Lawson Rural Fire Ass'n v. Avery, WD
| Citation | 764 S.W.2d 113 |
| Decision Date | 13 December 1988 |
| Docket Number | No. WD,WD |
| Parties | LAWSON RURAL FIRE ASSOCIATION, Respondent, v. James AVERY and Evelyn Avery, Appellants. 40614. |
| Court | Missouri Court of Appeals |
Roy W. Brown and Bruce B. Brown of Brown & Brown, Kearney, for appellants.
Stanley M. Thompson, Richmond, for respondent.
Before FENNER, P.J., and MANFORD and GAITAN, JJ.
The Lawson Rural Fire Association, a volunteer fire protection association, brought this action for the payment of fees after responding to a fire on the property of appellants, who are nonmembers.
The judgment is affirmed in part and reversed in part.
Respondent is a volunteer fire protection association whose geographic service area includes appellants' property. However, at the time of the events which gave rise to this lawsuit, appellants were not subscribers to respondent's fire protection services.
On April 30, 1987, a fire broke out in a barn on appellants' property. A neighbor saw the fire and telephoned respondent, who immediately dispatched a fire truck and crew to the scene. This initial telephone call took place at 2:00 p.m. After the fire truck was dispatched to appellants' property, respondent received a second telephone request for assistance. This time the call was from appellants' five-year-old son, who was at home alone.
At 2:18 p.m., when respondent arrived at the property, the barn was already engulfed in flames. It was a windy day, and there was a concern that the fire would spread to other parts of appellants' property, or to neighboring properties. The crew remained at the scene and watered down the ground surrounding the barn, then extinguished the fire itself. At 3:03 p.m., the crew was ready to leave the scene and considered itself "back in service" to perform duties elsewhere if needed.
The next day, respondent sent appellants a bill for $600.00 as a fee for responding to the fire on their property. The bill was sent pursuant to § 320.302, RSMo 1986, which enables a volunteer fire protection association to respond to a nonmember's fire, and then bill the nonmember pursuant to the rate schedule set out in § 320.302.3:
3. In responding to fires of nonmembers or nonsubscribers, the volunteer fire protection association may charge up to the following fees:
(1) One hundred dollars for responding to a fire call or alarm;
(2) Five hundred dollars for each hour or a proportional sum for each quarter hour spent in combating a fire; plus
(3) An amount equal to one year's subscription or membership fees.
Three days later, appellant James Avery contacted Roy Borgmier, who was secretary of the association, and offered $100.00 in cash as a compromise settlement. Borgmier took the money and gave Avery a receipt, telling him that the association's board of directors would decide whether to accept Avery's compromise offer. Ultimately, the board rejected Avery's offer, and his $100.00 was returned to him by the association.
Following the return of Avery's money, respondent brought this action for the full $600.00 which was originally charged to appellants. After a trial de novo held before the Ray County Circuit Court, respondent received a judgment of $800.00, which included the $600.00 plus $200.00 in attorney's fees.
As their first point, appellants claim that the trial court acted improperly in setting the amount of the judgment at $600.00, the maximum provided for in § 320.302. According to appellants, § 320.302 does not provide any guidelines for determining how much a volunteer fire association should charge in any particular situation. Therefore, appellants argue, § 320.302 implicitly limits respondent's relief to a quantum meruit claim against a nonmember.
The statute clearly provides guidelines for determining fees in any situation. It provides for a maximum fee per hour, plus a maximum fee for the initial call, and it provides a formula for dividing the time charged into quarter-hour increments. The plain meaning of the statute is that a volunteer fire protection association may set its own fees--provided they are within the statutory limit--as charges for responding to nonmembers' fires. Appellants' first point is ruled against them.
As their second point, appellants claim that the judgment of the trial court was unsupported by the evidence. According to appellants, the evidence showed that the volunteer fire crew spent only three-quarters of an hour actually combating the fire. Therefore, argue appellants, the trial court erred in awarding respondent $500.00, which is the statutory maximum for spending an entire hour fighting a fire. Instead, appellants contend, the trial court should have awarded respondent three-quarters of $500.00, or $375.00, for fighting the fire.
The evidence shows that respondent received a fire call at 2:00 p.m., and that they immediately dispatched a fire truck to the scene. The firefighters arrived at appellants' property at 2:18 p.m., and completed their work there at 3:03 p.m. In asking for $500.00 for a full hour of fighting the fire, respondent obviously considers the time spent driving to appellants' property to be an integral part of combating the fire. Appellants disagree, and consider the time which the firefighters spent driving to the scene to be covered by the $100.00 additional charge for responding to the fire call.
Respondent's fire truck was dispatched to appellant's property at 2:00 p.m. One hour later, the fire crew radioed respondent's office and indicated they had finished the job and were ready for their next assignment. This was sufficient evidence to support the trial court's finding that one hour was spent combating the fire. Appellants have offered no persuasive authority to support their claim that the time spent driving to appellants' property should not be considered to be part of the time spent combating the fire. Therefore, there is no reason to disturb the trial court's decision.
Appellants' second point is ruled against them.
As their third point, appellants claim that the trial court erred in awarding $200.00 in attorney's fees to respondent. In evaluating appellants' contention, this court is faced with the initial question of whether their claim can even be reviewed by this court. Respondent claims that appellants...
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