Happy New Year Edition January 2015 (Edition 01-2015)

Right of Ingress and Egress To Sewer Line Validated

Snowflake 08In1924, a deed was granted that gave Hinshaw an easement over the entirety of M-C-M’s property “to lay, maintain, and operate a sewer together with the right for ingress and egress on and over and through” M-C-M’s property.”

Almost ninety years later a dispute between the successor parties arose from the use of a driveway located on M-C-M’s property.  The driveway is a “U-shaped” driveway that enters from Ross Street onto Hinshaw’s property, wraps around the house situated on Hinshaw’s property, and exits through M-C-M’s property back onto Ross Street, running parallel to the east/west property line between the two tracts.  Hinshaw testified that because the tenant’s vehicles would often block the portion of the driveway located on his property, he and his maintenance personnel would use the portion of the driveway located on M-C-M’s property in order to access his own property.  Hinshaw testified that he had used the driveway on M-C-M’s property like this since he purchased his property in July 2000.  In September 2010, however, M-C-M placed a fence near the property line between the two properties, blocking Hinshaw’s access to the portion of the driveway located on M-C-M’s property.

Hinshaw then filed suit seeking damages for interference with the easement rights set forth in the 1924 deed; to enjoin M-C-M from interfering with Hinshaw’s right to ingress and egress on the portion of the driveway situated on M-C-M’s property; and alternatively for adverse possession of the portion of M-C-M’s property being used by Hinshaw as a driveway.  Hinshaw claimed that the 1924 deed granted a general ingress and egress easement over the 1407 Ross tract.  M-C-M brought a counterclaim seeking to eject Hinshaw from the M-C-M property as well as to quiet title.

A trial was held and the parties submitted the 1924 deed to the circuit court for interpretation. The trial court concluded that the language of the deed unambiguously gave Hinshaw “an easement to (lay,) maintain and operate a sewer and also an easement for ingress and egress on and over and through the land now known as 1407 Ross Street…” M-C-M appealed the judgment and the circuit court’s interpretation of the 1924 deed to the Western District.

The question before the court was whether or not the language of the 1924 deed, was incidental to the “right for ingress and egress” to “lay, maintain, and operate a sewer,” or was it instead a general ingress and egress easement independent from the sewer easement.

The first issue to be decided by the court was whether or not the deed was ambiguous because if it was the court could resort to rules of construction and consider extrinsic evidence.  The court held that the deed: “On its face, the deed grants two separate easements: an easement for sewer purposes ‘together with’ an easement for ingress and egress.” Since the language in the deed was not ambiguous the court was limited to determining the property owners’ intent from the deed alone.

The more difficult question was whether or not the two separate easements were intended to be independent of, or related to each other.  The court concluded that while the 1924 deed conveyed two separate easements the ingress and egress easement was a secondary easement whose purpose and scope is limited to entry upon the servient tract to the extent necessary to repair or maintain the sewer permitted by the primary easement.

While the 1924 deed did not fix the location of the sewer it notes that the law is well settled that an easement can be granted even though it’s precise location is not fixed contemporaneously therewith.  The court held that until the actual sewer location is determined, (which did not happen at trial) the location of the secondary easement granting rights of ingress and egress to access the sewer cannot be established.  It also stated that the holder of the easement is entitled to use a servient estate in a manner that is reasonably necessary for the convenient enjoyment of the servitude; therefore, the Western District remanded to the trial court the case to determine the location of the primary easement and to fix the location of the secondary easement as is reasonably necessary to permit its maintenance and repair of the sewer.  Hinshaw v. M-C-M Properties, LLC, et al., (WD76919, 12/9/14)

Comment Howard: What makes this case interesting is that almost every local government attorney has seen or used some version of the language in the 1924 deed.  The 14-page opinion by the court provides a great analysis of language that is commonly used in deeds by local government attorneys.  The idea that the actual location of the access to the sewer needs to be determined now seems somewhat perplexing since my understanding is that a rule of reasonableness applies with respect to ingress and egress to the sewer line.  In my mind, the location can change over time but the rule of “reasonableness” protects the access to the sewer line as needed.

Employees Are Not Entitled To Pay Under The FLSA For Going Through A Security Check.

Integrity Staffing (Employer) required warehouse employees (Employees) who retrieved inventory and packaged it for shipment to undergo an antitheft security screening before leaving the warehouse.  During this screening, Employees removed items such as wallets, keys, and belts from their persons and passed through metal detectors that took roughly 25 minutes each day.

Employees brought a class action against the Employer alleging that the time could have been reduced to a de minimis amount by adding more security screeners or by staggering the termination of shifts so that employees could flow through the checkpoint more quickly.  They also alleged that the screenings were conducted “to prevent employee theft” and thus occurred “solely for the benefit of the employers and their customers.”  The action was dismissed by the District Court for failure to state a claim, which was appealed to the Ninth Circuit Court of Appeal.

The Ninth Circuit held that Portal to Portal provisions of the Fair Labor Standards Act (FLSA) applied requiring payment to Employees for time spent during the security screening process.  The United States Supreme Court granted certiorari on the question of whether or not the Employees’ time spent waiting to undergo and undergoing those security screenings is compensable under FLSA.


Enacted in 1938, the FLSA established a minimum wage and overtime compensation for each hour worked in excess of 40 hours in each work week.  Under the FLSA, an employer who violates these provisions could be held civilly liable for back pay, liquidated damages, and attorney’s fees.  The FLSA did not define “work” or “workweek.”  In 1946 United States Supreme Court interpreted those terms broadly by defining “work” as “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” Similarly, it defined “the statutory workweek” to include all time during which an employee is necessarily required to be at or on the employer’s premises on duty or at a prescribed workplace.  As a result of the Supreme Court’s decision numerous lawsuits were filed against employers.

In response, Congress made amendments six months later to the FLSA to limit the liability of companies by adopting the Portal to Portal law.  Under the provisions of the Portal to Portal law employers are exempt from the FLSA based upon two categories of work place related activities.  First, employers are not liable for traveling to and from the actual place of performance of the principal activity or activities, which the employee is employed to perform.  In addition, employers are not liable for “…activities which are preliminary to or postliminary to said principal activity or activities,” which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities.

At issue in this case was whether or not the screening of employees at the end of the workday as a security measure to prevent inventory loss fell within the exemption for “…postliminary to said principal activity or activities.” The Supreme Court has consistently interpreted “the term ‘principal activity or activities’ [to] embrac[e] all activities which are an ‘integral and indispensable part of the principal activities.’” An activity is integral and indispensable to the principal activity when it is an intrinsic element of the employees activities and one with which the employee cannot dispense if he is to perform his principal activities.

For example, if you are working at a plant producing batteries and you are required to wear protective gear because of the toxic nature of the chemicals in the battery producing process the time spent donning and removing the protective gear would be covered by the FLSA because wearing protective gear was an integral and indispensable part of the work.  Similarly time spent by meatpackers to sharpen knives prior to commencing work was also an indispensable part of the work because dull knives would slow down the production on the assembly line.  These examples can be contrasted to situations where the employee is simply changing clothing as a matter of convenience prior to and after work.

In this case, the security screenings were considered to be noncompensable postliminary activities because the screenings were not an intrinsic element of activities related to retrieving products from shelves or packaging them for shipment.  This is consistent with earlier opinions that held a pre shift security check at a rocket-powder plant for cigarette lighters and other items that have a direct bearing on safety were not compensable.  Integrity Staffing Solutions, Inc. v. Busk, (U. S. 13–433, 12/9/14)

Comment Howard: I have always felt very tentative about providing legal advice concerning the FLSA because this area of law seemed highly specialized; however this opinion clears a lot of the underbrush providing background of the Portal to Portal law and its application to specific situations allowing one to approach FLSA Portal to Portal law with much greater confidence. If you have a question concerning issues involving the FLSA and the application of the Portal to Portal exemptions this is the case for you.

Notice: Hotel and Motel Registry

Snowflake 08The United States Supreme Court has accepted a case involving a challenge based upon the fourth amendment search and seizure provision to the motel and hotel registry ordinance of the city of Los Angeles.  Appendix E lists some 70 ordinances around the country that are similar including two from Missouri (Warrensburg and St. Louis).  Cities who have similar ordinances should be prepared in the event the court finds the L. A. ordinance unconstitutional so they can immediately stop enforcement of the ordinance in order to avoid civil rights liability based upon knowingly enforcing an ordinance that is unconstitutional.  For more information concerning this case click. http://www.scotusblog.com/case-files/cases/city-of-los-angeles-v-patel/

Disappointed Bidder Has No Standing To Challenge Award Of Contract.

The Monroe City R-I School District (District) wanted to build a new athletic Stadium for its high school (Project).  The District prepared plans and specifications and requested bids for the Project awarding the contract to ATG Sports, (ATG).

Byrne and Jones (Jones Construction), a disappointed bidder for the Project, filed a petition in circuit court requesting that the court enjoin the District from entering into a contract with ATG (the successful bidder) alleging in its petition that the District did not permit all bidders to compete on equal terms and did not give other bidders a fair opportunity to bid against ATG. Jones Construction further alleged that the District acted “arbitrarily, capriciously, unfairly, and in violation of the competitive-bidding process required by law.”

The District moved to dismiss the petition because Jones Construction did not have standing as an unsuccessful bidder to challenge the award of the contract to ATG because it had no vested or protectable interest in the award of the public works contract.  The motion to dismiss was sustained by the trial court and Jones Construction appealed to the Eastern District.

Section 177.086 RSMo. provides:

No bids shall be entertained by the school district which are not made in accordance with the specifications furnished by the district and all contracts shall be let to the lowest responsible bidder complying with the terms of the letting, provided that the district shall have the right to reject any and all bids. (Emphasis by the Court)

The court held that existing case law interpreting the phrase “… the right to reject any and all bids” is intended to protect the public not the bidder since the bidder has no legally protectable interest in the award of the contract.  The rejection of the bid does not give the unsuccessful bidder any private right because no contract was made and the legislature in enacting competitive bidding statutes adopted such statutes for the benefit and protection of the public, not the bidders.

Jones Construction did not bring the lawsuit as a taxpayer or as a representative of other taxpayers filing the lawsuit in its own name. Alleging that the rejection of the bid was made “fraudulently, corruptly, capriciously or without reason” does not the give a bidder standing since the obligations and duties run to the taxpayers.  Byrne & Jones Enterprises, Inc. v. Monroe City R-1 Sch. Dist., (ED101588, 11/12/14)

Comment Howard: This opinion pretty well covers the waterfront with respect to bidding in the context of local government even though it is a school district case.

Mistake of Law Can Be A Basis For Reasonable Suspicion

police-cars-2A North Carolina police officer observed a vehicle that had only one of its two rear brake lights working resulting in the officer stopping the vehicle and giving the driver a warning ticket.  During the course of the stop the officer observed suspicious activity leading the officer to ask certain questions and requesting permission to search the vehicle, which the driver granted. During the search the officer uncovered various kinds of drug contraband, leading to a charge of trafficking in cocaine.

The Defendant filed a motion to suppress the evidence based on an unreasonable search alleging that the North Carolina law only required one of the rear brake lights be operable.  The motion to suppress was not sustained by the trial court but was reversed by a North Carolina appellate court, which held that the statute only required the vehicle to be “equipped with a stop lamp on the rear of the vehicle” based upon a plain reading of the statute.  The statute was singular, not plural and as a result the court ruled that the stop was invalid and that the motion to suppress should have been sustained.

The case wound its way the United States Supreme Court, which considered the question of whether a mistake of law can give rise to a “reasonable suspicion” necessary to uphold the seizure under the Fourth Amendment.  The Fourth Amendment prohibits only “unreasonable searches and seizures.”

The Court held that a reasonable mistake of law does not constitute an unreasonable search under the Fourth Amendment.  The “touchstone of the Fourth Amendment is reasonableness.”  In this case, the North Carolina Court noted that the statute had not previously been construed.  In addition, other provisions of the statute when read together with the language concerning the rear brake light could lead a reasonable person to conclude that there was a violation of law when just one of the brake lights was not working.  The court treats mistakes of law the same as mistakes of fact with respect to whether or not a search is reasonable under the Fourth Amendment.

“But reasonable men make mistakes of law, too, and such mistakes are no less compatible with the concept of reasonable suspicion.  Reasonable suspicion arises from the combination of an officer’s understanding of the facts and his understanding of the relevant law.  The officer may be reasonably mistaken on either ground.  Whether the facts turn out to be not what was thought, or the law turns out to be not what was thought, the result is the same: the facts are outside the scope of the law.”

“Here, by contrast, the mistake of law relates to the antecedent question of whether it was reasonable for an officer to suspect that the defendant’s conduct was illegal.  If so, there was no violation of the Fourth Amendment in the first place.”

The Court notes that the law does not require perfection, only a reasonable suspicion.  Heien v. North Carolina, 13-604, 2014 WL 7010684, (U.S. Dec. 15, 2014)

Comment Howard: This is a rare case and important case dealing with mistake of law as a basis for “reasonable suspicion.” The Court reaches back several hundred years to Chief Justice Marshall’s original analysis of this issue in a slightly different context.  It also uses an example of the decision-making process that a police officer has to go through to determine whether or not a motorized piece of equipment is a vehicle illegally using the roads and streets.  We have had lots of discussions about what constitutes a motor vehicle and the court was very sympathetic with police officers having to make split-second decisions to stop somebody based upon a mistake of law.  In these situations, the officer, only needs a reasonable suspicion that there is a violation.  Perfection is not required.

Applicant For Sign Permit Has Burden Of Proof

A tornado swept through the City of Branson (City) destroying a lot of property including a non-conforming electronic off premise advertising sign (billboard).  The billboard was nonconforming because the City had revised its City Code to prohibit new off-premise advertising signs although it allowed existing off-premise signs to continue under the nonconforming use provisions of the Code that provided:

“70-17 (a) (2) Should such nonconforming sign or nonconforming portion of sign be destroyed by any means to any extent of more than 50 percent of its replacement cost at the time of destruction, it shall not be reconstructed except in conformity with the provisions of this chapter.”

The City inspector looked at a sign that was completely sheared at the base of the sign including the wing bolts with the remnants laying nearby in a tangled mess.  The City inspector considered the sign to be totally destroyed.  The owner of the sign (Owner) decided to repair the sign and submitted an application for a permit to repair the sign showing that the cost to replace the sign was $90,942 including a new base and foundation and that the un-itemized cost to repair was $42,500, except it showed that the replacement would use the existing base and foundation of the sign that was destroyed.

The City inspector rejected the request to repair the sign on the grounds that the damage to the billboard exceeded 50% of the structure.  The Owner appealed to the Board of Adjustment (BOA), which denied the request to repair based upon a finding that the pictures showed the sign was completely destroyed.  In addition, the BOA found that the estimate provided by the Owner “hovered at 50%” and was not substantiated by a independent contractor who did not have an interest in doing the work.

The Owner appealed the BOA decision to the circuit court, which reversed.  An appeal was taken to the Southern District by the City, which upheld the decision of the BOA.  The Southern District noted there was no way the BOA could determine the cost to repair was less than 50% of the cost to replace.

“Without an itemized figure to subtract out of the total replacement cost estimate for that non-applicable portion, the Board could not determine that the cost of repair was no greater than 50% of the cost of replacement.”

Even though the City inspector did not express an opinion as to the accuracy of the Owners cost of replacement or the cost of a new sign the Owner had the burden of proof to show that they were entitled to a building permit.  Dailey v. Bd. of Adjustment, 2014 WL 4964318 (SD32971, Oct. 6, 2014)

Court Can Not Infer Facts Not In The Record To Support Administrative Decision

Cushman requested a permit to renovate an existing nonconforming off-premise sign from the City of Branson (City).  The sign had a backlit billboard and a message board.  Cushman wanted to replace the backlit portion with a digital face sign, which would require some electrical modifications because the digital sign requires more electricity than the current backlit sign.

Cushman’s permit request was denied by the City because the proposed change would significantly enhance the sign’s capabilities by allowing for dynamic advertising through changing copy animation, etc., versus the current stationary advertising copy; It would increase the sign’s degree of nonconformity, thereby violating Section 70–17(a)(1) of the City Code which states: “No such nonconforming sign may be enlarged or altered in any way which increases its nonconformity.”

Cushman appealed to the Board of Adjustment (Board), which held a public hearing denying the request for a permit because:

The sign was not in the spirit of Section 70–17, in that it would change the face of the billboard to allow for multiple advertisements to be presented, as compared to the current status of only one advertisement.  Also, that the sign would likely require modernized electronics to be installed in order to support a modernized electronic billboard.  Finally, that the requested sign improvements would extend the life of the non-conforming use.

Cushman sought RSMo § 89.110 judicial review.  The circuit court overturned the Board’s decision as unsupported by law because Code § 70–17 does not prohibit the requested improvements, and arbitrary and capricious because the City has allowed others to convert signs from manually changeable to electronically changeable.  The Board appealed to the Southern District, which upheld the Circuit Court.

The Southern District reasoned that the wording of the grandfathering provisions of the City ordinance did not support the interpretation of the City and strictly construed the zoning ordinance against the Board because zoning ordinances are in derogation of the common law rights of property owners.

The Board argued on appeal that the decision of the Board should be affirmed even if it’s stated reasons were flawed because an “…appellate court may assume that all facts on which no findings were made were found in accordance with the result reached.” The Court rejected this argument stating that:

“In administrative review, the court is bound by the agency’s findings if supported by competent and substantial evidence and its scope of review is limited.  For a court to infer findings from the ultimate decision of an administrative agency defeats this limited review provision, as it allows the court to find both the law and the facts on appeal.”

Failure by the Board to present any evidence or argue at the hearing that another section of the City Code applied did not allow the court “to infer that an administrative agency found facts in accordance with the results reached.”  State ex rel. Cushman Properties, LLC v. Bd. of Adjustment of City of Branson,  2014 WL 6478610, at *1 (SD 33271, Nov. 19, 2014)

Comment Howard: One usually thinks that if an appellate court can find any reason to support a decision, even though the matter was not directly addressed, the decision will be affirmed.  In this case, the court prevents the use of this rule by limiting its application to facts in the record.

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