City of Univ. City v. AT & T Wireless Servs.
| Decision Date | 24 May 2012 |
| Docket Number | No. ED 96940.,ED 96940. |
| Citation | 371 S.W.3d 14 |
| Court | Missouri Court of Appeals |
| Parties | CITY OF UNIVERSITY CITY, et al., Appellants, v. AT & T WIRELESS SERVICES, et al., Respondents, |
OPINION TEXT STARTS HERE
Application for Transfer Denied
Aug. 14, 2012.
John F. Mulligan, Jr., Clayton, MO, and James H. White, University City, MO, for Appellant.
Jason L. Ross, Kirsten M. Ahmad, Greensfelder, Hemker & Gale, P.C., St. Louis, MO, for Respondent.
The City of Lebanon, Missouri (“City”) appeals from the trial court's final order and judgment denying City's challenge to the rejection of its claim to be included in a settlement class by Defendant Alltel Communications, LLC (“Alltel”). City argues that the trial court erred in finding Section 26.8 of the Code of Laws of the City of Lebanon (“Section 26.8”) imposes a right of way usage fee rather than a Business License Tax, thereby removing City from the settlement class. Because the plain language of Section 26.8 imposes a “use or rental fee,” we affirm.
This appeal arises from a class-action lawsuit filed by the City of University City and a class of Missouri municipalities against several telecommunications companies (“Defendants”) doing business in Missouri. The plaintiff municipalities sought class certification to represent all cities which had adopted an ordinance imposing a business or occupational license tax on any person engaged in the business of supplying or furnishing telephone services in the city. The municipalities alleged that Defendants were liable to the municipalities under their respective ordinances for taxes on revenues derived from providing commercial mobile radio services, for maintaining antennas or other facilities, for flat taxes with respect to providing such services, and for interest and/or penalties on any such taxes not timely paid.
The parties subsequently filed a Joint Motion for Class Certification for Purposes of Settlement and for Preliminary Approval of Proposed Class Action Settlement. The trial court certified the settlement class and approved the Settlement Agreement. Under the Settlement Agreement, Alltel agreed to pay the amount of any Business License Tax (as defined in the Settlement Agreement) owed to a class member pursuant to the class member's ordinance in effect during the period beginning September 1, 2005 and ending March 31, 2009.
Pursuant to the Settlement Agreement, Alltel sent a notice of settlement to City, advising that it may be entitled to a Past Tax Payment under the terms of the Settlement Agreement. Such payment was contingent upon, inter alia, City's submission to Alltel of a copy of its ordinances demonstrating that it had a Business License Tax in effect between September 1, 2005 and March 31, 2009. City sent a completed form to Alltel, attaching copies of two ordinances: Ordinance No. 3905, which enacted Section 26.8 of the Lebanon Code of Laws, “relating to right of way use fee,” and Ordinance No. 4365, which amended Ordinance No. 3905 (collectively hereinafter “Section 26.8”).
Alltel's Settlement Administrator subsequently sent a letter to City rejecting City's claim asserting that the ordinance submitted by the City did not impose a Business License Tax as defined in the Settlement Agreement. Alltel informed City that its ordinance imposed a right of way usage fee, which is expressly excluded from the terms of the Settlement Agreement. City responded, attaching Article III, Chapter 24 of the Code of Laws of the City of Lebanon, as well as copies of Ordinances 3861, 3664, and 3300. Alltel again rejected City's claim on the grounds that City's ordinances did not impose a Business License Tax under the terms of the Settlement Agreement. After negotiations were unsuccessful in resolving the dispute, City filed a Challenge to the Rejection of its Claim by Alltel with the trial court.
Following an evidentiary hearing, the trial court found that City's ordinances imposed a municipal right of way usage fee and not a Business License Tax within the meaning of the Settlement Agreement. The trial court therefore denied City's challenge. This appeal follows.
In its sole point on appeal, City argues that the trial court erred in denying City's challenge to the rejection of its claim by Alltel. City contends that the trial court misinterpreted Section 26.8 of the Code of Laws of the City of Lebanon by finding that the ordinance imposed a right of way usage fee, and not a Business License Tax.
Interpretation of a contract is a question of law reviewed de novo by this Court. Teets v. Am. Family Mut. Ins. Co., 272 S.W.3d 455, 462 (Mo.App. E.D.2008). Interpretation of a municipal ordinance, like the interpretation of a state statute is also reviewed de novo. Sunswept Properties, LLC v. Ne. Pub. Sewer Dist., 298 S.W.3d 153, 159 (Mo.App. E.D.2009).
City's allegation of error is premised upon its assertion that the trial court misinterpreted the applicable ordinances when it found Section 26.8 did not impose a Business License Tax necessary for City's recovery under the terms of the Settlement Agreement.
An ordinance is interpreted using the same rules as apply when interpreting a state statute. Sunswept Properties, LLC v. Ne. Pub. Sewer Dist., 298 S.W.3d 153, 159 (Mo.App. E.D.2009). When construing a statute, the primary rule is to give effect to legislative intent as reflected in the plain language of the statute. Brinker Missouri, Inc. v. Dir. of Revenue, 319 S.W.3d 433, 437–38 (Mo. banc 2010). When the plain language of the statute is clear and unambiguous, we do not apply any other rule of construction. Bosworth v. Sewell, 918 S.W.2d 773, 777 (Mo. banc.1996); Gasconade Cnty. Counseling Servs. v. Mo. Dep't of Mental Health, 314 S.W.3d 368, 373 (Mo.App. E.D.2010).
To determine if City's ordinance imposed a Business License Tax as provided in the Settlement Agreement, we look first to the language used in the agreement. The Settlement Agreement defines “Business License Tax” as “any tax, including any fee, charge, or assessment in the nature of a tax ... as well as an occupation license tax, gross receipts tax, franchise tax, or similar tax, or any tax ‘alternative’ to any of the foregoing.” Expressly excluded from the definition of Business License Tax is “[a]ny municipal right of way usage fee, including but not limited to any fee imposed under the authority of a municipality's police powers ...” The Settlement Agreement does not otherwise define “right of way usage fee.”
Lebanon's City Ordinance No. 4365, Section 26.8, titled “Right of way use fee,” requires telephone, communication, and other utility services that “use [ ] the public right of ways of the City” to “pay a use or rental fee of 5% of the gross receipts derived from such business activity in the City.” City of Lebanon, Code, Section 26.8 (2005) (emphasis added).1
The plain language used in the initial ordinance passed in 1999 requires payment of a fee that is described in the body of the ordinance as a use or rental fee. This same language was repeated in the amended ordinance passed by City in 2005. We are reluctant to attach a meaning to these very straightforward words other than the plain and ordinary meaning suggested by the language used by the drafters of the ordinance. Given the express terms chosen by the drafters of Section 26.8, we are not persuaded that the fee imposed by the ordinance constitutes a Business License Tax under the terms of the Settlement Agreement as has been argued by City. Our interpretation of the ordinance is further supported by the last sentence of Section 26.8, which expressly states that the payment of the fee “shall be in lieu of any general or special license tax, occupation tax, or any other such tax ...” We cannot logically conclude that Section 26.8 imposes both a license tax and a fee in lieu of a license tax.
City suggests that the trial court's erroneous interpretation of the Section 26.8 stems from the court's misguided focus on the titles and descriptions contained in City's ordinances. City argues that the title of the ordinance is not relevant in construing its content, and that our interpretation of the ordinances should focus instead on the nature of the fee imposed.
Ordinances are interpreted based on a review of the whole ordinance. State ex rel. Sunshine Enterprises of Missouri, Inc. v. Bd. of Adjustment of City of St. Ann, 64 S.W.3d 310, 312 (Mo. banc 2002). Although the ordinances in question are entitled “Right of way use fee,” the record does not support City's argument that the trial court based its ruling on the ordinance title or heading. Instead, we look to the plain language used in the body of the ordinance. Such language is consistent with the trial court's ruling, and our holding that the intent of the drafters of the ordinance was to impose a right of way use fee, and not a Business License Tax. Express terms and phrases found within the body of the ordinances include “uses the public right of ways”, “use or rental fee”, and “public right of way utilization.” The use of such terms is not limited to a title or heading. Noting the consistency of the title “Right of way use fee” with the language used within the body of the ordinances does not suggest to this Court that the trial court failed to construe Section 26.8 based upon a review of the whole ordinance, or improperly limited its review to the title and headings of the ordinances. City's first argument is without merit.
In support of its argument that Section 26.8 establishes a tax encompassed by the terms of the Settlement Agreement, City suggests that the ordinance language referencing an entity's use of “the public right of ways of the City” is not intended to establish a right of way user fee, but serves to identify those entities upon which the...
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