Superior Outdoor Advertising Co. v. State Highway Com'n of Missouri
| Decision Date | 15 October 1982 |
| Docket Number | Nos. 12419,12420 and 12534,s. 12419 |
| Citation | 641 S.W.2d 480 |
| Parties | SUPERIOR OUTDOOR ADVERTISING CO., a Missouri Corporation, Plaintiff-Appellant, v. STATE HIGHWAY COMMISSION OF MISSOURI, Defendant-Respondent. SUPERIOR OUTDOOR ADVERTISING CO., a Missouri Corporation, and Pioneer Advertising Co., a Missouri Corporation, Plaintiffs-Appellants, v. STATE HIGHWAY COMMISSION OF MISSOURI, Defendants-Respondents. SUPERIOR OUTDOOR ADVERTISING CO., a Missouri Corporation, Plaintiff-Appellant, v. STATE HIGHWAY COMMISSION OF MISSOURI, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
John D. Compton, Jean Paul Bradshaw, II, Neale, Newman, Bradshaw & Freeman, Springfield, for plaintiff-appellant.
Bruce A. Ring, Dennis J. Redel, Missouri Highway and Transp. Com'n, Jefferson City, for defendant-respondent.
These three consolidated appeals are from judgments of the circuit court affirming orders of the State Highway Commission of Missouri, (now the Missouri Highway and Transportation Commission), which required appellant Superior Outdoor Advertising Company to remove certain outdoor advertising signs which were found to be violative of the Missouri Billboards Act (§ 226.500-s 226.600). 1
Superior's first point is that the notice given by the commission to Superior with respect to the sign on land owned by one Lee was defective in that it failed to meet the requirements of § 226.580, par. 3, which reads, in pertinent part: "Such notice shall specify the basis for the alleged unlawfulness, shall specify the remedial action which is required to correct the unlawfulness, and shall advise that a failure to take the remedial action within 30 days will result in the sign being removed."
The challenged notice stated that the sign was unlawful because it was erected after March 30, 1972, in violation of the location provisions of the Billboards Act. Superior makes no challenge to the sufficiency of that portion of the notice. Superior's sole complaint is that the notice was defective in failing to "specify the remedial action which is required to correct the unlawfulness."
Where, as here, the unlawfulness is correctable only by removal, and the notice, as here, states that "removal of the sign is the only remedial action possible under § 226.500 to § 226.600 RSMo," the notice satisfies § 226.580, par. 3. State, Etc. v. State Highway Commission, 624 S.W.2d 453, 464 (Mo.App.1981). See also Independent Stave Co. v. State Hwy. Com'n, Etc., 625 S.W.2d 246, 247 (Mo.App.1981). The notice cannot be faulted for failure to specify alternative remedial action where such does not exist.
On the same ground Superior challenges the sufficiency of a notice with respect to the sign on land owned by one Hartzell. Superior makes no claim that the basis for alleged unlawfulness contained in either of the challenged notices was correctable by any action other than removal. Superior's first point has no merit.
Superior's second point is that the trial court erred in affirming the judgment of the commission because the commission acted "in excess of its statutory authority" in that "the notice given the property owner (Lee) in Hearing No. 78-08-404 did not meet the statutory requirement that said notice be sent to the owner when an unidentified third party signed the receipt."
"If a sign is deemed to be unlawful ..., (the) commission shall give notice either by certified mail or by personal service to the owner or occupant of the land ... and the owner of the outdoor advertising structure." § 226.580, par. 3. Superior was the owner of "the outdoor advertising structure."
Superior appeared at the administrative hearing before the commission and actively and fully contested the matter. During the course of that hearing, counsel for the commission introduced into evidence a card labeled "Return Receipt, Registered, Insured and Certified Mail" issued by the United States Postal Service. That receipt was described by the identifying witness as "a certified copy from Jimmy D. Lee, the property owner that they received the notice of removal." The receipt reflects that the notice was sent to Lee at his correct address. The receipt is signed by a third person who acknowledged receipt of the notice and described himself as the "authorized agent" of the addressee.
Lee did not appear at the hearing but Superior makes no claim that his absence therefrom hampered Superior's opportunity to litigate the issues pertaining to the lawfulness of the sign and the propriety of its removal. Superior's argument is that the commission did not offer any evidence to show that the person signing the receipt was in fact the authorized agent of Lee. This court holds that Superior has no standing to make that argument and accordingly refrains from exploring its merits.
In State v. Wilson, 332 S.W.2d 867, 871 (Mo.1960), a case dealing with the actions of a county board of equalization, the court said: This court holds that the instant record is sufficient to satisfy the rule in Wilson.
In the ordinary lawsuit the general rule is that the issue of defective service of process may be raised only by the one on whom the attempted service was made and one defendant, in the absence of prejudice to his own interests, is not entitled to urge defects in service on a co-defendant. Morgner v. Huning, 232 S.W. 88, 91 (Mo.1921); British-American Portland Cement Co. v. Citizens' Gas Co., 255 Mo. 1, 164 S.W. 468, 472 (1913); 62 Am.Jur.2d Process § 158, p. 941; 72 C.J.S. Process § 106, p. 1151.
The commission has properly raised the issue of Superior's standing to attack the sufficiency of the proof of service of process upon the landowner. The issue of standing is one within the notice of this court even if the commission had not raised it. State ex rel. Williams v. Marsh, 626 S.W.2d 223, 227 (Mo.banc 1982).
Rule 84.13(b) precludes this court from reversing any judgment "unless it finds that error was committed by the trial court against the appellant materially affecting the merits of the action."
Superior cites no authority 2 for the proposition that its specific challenge to the adequacy of the proof of service of process on the landowner, if valid, served to deprive the commission of subject matter jurisdiction. Cf. City of New Haven v. Indiana Suburban Sewers, Inc., 277 N.E.2d 361, 362 (Ind.1972). Superior cites no authority for the proposition that the commission had the burden to show that the person who signed the receipt as the "authorized agent" of Lee was in fact Lee's authorized agent. Superior made no showing that the signer was not Lee's authorized agent.
This court holds that the commission had subject matter jurisdiction and personal jurisdiction over Superior and that Superior has no standing to challenge, on the basis advanced here, the sufficiency of the record to show personal jurisdiction over the landowner. Superior's second point has no merit.
Superior's third point is that the commission exceeded its authority in requiring removal of the sign involved in Hearing No. 75-08-363 because that sign "was for a tourist oriented business and, therefore, exempt under § 226.520(5) from the violation charged."
Sec. 226.520 reads, in pertinent part:
"[T]he general rule of statutory construction [is] that the burden of proving justification or exemption under a special exception to the prohibitions of a statute generally rests on one who claims its benefits, ..." Federal Trade Commission v. Morton Salt Co., 334 U.S. 37, 44-45, 68 S.Ct. 822, 827, 92 L.Ed. 1196 (1948). To similar effect see 2 Am.Jur.2d Admin.Law § 391, p. 198; 82 C.J.S. Statutes § 382, p. 893.
The only reference to the legend on the sign involved here is found in the direct testimony of Bill Hayter, a commission witness. Hayter was employed by the commission as a permit inspector. Hayter said, "The last time I inspected it, the [advertisement on the] poster board had changed to Grandma's Attic." The record is devoid of other evidence concerning "Grandma's Attic." There is no showing that Grandma's Attic is a business or, if so, whether it is a "tourist oriented" business. The brief of Superior states that Grandma's Attic is a "well-known tourist shop in the lakes area," but the record contains no factual support for that statement.
The burden was on Superior to prove facts showing it was entitled to the exception contained in § 226.520(5) and Superior did not meet that burden. See also the discussion of Superior's third point in Appeal No. 12420, infra. Superior's third point has no merit.
Superior's fourth point is that the commission exceeded its authority in requiring removal of the sign involved in Hearing No. 78-08-404 for the reason that the sign was erected "pursuant to reasonable regulations of the local zoning authority and, therefore, is permitted by § 226.527."
The sign was erected by Superior in 1978 and its location violates the opening paragraph of § 226.520. The sign is located in Greene County. Under the county zoning regulations the land on which the sign is located is zoned for agricultural use. In August 1978 Superior obtained from Greene County a building permit to erect the sign.
Superior's position is that the sign does not violate county zoning regulations, that ...
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