Mertzlufft v. Bunker Resources Recycling and Reclamation, Inc.

• Decision Date: 15 November 1988
• Docket Number: Nos. 15405,s. 15405
• Citation: 760 S.W.2d 592
• Parties: Vince MERTZLUFFT, Clarence Rosemann, Harry Hayes, Otto Schoenborn, Plaintiffs- Appellants-Respondents, and Simonds Manufacturing Corporation, a Florida Corporation, Plaintiff, v. BUNKER RESOURCES RECYCLING AND RECLAMATION, INC., a Missouri Corporation, Defendant-Respondent-Appellant. & 15409.
• Court: Missouri Court of Appeals

Page 592

760 S.W.2d 592

Vince MERTZLUFFT, Clarence Rosemann, Harry Hayes, Otto

Schoenborn, Plaintiffs- Appellants-Respondents, and Simonds Manufacturing Corporation, a Florida Corporation, Plaintiff, v. BUNKER RESOURCES RECYCLING AND RECLAMATION, INC., a Missouri

Corporation, Defendant-Respondent-Appellant.

Nos. 15405 & 15409.

Missouri Court of Appeals,

Southern District,

Division One.

Nov. 15, 1988.

Richard C. Witzel, John H. Herman, St. Louis, David L. Steelman, Salem, for plaintiffs-appellants-respondents.

John E. Price, Woolsey, Fisher, Whiteaker & McDonald, Springfield, for defendant-respondent-appellant.

GREENE, Judge.

In these consolidated appeals, defendant Bunker Resources Recycling and Reclamation, Inc. (Bunker) appeals from a judgment of the Circuit Court of Reynolds County, Missouri, granting a permanent injunction to prohibit Bunker's operation of a facility to incinerate infectious waste products at its plant in Bunker, Missouri. Plaintiffs Vince Mertzlufft, Clarence Rosemann, Harry Hayes and Otto Schoenborn (plaintiffs) appeal from that portion of the trial court's judgment denying their claim for attorneys' fees.

Plaintiffs, who are residents of Bunker, Missouri, filed a petition for injunctive relief under the citizen suit provision of § 260.415.3, RSMo 1986, which provides that "[a]ny person adversely affected in fact by any violation of sections 260.350 to 260.430 (Hazardous Waste Management Law) or of any rule or regulation promulgated thereunder may sue for injunctive relief against such violation." It further provides that the prevailing party in such actions shall be awarded reasonable attorneys' fees and costs of the action.

Count I of plaintiffs' second amended petition alleged that Bunker was receiving and handling infectious waste without having the proper permits from the Missouri Department of Natural Resources (DNR) to do so and, that by doing so, violated the provisions of §§ 260.350 to 260.430, which sections are known as the Hazardous Waste Management Laws. Plaintiffs requested the court to enjoin Bunker "from accepting, treating, processing, handling or storing any infectious waste," and that plaintiffs recover their costs and reasonable attorneys' fees.

In Count II of their petition, plaintiffs sought injunctive relief on the theory that Bunker's operation of the incinerator created a nuisance, while Count III of the petition was an action for an injunction brought by an additional plaintiff, Simonds Manufacturing Corporation (Simonds), the manufacturer of the incinerator, which count alleged that Bunker's operation of the incinerator in violation of law damaged Simonds' business reputation and subjected it to potential civil liability. Simonds is not a party on appeal.

The trial court, acting on plaintiffs' motion, severed Count I for trial and, after hearing evidence, including testimony from plaintiffs Hayes and Mertzlufft, issued a preliminary injunction prohibiting Bunker from charging or loading the incinerator with hospital wastes, and restraining it from operating the incinerator. After hearing further evidence, the trial court entered the following judgment:

NOW, on this 16th day of September, 1987, Plaintiffs appear in person and by counsel. Defendant appears in person and by counsel. Both sides announce ready to proceed on the trial on the merits of Count I of Plaintiffs' Second Amended Petition.

WHEREUPON, evidence is adduced, the Court makes the following findings as to Count I of Plaintiffs' Second Amended Petition:

1. That Plaintiffs are persons adversely affected by the operation of the Defendant's facility;

2. That Defendant does not operate a licensed hazardous waste treatment facility, is not a solid waste processing facility permitted for the treatment of infectious waste, and is not a hospital;

3. That pursuant to Section 260.378 RSMo. infectious waste should not be taken to Defendant's facility.

WHEREFORE, it is ordered, adjudged and decreed by the Court, that based upon Count I of Plaintiffs' Petition, the Defendant, Bunker Resources Recycling and Reclamation, Inc., and its agents, employees, attorneys, contractors and subcontractors are hereby restrained from:

1. Operating the incinerator located in Reynolds County, Missouri at the facility of Bunker Resources, Inc., and/or

2. Charging or loading the incinerator located at Bunker Resources, Inc. with infectious wastes.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Plaintiffs be bonded in the amount of $100,000.00, said bond to be approved by the Court, conditioned that all damages and expenses be paid in the event that the foregoing injunction be dissolved and that Plaintiffs be jointly and severally liable on said bond. It is further ordered that the preliminary injunction bond is discharged.

It is further ordered that as a matter of law, Plaintiffs shall be awarded no attorneys' fees and, consequently, the Court does not decide the reasonableness or amount of said fees. The Defendant is ordered to pay the costs of Count I of this action.

It is further ordered that this judgment is deemed a final judgment for purposes of appeal, pursuant to Rule 81.06 of the Missouri Rules of Civil Procedure.

Bunker's attack on the judgment is three-pronged. It alleges the trial court erred in entering judgment for plaintiffs because (1) there was no substantial evidence that plaintiffs were "adversely affected in fact" by the operation of the incinerator, (2) there was no evidence that plaintiffs suffered irreparable harm as the result of the temporary operation of the incinerator, and no substantial evidence that the alleged harm to plaintiffs outweighed evidence that Bunker would lose money and its work force would become unemployed if the injunction were granted, and (3) plaintiffs' claims were moot since they had already been granted a writ prohibiting the DNR from allowing Bunker to operate the incinerator until it received the proper permit. On appeal, plaintiffs contend that since the trial court issued their requested injunction, they are entitled to attorneys' fees as a matter of law, and the trial court erred in denying their request for same. We affirm that portion of the trial court's judgment concerning the issuance of the injunction and reverse that portion denying an award of fees to plaintiffs' attorneys.

Facts relevant to the disposition of Bunker's appeal are as follows. On February 20, 1987, Bunker, a Missouri corporation that is a subsidary of Decom Medical Waste Systems, a Canadian corporation, applied to the DNR for authority to construct an incinerator in Reynolds County for the purpose of disposing of infectious wastes. Infectious waste was defined by statutes in effect at the time of the application, which are § 260.200(8), which contains definitions applicable to solid waste disposal, and again in § 260.360(12) which contains definitions applicable to hazardous waste management. Both definitions class contaminated blood and blood products, surgical and autopsy wastes, contaminated laboratory wastes, dialysis unit wastes, cultures and stocks of etiologic agents, and like material known or suspected to be infectious, that had not been treated to DNR specifications, as infectious waste.

On May 5, 1987, the director of DNR, Frederick Brunner, by Nick Nikkila, staff director of the DNR's Air Pollution Control Program, wrote Bunker advising that Bunker's application for a construction permit had been approved, subject to conditions immaterial here. The letter stated, "You may consider this letter and the enclosed review to be your permit to construct. This permit in no way relieves you of your obligation to meet all air pollution control regulations or other federal, state, or local regulations." Construction of the Bunker facility began. The incinerator was completed and placed in operation on some date prior to July 1, 1987--the exact date of the start-up not being specified in the record. Infectious waste from the Chicago, Illinois area was hauled to the incinerator site and burned in the Bunker incinerator. The burning continued until July 27, 1987, when the plant was shut down for adjustment of the burning mechanism.

Plaintiffs' suit for a declaratory judgment and injunction was filed the next day. A second amended petition, Count I of which contains the subject matter relating to the cause of action on which the trial court entered the judgment under attack here, was filed on September 3, 1987. At no time during the period from May 5, 1987, when Bunker was given permission to construct an incinerator, and September 3, 1987, when the second amended petition was filed, did Bunker have a permit to operate a hazardous waste treatment facility or a solid waste processing facility authorized by DNR to treat infectious waste at the Bunker, Missouri site, nor did it receive one after the petition was filed.

It was stipulated that plaintiffs are residents of the city of Bunker. Plaintiff Harry Hayes lives about one-fourth of a mile from the Bunker incinerator. During the period it was in operation, Hayes saw flames "just shooting anywhere from about 6 to 10 foot" high. The flames were accompanied by dense black smoke coming out of the smokestack of the incinerator. The smoke caused Hayes' eyes and throat, as well as those of his wife, to burn. Another plaintiff, Vince Mertzlufft, lived approximately eight aerial miles from the incinerator site. On occasion, he had seen flames and black smoke coming out of the top of the incinerator. Mertzlufft felt that "from day one it (the incinerator) was out of control," and that its operation, as it was being operated with the attendant smoke and flames, decreased property values in the entire Bunker community.

Robert Myers, Deputy Sheriff of Reynolds County, was on the premises where the incinerator was located on the night of July 22, 1987. He observed "flames coming out of the top of the stack 15 to 20 feet in the air." H...