author: JOHN E. PARRISH, Judge.

text:
    Corrina Ivy ANDERSON, Appellant, v. Phyllis JACKSON and Bennie Jackson, Deceased, Respondents.
    No. 26569.
    Missouri Court of Appeals, Southern District, Division One.
    Nov. 4, 2005.
    Motion for Rehearing or Transfer to Supreme Court Denied Nov. 28, 2005.
    Application for Transfer Denied Jan. 31, 2006.

      Dale E. Nunnery, Swindle and Nunnery, P.C., Doniphan, for appellant.
    Barbara A. Godley, Welman, Hively & Godley, LLP, Kennett, for respondents.
   JOHN E. PARRISH, Judge.

This is an appeal by Corrina (Ivy) Anderson (mother) of a judgment denying her two-count petition to modify a prior custody order (Count I) and for writ of habeas corpus (Count II). This court affirms.

Phyllis Jackson (respondent) and Bennie Jackson, now deceased, were granted legal custody of mother’s children, Cheyenne Lavon Ivy and Cody Keith Ivy, by a judgment of the Circuit Court of Dunklin County, Missouri, entered February 4, 2003. Joint physical custody of the children was awarded to mother, respondent, and Bennie Jackson. Respondent and Bennie Jackson are paternal grandparents of the children.

The marriage of mother and David Ivy (father) was dissolved May 10, 2001. Father was awarded custody of the children. Father died October 29, 2001. The children were placed in the custody of respondent and Bennie Jackson by a juvenile court order dated November 7, 2001. The petition in the juvenile court was later dismissed.

Mother sought custody of the children in May 2002 by filing a petition for habeas corpus that was tried and denied. Judgment was entered in that case February 4, 2003. The judgment included the custody order that mother sought to modify by the action that produced this appeal.

The amended petition on which the case that is the subject of this appeal was tried was filed December 5, 2003. It alleged in Count I that there had been a substantial change in circumstances since the February 4, 2003, custody award was entered. The change in circumstances mother alleged included that Bennie Jackson was deceased; that mother had remarried and established a stable home in the State of Colorado. She alleged it would be in the best interests of the children for their physical custody and legal custody to be placed with her.

Count II of mother’s amended petition was an action for habeas corpus. Mother asserted that respondent was restraining her children; that the February 2003 judgment that established custody of the children was “without force and effect”; that the trial court had lacked subject matter jurisdiction to award custody to persons other than her, as the children’s natural parent.

The trial court denied mother’s motion to modify and denied her petition for habe-as corpus. The judgment declared that the best interests of the children would “be best served by leaving unmodified the Judgment entered ... February 4, 2003, vesting the children’s legal custody in Respondent ... and their joint physical custody in [mother] and [respondent].” The trial court further found that mother was not unfit, unsuitable or unable as a parent, but found the welfare of the children required, and their best interests required, that they remain in the custody of respondent “in order to provide them a stable environment.”

Mother’s Points I and II are directed to the trial court’s denial of Count II of the amended petition, the request for ha-beas corpus relief. Generally, an appeal does not lie from the denial of a petition for habeas corpus. E.W. v. K.D.M., 490 S.W.2d 64, 67-68 (Mo. banc 1973); Hubert v. Purkett, 165 S.W.3d 585 (Mo.App.2005). A petitioner whose petition for habeas corpus is denied may file a new petition with a higher court. Id.

Section 512.025 provides an exception to the general rule. It allows appeals from decisions denying relief in instances involving custody of minor children when there has been no prior court order determining custody. Section 512.025 appears to be not applicable in this case due to the existence of the February 4, 2003, judgment that mother sought to modify by Count I of her amended petition. Point I, however, challenges the validity of the February 4 judgment.

Point I asserts that the trial court did not have jurisdiction to enter the February 4, 2003, judgment because the circuit court “lost jurisdiction to award custody of the minor children to any third party, when the children’s natural father ... died.” If the trial court did not have jurisdiction to enter the February 4, 2003, judgment, the judgment would be void and of no effect. Doss v. Howell-Oregon Elec. Co-op., Inc., 158 S.W.3d 778, 782 (Mo.App.2005). If mother’s assertions in Point I were correct, § 512.025 would permit her to appeal the denial of the petition for writ of habeas corpus that was set forth in Count II of her amended petition.

The award of custody to the children’s grandparents by the February 4, 2003, judgment was not founded on unfitness of mother, but was a determination that the best interests of the children required granting of legal custody to the grandparents and joint physical custody to the grandparents and mother. “[I]n all such proceedings, the welfare of the child is and must be the prime and overriding consideration and the rights and claims of the parents are and must be of secondary importance.” Matter of W_ K_ M_, 537 S.W.2d 183, 185 (Mo.App.1976). “[T]he presumption which favors vesting of custody in the natural parent must fall whenever the best interests of the child, for some special or extraordinary reason or circumstance, mandate that custody be vested in third persons, regardless of whether the evidence establishes the unfitness or incompetence of the natural parent.” In Interest of K.K.M., 647 S.W.2d 886, 890 (Mo.App.1983). The trial court had authority to make the determination set forth in the February 4, 2003, judgment. That determination was made in a habeas corpus action. Father’s death had no bearing on the trial court’s authority to determine custody in a habeas corpus proceeding. Point I is denied.

Point II is also directed to the petition for habeas corpus. Point II is moot in that the February 4, 2003, custody order may be addressed by motion to modify pursuant to § 512.025. It is not subject to habeas corpus review. Further, Point II mischaracterizes the trial court’s actions with respect to mother’s Count II. Point II asserts that the application for habeas corpus relief in Count II was “dismissed.” The petition for habeas corpus was denied. Respondent filed a motion to dismiss Point II on the basis of that mischaraeterization. That motion was taken with the case. It is, likewise, moot.

Point III contends the trial court erred in denying mother’s motion to modify the February 4, 2003, custody order. Mother argues that she “demonstrated a substantial change in circumstances regarding the third party custodians and a modification of the judgment awarding custody to Respondents was necessary to serve the best interests of the minor children in that Respondent Bennie Jackson died and [mother] abated the cause of placing her children with Respondents by being able to provide the children with a stable home environment.”

This court will affirm the modification judgment unless it is not supported by the evidence, is against the weight of the evidence, or erroneously declares or applies the law. Suffian v. Usher, 19 S.W.3d 130, 135-36 (Mo. banc 2000). Greater deference is afforded the judgment of the trial court in a custody matter than in other matters. Id. at 136.

The trial court denied mother’s request to award her sole physical custody and legal custody of the children. It left joint physical custody with mother and respondent and legal custody of the children with respondent. The trial court concluded “that the best interest and welfare of the minor children, ... will presently be best served by leaving unmodified the Judgment entered herein February 4, 2003, vesting the children’s legal custody in [respondent] and their joint physical custody in [mother] and [respondent].”

Mother and respondent agreed that there had been a substantial change in the circumstances of the children and respondent in view of the death of Bennie Jackson. Mother argued that changes in her lifestyle — remarriage, a home in Colorado, benefits for the children through her husband — warranted the modification of the prior custody order; that change of custody would be in the children’s best interests.

The trial court found that leaving legal custody of the children with respondent and joint physical custody with respondent and mother was in the children’s best interests. The children had lived in Dunklin County, Missouri, with father, the grandparents, or respondent since mother and father’s separation. Father was awarded custody of the children in the decree that dissolved his and mother’s marriage. Father and the children were living with respondent and Bennie Jackson when father died. The children had not been in mother’s custody for nearly six and one-half years.

Extended family members live near respondents and have good relationships with the children. The children go to school and are involved in extracurricular activities in Dunklin County. Mother had not attended any of the children’s extracurricular or school activities, with the exception of one soccer game. Mother does not provide financial support for the children other than medical insurance provided by her present husband’s service with the U.S. Army.

Mother resides in Colorado. Mother intended to move the children to Colorado if custody was modified. Mother had not consistently exercised her visitation or temporary custody rights with the children, even when she resided near them.

Cody had been hospitalized on one occasion following father’s death. He was in a hospital for three days. At that time mother was staying at her parent’s home in Pocahontas, Arkansas. The only time she spent with Cody during his hospitalization was approximately one and one-half hours the last day he was hospitalized. Respondent had spent nights at the hospital with Cody while Cheyenne stayed with an uncle and aunt. Mother had not offered to help with the care of either child.

Respondent has provided daily care for the children during the majority of their lifetime. Respondent cared for them during mother and father’s separation and following dissolution of their marriage. She provided their care after the death of father and after the death of Bennie Jackson. She quit working outside of the home in order to care for the children.

“In considering the best interest of the child on motions for change of custody, the trial court is vested with wide discretion. Nichols v. Beran, 980 S.W.2d 342, 345 (Mo.App. W.D.1998). The reviewing court should defer to the findings of the trial court unless they are in conflict with a clear preponderance of the evidence and they disclose an abuse of discretion. Id.” McCubbin v. Taylor, 5 S.W.3d 202, 207 (Mo.App.1999).

This court finds no abuse of discretion by the trial court in its determination that it was in the best interests of the children to leave legal custody with respondent and joint physical custody with mother and respondent. That determination is not in conflict with a clear preponderance of the evidence. Point III is denied. The judgment is affirmed.

PREWITT, P.J., and RAHMEYER, J., concur.

      . Bennie Jackson died May 28, 2003.

      . Cheyenne Lavon Ivy was born May 24, 1996. Cody Keith Ivy was born August 23, 1997.

      . References to statutes are to RSMo 2000.


source: Caselaw Access Project

author: THOMAS H. NEWTON, Judge.

license: Public Domain

text:
    STATE of Missouri, ex rel. NIXON, et al., Appellant, v. ALTERNATE FUELS, INC., Respondent.
    No. WD 65079.
    Missouri Court of Appeals, Western District.
    Nov. 8, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 20, 2005.
    Application for Transfer Denied Jan. 31, 2006.
    See also 158 S.W.3d 811.

      Shelley A. Woods, Jefferson City, MO, for Appellant.
    Daniel P. Card II, Jefferson City, MO, for Respondent.
    Before VICTOR C. HOWARD, P. J., JAMES M. SMART and THOMAS H. NEWTON, JJ.
   THOMAS H. NEWTON, Judge.

Factual and PROCEDURAL Background

Missouri Land Reclamation Commission (MLRC) under the Department of Natural Resources (DNR) rendered administrative penalties totaling $311, 940.00 against Alternate Fuels Inc. (AFI), a Kansas corporation. AFI was a permitee or holder of a permit issued by the commission to conduct surface mining and reclamation operations. AFI held three permits for the Blue Mound Mine issued by the MLRC: No.1990-01, No.1991-02, and No.1996-01. AFI operated the Blue Mound Mine until October 1996, when Cimarron Energy, L.L.C. (Cimarron) became the operator. AFI continued to hold the three permits in its name and remained as guarantor of the reclamation bonds. All surface mining at the Blue Mound Mine ceased in November 1999. All three of the issued permits had expired by December 2001. The assessments in dispute were issued before and after the permits expired.

The Procedure of Missouri Land Reclamation Program

A DNR inspector performs unannounced inspections regularly on permitted lands to ensure compliance with the land reclamation program. The inspector issues a notice of violation for noncompliance with the permit and/or the law, rules, and regulations. If the operator disagrees with the notice, he or she can request an informal conference or a hearing within thirty days of receipt of the notice. If the operator requests an informal conference and disagrees with the decision of the director, the operator can request a hearing within thirty days of that decision. Assuming the violation has not been abated within the set time frame, the inspector will issue a cessation order. If the operator disputes the order, he or she may pursue the same recourse that is offered when a notice of violation is disputed.

After each notice or order is issued, the inspector will issue a proposed amount for a penalty assessment. The- inspector, when deciding the amount, factors into the assessment formula both the level of compliance and the time for compliance, which are different based on the nature of the violation. If the operator disputes the proposed assessment amount, the operator has the same recourse available to him or her as mentioned above. A bond, however, in the amount of the penalty must be posted to obtain a hearing to dispute the penalty, which bond is forfeited if the operator loses the dispute. The operator may dispute both the underlying violation and the penalty at this hearing. A dispute as to the penalty will not be heard if the operator does not post a bond. Therefore, the operator would have to pay the penalty if he or she had previously only contested the underlying violation.

After expiration of the appeal time frames as to both notices and cessation orders, the inspector will make a presentation to the MLRC and will ask the MLRC to confirm the proposed assessment. Upon approval of the proposed assessment, the MLRC sends the operator an order of assessment that must be paid within thirty days of receipt. The MLRC, as a last resort for compliance, will seek revocation of the permit and forfeiture of the bond when the operator or permittee has developed a pattern of program protocol violations.

The Procedure as Applied to AFI

Several inspections of AFI’s permitted lands revealed that the lands did not comply with the permit or the reclamation law, rules, and regulations. The inspector issued several notices of violations specifying due dates for compliance. Some of the violations were not abated or not abated timely by AFI, according to the inspector. As a result, the inspector entered several cessation orders. A pattern of these violations led the MLRC to enter a show cause order on September 14, 1998, against AFI as to why its permits should not be revoked. The permits were not revoked subject to a Consent Agreement in 1999 between AFI and the MLRC. The inspector issued subsequent notices of violations upon discovery that AFI was violating other rules or the same rules on other permitted lands, leading the MLRC to enter a second show cause order in September 2001. AFI contested a few these notices. Mr. Larry Cohen of MLRC stated that none were timely requested. Subsequently, penalty assessments for the notices and cessation orders were issued against AFI. These underlying notices and cessation orders for the show cause order are .the same for the currently disputed penalties. The majority of the violations involve reclamation: control erosion, failure to back-fill and grade within the regulatory time frames provided, lack of plan to address the acidity and toxicity of soils exposed, and failure to report water quality. A few were also issued because AFI failed to reply or maintain liability insurance after the permit expired.

All of the notices and orders were sent to Mr. Larry Pommier listing Cimmaron as the operator. Mr. Pommier signed the acknowledgement forms for service. Mr. Pommier is AFI’s president, but he is not an owner. AFI, however, has not been involved with the mine since 1996, except for being the permittee for the Blue Mound Mine. In October 1996, Cimmaron Energy, LLC became the operator by acquiring all secured assets of the AFI’s bankruptcy estate. It is unclear whether AFI remains an operator. The MLRC, however, has acknowledged AFI as the permittee and Cimmaron as the operator. The MLRC has a list of names of Cimmar-on owners’ that includes Mr. Pommier as a one-percent managing member of Cimmar-on, Nevertheless, Mr. Pommier is the only official representative that the staff director of the Missouri Land Reclamation Program has spoken with during the three or four times he has visited the Blue Mound Mine. The majority of these orders, notices, and penalty assessments was issued after the surface mining permits had expired and after mining operations at the Blue Mound Mine had ceased.

AFI did not renew the permits, and the State advised Mr. Pommier that he did not have to renew them. Reclamation was the only activity occurring on the Blue Mound Mine in December 2001. AFI posted the bonds for the permit and is hable for reclamation. The federal government has inspected and enforced the land reclamation over the Blue Mound Mine for the last year and has issued no violations against AFI.

Neither AFI nor Cimmaron has paid any of the penalties that were due respectively thirty days after receipt of each MLRC the orders of assessment. The MLRC requested that the attorney general seek collection of each the penalties, interest, and attorney’s fees from AFI in a civil action. The attorney general filed a petition in the Circuit Court of Cole County, Missouri, naming AFI as the defendant. Cimmaron was not a party. The trial judge ruled in favor of AFI, and the State appeals.

Legal Analysis

The standard of review for a court-tried case is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). We will affirm the court’s decision not to enforce the administrative penalties, unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. at 32. Decisions, however, that involve statutory interpretation are reviewed de novo. Buttress v. Taylor, 62 S.W.3d 672, 679 (Mo.App. W.D.2001) (citations omitted).

Our purpose is to ascertain the legislative intent when construing statutes. Dir., Mo. Dep’t of Pub. Safety v. Murr, 11 S.W.3d 91, 96 (Mo.App. W.D.2000) (citations omitted). Accordingly, we interpret the express language of the statute consistent with its plain and ordinary meaning whenever possible. Id. “In interpreting a statute we are required to give meaning to each word, clause, and section of the statute whenever possible.” Buttress, 62 S.W.3d at 679. The rules of statutory construction are applied only after a finding that the statute is ambiguous. Smith v. Shaw, 159 S.W.3d 830, 834 (Mo. banc 2005). A statute is ambiguous if the legislature’s intent is not ascertainable after relevant language has been given its plain and ordinary meaning. Murr, 11 S.W.3d at 97. Regulations are subject to the same principles of statutory construction. Teague v. Mo. Gaming Comm’n, 127 S.W.3d 679, 685 (Mo.App. W.D.2003).

The issue is whether the MLRC can enforce reclamation obligations against an expired permittee engaged in reclamation by issuing notices of violations and accompanying cessation orders and subsequently assessing penalties. The State argues that the MLRC has the regulatory authority to assess administrative penalties against an expired permittee because the legislature intended it and the regulations provide for it. AFI responds that the MLRC’s authority to assess penalties is limited to those specifically listed in the statute, which do not include an expired permittee.

Lack of Jurisdiction

The State contends that the legislature intended for the MLRC to have regulatory authority against expired permittees that are in violation of their reclamation plan absent statutory language limiting penalty assessments to permittees with unexpired permits. The penalty assessment statute grants the MLRC the authority to assess penalties against permittees for reclamation plan violations. § 444.870. The -DNR regulation, 10 CSR 40-6.010(4)(B)2, states that the reclamation plan remains an obligation regardless of expiration, termination, revocation, or suspension of a permit. The State contends that AFI still had reclamation obligations, and the penalties against AFI were for reclamation plan violations. Therefore, MLRC acted within the statutory authority given and did not exceed its jurisdiction. The State further argues that the statute limiting permits to five years is only informative and does not restrict MLRC’s jurisdiction to regulate reclamation.

AFI claims that MLRC has no statutory authority to regulate a permittee beyond the permit’s life, which is a five-year period. AFI states that the life of the permit is a time limit imposed on the commission’s regulatory authority, which by statute is jurisdictional. State ex rel. Laidlaw Waste Sys., Inc. v. City of Kansas City, Mo., 858 S.W.2d 753, 756 (Mo.App. W.D.1993). Laidlaw and its progeny, however, are inapplicable to the issue in this case because those cases involve the construction of statutory provisions that impose time limits on direct administrative agency actions. The statutory provisions AFI references lack such language. Rather, the statute articulates the time limit for permits and enumerates the permittee’s duties. § 444.815.

AFI further argues that the legislature’s silence as to the extension of the agency’s jurisdiction is evidence that the life of the permit is the jurisdictional time frame by which the MLRC is authorized to act. To support its argument, AFI cites various other statutes in which the legislature enumerates agency or commission powers to penalize persons beyond the expiration of a license or permit. AFI further contends that the legislature did not intend to regulate expired permittees engaging in reclamation because the statute requires reclamation to be contemporaneously completed with mining operations, as evidenced by regulations setting forth schedules for required reclamation activities.

MLRC did have jurisdiction over AFI because AFI was a non-renewed per-mittee with unfulfilled reclamation obligations. A commission’s power to act is governed by the enabling statute. Laidlaw Waste Systems, 858 S.W.2d at 754. It cannot exceed its authorized powers just because it would produce a beneficial result. Wells v. Dunn, 104 S.W.3d 792, 796 (Mo.App. W.D.2003). The penalty statute and the cited regulation do not expressly grant the MLRC power to regulate expired permittees. That same regulation, however, has the language that suspends the requirement for permit renewal for those engaging in only reclamation. We find it, therefore, appropriate to construe the regulation rather than the statute granting the MLRC power to assess penalties.

The Missouri Land Reclamation Program is a federally-approved state program that complies with the federal Surface Coal Mining Control and Reclamation Act (SMCRA) of 1977. It, therefore, must be no less effective than the federal program. 30 U.S.C. § 1253 (1982). In addition, the Missouri legislature mandates in the Surface Coal Mining Law that whatever rules and regulations adopted to accomplish the reclamation of mined lands “be no more stringent than the comparable federal regulations promulgated by the Office of Surface Mining Reclamation and Enforcement under P.L. 95-87, and the Federal Surface Coal Mining Control and Reclamation Act of 1977.” § 444.800.4. This provision manifests the Missouri legislature’s intent to mirror the federal act, which is intended “to protect the environment from the adverse effects of surface coal mining while ensuring an adequate supply of coal to meet the nation’s energy requirements” by empowering the Secretary to “promulgate regulations establishing regulatory procedures and performance standards ‘conforming to the provisions of the Act.” Nat’l Wildlife Fed’n v. Lujan, 950 F.2d 765, 767 (D.C.Cir.1991). Missouri’s permit system models the federal system, which permit system is the primary means to ensure compliance with the Act. Id.

The regulation cited by the State, 10 CSR 40-6.010(4)(B)2, is similar to federal regulation 30 C.F.R. § 773.4(a) (2005), which reads in pertinent part:
A permittee need not renew the permit if no surface coal mining operations will be conducted under the permit and solely reclamation activities remain to be done. Obligations established under a permit continue until completion of surface coal mining and reclamation operations, regardless of whether the authorization to conduct surface coal mining operations has expired or has been terminated, revoked, or suspended.

Obviously, the federal regulation does not expressly prohibit or grant the MLRC the authority to assess penalties against a non-renewed permittee. The parties have not provided nor have we discovered Missouri cases interpreting the regulatory language: “obligations established under a permit continue.” We agree with the State that the MLRC has the power to assess penalties against expired permittees engaged in reclamation because the Office of Surface Mining Reclamation and Enforcement (OSMRE) expressly preserves regulatory jurisdiction over non-renewed permits in its discussion of the final rule. Use of interpretations by federal authority in the construction of state law that adopts federal provisions is appropriate persuasive authority. Mehrer v. Diagnostic Imaging Ctr., P.C., 157 S.W.3d 315, 321 (Mo. App. W.D.2005)(finding that federal interpretations of a federal rule -that shared similar language with a Missouri rule was guidance for the interpretation of the Missouri rule).

The discussion of the final rule located in the Federal Register specifically addresses the issue of whether regulatory authority over permittees engaging in reclamation with non-renewed permits continue. Some commenters doubted whether the OSMRE could enforce reclamation requirements and conditions of an expired permit. The commenters stated that “expired” permit would bring the validity of the permit into question. The OSMRE responded that “the only thing which expires is the authorization to conduct surface coal mining operations ... [although a permittee may choose not to renew the permit ... the permit and all reclamation obligations under the regulatory program remain in full force and effect for all reclamation requirements until final bond release.” 54 F.R.13814, 13815 (Apr. 5, 1989) (emphasis added). “Full force and effect” signifies that the regulatory policies are still intact even though the requirement for permit renewal is suspended. OSMRE stated that “[a]ny revisions to the reclamation plan following expiration of the permit must comply with the requirements of 30 CFR 774.11.” 54 F.R. at 13817. This section of the code refers to federal enforcement provisions listing penalties as a means of enforcement in 30 C.F.R. § 845.1 (2005).

This sentiment is most evident in the discussion about OSMRE’s decision not to adopt part of the proposed rule. The proposed rule had a sentence that read, “any person conducting reclamation activities pursuant to requirements of a permit, even if the permit is no longer extant must comply with all applicable provisions as a permittee.” 54 F.R. 13814, 13818 (emphasis added). OSMRE did not adopt the sentence as part of the final rule because of the language stating “obligations established under permit continue” already embodied the notion that all provisions remain applicable to a permittee. Id. OSMRE further explained that the “reclamation obligations under the applicable State or Federal program ... remain in effect and are enforceable regardless of whether the 5-year permit term has lapsed,” Id. at 13819, and regulatory jurisdiction only expires over reclaimed land according to 30 C.F.R. § 700.11(d) (2005). “The permittee whose authorization to conduct surface coal mining operations has expired but who still has reclamation obligations to complete according to the permit must conduct those reclamation activities as the ‘permittee’.” Id. Because OSMRE pronounces that all provisions are still applicable to the non-renewed permi-tee engaging in reclamation, “[a]ll enforcement policies continue as before,” Id. at 13818, and because the Missouri legislature intended to follow the federal interpretation of the Surface Coal Mining Law, the penalty provisions still apply to AFI.

Accordingly, MLRC was correct in treating AFI as a permittee. AFI was still a permittee according to the regulation because AFI was an expired permit-tee with reclamation occurring on its permitted land, the Blue Mound Mine, which ceased in December 2001. The notices of violations and cessation orders pertaining to permit obligations issued between 2000 and 2002 are valid as long as there was reclamation activity on the land. All violations and cessation orders involving reclamation are valid regardless of reclamation activity because regulatory authority as to reclamation does not terminate until the bonds are released. 10 CSR 40-7.021(C); 30 C.F.R § 700.11(d). Bonds were not released to AFI or Cimarron, so regulatory jurisdiction continues. The fact that Cimmaron was the operator, as stipulated to and evidenced on every notice of violation and cessation order, does not change the analysis because penalties can be assessed against permittees under section 444.870. The MLRC, therefore, had jurisdiction to issue violations and cessation orders against AFI and subsequent penalty orders.

The trial judge’s ruling that the MLRC lacked jurisdiction to assess notices and accompanying orders against AFI after the permit expiration was an erroneous declaration and application of the law. We, therefore, reverse and remand the case to the trial court for further proceedings consistent with this opinion.

VICTOR C. HOWARD, P.J., and JAMES M. SMART, J. concur.

      . Cimmaron was the sole operator under this permit because it belonged to Cimmaron at the inception. AFI operated under the other two until the company lost its assets in 1993.

      . An automatic penalty is assessed for both the notice and the order regardless of compliance. According to the director, penalty assessments do not create compliance, although faster compliance will create lower penalties.

      . In the absence of the inspector, someone else will read the notice to make the presentation.

      . The permits were not expired at that time. The court found that AFI breached the agreement and ordered payment of the penalties. The decision was affirmed in State ex rel. Nixon v. AFI, 158 S.W.3d 811 (Mo.App. S.D.2005).

      . AFI disputed Pl-02-72, and shortly thereafter the MLRC issued show cause why not to revoke the permit.

      . It is in dispute as to whether AFI waived the right to dispute the underlying violations by failing to appeal or contest the assessments. AFI asserts that it is still waiting on a hearing, but the State denies it. Hearings can remain pending for months or even a year because the MLRC does not guarantee when a hearing will be commenced.

      . The State has stipulated that several of these notices and orders are cited in the second show cause order. The hearing was conducted in April 2003, but AFI did not know its outcome as of the July 9, 2004, hearing. A new rule prevents anyone besides the MLRC from knowing about recommendations to the MLRC. The State contends, however, that the second show cause order will not have a bearing on penalty assessments.

      . Secured creditors replaced AFI's management with Mr. Pommier in 1993.

      . Over the course of litigation, the determination of whether AFI is legally an operator was before the MLRC in a hearing. The State has not alleged an alter ego theory. The statute provides separate, distinct definitions for operator and permittee.

      . MLRC is not clear as to who owns Cim-maron.

      . AFI asserts that both Mr. Pommier and Mr. John Wormack spoke to program personnel as members of Cimmarron.

      . AFI did not pay because it was waiting for the results of the show cause hearing in which the majority of the underlying violations for the penalties was being decided.

      . This analysis requires a review of the MLRC’s decision to issue notices and orders and assess penalties against an expired per-mittee. To the extent that this decision this decision could be construed as an interpretation of the statute by the agency; the following is added to our standard of review: "[T]he interpretation and construction of a statute by an agency charged with its administration is entitled to great weight. Nonetheless, this Court exercises independent judgment and must correct erroneous interpretations of the law.” State ex rel. Sprint Mo., Inc. v. Pub. Serv. Comm’n, 165 S.W.3d 160, 164 (Mo. banc 2005) (internal citations and quotations omitted).

      . Unless otherwise indicated, all statutory references are to RSMo (2000).

      . We have found decisions from other jurisdictions addressing whether enforcement jurisdiction continues beyond the permit expiration. The Kentucky Court of Appeals found that "both the obligation to reclaim the site and the cabinet’s enforcement jurisdiction continue until such time as the required reclamation is completed.” Natural Res. & Envtl. Prot. Cabinet v. Whitley Dev. Corp., 940 S.W.2d 904, 908 (Ky.Ct.App.1997). The Supreme Court of Vermont found that enforcement authority ended with the expiration of the permit as long as no other activity-triggering jurisdiction was present, such as development activities. In re Huntley, 865 A.2d 1123, 1126 (Vt.2004).

      . Reclamation liability for a site (entire permit area or increment within the area) terminates when the bonds are released or the state has made a written determination thereof. Appolo Fuels, Inc. v. Office of Surface Mining Reclamation & Enforcement, 125 IBLA 369 (1993) (holding that OSMRE lacked jurisdiction to issue notices of violations and cessation orders against operator when there was a final bond release on the permitted lands, the permit and the subsequent liability period had expired, and reclamation activities were completed).


author: PAUL M. SPINDEN, Judge.

text:
    Judy A. ANDERSON, Tracey R. Frerich, Cody D. Allen, Brady R. Storms, Emma Storms, Respondents, v. ARROW TRUCKING COMPANY, Appellant, and Missouri Department of Transportation, Defendant.
    No. WD 64997.
    Missouri Court of Appeals, Western District.
    Nov. 8, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 20, 2005.
    Application for Transfer Denied Jan. 31, 2006.

      Paul Hasty, Jr., Overland Park, KS, for Appellant.
    Richard Rollings, Jr., Camdenton, Mark Parrish, Lee’s Summit, for Respondent.
   PAUL M. SPINDEN, Judge.

The circuit court, apparently convinced that Arrow Trucking Company had been evasive and not forthcoming in supplying information and documents requested by the plaintiffs during discovery, struck Arrow Trucking’s pleadings for violating Rule 61.01 and entered judgment on liability against it. We affirm the circuit court’s judgment.

Precipitating this lawsuit was a 1998 collision between a car driven by Tracey Frerich, in which Judy Anderson, Cody Allen, and Brady and Emma Storms were passengers, and one of Arrow Trucking’s tractor-trailer rigs. The rig moved into the same lane of traffic in which Frerich’s car was traveling. Frerich swerved her car to the left, but the car was crushed between a guardrail and the rig. The rig dragged Frerich’s car down the highway.

On March 14, 2003, the plaintiffs sued Arrow Trucking and the Missouri Department of Transportation. The plaintiffs later served Arrow Trucking with interrogatories and requests for production. Arrow Trucking responded on June 27 by objecting to several of the plaintiffs’ requests. The plaintiffs and Arrow Trucking resolved some of their disagreements, and they asked the circuit court to resolve the remaining ones. The circuit court overruled several of Arrow Trucking’s objections during a telephone conference on February 11, 2004. The parties exchanged letters stating that they mutually understood the circuit court’s rulings.

On April 2, 2004, Arrow Trucking had not responded to the plaintiffs’ requests, and the plaintiffs sent a letter to Arrow Trucking demanding the information and documents. When Arrow Trucking still had not yet provided the information 25 days later, the plaintiffs filed two motions to enforce discovery. Arrow Trucking did not respond to either one. On May 11, the circuit court ordered Arrow Trucking to provide “full and complete responses” to the plaintiffs’ discovery requests within 10 days. Arrow Trucking filed supplemental responses on May 21.

Not satisfied with Arrow Trucking’s responses, the plaintiffs filed a motion asking the circuit court to impose sanctions against Arrow Trucking pursuant to Rule 61.01. The plaintiffs argued that Arrow Trucking did not comply with the circuit court’s order of February 11 and that Arrow Trucking’s responses of May 21 were evasive and incomplete. After a hearing on July 22, the circuit court granted the plaintiffs’ motion and struck Arrow Trucking’s pleadings.

A hearing on damages followed in September. The circuit court did not allow Arrow Trucking to present evidence or to cross-examine witnesses unless the plaintiffs presented new evidence. The plaintiffs did not present any new evidence. On December 7, the circuit court entered judgment against Arrow Trucking.

In appealing the judgment, Arrow Trucking first contends that the circuit court’s order of May 11 was the only order compelling it to respond to the plaintiffs’ discovery requests, and, because it responded within 10 days, that the circuit court lacked jurisdiction to strike its answer and enter judgment against it. The plaintiffs counter that the circuit court overruled several of Arrow Trucking’s discovery objections on February 11 and ordered the firm to respond. Arrow Trucking violated the order, the plaintiffs contend, by not responding.

The plaintiffs are correct. The circuit court specifically overruled several of Arrow Trucking’s objections. Arrow Trucking acknowledged the circuit court’s ruling in its letter of February 16 to the plaintiffs. For example, Arrow Trucking objected to Interrogatory No. 10 in the plaintiffs’ first set of interrogatories, and, after the February 11 discovery conference, it acknowledged that the circuit court had ruled that it was obligated to provide the information requested. Because the circuit court had overruled Arrow Trucking’s objections, Rule 61.01 obligated it to respond. When Arrow Trucking still had not responded on April 27, the circuit court had discretion to sanction it, assuming that Arrow Trucking had received reasonable notice. Rule 61.01. Contrary to Arrow Trucking’s contention, it violated a discovery order and, after the plaintiffs moved to enforce discovery, the circuit court had jurisdiction to sanction it.

Arrow Trucking argues that Rule 32.2.4 of the Sixteenth Judicial Circuit deprived the circuit court of jurisdiction “to overrule [Arrow’s] objections and enter an Order” on February 11, because the plaintiffs had not' filed a motion to enforce discovery. Arrow Trucking misreads the rule. Rule 32.2.4 says, “Motions to compel answers to interrogatories will not be entertained by the Court. A failure to fully answer interrogatories shall be directed to the Court’s attention by filing a Motion for Enforcement of Discovery pursuant to Supreme Court Rule 61.01.”. Rule 61.01 empowers the circuit courts to “make such orders ... as are just” on motion and reasonable notice to a party that does not respond to discovery requests.

Rule 32.2.4’s purpose is simple and obvious: It directs a party wanting the circuit court to enforce its discovery order to Rule 61.01. In doing so, Rule 32.2.4 does not reverse the circuit court’s long-standing authority to manage discovery by holding discovery conferences and ruling on discovery objections.

■ In this case, the parties resolved most of their disputes, but they sought the circuit court’s intervention on their remaining points of disagreement. The circuit court had authority to overrule Arrow Trucking’s discovery objections and to order it to respond even though the plaintiffs had not filed a motion to enforce discovery. The plaintiffs filed a motion to enforce discovery before the circuit court’s order of May 11, giving the circuit court authority to sanction Arrow Trucking under Rule 61.01.

Furthermore, Arrow Trucking does not explain how Rule 32.2.4 applies to Arrow Trucking’s objections to plaintiffs’ requests for production. That rule addresses only failure to answer interrogatories, not failure to produce requested documents. Even were Arrow Trucking’s reading of Rule 32.2.4 correct, the rule would not be pertinent to the dispute concerning requests for production.

Arrow Trucking next argues that the circuit court abused its discretion by striking its answer to the plaintiffs’ complaint and by entering default judgment against it. Arrow Trucking contends that the abuse of discretion was manifested in the lack of prejudice to the plaintiffs and by the lack of evidence that Arrow Trucking failed to act by virtue of a contumacious, deliberate disregard for the circuit court’s order.

The circuit court has much discretion in controlling discovery and in determining the proper remedy — including sanctions — for a party’s noncompliance with discovery. Dorsch v. Family Medicine, Inc., 159 S.W.3d 424, 439 (Mo.App.2005). The circuit court must treat “an evasive or incomplete answer ... as a failure to answer.” Rule 61.01(a). Sanctions for failing to answer may include striking the offending party’s pleadings and entering default judgment when the offending party has shown a contumacious, deliberate disregard for the circuit court’s authority. Rule 61.01(b) and (d). The circuit court, however, should limit its sanctions to what is necessary to accomplish the purpose of discovery, and the party seeking sanctions must show that its opponent’s noncompliance has prejudiced it. Dorsch, 159 S.W.3d at 439.

Our review of the circuit court’s sanction “is limited to determining whether the trial court could have reasonably concluded as it did, not whether the reviewing court would have imposed the same sanctions under the same circumstances.” Karolat v. Karolat, 151 S.W.3d 852, 857 (Mo.App.2004). We will not interfere unless we discern that the circuit court clearly has abused its discretion. Norber v. Marcotte, 134 S.W.3d 651, 659 (Mo.App.2004). A circuit court abuses its discretion when its rulings are illogical, arbitrary and unreasonable, and indicate a lack of careful consideration. Giddens v. Kansas City Southern Railway Company, 29 S.W.3d 813, 819 (Mo. banc 2000). As in most cases, we defer to the circuit court’s determination of the witnesses’ credibility and the weight to be given their testimony. Herbert v. Harl, 757 S.W.2d 585, 587 (Mo. banc 1988).

From this record, we do not discern that the circuit court’s ruling defied logic, was arbitrary and unreasonable, or resulted from an unstudied consideration of the situation. That Arrow Trucking was evading and not acting in good faith was a reasonable conclusion by any objective standard. For example, Arrow Trucking’s initial response to the plaintiffs’ interrogatories was to object that the requests were “unduly burdensome and ... not reasonably calculated to lead to admissible evidence.” It said nothing about not having the documents or information or not being able to obtain it. It waited until months later at a hearing on sanctions to announce that it might not even have the documents. The circuit court was justified in rejecting Arrow Trucking’s announcement, especially in light of the dubious practice of discarding such important documents as those detailing dispositions of accident claims, leaving it with no means of proving final disposition of a claim were a claimant to reassert it.

Furthermore, the circuit court overruled several of Arrow Trucking’s objections on February 11, obligating Arrow Trucking to respond. Despite communication with the plaintiffs, Arrow Trucking did not provide the plaintiffs with the requested information, prompting the plaintiffs in late April to move to enforce its discovery requests. Even then, Arrow Trucking did not respond although that would have been the opportune time to present affidavits stating that it did not possess the information. Instead, it waited until two days before the hearing on damages to produce an affidavit stating that it had no further information. The affidavit was attached to Arrow Trucking’s motion to reconsider, which was filed out of time according to Rule 41.01(d).

Arrow Trucking supplied supplemental responses in obedience of the circuit court’s May 11 order, but the responses were non-responsive and incomplete. For example, the circuit court overruled Arrow Trucking’s objection to providing information concerning prior claims and lawsuits. Arrow Trucking then provided a “loss run” invoice, but this document did not detail whether or not incidents and accidents had resulted in claims or lawsuits. Nor did it provide the other information included in the plaintiffs’ request: who made the claims, who represented the parties, the dates of the claims or lawsuits, and venues in which lawsuits had been brought. At the sanction hearing,-the circuit court gave Arrow Trucking 30 more days to obtain information from -its previous lawyers that would help develop a more thorough claims history. The record indicates that Arrow Trucking did not avail itself of this opportunity. Moreover, although Arrow Trucking asserted to the circuit court that it had destroyed pertinent documents because of problems in storing the large volume of records involved, it did not have a stated document retention policy and could not explain why or when the pertinent documents may have been destroyed.

Nor did the circuit court abuse its discretion in determining that Arrow Trucking’s conduct prejudiced the plaintiffs. Arrow Trucking’s conduct caused the plaintiffs to endure delay and deprived them of potentially valúable information that they could have used in preparing for trial.

In sum, the circuit court’s decision was not “so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” Giddens, 29 S.W.3d at 819. We, therefore, affirm the circuit court’s judgment.

HAROLD L. LOWENSTEIN, Presiding Judge, and PATRICIA A. BRECKENRIDGE, Judge, concur.

      . We will refer to these individuals collectively as plaintiffs.


author: JAMES M. SMART, JR., Judge. PER CURIAM.

text:
    Clyde BENTON and Travis Benton, Appellants, v. CITY OF HIGGINSVILLE, Respondent.
    No. WD 64861.
    Missouri Court of Appeals, Western District.
    Nov. 8, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 20, 2005.
    As Modified Dec. 20, 2005.
    Application for Transfer Denied Jan. 31, 2006.

      Larry Delano Coleman, Raytown, MO, for Appellant.
    Lyle James Fuller, Kansas City, MO, for Respondent.
    Before VICTOR C. HOWARD, P.J., HAROLD L. LOWENSTEIN, and JAMES M. SMART, JR., JJ.
   JAMES M. SMART, JR., Judge.

Clyde and Travis Benton appeal the trial court’s grant of summary judgment in favor of the City of Higginsville in their civil rights- action under 42 U.S.C. § 1983 arising out of the seizure of a car. The City of Higginsville’s summary judgment motion claimed that Travis Benton did not have a constitutionally protected privacy right in his property where the car was seized, and that Clyde Benton did not have a constitutionally protected interest in the car. The trial court granted the City’s motion. We affirm.

Factual Background

On November 12, 2001, the City of Hig-ginsville received a citizen complaint regarding abandoned and junked vehicles located at the end of West 17th Street in Higginsville. Travis Benton, a plaintiff-appellant, owned the lot where some abandoned cars were located. Following receipt of the complaint, a City police officer contacted Travis, as owner of the lot, to explain the City’s ordinance regulating the presence of abandoned and junked vehicles. The officer informed Travis that he would receive a certified letter notifying him that he would be required to move or dispose of the vehicles within thirty days. Travis received the letter two days later. At the end of the thirty days, Travis requested and received a three-week extension. At the end of that extension, he requested and received another three-week extension. After the second extension expired, the City ultimately, on January 28, 2002, towed a 1984 Pontiac from Travis’ property.

The lot on which the Pontiac was located was not a residential lot. Instead, it was a partially fenced, vacant lot down the street from Travis’ house. Prior to the car being towed (a period of ten weeks from time of the first notice), Travis never requested a hearing or any other judicial proceedings related to the car. Travis also never commented on the ownership of the car, or complained that the enforcement of the ordinance violated his rights. When the towing company towed the car on behalf of the City, the ownership of the car was checked, and it was found to have been last titled in the name of a Kansas resident.

Although it was unknown to the City at the time of the towing, and until this action was filed, Clyde Benton, Travis’ brother and co-plaintiff in the action, claims an ownership interest in the car. The City had no notice of such claim of interest until suit was filed in September 2002, about ten months after the City first gave notice of intent to enforce the ordinance. Clyde acknowledges that he never contacted the City or towing company either before or after the car was towed and prior to filing suit.

During discovery, the City requested proof of Clyde’s ownership of the Pontiac. Ultimately, Clyde produced a copy of a Kansas certificate of title issued to a Kansas resident. The reverse side of the title indicated that the title had been assigned to him in 1996 in consideration of $1.00. Clyde acknowledges that he never titled the car in his name, and never registered the car.

In April 2004, the City moved for summary judgment on the grounds that Travis did not have any expectation of privacy in the vacant lot and Clyde did not have a property interest in the car. Summary judgment was granted, with the trial court holding that the plaintiffs did not suffer any infringement of constitutionally protected interests. Travis and Clyde Benton now both appeal.

Standard of Review

In determining whether the trial courts. grant of summary judgment was appropriate, we review the record in the light most favorable to the party against whom judgment was entered. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Our standard of review on an appeal of summary judgment is de novo. Id. An appellate court’s criteria on appeal for determining whether summary judgment is proper are the same as those that should be used by the trial court in its initial summary judgment determination. Id. If the trial court’s grant of summary judgment is sustainable on any theory as a matter of law, we will not set it aside on review. City of Washington v. Warren County, 899 S.W.2d 863, 868 (Mo. banc 1995). “The theory need not be one raised or argued by either party and may be raised sua sponte by the appellate court, provided the court incorporates principles raised in the petitions.” Id. Under Rule 74.04, a mov-ant must establish his right to judgment as a matter of law. Colgan v. Washington Realty Co., 879 S.W.2d 686, 688 (Mo.App.1994). A movant who is a defendant may do so by showing facts that negate any one element of the plaintiffs claim. Tresner v. State Farm Ins. Co., 913 S.W.2d 7, 9 (Mo. banc 1995).

Analysis

The first inquiry in any 42 U.S.C. § 1983 suit is “whether the plaintiff has been deprived of a right ‘secured by the Constitution and laws.’ ” Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). The rights that Travis and Clyde claim were violated were Travis’ privacy right in his land and Clyde’s property right in the car.

Privacy Rights of Travis Benton

Plaintiff-Appellant Travis Benton claims that his right to privacy was violated when the City came onto his property to tow the 1984 Pontiac. The car, visible from the street, was located on a partially fenced, vacant lot. This lot did not contain a residence and was down the street from Travis’ house. The seizure of automobiles in open spaces does not involve any invasion of privacy. G.M. Leasing Corp. v. United States, 429 U.S. 338, 351, 97 S.Ct. 619, 50 L.Ed.2d 530 (1977). The car was located in an open field and, as a result, the City did not invade Travis’ right to privacy.

In Schneider v. County of San Diego, 28 F.3d 89 (9th Cir.1994), plaintiff Schneider owned a 1.4 acre lot. Id. at 90. He did not reside on the property but parked numerous vehicles in the open field. Id. He lived in a house about 240 feet from the lot. Id. After receiving complaints, the County found Schneider in violation of a zoning ordinance because the vehicles were a public nuisance. The County towed the vehicles. Id. at 90-91. The court, citing G.M. Leasing Corp., found that the seizure of Schneider’s vehicles did not impinge upon any legitimate privacy interest and was valid. Schneider, 28 F.3d at 92. The Eastern District of this court cited Schneider with approval in Bezayiff v. City of St. Louis, 963 S.W.2d 225 (Mo.App.1997), in which the court analyzed a city ordinance that authorized the towing of inoperable vehicles from private property-

Schneider closely corresponds to the facts in this case. Concluding that Schneider accurately states the law, we hold that Travis does not have a legitimate privacy interest in the land where the cars were seized; therefore, he does not have a legitimate right as a basis for a section 1983 claim. His claim fails. The trial court did not err in granting summary judgment as to Travis’ claim.

Property Rights of Clyde Benton

Clyde Benton claims that his property rights were violated when the 1984 Pontiac was towed from Travis’ lot without due process or just compensation. There are two major problems with the assertion of Clyde’s claim, and both relate to the fact that the City had no notice of Clyde’s claim of ownership. One is that Clyde cannot show that additional procedures would have better protected his rights. The second is that,’ because the City had no notice of Clyde’s claimed interest, Clyde’s failure to avail himself of the opportunity to assert a claim with the City must bar his action under Section 1983.

Prior to service of papers in this suit, the City had no knowledge or notice of Clyde’s interest in the car. Clyde had never titled nor registered the car, nor had he obtained a salvage title or paid property taxes on the car.

To “determine whether an individual has received the ‘process’ that the Constitution finds ‘due,’ ” the United States Supreme Court set forth three factors in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). City of Los Angeles v. David, 538 U.S. 715, 716, 123 S.Ct. 1895, 155 L.Ed.2d 946 (2003).

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Id. (quoting Mathews, 424 U.S. at 335, 96 S.Ct. 893).

To paraphrase Mathews, there may be a violation of due process where the procedures employed by governmental agents are so unreasonably careless or indifferent to individual rights that they create the likelihood of an erroneous deprivation of the private interest of a citizen. 424 U.S. at 335, 96 S.Ct. 893. One factor mentioned in Mathews is whether additional procedural protections would have been likely to better protect the rights in question.

In this case, in view of Clyde’s failure to comply with procedures for declaring an ownership interest in the vehicle, and in view of Travis’ failure to notify the City of Clyde’s claimed interest, Clyde fails to articulate any way in which the City could have, regardless of the extent of procedural precautions it employed, protected against a seizure of Clyde’s vehicle. Clyde never specifies what due process he claims is required. He suggests that a judicial hearing would be appropriate. However, we fail to see, and Clyde is unablfe to specify, exactly how the more extensive procedures would have protected Clyde. The City still would not have known of Clyde’s interest, and could not have joined him to any proceedings. If Travis did not, after several communications with the City, inform the City of Clyde’s interest, we see no reason to believe that additional procedures would have motivated Travis to do so.

Moreover, Clyde has the additional problem that he failed to notify the City of the existence of his interest. He was more interested in litigating his claim than in getting his car back. Section 1983 was enacted for the vindication of civil rights where there has been a true violation of a right. It does not exist so that citizens can find a reason to litigate and thereby to seek to recover attorney fees under section 1988. In Goichman v. City of Aspen, 859 F.2d 1466 (10th Cir.1988), the court upheld a summary judgment ruling for the City of Aspen by holding that the facts of that case did not give rise to a section 1983 claim. Goichman’s car was towed because it was allegedly parked illegally. Id. at 1467. After realizing his car had been towed, Goichman went to the police station, paid the fine and towing fee, and recovered his car. He chose not to contest the parking violation. Id. If he had done so, and had prevailed at the hearing, his fees and charges would have been reimbursed. Eleven months later, Goichman brought an action under section 1983 claiming that he had not been provided with due process regarding the seizure and impoundment of his car. Id. The Court noted that Goichman was afforded an opportunity to be heard at the time he paid to recover his car, but he failed to assert any claim of right at that time. The court held he could not maintain an action under section 1983. If a claimant does not assert rights when he or she has the opportunity, there is no reason he or she should later be entitled to sue for denial of such rights. See id. at 1468-69.

Similarly, if Clyde did not assert his rights to the City after he became aware that the vehicle had been towed, there is no reason he should be entitled to sue upon his claim that he was denied the right to additional procedures. Clyde did not ask for the return of his car. Nor did he ask for compensation. He did not ask for any vindication of his alleged rights in any way. The City, in the meantime, had no notice of any claim of right he might have.

We have no way of knowing what remedial action the City might have undertaken to accommodate Clyde if he had contacted the City and asked for the return of his car, through either an informal request or through any formal claims procedures the City might have. Clyde wants us to assume that the City would have been indifferent to his due process rights. Perhaps so, but on what basis do we assume that? The City should not have to defend a lawsuit when the claim could quite possibly have been resolved through a claims procedure. Consequently, for this reason also, we hold that the trial court did not err in granting summary judgment.

Remaining Points

The other points on appeal are mooted in view of the analysis above. We will affirm summary judgment grant if the ruling was legally correct, without regard to whether the moving party was in complete compliance with all aspects of Rule 74.04.

Conclusion

Judgment granting summary judgment for the City of Higginsville affirmed.

LOWENSTEIN and HOWARD, JJ., concur.

On Motion for Rehearing or Transfer

PER CURIAM.

In this motion, the appellants assert that this court overlooked the lack of constitutionality of the ordinance of the City of Higginsville. Appellants complain that this court “never sets forth the substance of that ordinance, neither does it analyze the ordinance.”

The appellants are correct that this court did not address the constitutionality of the ordinance. The appellants did not directly attack the ordinance in this court. The appellants furnished this court with a copy of the new ordinance, but did not furnish the court with a copy of the ordinance in effect at the time the vehicle was towed and under which the city purported to operate. Nor did the appellants argue the issue of constitutionality; the appellants assumed the former ordinance would be viewed as unconstitutional by this court because the circuit court had viewed the ordinance as unconstitutional, without relying upon that view in its ruling.

This court was accordingly unable to asses the constitutionality of the ordinance under which the car was towed. We are also unable to take judicial notice of the content of municipal ordinances. Consumer Contract Co. v. Dept. of Revenue, 592 S.W.2d 782, 785 (Mo. banc 1980). The fact that the circuit court, in dictum, viewed the ordinance as unconstitutional, (for reasons that were not specified), was not binding on this court. Ordinances are presumed constitutional until declared by a court holding to be otherwise. Kansas City v. Liebi, 252 S.W. 404, 407 (Mo. banc 1923).

Because the circuit court did not regard the constitutionality (or lack thereof) of the ordinance to be essential to its analysis, this court reviewed the trial court determination without having the text of the ordinance in question and without being provided substantive arguments as to the constitutionality of the ordinance. Accordingly, this court did not overlook a matter of law or fact as to the ordinance under which the towing was conducted.

Appellants also complained on appeal that the circuit court erred in stating that the City had sustained its affirmative defenses because the City did not plead affirmative defenses. It should be noted that, although the court referred to the City’s “affirmative defenses,” the matters asserted were not affirmative defenses. Summary judgment was granted because plaintiffs failed to show that they had a constitutionally protected privacy right or a constitutionally protected ownership interest that was violated by the City. The undisputed material facts showed that plaintiffs did not constitutionally protected interests. The issues submitted to the court related to the nature of the claims, and whether the appellants had cognizable claims under 42 U.S.C. section 1983. They were not matters of affirmative defense. Thus the trial court did not err in granting summary judgment. This court did not overlook any matters of law or fact in its opinion.' The motion for rehearing or transfer is denied.

      . The trial court ruled, and the City urges on appeal, that Clyde had no standing to assert an interest in the vehicle because he never complied with titling and registration. Thus, he had no cognizable ownership in the vehicle, arguably. We need not specifically address the issue of his property interest in view of the ruling we reach herein.

      . Clyde and Travis point to the fact that the trial court believed the ordinance was unconstitutional, although it ruled against them. Because our rulings herein do not depend on whether the ordinance was constitutional, we also do not need to address that issue.


author: PER CURIAM.

text:
    Jerry NICHOLSON, Employee/Appellant, v. XEROX CORPORATION, Employer/Respondent, and Treasurer of Missouri as Custodian of Second Injury Fund, Additional Party/Respondent.
    No. ED 85789.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 8, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 22, 2005.
    Application for Transfer Denied Jan. 31, 2006.
    Harold G. Johnson, St. Ann, MO, for appellant.
    Edward M. Vokcun, St. Louis, MO, for respondent.

      Before CLIFFORD H. AHRENS, P.J., MARY K. HOFF, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Jerry Nicholson (“Employee”) appeals from the decision of the Labor and Industrial Relations Commission (“Commission”) denying her claim for workers’ compensation benefits on the ground that she untimely filed her claim outside of the statute of limitations.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the trial court is affirmed in accordance with Rule 84.16(b).


author: CLIFFORD H. AHRENS, Judge.

text:
    Steve JONES, Robert Jones, Therese Signaigo, Marycarol Jones, Jennifer Jones, and The Estate of Catherine Jones, Appellants, v. ST. CHARLES COUNTY, Respondent.
    No. ED 85652.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 8, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 22, 2005.
    Application for Transfer Denied Jan. 31, 2006.

      David L. Coffman, St. Louis, MO, for appellant.
    Beverly E. Temple, St. Charles, MO, for respondent.
   CLIFFORD H. AHRENS, Judge.

Steve Jones, Robert Jones, Therese Sig-naigo, Marycarol Jones, Jennifer Jones, and Steve Jones as personal representative of the Estate of Catherine Jones (collectively referred to herein as “plaintiffs”), appeal the judgment of the trial court granting summary judgment in favor of St. Charles County (“the county”). Plaintiffs claim the trial court erred in granting summary judgment .because genuine issues of material fact exist concerning the county’s liability under the Missouri Stock Law and its waiver of sovereign immunity. We affirm in part and reverse and remand in part.

Catherine Jones (“decedent”) was driving a vehicle on highway 40 when she struck a horse. Jones died from injuries at the scene of the accident. The horse was owned by Rafter Heart, Inc. (“RHI”), and had been placed in a nearby pasture located on property owned by the county. Pursuant to a concession agreement with the county, RHI operated stables and a riding concession on the property. Plaintiffs filed a wrongful death action against RHI and St. Charles County. In count one of the petition, plaintiffs alleged liability pursuant to the Missouri Stock Law, section 270.010 RSMo (2000). In count two, plaintiffs alleged general negligence. The county moved to dismiss the action, and alternatively moved for summary judgment. The trial court granted the county’s motion for summary judgment, finding that there was no joint venture between the county and RHI, and plaintiffs failed to plead the essential elements to invoke the Missouri Stock Law against the county. The court also found that the county did not waive its sovereign immunity. The court found no just reason for delay existed, finalizing the judgment for purposes of appeal. Plaintiffs now appeal.

We review the trial court’s decision to grant summary judgment de novo. Missouri Employers Mut. Ins. Co. v. Nichols, 149 S.W.3d 617, 622-23 (Mo.App.2004); (citing ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993)). We do not defer to the trial court. Id. at 623. Whether the decision of the court is proper is purely an issue of law. Id. We will uphold the grant of summary judgment on appeal if no genuine dispute of material fact exists, and the movant is entitled to judgment as a matter of law. Id. We view the evidence in the light most favorable to the party against whom the judgment was entered, and we afford them the benefit of all reasonable inferences from the evidence. Id. The movant’s right to judgment differs depending upon whether the movant is a “ ‘defending party.’ ” Id. A “defending party” may be entitled to. summary judgment where it can show facts to negate any element of the plaintiff’s claim. Skay v. St. Louis Parking Co., 130 S.W.3d 22, 25 (Mo.App.2004). “ Where the facts underlying this right to judgment are beyond dispute, summary judgment is proper.’ ” Id.; (quoting ITT Commercial, 854 S.W.2d at 381).

In their first point, plaintiffs claim the trial court erred in granting summary judgment in favor of the county on count one because it was a possessor of the horse that escaped and collided with Jones’s vehicle. Plaintiffs argue that while the county did not own the horse, it owned the land upon which the horse was kept, and therefore, could be considered a possessor of the horse for purposes of the Missouri Stock Law.

Pursuant to section 270.010, it is unlawful to allow horses to run at large outside an enclosure, and the owner of the animal is responsible for damages sustained by persons as a result of the animal running at large.

As plaintiffs note, our courts have interpreted the Missouri Stock Law as applying to both owners and possessors of animals. Keefer v. Hartzler, 351 S.W.2d 479, 480 (Mo.App.1961). The trial court found that it believed plaintiffs failed to plead the essential elements to invoke the Stock Law. However, plaintiffs did argue the county’s possession of the horse in their response to the county’s motion for summary judgment. The trial court addressed plaintiffs’ argument and determined that the Stock Law did not apply to the county. The court granted summary judgment in favor of the county.

Plaintiffs rely on King v. Furry, 317 S.W.2d 690 (Mo.App.1958), to argue that the county, as possessor of the horse, was subject to liability under section 270.010. The trial court distinguished King.

In King, there was a collision between a vehicle and cattle. The plaintiff brought an action against three defendants under the Missouri Stock Law and for general negligence. The cause was submitted to the jury only on the Stock Law claim, and a verdict was returned in favor of plaintiff against all three defendants. The defendants appealed, arguing that the trial court erred in entering judgment against two of the defendants, because there was no proof of the ownership or control of the cattle by those two defendants. The court of appeals found that in view of the pleadings, the admissions of defendants, and the evidence, the verdict against all three defendants and the court’s entry of judgment against them was proper. Id. at 696.

The court in the present case placed significant weight upon the fact that in King, the defendants admitted they were partners in the operation of the auction barn from which the cattle escaped. The court noted that here, the county and RHI were not partners. We agree that the facts of King are distinguishable from the present case.

In King, the defendant who owned the cattle involved in the collision testified that he and the remaining two defendants were partners. The defendants admitted that they owned and operated a sales barn together with stock pens on the property for the purpose of selling the stock at the auction barn to the public. In the present case, plaintiffs alleged that the county owned the property upon which the riding stables and pastures were located. However, there was no evidence of a partnership between the county and RHI to establish the county’s possession or ownership of the horses kept on the property. The county did not admit to owning the horses or the riding concession, nor did it admit to being involved in a partnership with RHI.

The evidence in the record before us shows that the county asserted some control over the operation of the riding concession, pursuant to its agreement with RHI. The county could enter the areas used by RHI and inspect the property, and agreed to perform some maintenance and operation services. The county reserved the right to provide marketing and advertising services for the concession, and reserved the right to review the records of the concession. However, this general oversight of the operation did not constitute control such that the county became a “possessor” of the horse subject to liability under the Missouri Stock Law. Instead, it is clear that the horse involved in the collision in the instant case was owned solely by RHI. Based upon the undisputed facts, as a matter of law the county did not own or possess the horse involved in the collision. Point denied.

In their second point on appeal, Plaintiffs claim the trial court improperly granted summary judgment in favor of the County on count one because the record established a disputed issue of material fact as to whether the County was engaged in a joint venture with RHI to operate the stables, and thus owned the horse as a joint venturer.

“A joint venture is essentially ‘an association of two or more persons to carry out a single business enterprise for profit.’ ” Ritter v. BJC Barnes Jewish Christian Health Systems, 987 S.W.2d 377, 387 (Mo.App.1999); (quoting Eads v. Kinstler Agency, Inc., 929 S.W.2d 289, 292 (Mo.App.1996)). The elements of a joint venture are: (1) an express or implied agreement among the members; (2) a common purpose; (3) a community of pecuniary interest; and (4) equality in determining the direction of the enterprise. Id. “Indications of a joint venture include: actively participating and sharing in the profits, all parties having joint and several control, and having a duty to share the losses.” Id.

If a movant for summary judgment is a defendant, as the county is in the present case, summary judgment will be proper where the defendant shows undisputed facts that negate any one of the required elements of the cause of action. Williams v. Missouri Highway and Transp. Com’n, 16 S.W.3d 605, 610 (Mo.App.2000).

In the present case, the trial court premised its judgment upon the grounds that pursuant to the concessionaire agreement, the county was only to share in a percentage of the gross receipts. The trial court found that this did not call for the county to share in any profits or losses, only gross receipts, and therefore, as a matter of law, a joint venture did not exist.

The concession agreement entered into between the county and RHI provided that the county would receive nine percent of the gross receipts each month. According to the agreement, this amount included anything of value received by RHI in its operation of the business on the premises. The record does not support a finding of a community of pecuniary interest simply because both parties share an economic interest in the operation of the concession. Hatch v. V.P. Fair Foundation, Inc., 990 S.W.2d 126, 138 (Mo.App.1999). “The community of pecuniary interest requires that the parties have a right to share in the profits and a duty to share in the losses.” Id. (citations omitted). Here, the county was to obtain a percentage of anything of value received by RHI in its operation of the concession, regardless of whether or not RHI made a profit. Additionally, the county had no duty to share in any of RHI’s losses. Therefore, as a matter of law, no common pecuniary interest existed, and summary judgment in favor of the county as to its liability as a joint venturer with RHI was proper.

Moreover, as we noted in our analysis of point one, the county did not assert sufficient control over the operation to establish a genuine issue of material fact as to the joint and several control required for a joint venture. Much of the operation and maintenance of the concession was left to the control of RHI. While the county did retain some control over the property and the operation of the riding concession, it did not rise to the level of joint and several control. Point denied.

As a result of the foregoing, the trial court did not err in granting summary judgment in favor of the county on count one.

In their final point, Plaintiffs argue the trial court erred in granting summary judgment in favor of the county on the negligence claim in count two of their petition because they pleaded and proved sufficient summary judgment facts to show that the dangerous condition of the fencing resulted in a waiver of sovereign immunity.

The trial court found that although plaintiffs pled that the fences lacked sufficient strength to contain the horses on the property, they failed to allege that this condition caused the injuries, or created a reasonably foreseeable risk of harm of the injuries which decedent sustained. According to the trial court, plaintiffs also failed to allege what actual or constructive notice the county had in time to take preventative or curative actions.

“Missouri is a ‘fact pleading’ state ...” State ex rel. United Industries Corporation v. Mummert, 878 S.W.2d 494, 496 (Mo.App.1994); (citing ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 379 (Mo. banc 1993)). This requires that a petition contain a short and plain statement of facts to show the pleader is entitled to relief. Id.; (citing Section 509.050.1(1) RSMo.Supp.1993; Rule 55.05, Commercial Bank of St. Louis County v. James, 658 S.W.2d 17, 21 (Mo. banc 1983); Berkowski v. St. Louis County, 854 S.W.2d 819, 823 (Mo.App.1993)). A petition will be deemed insufficient only where it completely fails to state a cause of action by failing to allege facts essential to recovery. Id. (citation omitted).

The plaintiffs in the present case alleged that horses used in the riding concession operated by the county left the property and entered the highway. The horse was struck by decedent’s vehicle, and pinned her to the seat. Plaintiffs alleged decedent died from her injuries at the scene of the incident. Plaintiffs set forth several allegations as to the negligence of the county in its construction and/or maintenance of fencing. The plaintiffs alleged that as a direct and proximate cause of the negligence of the county and RHI, they sustained damages. These allegations were sufficient to state a cause of action of general negligence against the county.

In their response to the county’s motion for summary judgment and their suggestions in opposition, plaintiffs specifically set forth summary judgment facts to support their claim that the county waived sovereign immunity pursuant to section 537.600. Generally, governmental entities are immune from tort liability and suits for compensatory damages for negligent acts or omissions. Martin v. Missouri Highway and Transp. Dept., 981 S.W.2d 577, 579 (Mo.App.1998); (citing section 537.600; and Williams v. City of Independence, 931 S.W.2d 894, 895 (Mo.App.1996)). However, pursuant to section 537.600, sovereign immunity is expressly waived for injuries resulting from a dangerous condition on the property of the governmental entity. To state a claim under the dangerous condition exception, a plaintiff must prove that there was a dangerous condition on the property, plaintiffs injuries were a direct result of the dangerous condition, the condition created a reasonably foreseeable risk of harm of the type incurred by plaintiff, and a public employee negligently created the condition or the public entity had actual or constructive notice of the dangerous condition. Martin, 981 S.W.2d at 579-80; (citing Alexander v. State, 756 S.W.2d 539, 541 (Mo. banc 1988)). “Whether a defendant created a sufficiently dangerous condition is ordinarily a question of fact.” Id. at 582.

The trial court found that count two of plaintiffs’ petition failed because sovereign immunity had not been waived by the county. In its judgment, the trial court relied on State ex rel. Div. of Motor Carrier & R.R. Safety v. Russell, 91 S.W.3d 612 (Mo. banc 2002), and Sisk v. Union Pacific R.R. Co., et al., 138 S.W.3d 799 (Mo.App.2004); however, these cases are distinguishable.

In both Russell and Sisk, the courts determined that the sovereign did not own or control the property upon which the dangerous condition existed, and therefore, was immune from liability and did not waive the immunity. In the present case, it is undisputed that the alleged dangerous condition did exist on property owned by the county. Thus, the court’s reliance upon cases in which it was determined that the sovereign did not own or control the property upon which the dangerous condition existed is misplaced.

Where the movant for summary judgment is a defendant, as the county is in this case, summary judgment will be proper where the defendant shows the undisputed facts that negate any one element of a cause of action. Williams v. Missouri Highway and Transp. Com’n, 16 S.W.3d 605, 610 (Mo.App.2000).

Here, there were summary judgment facts to support a genuine issue of material fact as to the first three elements of the dangerous condition exception to sovereign immunity. There was evidence that the wood on the fence from which the horse escaped was rotting. Deputy Patrick Riley, of the St. Charles County Sheriffs Department, investigated the accident. He testified that the wood in the broken portion of the fence was rotted. In his narrative report of the investigation, Deputy Riley stated that the “upper portion of the fence was obviously older wood that had rotted to the point of breaking.” Nick Donze, the assistant director of the parks department for St. Charles County, also testified that the top rail of the fence appeared to be rotten. The portion of the fence in question was broken, and evidence supported the belief that this is where the horse involved in the collision escaped. The horse collided with decedent’s car, and she died from the resultant injuries. Given the evidence regarding the proximity of the property to the highway, it was a reasonably foreseeable risk of harm that a horse roaming at large could cause a serious, if not fatal collision.

With respect to the final element of the dangerous condition exception, there is no evidence that any employee of the county created the condition, nor is there evidence that the county had actual notice of the condition of the fence. The issue then becomes whether the undisputed summary judgment facts establish as a matter of law that the county did not have actual or constructive notice of the condition. A sovereign has constructive knowledge of a dangerous condition if it is of such a nature that, while not obvious or notorious, it has existed long enough that the sovereign, in the exercise of ordinary care, should have and could have discovered it and remedied it. Lockwood v. Jackson County, Mo., 951 S.W.2d 354, 357 (Mo.App.1997); (citing Feely v. City of St. Louis, 898 S.W.2d 708, 709 (Mo.App.1995)).

In the present case, the county, pursuant to its agreement with RHI, did retain some control over the operation of the riding concession. The county could enter the areas used by RHI and inspect the property. Curt Loupe, the director of the parks department for St. Charles County, testified that he visited the property prior to the county’s acquisition to evaluate it as a potential parks site. He was aware that horses were kept on the property, and he was aware that fencing existed on the property. Loupe also had prior experience -with the containment of animals. During his tenure as parks director for the City of Topeka, Kansas, Loupe maintained a herd of ponies on Topeka park grounds. In his deposition, Loupe testified that ensuring the integrity of the fencing was necessary to keep the ponies from escaping. He stated that if a pony was loose, it could present a safety hazard. Nick Donze, the assistant director of the parks department, also visited the property. John Watts, the owner of RHI, testified that Curt Loupe walked the property and took pictures of the horse pastures.

As previously noted, the report of Deputy Riley stated that the portion of the fence through which the horse escaped was “obviously older wood” that had rotted. A fact-finder could reasonably infer from this evidence that the condition had been present for a length of time such that the county, in its inspection of the property, had constructive notice of the condition of the fence.

As a result of the foregoing, we believe there was sufficient evidence to create a genuine issue of material fact as to the county’s constructive knowledge of the dangerous condition. Therefore, the trial court erred in granting summary judgment in favor of the county with respect to count two of plaintiffs’ petition.

The judgment of the trial court is affirmed as to count one and reversed and remanded as to count two for further proceedings consistent with this opinion.

MARY K. HOFF, P.J., and PATRICIA L. COHEN, J., concur.

      . All further statutory references are to RSMo (2000).

      . An interlocutory order of default was entered in favor of Plaintiffs against RHI on January 13, 2003, but no hearing on damages had taken place at the time of the trial court’s judgment in favor of the county.

      . The liability of the sovereign resulting from the waiver of sovereign immunity under section 537.600 is limited pursuant to the provisions in section 537.610.