May Newsletter (Issue 05-2015)

flagMay Newsletter (Issue 05-2015)

  • Features:
    • Summer Seminar Reminder
  • Statutory Regulation of Nuisance
  • Overtime Pay

Summer Seminar

The Summer Seminar will take place July 10 – July 12. You can now register for this event.


REGISTRATION: $125 per person, includes reception and breakfast; $85 for first-time attendee. All registrations are to be made online, regardless of payment option. Additional breakfast tickets for family/friends may be purchased under optional tickets. You may register here:

HOTEL RESERVATIONS: Reservations should be made directly with the Lodge of Four Seasons by calling 888-265-5500. Traditional Room rate is $129. Deadline for room reservations is June 9, 2015. Cancellations must be made within 72 hours or one night’s room and tax will be charged. There is a $10 per day resort fee.

No Taking By Restricting The Common-Law Right To Non-economic Damages For A Public Nuisance

UnknownSection 537.296 RSMo. went into effect on August 28, 2011.  The statute supplants the common law of private nuisance in actions where the “alleged nuisance emanates from property primarily used for crop or animal production purposes.”  Unlike a common law private nuisance action, Section 537.296 precludes recovery of non-economic damages for items such as loss of use and enjoyment, inconvenience, or discomfort caused by a crop or animal production nuisance.  Instead, the statute only authorizes the recovery of economic damages in the form of diminution in the market value of the affected property as well as documentimagesed medical costs caused by the nuisance.

In September 2011, just days after Section 537.296 became effective, Bohr Farms began operating a CAFO that can accommodate more than 4,000 hogs.  Bohr Farms owns and operates the CAFO while Cargill owns the hogs and Bohr raises them.  The CAFO includes an on-site sewage disposal system as well as a system for composting deceased hogs.

Several landowners (Landowners) owned or possessed property in Callaway and Montgomery counties located near the CAFO.  Landowners filed suit against Cargill and Bohr (Defendants) alleging that the CAFO caused offensive odors, particulates, pathogens, hazardous substances, flies, and manure to “escape” onto their property, which would constitute noneconomic damages under the common law thereby constituting a temporary nuisance that substantially impairs the “use and quiet enjoyment” of their property.  Section 537.296 limits the right to recover non-economic damages for a temporary nuisance.  Appellants did not claim damages for diminution in rental value or documented medical costs as authorized by Section 537.296.2(2).

Defendants filed a motion for summary judgment asserting that Section 537.296.2(2) foreclosed Landowners claim for use and enjoyment damages asserting that Landowners claim for negligence and conspiracy was barred by section 537.296.6(1), which provides that damages for “annoyance, discomfort, sickness, or emotional distress” are recoverable “provided that such damages are awarded on the basis of other causes of action independent of a claim of nuisance.”  Defendants motion for summary judgment was granted and the Landowners appealed to the Missouri Supreme Court, which affirmed.

No Taking for a Private Purpose: The Missouri Supreme Court held that there was no taking for a private purpose because “…the plain language of Section 537.296.2 does not delegate any authority to private parties or authorize any landowner to create a nuisance.” “To the contrary, the statute provides that a nuisance is unlawful and authorizes the party suffering a nuisance to recover damages.”  In addition, “…regulations enacted to promote economic development generally have a valid public purpose sufficient to satisfy the public use requirement.”  “More specifically, this Court has held that promoting the agricultural economy is a legitimate public purpose.”

Statute Does Not Authorize a Taking for a Public Use Without Just Compensation: The Landowners argued that the statute was a regulatory taking without just compensation because it required that all nuisance claims subsequent to the initial temporary nuisance claim be “considered a permanent nuisance.” In addition, limiting temporary nuisance damages to the rental value of the property by barring recovery of specific damages for loss and use and enjoyment of Landowners property was not a taking without just compensation because of the other provisions in the Act.

“By authorizing a plaintiff to recover the diminution in rental value in a temporary nuisance, Section 537.296.2(2) provides for the constitutionally required just compensation in the event that the alleged temporary nuisance amounts to a temporary taking of private property.”

Other Claims: Landowners claims with respect to denial of equal protection are not warranted because there was no suspect classification requiring strict scrutiny, therefore, application of the “rational–basis review” shows that the Landowners failed to show that the statute was arbitrary and irrational.  There was no violation of due process, separation of powers nor was there a valid claim for negligence and conspiracy against the Defendants. Other kitchen sink arguments by the Landowners also failed.

Easement Claim: The Landowners claimed that the actions of the Defendants created an easement that allowed the Defendants to pollute Landowners property.   The Court determined that this claim was not ripe for consideration because there was no “immediate, concrete dispute” since the Landowners were seeking damages for a temporary nuisance, not allowed by the statutes for reasons stated above although the court reserved judgment on the easement issue, in the event there is a justiciable controversy. Labrayere v. Bohr Farms, LLC, (SC 93816, 4/14/ 2015) 2015 WL 1735494

Comment Howard: Certainly this case now becomes the leading case for regulatory takings under Missouri law. I have great difficulty with this case because the court allows a private property owner to pollute other properties based on the principle that promoting agriculture is a public use.  While it is easy for the judges to hide behind the regulatory scheme the reality is that this is big stretch under earlier public purpose cases and has extremely broad implications.  One Judge had a significant shout out for the principle that no one should be a judge “… who does not understand hogs, or hasn’t been around a manure pile.”  This analysis fails to consider the significant impact caused by the pollution from an industrialized hog farm that can feed more than 4,000 hogs. This is not your grandfathers hog farm.


Rule Does Not Impute The Conflict Of A Lawyer Currently Serving As A Government Officer Or Employee To Other Associated Government Officers Or Employees.

Lemasters (Defendant) was charged with sodomy.  The trial court appointed the Missouri State Public Defender System (“MSPD”) to represent Defendant and the case was assigned to Cheney.  Cheney was involved in a number of preliminary matters concerning the defense of the Defendant, during which she wrote an unfavorable memorandum concerning Defendants relatives.  Approximately one month after Cheney was appointed to represent the Defendant, she was hired by the Newton County Prosecuting Attorneys office (NCPAO).  Prior to leaving MSPD she prepared a transfer memorandum to MSPD attorneys who would be representing Defendant.

The Defendant moved to disqualify the entire NCPAO office from participating in Defendants case based upon Cheney’s earlier representation of the Defendant at the MSPD.  While working for the NCPAO Cheney did not participate or discuss with any of the attorneys in the NCPAO her representation of the Defendant.  The trial court ruled that Cheney was disqualified, but overruled Defendants motion with respect to the rest of the NCPAO.  After was convicted the Defendant appealed to the Missouri Supreme Court on the grounds that Cheney’s conflict should be imputed to the NCPAO and even if the conflict was not imputed to NCPAO the participation by the NCPAO constituted an appearance of impropriety under the Canons of Ethics.

Imputing Conflict to the NCPAO: With respect to whether or not Cheney’s conflict should be imputed to the NCPAO the Court analyzed the Rules holding that under Rule 4–1.11(d) a current governmental attorney is prohibited only from representing the government in a matter in which the lawyer participates personally; therefore, since Cheney did not participate in the prosecution of the Defendant she had no conflict under that Rule.  In addition, the comments to Rule 4–1.11(d) specifically state that the Rule “…does not impute the conflict of a lawyer currently serving as a government officer or employee to other associated government officers or employees, although ordinarily it will be prudent to screen such lawyers.”  Therefore, NCPAO was not prohibited from prosecuting the Defendant.

Appearance of Impropriety: With respect to whether or not there is an appearance of impropriety there were no facts to show, if known to a reasonable person, that it would create an appearance of impropriety with respect to the fairness of the trial.  The evidence showed that the trial court found that the facts precluded any appearance of impropriety.  The Court noted that in certain situations, particularly where the chief prosecutor was involved in an earlier representation of the defendant, the outcome could be different.  There was no abuse of discretion by the trial court in overruling Defendants motion to disqualify the entire NCPAO.  State v. Lemasters, (SC 94295, 2/24/2015) 2015 WL 778400.

Comment Howard: My recollection is that Supreme Court opinions on matters of conflicts in governmental offices are pretty rare. This opinion is very useful in determining whether or not the entire office is disqualified from representation or if the disqualification is limited to a particular attorney who participated in an earlier matter as a governmental lawyer.

SOL For PTSD Begins To Run From The Time That It Is Capable Of Ascertainment, Which Did Not Occur Until It Was Diagnosed.

Mr. Behan (Behan) firefighter for the Fire Department of the City of St. Louis (Fire Department) was transferred to the fire marshal’s investigative unit in 1995.  During his nineteen-year tenure with the Fire Department, Behan investigated as many as 1011920742,000 fires and 50 fatalities.  Behan suffered no psychological disabilities prior to joining the Fire Department.

On May 3, 2002, Mr. Behan responded to a second alarm for a fire at the Gravois Refrigeration Company.  In their efforts to extinguish the fire two of Behan’s co-workers and friends died. Behan’s investigation of this fire involved photographing the scene, interviewing witnesses, and seizing Mr. Morrison’s and Mr. Martin’s gear.  Behan did not note any changes in his behavior immediately following the May 2002 fire.

In late 2007, Behan received a subpoena to testify in a deposition for a wrongful death action arising from the May 2002 fire.  In preparation for his deposition, Behan studied photographs, reviewed the autopsy reports, and listened to the audio recordings “over a hundred times … in order to create a timeline and put everything in place.”  The audio recordings included “everything that transpired on radio, from the first calls concerning the fire, the dispatches, every company striking on the scene, communication between the companies, … any radio calls for distress, and everything clear through till [sic] the end of the incident,” including Mr. Morrison’s and Mr. Martin’s “dying pleas.”

In early 2008, after providing the deposition testimony, Behan began to suffer phobias, nightmares, difficulty sleeping, and suicidal ideation, and his “drinking increased significantly.”  In March 2008, Behan experienced his first “major panic attack” while riding an escalator at Busch Stadium.

Behan first visited Mary Carol Strauss–Barrett, a licensed clinical social worker, on April 28, 2008 at which• time it is reasonably capable of ascertainment she diagnosed Behan with symptoms of post-traumatic stress disorder (PTSD), and she began counseling him two to three times per week.  On May 18, 2008, Ms. Strauss–Barrett concluded that Behan suffered “Single PTSD,” a substance abuse disorder, and a co-morbid mood disorder.

Behan filed a request for a duty connected disability with the Fireman’s Retirement System of St. Louis (Board) on August 24, 2011, which request was denied after a hearing based upon the untimely filing of the request for a duty connected disability because the PTSD was capable of ascertainment on or about May 3, 2002, when the fire occurred.  Section 516.120.2 RSMo. provides that a claim for accidental disability retirement is subject to a five-year limitations period.  Behan appealed the Boards decision to the circuit court, which ruled for the Board and Behan appealed to the Eastern District.

The Eastern District reversed holding that the test for determining when the statute of limitations begins to run is when the PTSD was capable of ascertainment, which did not occur until Ms. Strauss–Barrett diagnosed it on April 28, 2008.

The Diagnostic and Statistical Manual of Mental Disorders (Manual) includes as one of the essential features of PTSD development of characteristic symptoms following exposure to an extreme traumatic stress or involving direct personal experience of an event involving unexpected or violent death to a close associate. In addition, the Manual states that there may be delayed onset because the symptoms of PTSD may remain dormant for at least six months or more.  The Eastern District determined that the undisputed evidence before the Board was that the PTSD symptoms were first presented in March 2008, when Behan began suffering phobias, nightmares, and anxiety attacks.  The test is “when a reasonable person would have been put on notice that an injury and substantial damages may have occurred and would have undertaken to ascertain the extent of the damages. ” Behan v. Firemen’s Ret. Sys. of St. Louis, 452 S.W.3d 218, (ED101139, 12/23/2014).

No Due Process Violation For Refusal To Grant Employee A Continuance Because Of The Unavailability Of His Attorney.

Draper was hired as City Administrator and entered into a three-year employment contract with City of Festus (City) on October 27, 2010, which provided for six months’ severance pay if he was terminated without cause.  If he was terminated with cause, defined as misfeasance, malfeasance, or an act constituting gross dereliction of duty then he was not entitled to any severance pay.

Six months into his contract Draper received notice from the City that he was suspended with pay pending a City Council meeting to discuss several allegations regarding his job performance. He responded in writing, and after the City Council meeting, he was terminated.  Thereafter, he requested a public hearing before the City Council, which was scheduled for June 27, 2011, at 1:00 p.m..  On June 2, 2011, six days after receiving notice of the hearing, Draper’s attorney notified the City that he had a conflict and asked that the hearing be postponed until 4:00 p.m. on June 27, 2011.  The City refused to reschedule the hearing.  On June 13, 2011, Draper’s attorney again requested a continuance, which the City denied.  The hearing took place at 1:00 p.m. on June 27, 2011, as scheduled and the City presented testimony after which the City Council issued a written decision making specific findings with respect to a cause for termination.  Neither Draper nor his attorney was present at the public hearing.

Thereafter Draper filed a lawsuit in federal district court alleging violation of his constitutional rights to procedural and substantive due process under the 14th amendment.  Draper also sought judicial review of the City Council’s decision to terminate him under the Missouri Administrative Procedure Act.  The District Court granted summary judgment to the City on its motion for summary judgment and Draper appealed to Eighth Circuit, which held that refusal of City to reschedule a post-termination hearing did not deprive Draper his procedural-and substantive-due-process rights and that he was not entitled to review of the administrative decision to terminate since that was a contested case under Chapter 536 RSMo.

“A public employee with a protected property interest in continued employment receives sufficient due process if he receives notice, an opportunity to respond to the charges before his termination, and post-termination administrative review. “[A]n employee waives a procedural due process claim by refusing to participate in post-termination administrative or grievance procedures made available by the state.”  The City’s denial of his attorney’s request to reschedule the hearing did not constitute a deprivation of Draper’s Fourteenth Amendment right to procedural due process.  Draper v. City of Festus, Mo., 782 F.3d 948, 950 (8th Cir. 2015)

Learned Professional Not Entitled To Overtime.

Sherry Yihui Weng (Employee), claimed that she was entitled to overtime pay at 1 1/2 times her hourly rate and that Washington University (Employer) retaliated against her by terminating services when she made a claim for overtime pay under the FLSA.

Sax_1448658iEmployee claimed that her Employer owed her overtime pay for hours in excess of 40 hrs. per week, at time and a half because she was not an exempt employee under the FLSA, learned professional exclusion to the minimum wage laws.  The FLSA exempts employees from the overtime provisions in excess of 40 hours per week for employees who are employed in a professional capacity.  Employee also claimed that after she made her claim for overtime pay that the Employer retaliated against her by terminating her services.  Employee filed suit in circuit court claiming that she was entitled to overtime pay under the FLSA and that the Employer retaliated against her by terminating her services after she made her claim for overtime.  The Employee contended that she was basically a technician following protocols and did not exercise any creativity in her work at the lab and she was not working as a learned professional.

The trial court ruled against the Employee by sustaining the Employers motion for summary judgment and the Employee appealed to the Eastern District, which affirmed the trial court’s decision.

The Eastern District noted that in order to qualify for the learned professional exemption under the FLSA the employee’s primary duties must be the performance of work requiring advanced knowledge in a field of science or learning acquired by specialized intellectual instruction.  The primary test requires that the employee must perform duties requiring advanced knowledge; in a field of science or learning; and that the advanced knowledge must be customarily required by a prolonged course of specialized intellectual instruction.  She met all of these conditions.

The job duties of the Employee showed that she managed the mice colony; independently weaned, kept, sacrificed and separated mice; and assured that all of the relevant protocols and requirements were followed.  Appellant made decisions and deductions based on observation, analysis and interpretation in conducting her research.  She monitored data to assure consistent quality by recording it and analyzing it.  She compared and evaluated DNA markers by looking at bands in order to determine if she had correct recombined clones.

With respect to her contention that she was basically a technician the Eastern District concluded that the duties described above constituted the work of a learned professional and that she was qualified as a learned professional because of her education and degree, which was equivalent to a PhD and that the work she performed required her to exercise judgment. The court noted that creativity is not one of the requirements in the FLSA for a learned professional.

The record clearly showed that the actions of the Employer took place prior to the action to terminate her services and as a result there was no retaliation.  Weng v. Washington Univ., (ED101420, 4/28/2015) 2015 WL 1915125.

Lake St. Louis Prevails Based Upon Valid Survey And Prior Jurisdiction.

After the Missouri Supreme Court held in City of Lake Saint Louis v. City of O’Fallon, in 2010 that quo warranto was not the exclusive remedy to determine a boundary dispute between two municipalities and that a municipality could bring a declaratory judgment directly against a municipality to determine a boundary dispute the City of O’Fallon (O’Fallon) filed a counterclaim against Lake St. Louis for declaratory judgment seeking a declaration that O’Fallon annexed the properties in dispute.

The parties then moved for summary judgment.  Lake St. Louis attached to its motion for summary judgment a survey that provided a metes and bounds description and a survey based upon the legal description in the original petition for annexation filed in 1978 showing that the northern boundary of the metes and bounds description was the same as the description filed with it petition for annexation in 1978.  O’Fallon did not file a survey nor did it dispute the survey provided by Lake St. Louis.

The trial court found the 2013 survey attached to the Lake St. Louis petition was the only survey of Lake Saint Louis’s northern boundary and that O’Fallon could not annex any portion of the incorporated area of Lake St. Louis; therefore, O’Fallon’s attempt  to annex property south of the boundary line depicted in the 2013 survey were invalid, improper, and failed as a matter of law.  The trial court granted Lake St. Louis’s motion for summary judgment.

O’Fallon appealed to the Eastern District, which upheld the trial court’s decision.  Since  Lake St. Louis had established that it had started the annexation of the property in dispute in 1978 and had completed the annexation in 1982 it had prior jurisdiction to the exclusion of O’Fallon. City of Lake Saint Louis, Missouri v. City of O’Fallon, Missouri,  (ED 102003, 4/28/2015) 2015 WL 1915205,

Comment Howard: This case has an excellent discussion of what is required with respect to the description of the area to be annexed under the annexation laws and cases pertaining to surveying rules. In addition, there is a good discussion of prior jurisdiction, the key element with respect to annexation of property by a municipality.

Order Of Condemnation Of Dangerous Building Was Void For Failure To Include Findings Of Fact.

In the summer of 2008, McNeill purchased property containing a building located in Kansas City.  At the time of the purchase, the building was on the City’s dangerous buildings list and had been since August 2001, when an order to demolish the building was issued by the City’s Neighborhood and Community Services Department.  McNeill began to renovate the building by obtaining architectural plans, reframing the building, installing new subfloors, re-decking the roof, and demolishing the building’s brick and concrete front porch.  After McNeill’s bank backed out of a construction loan, work on the building stopped, and McNeill sought alternative financing.

In June 2009, the City sent a letter to McNeill instructing him to remove debris and weeds on the property and he complied with that request.  In July 2009, McNeill received a preliminary commitment from a lender for a construction loan and on August 8, 2009, the City demolished the building.

Immediately after the demolition McNeill filed a petition for wrongful demolition. Central to the issues in this case was the 2001 order of demolition of the building and a decision in 2002 involving another building condemned by the City, which held that a demolition order of the building that did not include findings as mandated by the City Code was invalid (Woodson v. City of Kansas City, Missouri).  The 2001 order of demolition of the McNeil’s building also did not contain findings of fact just like the Woodson case.

After discovery and an attempt to obtain orders of condemnation of other buildings (to determine if the City deliberately avoided correcting other condemnations of buildings after the Woodson decision) the trial court sustained a motion in limine excluding the demolition order from being admitted in the trial based on the fact that the order in 2001 of the building in this case did not contain findings of fact as required by the City Code and as a sanction for not complying with the discovery request of McNeill for information on other condemnationsAt trial, the jury awarded McNeil damages in the amount of $206,000 in compensatory damages and the City appealed to the Western District, which affirmed the trial court’s decision. The City contended that the administrative decision made by the city in 2001 when it issued its order of condemnation was not subject to collateral attack, because it was a final administrative order.

The Western District held that the demolition order was void because it was in excess of the City’s delegated authority pursuant to its own ordinances; therefore the demolition “…order was void, and not merely erroneous or voidable.”  Since the demolition was void it was subject to collateral attack.  McNeill v. City of Kansas City, (WD 77732, 4/28/2015) 2015 WL 2058729.

Comment Howard: This is an extremely important and dangerous case requiring city staff and attorneys involved in condemnation of dangerous buildings to pay particular attention to actions taken pursuant to dangerous building ordinances and be sure that they comply with Code provisions.


One thought on “May Newsletter (Issue 05-2015)

  1. I agree with you on the nuisance case. This is one of the few times when a plaintiff might be better off in federal court if they could get around abstention.

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