Labrayere v. Bohr Farms, LLC

• Decision Date: 14 April 2015
• Docket Number: No. SC 93816,SC 93816
• Citation: 458 S.W.3d 319
• Parties: Linda Labrayere as Trustee of the Don E. Labrayere Trust, et al., Appellants, v. Bohr Farms, LLC, et al., Respondents.
• Court: Missouri Supreme Court

458 S.W.3d 319

Linda Labrayere as Trustee of the Don E. Labrayere Trust, et al., Appellants

v.Bohr Farms, LLC, et al., Respondents.

No. SC 93816

Supreme Court of Missouri, en banc .

Opinion issued April 14, 2015

The property owners were represented by Anthony L. DeWitt, Edward D. Robertson Jr. and Mary Doerhoff Winter of Bartimus Frickleton Robertson & Goza PC in Jefferson City, (573) 659-4454; and Charles F. Speer, Peter B. Bieri and Charles D. Miller Jr. of the Speer Law Firm PA in Kansas City, (816) 472–3560.

Bohr Farms was represented by D. Keith Hanson of Paule, Camazine & Blumenthal PC in St. Louis, (314) 244–3628.

Cargill Pork was represented by Jacob D. Bylund of Faegre Baker Daniels LLP in Des Moines, (512) 248–9000.

The state attorney general, who filed a brief as a friend of the Court, was represented by Solicitor General James R. Layton and Thomas M. Phillips of the attorney general's office in Jefferson City, (573) 751-3321.

The National Pork Producers Council and Missouri Farmers Care, which filed a brief as friends of the Court, were represented by Jean Paul Bradshaw II, Kurt U. Schaefer and Chad E. Blomberg of Lathrop & Gage LLP in Kansas City, (816) 292-2000; and Eugene E. Matthews III and Tennille J. Checkovich of McGuire Woods LLP in Richmond, Virginia, (804) 775-1000.

Opinion

Richard B. Teitelman, Judge

Several landowners and other individuals (Appellants) filed suit against Cargill Pork LLC and Bohr Farms (Respondents) alleging damages for temporary nuisance, negligence, and conspiracy due to alleged offensive odors emanating from a concentrated animal feeding operation (CAFO) owned and operated by Bohr Farms. Appellants alleged that their damages for temporary nuisance consisted solely of the loss of use and enjoyment of their property. Appellants admitted that they were not claiming damages for diminution of rental value or documented medical conditions as authorized by section 537.296.2(2) and section 537.296.2(3).¹ Appellants also asserted that Bohr Farms was negligent, that Cargill was vicariously liable for the nuisance and negligence, and that Bohr Farms and Cargill engaged in a civil conspiracy.

The circuit court entered summary judgment for Respondents. The court determined that section 537.296 was constitutional and that the statute did not authorize an award of damages for Appellants' alleged loss of use and enjoyment of their property. The court also denied recovery on Appellants' negligence and civil conspiracy claims. This appeal follows.

Appellants argue that section 537.296 is unconstitutional because the statute: (1) violates article I, section 28 of the Missouri Constitution by authorizing a private taking; (2) violates article I, section 26 of the Missouri Constitution by authorizing a taking for public use without just compensation; (3) violates the equal protection clause of the state and federal constitutions; (4) denies substantive due process and violates article I, section 2 of the Missouri Constitution ; (5) violates the separation of powers required by article II, section I of the Missouri Constitution by statutorily defining “standing;” (6) violates the open courts provision of article I, section 14 of the Missouri Constitution ; and (7) violates the prohibition against special laws set forth in article III, section 40 of the Missouri Constitution. Appellants also assert that the trial court erred in granting summary judgment on their claims for negligence and conspiracy because there was a genuine issue of material fact regarding the level of control that Cargill exerted over Bohr.

The judgment is affirmed.²

I. Background

Section 537.296 went into effect on August 28, 2011. The statute supplants the common law of private nuisance in actions in which 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 the nuisance.³ 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 documented 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. 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.

Appellants own or possess property in Callaway and Montgomery counties. The properties are located near the CAFO. Appellants filed suit against Cargill and Bohr alleging that the CAFO causes offensive odors, particulates, pathogens, hazardous substances, flies, and manure to “escape” onto their property. Appellants alleged that the offensive emissions constitute a temporary nuisance that substantially impairs the “use and quiet enjoyment” of their property. Appellants did not claim damages for diminution in rental value or documented medical costs as authorized by section 537.296.2(2).

Respondents filed a motion for summary judgment asserting that section 537.296.2(2) foreclosed Appellants' claim for use and enjoyment damages. Respondents also asserted that Appellants' claim for damages 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.” Respondents asserted that negligence and conspiracy claims are not “independent of a claim of nuisance” because they are based on the alleged nuisance.

In response, Appellants asserted that section 537.296 violated several constitutional provisions and that there were insufficient facts to warrant summary judgment on the conspiracy and negligence claims. The trial court entered summary judgment in favor of Respondents.

II. Standard of Review

A summary judgment will be affirmed on appeal when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. ITT Commercial Fin. Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 380 (Mo. banc 1993). Appellants' argument that section 537.296 is unconstitutional raises legal issues subject to de novo review. See State v. Honeycutt, 421 S.W.3d 410, 414 (Mo. banc 2013). “Statutes are presumed constitutional and will be found unconstitutional only if they clearly contravene a constitutional provision.”Id. “The person challenging the validity of the statute has the burden of proving the act clearly and undoubtedly violates the constitutional limitations.” Id.

III. Constitutional Arguments

1. Section 537.296 does not authorize an unconstitutional private taking

Appellants argue that section 537.296.2 authorizes an unconstitutional private taking. Appellants argue that the statute effectuates a taking because limiting temporary nuisance damages to diminution of rental value requires Appellants to forfeit their right to the use and enjoyment of their properties for Respondents' private benefit. Appellants assert that the taking is private because the statute “effectively provide[s] the right of eminent domain to private companies” in that the activity causing the alleged taking is a private farming operation rather than a public use or benefit.

Article I, section 28 of the Missouri Constitution provides “[t]hat private property shall not be taken for private use with or without compensation, unless by consent of the owner....”⁴ To demonstrate that section 537.296 authorizes an unconstitutional private taking, the text of article I, section 28 requires Appellants to identify: (1) “property” (2) that was “taken” (3) for “private use” (4) without Appellants' consent. Assuming for the sake of argument that the statutory limitations on nuisance damages constitute a taking of private property, Appellants' private takings claim fails because they cannot overcome the presumption of constitutional validity by clearly establishing that the alleged taking is for private use.⁵

The distinction between a public use and a private use is not based on actual use or occupation of the property by the public. State ex rel. Jackson, et al. v. Dolan, 398 S.W.3d 472, 476 (Mo. banc 2013). The fact that private parties benefit from a taking does not eliminate the public character of the taking so long as there is some benefit to “any considerable number” of the public. Id. quoting In re Kansas City Ordinance No. 39946, 298 Mo. 569, 252 S.W. 404, 408 (1923). A use is public if it is reasonably likely to create some “public advantage” or “public benefit.” Dolan, 398 S.W.3d at 476 (citing In re Coleman Highlands, 401 S.W.2d 385, 388 (Mo.1966) ).

There are two deficiencies in Appellants' argument that section 537.296.2 effectuates a private taking. First, 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.

Second, this Court has previously noted that regulations enacted to promote economic development generally have a valid public purpose sufficient to satisfy the public use requirement. Dolan, 398 S.W.3d at 478. More specifically, this Court has held that promoting the agricultural economy is a legitimate public purpose. State ex rel. Webster v. Lehndorff Geneva, Inc., 744 S.W.2d 801, 806 (Mo. banc 1988) (a statute requiring foreign corporations to sell farmland serves the legitimate public purpose of promoting the agricultural economy by reducing concentrated property ownership). Section 537.296 is plainly aimed at promoting the agricultural economy to create a public...