State ex rel. Gasconade County v. Jost, No. ED 91493.

• Court: Missouri Court of Appeals
• Writing for the Court: Mary K. Hoff
• Citation: 291 S.W.3d 800
• Parties: STATE of Missouri, ex rel., GASCONADE COUNTY, Sandra Lackman and Matthew Penning, Respondents/Cross-Appellant, v. Ronald JOST, Jerry Lairmore and Max Aubuchon in their individual capacity, Appellants, and Ronald Jost, Jerry Lairmore and Max Aubuchon in their official capacities, Cross-Respondents.
• Decision Date: 23 June 2009
• Docket Number: No. ED 91493.

291 S.W.3d 800 STATE of Missouri, ex rel., GASCONADE COUNTY, Sandra Lackman and Matthew Penning, Respondents/Cross-Appellant,
v.
Ronald JOST, Jerry Lairmore and Max Aubuchon in their individual capacity, Appellants, and
Ronald Jost, Jerry Lairmore and Max Aubuchon in their official capacities, Cross-Respondents. No. ED 91493. Missouri Court of Appeals, Eastern District, Division Four. June 23, 2009. Motion for Rehearing and/or Transfer to Supreme Court Denied August 3, 2009. Application for Transfer Denied October 6, 2009.

[291 S.W.3d 802]

Ivan L. Schraeder, Lowenbaum Partnership, L.L.C., St. Louis, MO, Thomas E. Loraine, Osage Beach, MO, for Appellant.

David L. Baylard, Baylard, Billington, Dempsey & Jenson, P.C., Union, MO, for Respondent/Cross-Appellant.

OPINION

MARY K. HOFF, Judge.

Ron Jost¹, Jerry Lairmore (Lairmore), and Max Aubuchon (Aubuchon) (collectively Defendants), in Their Individual Capacities and Official Capacities as Commissioners of Gasconade County, Missouri, appeal from the trial court's grant of summary judgment in favor of State of Missouri, County of Gasconade, ex rel., Sandra Lackman and Matthew Penning, as Residents and Taxpayers of Gasconade County, Missouri, (collectively Plaintiffs) on Plaintiffs' First Amended Petition alleging Lairmore and Aubuchon wrongfully received mid-term pay increases, which Defendants thereafter refused to repay.² We reverse and remand.³

Factual and Procedural History

We note this case has a lengthy and complicated procedural history. However, given our disposition of the issues on appeal, we need only recount the following relevant facts.

Defendants were elected members of the Gasconade County Commission. On January 1, 1999, and again on January 1, 2000, Lairmore and Aubuchon, who were associate commissioners, each received mid-term pay increases of $10,253.00, pursuant to Section 50.333.13 RSMo Supp. 1999. The Gasconade County Salary Commission authorized the pay increases.

In 2001, in Laclede County v. Douglass, 43 S.W.3d 826 (Mo. banc 2001), the Missouri Supreme Court declared Section 50.333.13 invalid because it violated Article VII, section 13 of the Missouri Constitution, which prohibits mid-term increases in compensation for state, county, and municipal officers. In 2002, the Missouri State Auditor's Office conducted an audit of the finances of Gasconade County. In December 2002, the Auditor's Office issued a report concluding that Lairmore and Aubuchon unlawfully received the mid-term pay increases in 1999 and 2000. A copy of the audit was provided to Defendants. Defendants did not reimburse Gasconade County for the mid-term pay increases. In November 2006, the Auditor's Office conducted a second audit and issued a

291 S.W.3d 803

second report reaffirming the conclusions from the 2002 audit.

In February 2007, Plaintiffs, on behalf of Gasconade County, filed their initial three-count petition against Lairmore and Aubuchon in their official capacities as county commissioners.⁴ Plaintiffs' petition alleged that Lairmore and Aubuchon each received a total of $20,506 in pay increases and that, when they learned the pay increases were unlawful, they refused to return the money to Gasconade County. The petition further alleged that Defendants, as the Gasconade County Commission and as public officials, had an affirmative duty to return the salary increases but, instead, Defendants had "intentionally secreted" the findings of the two audits and had refused to act on behalf of Gasconade County to recover the unlawfully paid mid-term pay increases. Plaintiffs requested an order from the trial court compelling Lairmore and Aubuchon to reimburse Gasconade County for the total amount of the salary increases, plus interest accrued on that amount, and for attorneys' fees and costs. In September 2007, Plaintiffs filed their First Amended Petition against Defendants, adding Defendants in their individual capacities to the lawsuit.

Defendants subsequently filed their answer and affirmative defenses to the First Amended Petition, arguing, in relevant part, that the statute of limitations, Section 516.120.2⁵, and the doctrines of laches and estoppel barred Plaintiffs' claims.

Both Plaintiffs and Defendants thereafter filed their cross motions for summary judgment and their respective responses. After a hearing on the summary judgment motions in which evidence was adduced, the trial court entered its final judgment finding that: (1) Plaintiffs' cause of action was timely filed because the public was not put on notice of Defendants' receipt of the unlawful mid-term pay increases until the Auditor's Office published its report in December 2002; (2) Plaintiffs were entitled to no relief as a matter of law...