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Category Archives: Taney County

Coverdell decision set aside, as Branson Landing case goes back to trial court

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Using the “plain error” doctrine, rarely used in civil cases, the Court of Appeals for the Southern District of Missouri, in Empire District Electric Co. v. Coverdell, reversed and remanded a January 14, 2010 jury verdict that had awarded Douglas Coverdell and Coverdell Enterprises the north third of Branson Landing and adjacent areas. This decision is dated June 3, 2011.

The appellate decision is based on the City of Branson’s argument that the trial court made a serious mistake by allowing the jury to enter a verdict affecting the property interests of the City of Branson (and others) who did not participate in the trial.  The appellate court accepted the City’s argument that “plain error review” would be appropriate, because the court’s error was “so egregious as to ‘weaken the very foundation of the process’ and ‘seriously undermine confidence in the outcome of the case.’ ” Empire’s appellate arguments were not addressed in the decision, according to a footnote, since the court’s acceptance of the City’s arguments was sufficient to warrant reversal.

The City of Branson did not participate in the trial held in January 2010, though the City’s attorney was present in the gallery of the court room for much of the trial. In an earlier phase of the case, which took place in 2004, the City had won its effort of affirm its title to the west portion of the peninsula shared with North Beach Park. Thereafter, the City was in a monitoring mode, not aware that title to the City’s land, leased to Branson Landing, would be the subject of the trial.

The appellate court tied its decision to the words of Coverdell’s attorney, spoken to the jury, who told the jury in the January 2010 trial that the dispute with Empire concerned only the east part of the North Park Beach peninsula. Coverdell’s attorney is also quoted as telling the jury that the City “has nothing to do with this dispute between Empire and [Coverdell and Coverdell Enterprises.]”

However, the judgment that Coverdell’s attorneys submitted to the trial judge after the juy verdict included 27 acres that included the Belk store and parking lot at the between North Beach Park and the Belk store, as well as some of the area south and west of the Belk store. The trial court’s mistake was to cloud the title of the City and others who were did not participate in the 2010 trial. The owners of much of the 27 acres were not parties to the suit, which appears to be the fundamental reason for reversal of the trial court’s judgment. The appellate opinion refers to City’s statement that the City “as well as numerous other third parties, have interests in that southern tract of land such that Branson was aggrieved by the 2010 judgment.”

The appellate decision gives the City and Empire the right to amend their claims and face Coverdell in a new trial.

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The Corps of Engineers can only release water, not solve problems

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As a lawyer, I first encountered the economic ruin and heartache from controlled discharge from a Corps’ reservoir about 25 years ago. The Corps had opened the gates at the Keystone reservoir west of Tulsa, filling the entire floodplain from Mannford, through Sand Springs and Tulsa. My client packaged fresh salads in a building on the edge of the floodplain that was not known to have ever flooded.

The Small Business Administration offered disaster loans to businesses, and my client’s only hope for survival was to accept a loan.

Unfortunately, the six-month interruption of my client’s business resulted in a loss of market share and employees. The SBA loan and insurance didn’t cover nearly all the losses. There was no revenue to cover the regular bills due in the weeks after the flood. The business had been marginally profitable, only because it had little debt. The SBA loan required the owner to sign a personal guarantee. The eventual result of the SBA loan was that my client became bankrupt (at age 70), since the business couldn’t generate enough money to service the debt and pay its other expenses.

I could find no legal basis for challenging the Corps’ management of the Keystone dam and the Arkansas River basin. The Corps operates under broad statutory authority that has many competing goals, the least of which seems to be protecting homes and businesses built in floodplains below the dams.

The Corps has no control over rainfall. In responding to rainfall, or lack of it, the Corps must respond to those who have statutory claims on impounded water for drinking, power generation, irrigation, recreation, and maintenance of the depth of water in navigation channels. The Corps is constrained by the design of its dams and the storage capacity of its reservoirs. To meet all its goals, the Corps has only one tool: controlling the rate of release of water.

Even if the Corps didn’t have governmental immunity from liability for many of its actions, persuading a judge or jury that the Corps made bad decisions would be an enormously expensive and difficult task.

The lesson is that the economic benefits and protection provided by federal and state projects are extremely uneven in application. We should make decisions based on our own situations.

If you’re a beneficiary of a specific federal program, you can probably count on whatever protection that offers, but only for now. If we expect federal, state and local governments to protect us from weather, we end up in the situation we’re already in.

Ozark houses: White River Valley stonework

Ozark houses: White River Valley stonework

Looking over Bull Creek, about 30 miles south of Springfield, this old house displays one of several types of stonework that appears in the houses built in the White River Valley around 100 years ago. The smooth, flat stones come from the rivers and creeks. Some people call it river rock.

 

In this view, you can see that the pattern of laying the small flat stones horizontally is occasionally broken by standing a larger stone on end. Above the cellar door (and windows and doorways not visible here), small stones are set vertically akin to what brickmasons would call a “soldier course,” sometimes arching a bit.

I visited this house with a couple of sisters whose uncle had owned it in the early 1960s. The uncle added the fireplace.

You can see several  fine examples of this type of stonework on Downing Street in Hollister, Missouri, and in a few of the older commercial buildings in downtown Branson.

 

Branson Commerce Park opens new possibilities for Branson

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With its infrastructure complete, the streets, water and sewer systems of Branson Commerce Park were turned over to the City of Branson today. This 200-acre development on the north side of Branson is designed for commercial, light-industrial and residential development. In the photo, owner’s representative Phil Lopez and Branson mayor Raeanne Presley prepare to cut the ceremonial ribbon.

The original developer of Branson Commerce Park took advantage of Missouri’s Community Improvement District (CID) statutes to finance the installation of streets and water, sewer and underground telecommunication lines. Rather than install the infrastructure in phases, with years of construction traffic, the digging and disruption is over, except for what takes place on each lot. The CID program as used here does not involve the use of any taxpayer outlays or liability. However, a portion of the cost of installation of the infrastructure is allocated to each lot annually, collected with property taxes and remitted by Taney County to the trustee for the bondholders. The bondholders, through the purchase of the CID’s bonds, provided the construction money.

The Branson area is a popular destination for vacations and retirement, with not many private sector jobs outside these industries. Branson Commerce Park provides an ideal location for enterprises that support Branson’s extensive medical facilities and its many resorts, hotels and restaurants.

But there’s more. Because of its telecommunications infrastructure, Branson Commerce Park is a practical location for businesses that can be wherever there’s a good electronic link to the world. Entrepreneurs and employees who are attracted to the Ozarks may appreciate Branson Commerce Park’s proximity and easy access to residential neighborhoods, shopping, medical facilities, K-12 schools, and Branson’s RecPlex.

Branson lakefront deal goes from good to bad. Not what you’re thinking, though.


You know the story. The City of Branson gives a great deal to a private business to create an attraction on the Taneycomo lakefront. A few years later, the City doesn’t think the deal is working well for the City. The political winds have changed. Now there’s a lawsuit. Here’s how it went down, more than a half-century ago.

Jim Owen–not to be confused with the singer–played a major role in putting Branson on the tourism map. A consummate promoter of float fishing on the James and White rivers and tourism and commerce in the Branson area, he was unstoppable. Born in Webster County, Missouri (east of Springfield), he came to Branson in 1933, already experienced with public relations.

Soon Jim had built a movie theatre and started a float fishing business that got national attention and was also a banker and farmer. Some fine person posted this promotional silent film of one of his trips (11 minutes long) Read the rest of this entry

Taking a fresh look at the history, politics and ecology of the rainbow trout fishing industry


This morning, I scanned the headlines of Arts and Letters Daily, and was jolted by this:

Behold the regal rainbow trout, dappled denizen of deep lake and rushing river, fierce hunter of fish and fly—and prize of pork-barrel politics, invigorator of men, eradicator of native species, payload of numerous bombing missions.

Intrigued, I followed links to the webpage of Anders Halverson, the author of these words, whose book, An Entirely Synthetic Fish: How One Fish Beguiled American and Overran the World, has recently been published by Yale University Press.

I have accepted rainbow trout fishing as simply a part of the world as I know it. I live a couple of blocks from Lake Taneycomo, where almost every day of the year I wake to the sounds of motors on the boats of trout anglers. While the Branson entertainment business ebbs and flows, the trout-fishing business in Branson seems to be evergreen, though it requires that tax and permit revenues be spent for propagating the trout, enforcing regulatons, and protecting the quality of the fishery. My own fishing license bears a trout stamp.

cover of An Entirely Synthetic Fish

As a child, I read Bill Potter’s annual accounts of the trout season’s March 1 opening day in the Joplin Globe, and the Missouri Conservationist’s articles about the Missouri Department of Conservation’s hatcheries and stocking programs for rainbow trout and the need to buy a trout stamp in addition to a fishing license to support these activities. School children in my home county were taken to the Neosho National Fish Hatchery, America’s oldest federal fish hatchery, it was said, for educational tours. The Missouri Department of Conservation stocked rainbows in Capps Creek, a short spring-fed tributary of Shoal Creek near my childhood home in eastern Newton County, Missouri.

Opening day at trout parks around the Ozarks, notably at Roaring River, Bennett Spring, Montauk and Meramec state parks in Missouri is a ritual for thousands. Shoulder to shoulder, in all kinds of weather, stouthearted anglers line the banks and tangle lines to catch newly-stocked rainbows and browns. Trout are stocked and pursued in various other cool rivers in the Ozarks, such as the White River below Beaver and Bull Shoals dams, the North Fork of of the White River, and the Current River. There are numerous private “trout farms” where trout are raised for sale to restaurants, some of which allow fishing. Trout fishing is economically important in the Ozarks.

Lately, I was aware that the Neosho fish hatchery was the beneficiary of a $1 million appropriation for a new visitors center and a solar water heater (to aid in the propagation of the pallid sturgeon) contained in the the American Recovery and Reinvestment Act. A visitors center itself doesn’t hatch fish, but the construction of it helps the Neosho economy, creates a few permanent government jobs, and builds support for the program. The Neosho hatchery obtains rainbow trout eggs from the Missouri Department of Conservation’s Shepherd of the Hills Hatchery in Branson and raises fingerlings which are transported back to Lake Taneycomo and other Missouri trout fisheries.

I guess I’ll read An Entirely Synthetic Fish and begin the uncomfortable process of reexamining something that I had accepted without much thought. I wonder where I’ll end up.

Branson Landing land titles: how soon we forget how it was just 10 years ago!


Pictures help to tell the story that lies underneath the disputed land titles at the north end of Branson Landing. You can click on these images to enlarge them. Here’s the 1913 plat of Park Addition to the City of Branson.

The southwest corner of the Belk building sits about where Sycamore Street joins what has been called St. Limas Street and Boxcar Willie Drive, now Branson Landing Boulevard. The platted lots in Block 4 of Park Addition were the location of resorts until construction of Branson Landing began. Mang Park, with a baseball diamond and swimming pool, occupied Read the rest of this entry

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