Mo. Landowners Alliance v. Grain Belt Express Clean Line LLC

• Decision Date: 21 August 2018
• Docket Number: WD 81269
• Citation: 561 S.W.3d 39
• Parties: MISSOURI LANDOWNERS ALLIANCE, et al., Appellants, v. GRAIN BELT EXPRESS CLEAN LINE LLC, et al., Respondents.
• Court: Missouri Court of Appeals

561 S.W.3d 39

MISSOURI LANDOWNERS ALLIANCE, et al., Appellants,

v.GRAIN BELT EXPRESS CLEAN LINE LLC, et al., Respondents.

WD 81269

Missouri Court of Appeals, Western District.

Filed: August 21, 2018

Motion for Rehearing Denied September 25, 2018

Application for Transfer to Supreme Court Denied September 25, 2018

Application for Transfer Denied December 4, 2018

Paul A. Agathen, Washington for Appellants.

Jacqueline M. Whipple, Kansas City; Louis J. Loenatti, Mexico for respondents.

Before Division Two: Mark D. Pfeiffer, Presiding Judge, Lisa White Hardwick and Edward R. Ardini, Jr., Judges

Lisa White Hardwick, Judge

Missouri Landowners Alliance and Marilyn O'Bannon (collectively, "Appellants") appeal the circuit court’s entry of summary judgment in favor of Grain Belt Express Clean Line, LLC, ("Grain Belt"), the Monroe County Commission ("the Commission"), and the Monroe County Commissioners in their official capacities on Appellants' petition for declaratory judgment.¹ Appellants had sought a declaration that the permission the Commission granted to Grain Belt to use county roads to construct and maintain a proposed electric transmission line was void due to Sunshine Law violations. The court granted summary judgment on the basis that Appellants' claims were barred by the statute of limitations. On appeal, Appellants contend the court erred in granting summary judgment because Grain Belt failed to properly plead the statute of limitations as an affirmative defense and the record did not resolve the critical disputed fact issue of when the Sunshine Law violations were ascertainable. For reasons explained herein, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Grain Belt is proposing to build a high-voltage electric transmission line from western Kansas to Indiana, a distance of approximately 750 miles. The portion of the proposed line in Missouri would travel approximately 206 miles and cross eight counties in northern Missouri. To build the Missouri segment of the line, Section 229.100, RSMo 2016,² requires Grain Belt to obtain the assent of the county commissions in each of the eight counties where it proposes to build the line on or across county roads or highways. The route of the line as proposed by Grain Belt would cross at least one public road or highway in Monroe County. On December 12, 2011, representatives of Grain Belt appeared before the Commission at a public meeting to "discuss possible installation of wind energy transmission lines."

Seven months later, at a public meeting on July 30, 2012, Grain Belt sought the Commission’s Section 229.100 assent to construct its transmission facilities on and across the county’s public roads. The Commission gave its assent during this meeting, granting Grain Belt permission to "construct, erect, place, maintain, own and operate poles, lines, and other conduits, conductors and associated structures and equipment for utility purposes through, along, across, under and over the county maintained roads and highways of the County of Monroe, Missouri." The Commission’s public notice of its agenda for the July 30, 2012 meeting did not mention Grain Belt, its proposed transmission line, or its request for the Commission’s Section 229.100 assent. The minutes of the July 30, 2012 public meeting noted that the "Commission issued an order pursuant to Section 2909.100 [sic] RSMo 2000 to grant preliminary permission for access to Clean Line Energy Partners for utility purposes." The minutes did not include a record of the votes taken on that action.

At the Commission’s August 3, 2012 public meeting, the Commission approved the minutes from the July 30, 2012 meeting. On August 9, 2012, the minutes of both the Commission’s July 30, 2012 and August 3, 2012 meetings were published on page eight of the Monroe County Appeal , a local weekly newspaper of general circulation in Monroe County.

Representatives of Grain Belt appeared before the Commission at its June 17, 2013 public meeting to discuss the project. On July 12, 2013, the Commission signed a resolution in support of the project. The minutes of that meeting stated that the Commission signed such a resolution, and those minutes were published in the Monroe County Appeal.

On July 28, 2014, Missouri Landowners Alliance, which is a nonprofit corporation formed in early 2014 for the purpose of opposing the Grain Belt project, and Marilyn O'Bannon, who owns property on the right-of-way of the proposed line in Monroe County, filed a petition for declaratory judgment in Monroe County. In their petition, Appellants asked the court to declare that the permission the Commission granted to Grain Belt on July 30, 2012, was invalid and void because it was issued in violation of the Sunshine Law, Chapter 610, RSMo.³ Specifically, Appellants asserted that, because the notice of the agenda for the July 30, 2012 meeting "made no mention of the issuance of a franchise or similar authority to Grain Belt to use the county roads," the Commission’s assent to Grain Belt that was issued during that meeting was invalid and void under the Sunshine Law.

In its first amended answer to the petition, Grain Belt raised the affirmative defense of the statute of limitations. Grain Belt asserted that Appellants' claims were barred by Section 610.027.5, which provides, in pertinent part, that a suit for enforcement of the Sunshine Law "shall be brought within one year from which the violation is ascertainable and in no event shall it be brought later than two years after the violation." Grain Belt alleged that Appellants knew or should have known of the Commission’s Section 229.100 assent issued to Grain Belt "sometime between July 30, 2012 and August 2013." Therefore, Grain Belt asserted that Appellants filed the suit after the limitations period had already run.

Appellants filed a motion for summary judgment in which they asserted that there were no genuine issues of fact as to whether the permission that the Commission gave was void because the permission was issued in violation of the Sunshine Law. Specifically, Appellants alleged that there were no genuine issues of fact regarding (1) whether the Commission violated Section 610.020.1 by not mentioning anything about Grain Belt or its proposed transmission line as an item to be considered on its notice of the agenda for the July 30, 2012 meeting; and (2) whether the Commission violated Section 610.020.7 by not including in the minutes from that meeting a record of the votes taken on the Commission’s action to grant Section 229.100 assent to Grain Belt. Grain Belt filed suggestions in opposition to the Appellants' summary judgment motion in which it argued that the statute of limitations barred the assertion of Appellants' Sunshine Law violation claims. The court entered an order denying Appellants' motion for summary judgment, finding that genuine issues of material fact remained regarding when the statute of limitations began to run for the alleged Sunshine Law violations.

Shortly thereafter, the Monroe County judge assigned to the case recused herself, and the case was transferred to another judge and moved to Callaway County. The circuit court in Callaway County held another hearing on Appellants' motion for summary judgment. Following the hearing, the court found that, even though there appeared to be "no disagreement among the parties" that the Commission violated the Sunshine Law in the two respects alleged by Appellants in their summary judgment motion, there was a genuine issue of fact remaining as to whether Appellants' petition was barred by the statute of limitations. The court stated that it was willing to hear and decide this question of fact in a bench trial but would leave the decision with the parties as to how to proceed.

After a period of additional discovery, Grain Belt filed a motion for summary judgment. In its motion, Grain Belt argued that the undisputed material facts established that the one-year statute of limitations barred Appellants' claims because the Sunshine Law violations were objectively ascertainable, at the very latest, on July 12, 2013, when the Commission signed a public resolution in support of the Grain Belt project during its public meeting. Appellants filed their petition over one year later, on July 28, 2014. In their response, Appellants argued that Grain Belt failed to preserve the statute of limitations defense by not properly pleading it in its answer and that factual disputes remained which precluded summary judgment.

Following a hearing before a different judge in Callaway County, the court entered summary judgment in favor of Grain Belt. In its judgment, the court found that the prior Callaway County judge had resolved the issue of the sufficiency of Grain Belt’s pleading of the statute of limitations defense in favor of Grain Belt, and the court declined to reexamine that issue. The court further found that the Commission’s Sunshine Law violations were objectively ascertainable by the general public, as well as by a reasonable person using reasonable diligence, on at least four separate dates set forth in Grain Belt’s summary judgment motion. The latest of these dates was July 12, 2013, which was over one year before Appellants filed suit. Therefore, the court granted Grain Belt’s motion for summary judgment. Appellants filed this appeal.

STANDARD OF REVIEW

Appellate review of summary judgment is essentially de novo.

ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp. , 854 S.W.2d 371, 376 (Mo. banc 1993). We review the record in the light most favorable to the party against whom the judgment was entered. Wills v. Whitlock , 139 S.W.3d 643, 646 (Mo. App. 2004). However, we take as true the facts set forth in support of the summary judgment motion unless contradicted by the non-movant’s response. ITT , 854 S.W.2d at 376.

Summary judgment is appropriate when there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Rule 74.04...