it owned.
  • Much of the land that Dulaney owned in Woodglen was in “parcels,” not having been subdivided into “units,” so that it should not be assessed.

The appellate court looked at the line of Missouri case law that holds that the special rights and privileges of a developer, typically reserved in the declaration of covenants for the subdivision, do not automatically pass with ownership of the developer’s real estate. These rights, called “developer rights,” “declarant rights” or “development rights,” may be assigned, but a party claiming to hold these rights has to be able to prove to have acquired them by assignment. Dulaney had no proof of assignment of declarant rights.

To make matters worse for Dulaney, the Woodglen declaration did not contain an exemption for the developer’s real estate–which is a common feature of declarations–and the appellate court noted that developers do not receive an automatic exemption. Under current Missouri law, other than in condominiums, a developer may lawfully reserve an exemption from assessment for its own real estate. The original developer simply failed to create the exemption when filing the declaration and made the mistake of including land in the declaration that was not ready to be developed.

Dulaney argued that its “parcels” were not subject to assessment, since only “units” and “unit owners’ could be assessed. The appellate court noted that some of the declaration’s provisions were ambiguous when addressing the respective rights of owners of units and parcels, but the assessment provisions were clear:  “each owner shall be obligated to pay to the Board such sum as shall have been established….,” without distinguishing between owners of units and parcels. The legal description attached to the declaration had included Dulaney’s parcel, placing this land under the provision of the declaration.

For lenders, the lesson is that any loan documents for a development loan should include a security interest in the declarant rights, and any documents showing the recovery of the developer’s real estate should include a specific assignment of the declarant rights. When the lender sells the former developer’s property, the conveyances to the purchaser should include the assignment of declarant rights. These issues are covered in more detail in this essay.

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.

 
 

 

 

 

 

 

Addressing water supply issues in the Western Ozarks


Imagine this headline:

Taneycomo trout die as officials refuse to release water from Table Rock Lake

It’s not far-fetched. Something similar happened in the fall of 2011 below Lake Tenkiller, in the Ozarks of eastern Oklahoma, where low water levels resulting from the prolonged drought left that reservoir with no unallocated water. You can get an idea of the reactions from this article in the Sequoyah County Times.  All the water in Tenkiller was spoken for, and the trout fishery suffered.

What’s this about allocation of water? In reservoirs managed by the Corps of Engineers and other federal agencies, the reservoir storage capacity is allocated to various uses. For example, some of the storage capacity in Table Rock Lake is allocated to the Southwest Power Administration, a government agency that sells electricity to private and public utilities. In some reservoirs, some of the capacity is allocated to municipal water supplies or industrial users of water, such as Sequoyah Fuels, mentioned in the article about Lake Tenkiller. The Corps of Engineers is also obligated to store and release water to meet statutory mandates relating to maintenance of adequate water levels for barge traffic downstream. In the western United States, a “recreational allocation” is made to support the whitewater rafting industry.

Water scarcity is moving east, and the pace seems to be accelerating. Jim Milton’s blog, Oklahoma Water Law, does a great job covering water supply issues in Oklahoma and neighboring states. On his blog, you can read about Oklahoma’s proposed comprehensive water plan and conflicts between rural water districts and municipalities, the Tenth Circuit Court of Appeals upholding Oklahoma’s statutes prohibiting the export of water to another state, and the fight over water in Sardis Lake, where Oklahoma City’s attempt to buy the water has been blocked, at least for now, by the assertion of federal power. In reviewing recent blog entries, I was struck by the intensity of the water disputes in eastern Oklahoma and Kansas; Missourians need to pay attention to what is occurring just over the state line.

The Tri-State Water Resource Coalition has been exploring the alternatives for future water supplies for the Western Ozarks. Its annual conference, Securing Our Water Future, will be held in Springfield on November 17 and 18. I’ ll be giving a short presentation at this conference to contrast Missouri’s lack of any allocation system with the ways that surface water and groundwater are allocated in Kansas and Oklahoma. A copy of the text of my presentation is here.

Missouri and Arkansas have had the luxury of pretending that water is free. Unfortunately, the supply is finite. The Tri-State Water Resource Coalition is providing leadership and a forum for discussion. We need wise leaders to learn from the experiences of Kansas and Oklahoma, so that we can be better stewards of the water we all need.

Elements of Ozarks civil litigation: a woman, an oral agreement, cattle, a pig, a shotgun, a deputy


Real estate law practice in the rural parts of the Ozarks, at least at the level of taking phone calls from prospective clients, often involves unwritten agreements, a woman’s role, cattle, guns, vehicles, accusations of trespass and calling the sheriff. Once in a while, a case makes it to the appellate court, as in Manley v Meyer, which has these common ingredients.

Manley had an unwritten agreement with William and Linda Meyer that allowed Manley to put cattle on 57 acres owned by the Meyers. Under the agreement, Manley could also hunt, cut hay, and ride ATVs on the property for a payment of $1,000 for a one-year period.

Over something else, the Meyers filed a suit against Manley, which they settled under the terms of a written agreement filed with the court, requiring Manley to pay the Meyers the sum of $1,000 for rent and $125 for a pig. In addition, Manley was required to remove his cattle from the Meyers’ pasture before a deadline of September 10, 2008. The Meyers were required to return a shotgun and a camper to Manley.

Manley picked up a few of the cows on September 9, but the Meyers told him not to use ATVs, dogs or horses to assist with the roundup. The Meyers offered to put up a pen with cattle panels to catch the cattle, if Manley would supply feed to lure them in. By December, Manley had been unable to schedule a time to pick up the remainder of the cattle, apparently because the times he suggested were inconvenient for the Meyers. But Manley continued to deliver feed to the locked pen.

On December 2, Mrs. Meyer asked Manley to deliver additional feed, but Manley insisted that he was going to pick up the cattle that afternoon and would bring the sheriff with him. At the pen, Mr. Meyer refused to let Manley have the cattle unless Manley gave three calves to the Meyers as compensation for feeding the cattle. Manley refused, and Mr. Meyer told him that he needed to leave because he was trespassing. The deputy advised that his orders were to keep the peace, and that if Manley could not have his cattle, he had to leave.

A few months later, Manley sued the Meyers for $28,000, alleging conversion of his cattle, his shotgun and several cattle panels and breach of the settlement agreement. Meyers fired back with a claim for $2,340 for hay fed to the cattle, $1,500 for boarding the cattle, and $500 for fence repair.

At a trial before a judge without a jury, Manley testified about the value of his cattle and shotgun, the number of cattle (they had calves and the calves had calves while on the Meyers’ pasture). The Meyers made no objection to Manley’s testimony about the value of his shotgun or the cattle. The judge awarded $28,000 to Manley for breach of the settlement agreement requiring them to return his cattle and shotgun and denied the Meyers’ counterclaim entirely.

The Meyers appealed. They claimed that Manley didn’t introduce sufficient evidence about the number of calves born and surviving and the value of the cattle for which he did not have papers showing the amount paid for them. They also claimed that Mrs. Meyer had no part of the refusal of the return of the cattle.

If the $28,000 judgment were only against Mr. Meyer, then Manley could not require that it be satisfied out of the assets jointly owned by Mr. Meyer and Mrs. Meyer. When a party refuses to pay a judgment, the holder of the judgment has the right to enlist the assistance of the courts (through garnishment) and the sheriff (through levy and execution) in seizing the assets of the judgment debtor. Typically, almost everything that married couples have is jointly owned, so the Meyers were attempting to avoid the effect of the judgment by claiming that Mrs. Meyer had nothing to do with it. But the appellate court noted that Mrs. Meyer had signed the settlement agreement requiring the return of the cattle and shotgun, so that she was jointly liable, even though only her husband had the key to the lock on the cattle pen.

Now imagine that you, blog reader, are a judge on the court of appeals. There was no detailed judgment from the trial court, which might have included specific findings of fact and legal conclusions to indicate which rules of law the judge applied. In the appeal, Manley did not file a brief that would have contained legal arguments to refute those made by the Meyers.

As appellate judge, you would be relieved to know that the appellate court has rules that apply when the judgment of the trial court does not include findings of fact and conclusions of law. When no party has asked that the judge make written findings and conclusions, the appellate court presumes that “all fact issues were found in accordance with the judgment” and that the judgment will be upheld “under any reasonable theory presented and supported by the evidence.” And the trial judge is given great deference as to his evaluation of the credibility of the witnesses and his weighing of the evidence.

In other words, the trial court’s judgment will be affirmed absent an incredibly blatant misstatement of a rule of law. Most experienced lawyers will ask for written findings of fact and conclusions of law before the start of the trial. At the end of the trial, the judge will ask one or both lawyers to prepare findings and conclusions to submit to the judge, which the judge will review, amend and sign. Sometimes, the judge has not made up his mind at the conclusion of the trial and the findings and the conclusions assist the judge in making a decision.

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

Missouri Supreme Court asked to re-evaluate law on calculating deficiencies after foreclosures


After a real estate foreclosure in Missouri, lenders often sue the borrower and any guarantors, seeking a “deficiency judgment,” which is the difference between the price paid at the foreclosure sale and the amount owed, which includes the costs of the foreclosure sale. Often there is no bidder at the buyer at the foreclosure sale, so whatever amount the lender bids is accepted without challenge.

Next, the lender sues the borrower (and any guarantors) for the difference between the lender’s bid and the amount owed. The borrower always wishes that the lender’s bid had been high enough to equal the amount owed, so that the amount of the deficiency would be eliminated. But the lender has no incentive to bid higher than the minimum amount needed to recover the property. A Missouri court, under existing judicial decisions,  cannot use its equitable power to adjust the amount of the deficiency unless the borrower proves the existence of fraud, unfair dealing or mistake in the conduct of foreclosure sale. There is no clear standard for determining the existence of “unfair dealing”; sales have been upheld when as little as 10% of fair market value has been offered.

In a recent case from the Eastern District of the Missouri Court of Appeals, First Bank v Fischer & Frichtel, Inc., the borrower acknowledged that the court had no power to adjust the amount of the deficiency, but asked the Court of Appeals to transfer this case to the Missouri Supreme Court, for consideration of adopting a different rule of law, such as the rule that allows court would be able to determine the foreclosed property’s fair market value, without the necessity of proof of fraud, unfair dealing or mistake in the sale proceedings. This alternate rule is applied in several other states.

Following Missouri Supreme Court Rule 83.02, the Court of Appeals ordered that this case be transferred to the Missouri Supreme Court “because of the general interest or importance of a question involved in the case or for the purposes of reexamining existing law.”

This question is important for several reasons, in my opinion:

  • There is no clear guidance in the law to assist foreclosing lenders in setting the amount that they will bid; this situation is an invitation for bids to be low, unless there are other bidders.
  • Because of the unprecedented number of properties being foreclosed, and the inability to quickly resell foreclosed property, there are relatively few bidders, whose bids would ordinarily establish the fair market value.
  • Lenders, facing the prospect of incurring expenses indefinitely for holding the foreclosed property (taxes, mowing, security, insurance, prevention of freezing pipes, etc.), bid low, and hope to collect on a deficiency judgment, maybe not now but at some future time when the borrower recovers financially. If courts have no power to determine whether a bid (from a lender or a third party) is in some sense fair, lenders have a clear incentive to bid less than the property is worth.

But does the absence of bidders mean that many foreclosed properties have no value? Perhaps not individually, but marginally. Most investors have all the property they need; nobody needs another vacant rent house or strip center. Investors and other potential buyers are content to let the foreclosing lenders hold the foreclosed properties until the market is ready to absorb them.

Why should the Missouri Supreme Court, rather than the legislature, address this issue? Rules of law in a representative democracy should be made by those elected to be lawmakers. The Missouri General Assembly has not addressed this issue, though the inequities of the present foreclosure statutes have been long apparent. Perhaps the General Assembly will take a look at a solution. The court or the legislature needs to hear from representatives of lenders, appraisers, consumer advocates, title insurers, and lawyers to create procedures that provide more fairness.

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.

Missouri’s liberal Supreme Court judges dissent in favor of free enterprise, while majority protects licensed real estate leasing agents


Judge Wolff (who has announced his imminent retirement) and  Chief Justice Teitleman of the Missouri Supreme Court have often been characterized as liberals, soft on criminals and hard on business. However, when the First Amendment’s protection of free speech is at stake, Wolff and Teitleman can blow the trumpet for free enterprise. Wolff’s keen dissent (to which Teitleman joined) in Kansas City Premier Apartments, Inc. v. Missouri Real Estate Commission, stands in stark contrast to the majority’s stodgy defense of the real estate brokerage industry’s state-sanctioned cartel.

Unquestionably, licensed real estate agents perform valuable services to sellers and buyers of real estate. I refer my clients to several whom I have found to be ethical, energetic, and effective in the selection of property for buyers and in the marketing of property for sellers. Real estate commissions are often very hard-earned.

The Missouri Real Estate Commission, a government agency that issues licenses to real estate brokers and salespersons, petitioned the trial court for an injunction against KCPA’s website advertising and use of rental advisors to match prospective tenants with housing. KCPA claimed that the Missouri statutes requiring licenses for this activity were unconstitutional, denying KCPA its rights of free speech, due process and equal protection. The trial court’s injunction prohibited KCPA from contracting with property owners to receive payment for referrals of tenants, from performing other acts for which real estate licenses are required and from dispensing $100 gift cards to tenants.

As Wolff points out, the majority of the Missouri Supreme Court affirmed an injunction against Kansas City Premier Apartments (KCPA), which had done nothing more convey “truthful information through its website and through its ‘rental advisors’ to potential renters who are in the market for apartments.” KCPA was paid for these services by the owners of the property to be rented. Wolff calls the injunction against KCPA’s activities “the state’s suppression of KCPA’s distribution of this information.”

The statute at issue is section 339.010 RSMo, which defines real estate brokerage by listing the activities for which a real estate license is required, along with many exceptions. Under section 339.010.7(5), a license is not needed for “any person employed or retained to manage real property by, for, or on behalf of the agent or the owner of any real estate if the person’s activities are limited to delivering a lease, receiving a lease application, showing a rental unit, conveying information prepared by an owner or other clerical or administrative tasks. These exempt activities obviously encompass much of what licensed real estate agents do under listings agreements for rental property.

The court’s majority rejected KCPA’s argument that its activities fit into the exemption, stating that the legislature intended to protect the public from “the evils of fraud and incompetency” by enacting the real estate licensing statutes. The majority of the court found that KCPA’s activities “are not limited enough” to fit the exemption, because KCPA provided rental advisors who assisted with matching tenant’s desires to particular units and advised about “apartment search strategies.”

In a part of the opinion relating to KCPA’s allegation that the application of the licensing law denied KCPA’s freedom of speech, the majority cryptically stated that it would defer to the trial court’s weighing of the evidence about the extent of KCPA’s activities, then cited several federal court decisions that have upheld professional licensing statutes, applying the “intermediate scrutiny” test to hypothetical facts, rather than those found by the trial court. In free speech cases, the United States Supreme Court applies a “strict scrutiny” test to governmental regulations restricting non-commercial speech (political and artistic expression) and the “intermediate scrutiny” test to commercial speech, such as advertising.

The majority rejected KCPA’s claim of denial of equal protection, which was based on the assertion that the licensing statute creates exemptions that do not advance the purposes of the licensing statute. The court found the exempt classes of persons exempted by the licensing statute (attorneys, persons leasing their own property, trustees, governmental employees, advertising media, etc.) met the applicable standard of minimum rationality. The court briefly dispensed with the due process argument, claiming that the simple words of the statute defined with clarity which activities were prohibited without a license.

Wolff’s dissent, like the majority opinion, doesn’t contain an elaboration of the trial court’s fact-finding. Instead, Wolff merely points out that there was no evidence that KCPA conveyed anything other than truthful information. Wolff’s dissent argues that the recent U. S. Supreme Court decision, Sorrell v. IMS Health, requires that the Missouri courts apply a “heightened scrutiny” test to the licensing statute.

“Heightened scrutiny” is appropriate to evaluate a restriction on commercial speech when the regulation is “content-based” and “speaker-based.” The Missouri real estate licensing statute is directed at the content of real estate advertising (listing information andadvertising of rentals and homes) and the identity of the speaker (persons not holding licenses are targeted). Without facts to show that KCPA’s activities were harmful or untruthful, Wolff asserts that the “state has no business suppressing this speech under its police power to regulate occupations, and [that] the broad injunction that the Court upholds in the principal opinion violates the First Amendment.”

Occupational licensing has replaced unionization, in some ways, as a method of restricting competition. Each regulated occupation has a trade association and many have political action committees. These organizations make campaign contributions and hire lobbyists to influence legislation that protects the occupation from competition. Legislators appear to be pro-business when they seek to protect occupational licensing, while they appear to  be anti-business if they protect unions.

In this new opinion, the majority’s opinion took a non-activist position, respecting the legislature’s creation of a system of licensing for real estate agents. The dissenting judges took a fundamental rights approach, giving less deference to the legislation and more to the constitutional protection of speech. In a sense, the majority protected property (the value of real estate licenses) at the expense of liberty (the freedom of consumers and entrepreneurs to provide a service without governmental interference).

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.

Appellate court can’t rescue City of Monett from legal screw-ups


Appellate courts sometimes seem to make an extra effort to protect small towns and cities from the effects of unwise or unpopular decisions, if the governing body acted in good faith for what the officials believed to be in the public interest. In Inman v. St. Paul Fire & Marine Ins Co, the Southern District of the Missouri Court of Appeals held that the City of Monett’s insurance company would not have to pay a claim made against Monett, after the Monett city attorney failed to inform the insurance company that the papers filed in the lawsuit by Inman had been changed to avoid an exclusion in the City’s insurance policy. Monett is left on its own in working out something with Inman.

Monett’s attempt to solve drainage problems

Monett attempted to solve a stormwater drainage problem in a subdivision by reconfiguring and paving a ditch that ran through part of the Inman property. After a flood while the construction was underway, Monett re-engineered the project and filed a condemnation suit to take and pay for a portion of the Inman property. Inman and Monett entered into a written settlement agreement and the condemnation suit was dismissed.  In the condemnation suit, necessarily, Monett claimed that the drainage project was for public benefit.

Insurance company kept in the dark

After the completion of the project, Inman sued Monett for trespass and damages to Inman’s property. Monett’s attorney contacted Monett’s insurance carrier, St. Paul Fire & Marine, and learned that Monett’s policy didn’t cover damages arising out of the exercise of normal governmental powers, such as taking property for public uses. Ten months later, Monett’s attorney notified St. Paul that a trial would be immediately taking place, not informing St. Paul Fire & Marine that Read the rest of this entry

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