Nuisance Property

Mr. Robert Ontman (“Ontman”) acquired a property from Neighborhood Legal Support (NLS) with the understanding that Ontman would rehabilitate the property.  NLS determined that Ontman had failed to rehabilitate the property and NLS filed a private nuisance lawsuit.  Ontman denied that his property was a nuisance and requested the private nuisance claim be dismissed.  NLS was granted by the court a right to inspect the property prior to trial and the parties then subsequently agreed to an additional inspection. The parties did not reach a resolution after the inspections.  After the case proceeded to trial, the court denied Ontman’s motion to dismiss and subsequently held that the property constituted a nuisance. Ontman appealed the trial court’s decision.

On appeal Ontman alleged that NLS lacked standing.  The Western District disagreed and stated that Section 82.1025.2 RSMo. confers a right to bring a private action for nuisance to any person or entity who owns property within twelve-hundred feet of the alleged nuisance property.  The court also found that Ontman was not denied his right to due process because his allegation that 1) he was not given enough time, 2) the judge interfered with his case by interrupting him, 3) and he was prejudice by the judge failing to rule on his pretrial motions did not establish his claim.  Due process provides the right to a meaningful opportunity to be heard, and procedural due process requires the opportunity to be heard at a meaningful time in a meaningful manner. The record shows that Ontman was given an opportunity to be heard but declined to present additional evidence after the court provided Ontman the opportunity to present evidence. Ontman failed to object or raise any objection at the trial to any conduct Ontman believed was unfair.  There was not an example of the unfair conduct preserved for the appeal.  

Ontman on appeal argued that the court should not have permitted any evidence from NLS inspections, asserting that only government entities may perform inspections related to nuisance complaints and the inspections permitted by the court violated his Fourth Amendment rights, due process rights, property rights, and Fifth and Fourteenth Amendment rights.  The Western District provided that the civil litigation system provides a discovery process overseen by a judge which balances privacy right with the need for parties to be able to obtain relevant factual information relating to. The elements of a cause of action alleged in a lawsuit and in this matter the court permitted inspections which were reasonable in light of the facts alleged.

The Western District Court upheld the trials court’s decision that there existed five violations which included (1) “missing and damaged siding, including holes in the walls”; (2) “missing, broken, and improperly installed windows”; (3) “major water damage on the interior”; (4) “foundation and structure problems”; and (5) “trash and construction materials improperly stored.”  The court noted the violations were supported by photographs admitted into evidence and the violations are so obvious that a person without any specialized training would be able to identify the violations.  Neighborhood Support v. Ontman, (WD87057, 6/3/2025)

ADA Insurance

Karyn Stanley (Stanely) was hired as a firefighter for Sanford, Florida (City) in 1999.  In 2018, Stanley retired due to a disability.  When Stanley was hired the City offered health insurance to retirees with 25 years of service until the age of 65 and insurance to employees who retired because of a disability.  The City changed its policy in 2003 and would only provide insurance for 24 months to individuals who retired due to a disability.  Stanely sued the City because she retired due to a disability and was only permitted to have 24 months of health insurance.  Ms. Stanely alleged the policy violated the ADA and other state and federal laws due to the policy being an impermissible discrimination based on disability.  The City filed a motion to dismiss, and the trial court dismissed the case on the ground that Ms. Stanley failed to state a claim because the ADA §12112(a) does not reach allegations of discrimination against a retiree “who does not hold or desire to hold an employment position” that she is capable of performingwith reasonable accommodation. The dismissal was affirmed by the Eleventh Circuit Court of Appeals, but the Eleventh noted that there existed a split on this issue with the Second and Third Circuit taking a different view from the Eleventh, Sixth, and Ninth Circuits.

The United States Supreme Court took up the case settling the split between the different circuits.  The court held “that a plaintiff must plead and prove that she held or desired a job and could perform its essential functions with or without reasonable accommodation, at the time of an employer’s alleged act of disability-based discrimination.” A “qualified individual” is someone “who, with or without reasonable accommodation, can perform the essential functions of the employment position that [she] holds or desires.” §12111(8). Congress’s use of present-tense verbs (“holds,” “desires,” “can perform”) signals that §12112(a) protects individuals able to do the job they hold or seek at the time they suffer discrimination, not retirees who neither hold nor desire a job.  The judgment of the Eleventh Circuit was affirmed.  Stanely v. City of Standford, (23-997, 1/13/2025)

Earnings Tax

Ventas Inc. (Ventas) owns over 1,200 real estate investment assets including four medical office buildings in Kansas City.  Ventas alleged that from 2017 from 2021 the City of Kansas City (City) erroneously imposed an earnings and profits tax on rental income from investment properties that are not subject to the City’s tax under Kansas City Code Section 68-382.  Ventas paid the taxes under protest and subsequently filed an action against the City.

The crux of Ventas’s argument was that Ventas does not manage the properties.  The properties at issue in Kansas City are managed by employees of a real estate investment trust (REIT) affiliate which Ventas owns as a passive investor.  The rent, capital gains, dividends and interest income are unearned income and are not earned from activity conducted by Ventas in Kansas City.  In addition, Ventas pays out at least 90% of its taxable income as dividends which permits it to not having any federally taxable income, and Ventas argues that dividend is a necessary expense to the operation of Ventas as a REIT and must be considered in calculating Ventas’s earnings for Kansas City tax purposes.  

The City subsequently advised Ventas that its returns were incomplete and that business deductions being made by Ventas should not include a deduction for dividends paid to partners and owners as they are not considered a necessary business expense under the City code and that Ventas owed a balance of $90,622.24.

Upon summary motions by both the City and Ventas the trial court denied Ventas’s motion for summary judgment and entered a judgment in favor of the City.  The trial court determined that the rental income from the real estate is a business activity, earned income, and subject to the earning tax.

Ventas appealed the trial court’s decision alleging the court 1) misinterpreted Kansas City Regulation 1.382(e)(4) to incorrectly conclude that Ventas’s receipt of rental income from real estate held as investments as a real estate investment trust (“REIT”) is a business activity subject to Kansas City’s earnings tax; 2) misinterpreted Kansas City Ordinance § 68-381 to incorrectly conclude that Ventas’s federally required dividend paid deductions are not deductible expenses in calculating Kansas City’s earnings tax; 3) erred in upholding the assessed interest and penalties. 

On Point I, the court held that it was clear from the record that the business Ventas operates in Kansas City is a real estate business. While Ventas may choose to structure its business to meet REIT’s qualification criteria for tax purposes, a failure to meet REIT criteria would not divest Ventas of title to its real estate or cause the rent from that real estate to no longer be collectible. An election by a business to be treated as a REIT for federal tax purposes may be revoked or terminated and may never come to fruition if REIT qualifications are unmet. Without REIT status, Ventas would still be a business with income generated by real estate that Ventas owns as investments.

On Point II the court concluded that Ventas is a business entity that structures itself to qualify as a REIT for federal taxation purposes. Ventas does not generate its gross profits at the four medical buildings in Kansas City from being a REIT, but from the rental income of its real estate business. The 90% dividend payment requirement is to maintain REIT status. It is not an expense necessary to operate the real estate business and generate the taxable income which is converted to dividends and paid out to investors.

On Point III the court concluded that there existed material fact at issue and that summary judgment was granted in error on the penalties.  The City had argued that the penalties were mandatory and that there did not exist any discretion to waive the penalties.  The court disagreed and the court remanded the matter to determine if there existed special circumstances warranting the waiver of the penalties.  Ventas Inc., v. Kansas City, (WD87288, 6/3/2025)

Courtroom Conduct Admissible

Narvel Harmon (Harmon) was charged with first degree harassment and first degree burglary after he went over to a family members house and threatened to kill family members and burn down their house.  At the preliminary hearing Deputy Huett saw Harmon make a gesture toward the victim.  The deputy saw Harmon raise his hand under his chin and move his thumb in a trigger like manner.  The deputy testified to his observations of the preliminary hearing at the trial.  The defendant objected to that evidence being heard at trial.  During closing arguments, the prosecutor told the jurors that if they had any doubt their doubt should be expelled by the defendant’s conduct at the preliminary hearing where he threatened the victim.  The defendant was found guilty of harassment.  The defendant appealed the verdict arguing the trial court wrongfully admitted testimony from the deputy about the gesture at the preliminary hearing. 

The Eastern District provided that “evidence must be logically and legally relevant to be admissible and evidence is logically relevant if it tends to make the existence of a material fact more or less probable. Evidence is legally relevant when its probative value outweighs ‘unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or cumulativeness.” Conduct and declarations of a defendant that are relevant to show consciousness of guilt or a desire to conceal the offense are admissible because they tend to establish the defendant’s guilt of the charged crime. Evidence that the defendant threatened a witness was admissible to show consciousness of guilt.” 

The circuit court did not err in admitting evidence of a defendant’s conduct or declarations that reasonably can be interpreted as threatening harm to a witness. Missouri v. Harmon, (ED112815, 7/28/2025)

Illegal Towing

Opia Muntagim (Muntagim) operated a taco truck in the Kansas City region.  One day she left her truck on an abandoned Dollar General parking lot.  She and other individuals had previously left their vehicles on this lot without issue or warning.  The lot was not posted but her vehicle was towed by Haney’s Trucking which had a contract to remove unlawfully parked vehicles on the property.  Muntagim was not present when her taco truck was towed and reported the vehicle stolen.  She subsequently learned the vehicle had been towed by Haney’s Trucking.  The property owner that authorized the towing was not present when the vehicle was towed and had authorized Haney’s Trucking to tow vehicles by submitting an authorization form via email.  

Muntagim argued that Haney’s and the property owner violated Missouri law when they towed the vehicle without the required signage and the vehicle was towed when the property owner was not present.  Haney’s kept the taco truck for almost 2 years and when the truck was returned it was looted and destroyed.  Muntagim filed suit and obtained a judgment against Haney and the property owner. Not only did the plaintiffs obtain a judgment of around $226,000 but they obtained punitive damages in the amount of $6,900,000.00 .  Opia Muntagim v. Haney’s Trucking, (2316-CV07088, 6/30/2025); Fox KC

At Will Employment THC

Kelly Flannery (Flannery) was an employee at Peco Foods Inc. As a condition of his employment, he was required to submit to a drug screening test.  Flannery tested positive for THC and Flannery was discharged. Flannery blamed a CBD oil he was using for back pain and alleged that the THC level was below the threshold listed in the employee manual.  On summary judgment the trial court rejected Flannery’s claims and dismissed his action.

On appeal the Eighth Circuit found that Arkansas follows the at-will employment doctrine.  Under the at-will employment doctrine an “employer can discharge an employee at any time for good cause, no cause, or even a morally wrong cause.”  There is a narrow exception under the at-will employment doctrine which permits a cause of action for a wrongful discharge claim when the employee is fired in violation of a well-established public policy of the state.  Flannery failed to plead prior to summary judgment any claim that Flannery was discharged for a protected reason that was a well-established public policy. The Eighth Circuit concluded the trial court did not abuse its discretion when it dismissed an unpled, unsupported, and untimely claim that Flannery was discharged in retaliation for him taking time off for a back injury he sustained at work.

Flannery also argued that the employee manual created a dismissal-for-cause requirement.  However, there was no evidence the manual contained an express provision stating the employee will only be dismissed for cause.  In fact, the manually expressly stated that either party could end the relationship at either time.

The 8^th Circuit affirmed the trial court’s judgment.  Flannery v. Peco Foods, Inc., (8^th 24-2429, 8/25/2025)

Important Events And News

IMLA Events: 

IMLA Annual Conference In New Orleans October 17- October 21, 2025

Civic Leaders Internship Program

The Office of Community Engaged Learning (CEL) at Mizzou places students from across campus in government, public policy, public service, and civic internships via the Civic Leaders Internship Program, known as CLIP.  This gives students exposure to government career opportunities ranging from cities and counties to state and federal. These opportunities grow student skills, professionalism and understanding of civic careers.  We have received many requests from students after these internships that now have a desire to attend law school or are minoring in pre-law to help them find undergraduate law internships.  We are asking you to help us with that pursuit.  

This experiential learning builds confidence in the students that studying law is right for them.  It exposes them to a specialty area of law to determine that fit as well. You benefit by potentially finding a future fit for your firm. The internships build critical thinking skills and a knowledge base students will rely on for the rest of their lives. Bringing on an intern also allows the firm to obtain a new perspective on the goals important to the next generation lawyers.  One of our undergraduate legal placements had this to say about their experience “I never would have expected to have gained so much from this program as it has not only built my skill set and resume but continues to provide me with opportunities connections.”

Undergraduate students might not seem like a natural fit in the legal field having not attended law school, but these students are hungry to learn and willing to work toward their legal goals. Feedback from past participants said “As far as preparing for the LSAT, I would say that my time in CLIP helped me improve my argument reasoning skills and helped me learn to read more analytically, both very important skills for the exam. Our office has placed students with the Missouri Public Defenders offices, Missouri Attorney Generals summer internship program, and the Boone County district courts as some examples.  Students have done a wide range of jobs from filing, research and document review and court preparation.  Students have gone to court and assisted the legal team and made prison visits with lawyers to meet with clients.  

This exposure to the legal field helps students understand the legal process up close but also allows them to determine the areas of law that best fit them and their skill set.  The student intern then brings that experience back to the classroom where they can apply what they learned hands on to the theory of their degree plan. This model reinforces learning and thinking at a deeper applied level.  Beyond the learning, students experience a professional legal environment in every aspect. Not to mention the network that they are building toward their own future legal career.  We believe this will create a better prepared student to apply to law school and hopefully students that positively impact your firm and our society.

If you are interested in expanding the legal opportunities for future lawyers, please contact me at cfollis@missouri.edu to help students learn, serve, network, and grow. 

Dr Chad Follis

Director, CLIP program MU