In the Circuit Court of St

Consolidated Appeal No. ED90625

IN THE MISSOURI COURT OF APPEALS

EASTERN DISTRICT

SEMCO PLASTICS, INC. AND CANAAN BAPTIST CHURCH,
Intervenors-Appellants,
vs.
F.W. DISPOSAL SOUTH, LLC, ET AL.,
Plaintiffs-Respondents,
vs.
ST. LOUIS COUNTY COUNCIL, ET AL.,
Defendants-Respondents.

Appeal from the Circuit Court of St. Louis County, Missouri, 21st Judicial Circuit

The Honorable Barbara Ann Crancer, Division 31

RESPONDENTS ST. LOUIS COUNTY COUNCIL

AND ST. LOUIS COUNTY’S BRIEF

PATRICIA REDINGTON
COUNTY COUNSELOR
Lorena V. Merklin von Kaenel, #42035
Assistant County Counselor
St. Louis County Counselor’s Office
41 South Central Avenue, 9th Floor
St. Louis, Missouri 63105
Office: (314) 615-7042
Facsimile: (314) 615-3732
Attorneys for Respondents St. Louis County Council and St. Louis County

Table of Contents

Page

Table of Cases, Rules, and Other Authorities

Jurisdictional Statement

Statement of Facts

Point Relied On

Argument

I. Standard of Review

II. The Trial Court Did Not Err In Denying Intervenors’ Motions To Intervene Pursuant To Missouri Rule of Civil Procedure 52.12 On The Grounds That They Were Untimely Because The Appellants Do Not Have A Right To Intervene As Their Motion Was Untimely, And Their Belated Intervention Would Greatly Prejudice The Existing Parties.

Conclusion

Certificate of Compliance

Certificate of Service

Table of Cases, Rules, and Other Authorities

Cases

Chain Yacht Club, Inc. v. St. Louis Boating Ass’n, 225 S.W.2d 476 (Mo.App. 1949)..10

City of Bridgeton v. Norfolk & W.Ry.Co., 535 S.W.2d 99 (Mo. 1976)...... passim

City of Pacific v. Metro Development Corp., 922 S.W.2d 59 (Mo.App.E.D. 1996).21, 22

Emrick v. American Casualty Co., 867 S.W.2d 306 (Mo.App.W.D. 1993)...9, 10, 13, 16

Farmland Dairies and Fair Lawn Dairies, Inc. v. Commissioner of the New York State Department of Agriculture and Markets, 47 F.2d 1038 (2nd Cir. 1988) 13

Frost v. White, 778 S.W.2d 670 (Mo.App.W.D. 1989)...... 12, 18, 19, 20

I.H. Garms & Sons Co. v. Potashnick Constr., Inc., 781 S.W. 2d 203 (Mo.App.E.D. 1989) 10

Kinney v. Schneider Nat. Carriers, Inc., 200 S.W.3d 607 (Mo.App.W.D. 2006)...... 10

Langenberg v. City of St. Louis, 197 S.W.2d 621 (Mo. 1946)...... 16, 17

Mercantile Bank of Lake of the Ozarks v. Jones, 890 S.W.2d 392 (Mo.App.W.D. 1995) 10, 11, 16

Pius v. Boyd, 857 S.W.2d 238 (Mo.App.W.D. 1993)...... 11, 21

Quick v. Wilhite, 895 S.W.2d 90 (Mo.App.S.D. 1995)...... 20

Stafford v. Kite, 26 S.W.3d 277 (Mo.App.W.D. 2000)...... 21

State ex rel. Ashcroft v. American Triad Land Co., 712 S.W.2d 62 (Mo.App.E.D. 1986). 9, 13

State ex rel. Diehl v. Kintz, 162 S.W.3d 152 (Mo.App.E.D. 2005)...... 6, 18

State ex rel. Lashly v. Wurdemann, 166 S.W. 348 (Mo.App. 1914)...... 18

State ex rel. Nixon v. American Tobacco. Co., 34 S.W.3d 122 (Mo. 2000.)...... 19

State ex rel. Pettis County v. Hon. Charles H. Sloan, 643 S.W.2d 618 (Mo.App.W.D. 1982) 18

State ex. rel. Strohm v. Board of Zoning Adjustment of Kansas City, 869 S.W.2d 302 (Mo.App.W.D. 1994) passim

State of Missouri ex rel. Transit Casualty Company v. Holt, 411 S.W.2d 249 (1967)...12

State v. Harris, 939 S.W.2d 915 (Mo.App.W.D. 1996)...... 18

Whitehead v. Lakeside Hospital Association, 844 S.W.2d 475 (Mo.App.W.D. 1992)..21

Other Authorities

St. Louis County Charter Section 5.020...... 9, 18

St. Louis County Charter Section 5.030...... 9, 18

Rules

Missouri Rule of Civil Procedure 52.12...... 9, 10, 11, 18

Jurisdictional Statement

Respondents-defendants St. Louis County Council and St. Louis County (St. Louis County) concur with appellants-intervenors Semco Plastics, Inc. and Canaan Baptist Church’s (Intervenors) Jurisdictional Statement but disagree with Intervenors’ argumentative legal conclusion that the trial court’s order was improper.

Statement of Facts

Respondents-plaintiffs F.W. Disposal South, LLC, et al. (F.W. Disposal) sought to obtain a license to construct and operate a trash transfer station in unincorporated south St. Louis County. Legal File (L.F.) 15. To that end, F.W. Disposal filed its application for a trash transfer station on May 5, 2003 with respondent-defendant St. Louis County (St. Louis County). L.F. 20. Attendant to F.W. Disposal’s application, St. Louis County gave notice to the public of this application, solicited and accepted public comments, and held public hearings, as required by law, throughout 2003. L.F. 20-22, Respondents’ Legal File (R.F.) 6, 8, 9, State ex rel. Diehl v. Kintz, 162 S.W.3d 152, 154 (Mo.App.E.D. 2005).

On May 22, 2003, appellant-intervenor Semco Plastics, Inc. wrote a letter to St. Louis County expressing health and welfare concerns regarding F.W. Disposal’s proposed trash transfer station that is the subject of the underlying suit in this appeal. R.F. 196. On June 16, 2003, appellant-intervenor Canaan Baptist Church also wrote a letter to St. Louis County expressing concerns regarding potential odor and traffic problems connected with F.W. Disposal’s proposed trash transfer station. R.F. 198-199. In fact, during the public hearing regarding F.W. Disposal’s trash transfer station application, appellant-intervenor Canaan Baptist Church’s pastor, Reverend Bruce McCoy, reiterated the concerns expressed in their June 16, 2003 letter. R.F. 200-215, Transcript, pg. 35-37. After another public hearing, on May 4, 2004, the respondent-defendant St. Louis County Council denied F.W. Disposal’s application. L.F. 22.

On June 2, 2004, F.W. Disposal initiated suit against St. Louis County alleging St. Louis County had unjustly denied them a license for their trash transfer station. L.F. 1, 13-94. F.W. Disposal, in its six count amended Petition[1], alleged state and federal civil rights violations, requested injunctions and declaratory judgments, and prayed for large amounts of monetary damages, and attorneys’ fees. L.F. 13-94, R.F. 14-193. After over a year of litigation, on July 7, 2005, Intervenors’ counsel, Lester Stuckmeyer (Stuckmeyer) filed a motion to intervene on behalf of Michael Bram (Bram). L.F. 8, R.F. 257-260. On September 19, 2005, the trial court denied Bram’s motion to intervene. L.F. 6, 8, R.F. 257-261.

Two years following Bram’s unsuccessful attempt to intervene, on October 19, 2007, the trial court entered judgment on a motion for partial summary judgment in the suit in favor of F.W. Disposal. L.F. 95-106. This order followed over three years of intense litigation, including extensive discovery and motion cycles. L.F. 1-12. Thereafter, the only and long-established parties to the suit – F.W. Disposal and St. Louis County negotiated and settled the remaining counts of F.W. Disposal’s suit; accordingly, the trial court dismissed the remaining portion of the suit on October 31, 2007. L.F. 3, 133-134. The trial court did not require these parties, nor are the parties to a lawsuit otherwise required, to file settlement agreements with the trial court. L.F.1-12.

The St. Louis County Charter has committed all litigation responsibilities and decisions for St. Louis County, including those of the St. Louis County Council, to the County Counselor. L.F. 139-142, 145-146, R.F. 270-271. In addition, the St. Louis County Charter specifically forbids “the council … or other agency or body of the county” from having any attorney other than the county counselor. L.F. 141, R.F. 271. From the inception of the underlying suit in 2004, the County Counselor has represented both St. Louis County and the St. Louis County Council without objection from either Intervenors, St. Louis County Councilmember John Campisi (Campisi) or anyone else until mid-November of 2007. L.F. 1-12.

On November 15, 2007, Intervenors moved to intervene in the suit[2]. L.F. 107-116, 117-128. Intervenors filed their motions to intervene pursuant to Missouri Rule of Civil Procedure (Rule) 52.12, after settlement of the case between the parties – F.W. Disposal and St. Louis County, after dismissal by the trial court, and after the suit had been pending for more than three years. L.F. 1-12, 133-134. The trial court denied Intervenors’ motions to intervene as untimely. L.F. 143.

Point Relied On

The Trial Court Did Not Err In Denying Intervenors’ Motions To Intervene Pursuant To Missouri Rule of Civil Procedure 52.12 On The Grounds That They Were Untimely Because The Appellants Do Not Have A Right To Intervene As Their Motion Was Untimely, And Their Belated Intervention Would Greatly Prejudice The Existing Parties.

• State ex. rel. Strohm v. Board of Zoning Adjustment of Kansas City, 869 S.W.2d 302 (Mo.App.W.D. 1994)
• City of Bridgeton v. Norfolk & W.Ry.Co., 535 S.W.2d 99 (Mo. 1976)
• Emrick v. American Casualty Co., 867 S.W.2d 306 (Mo.App.W.D. 1993)
• State ex rel. Ashcroft v. American Triad Land Co., 712 S.W.2d 62 (Mo.App.E.D. 1986)
• Missouri Rule of Civil Procedure 52.12
• St. Louis County Charter Section 5.020
• St. Louis County Charter Section 5.030

Argument

I. Standard of Review

St. Louis County agrees with Intervenors that the applicable standard of review of a trial court’s denial of a motion to intervene is abuse of discretion. State ex. rel. Strohm v. Board of Zoning Adjustment of Kansas City, 869 S.W.2d 302, 304 (Mo.App.W.D. 1994), I.H. Garms & Sons Co. v. Potashnick Constr., Inc., 781 S.W. 2d 203, 206 (Mo.App.E.D. 1989). The burden is on the party seeking intervention to show he or she has a right to intervene. Mercantile Bank of Lake of the Ozarks v. Jones, 890 S.W.2d 392, 394 (Mo.App.W.D. 1995),see alsoKinney v. Schneider Nat. Carriers, Inc., 200 S.W.3d 607, 611 (Mo.App.W.D. 2006). This Court must review the trial court’s denial of intervention considering “the facts in the light most favorable to the court’s judgment.” Kinney, 200 S.W.3d at 610.

II. The Trial Court Did Not Err In Denying Intervenors’ Motions To Intervene Pursuant To Missouri Rule of Civil Procedure 52.12 On The Grounds That They Were Untimely Because The Appellants Do Not Have A Right To Intervene As Their Motion Was Untimely, And Their Belated Intervention Would Greatly Prejudice The Existing Parties.

A non-party may intervene in a case at the discretion of the trial court and only if they meet the criteria set forth in Rule 52.12. Strohm, 869 S.W.2d at 304. It is important to note that applications for leave to intervene “after a decree are very unusual and seldom granted.” Chain Yacht Club, Inc. v. St. Louis Boating Ass’n, 225 S.W.2d 476, 479 (Mo.App. 1949),see also Emrick v. American Casualty Co., 867 S.W.2d 306, 308 (Mo.App.W.D. 1993), City of Bridgeton v. Norfolk & W.Ry.Co., 535 S.W.2d 99, 100 (Mo. 1976)(In seeking to intervene after judgment, intervenors must meet an especially heavy burden because post-judgment motions are rare and granted less liberally). Under Rule 51.12(a), an intervention by right is permitted if

Upon timely application anyone shall be permitted to intervene in an action: … (2) when the applicant claims an interest relating to the property or transaction that is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties[3].

Rule 52.12 (Emphasis added).

For intervention, the threshold issue is timeliness; Intervenors admit this is the only issue presented by their appeal. Intervenors’ Brief, pg. 12. Generally, applications to intervene as a matter of right are not timely if made subsequent to trial, judgment or decree unless substantial justice mandates otherwise. Pius v. Boyd, 857 S.W.2d 238, 242 (Mo.App.W.D. 1993),Mercantile Bank, 890 S.W.2d at 394. The Court in Strohm stated timeliness for purposes of intervention “is a relative matter, depending on the circumstances … [and] the concept comprehends the principal that delay by a litigant should not be allowed to unfairly inconvenience or disadvantage another. Such a test raises the question of possible prejudicial effect upon the other.” Strohm, 869 S.W.2d at 304 citingState of Missouri ex rel. Transit Casualty Company v. Holt, 411 S.W.2d 249, 253 (1967). Thus, the issue of timeliness necessarily invokes an exercise of the trial court’s discretion. Frost v. White, 778 S.W.2d 670, 673 (Mo.App.W.D. 1989).

The Strohm and City of Bridgeton cases are directly on point and decide the issue in this case. In Strohm, a homeowners’ association and an adjoining landowner moved to intervene in a zoning dispute between two parties – business landowners and the Kansas City Board of Zoning Adjustment who had cited the landowners for zoning violations. Strohm, 869 S.W.2d at 303. When appellants moved to intervene, the case had been pending for over a year and the parties had signed a settlement agreement. Id. The trial court denied the intervenors’ motion as untimely. Id.

For its analysis of the timeliness issue, the Strohm court identified the two-prong Frost inquiry cited by Intervenors, namely: “(1) whether substantial justice mandates the allowance of intervention, and … (2) whether existing parties to the case will be prejudiced if intervention is permitted.” Id. at 304 citingFrost v. White, 778 S.W.2d at 674, Intervenors’ Brief, pg. 13. But the court also added the following factors for the trial court to consider in determining timeliness:

(1) [T]he length of time the applicant knew or should have known of his interest before making the motion; (2) prejudice to existing parties resulting from the applicant’s delay; (3) prejudice to the applicant if the motion is denied; and (4) the presence of unusual circumstances militating for or against a finding of timeliness.

Strohm, 869 S.W.2d at 304.

Applying the facts, the Strohm court sustained the trial court’s dismissal of the attempted interventions. Id. at 305. The Strohm court relied on Farmland Dairies and Fair Lawn Dairies, Inc. v. Commissioner of the New York State Department of Agriculture and Markets, 47 F.2d 1038, 1044 (2nd Cir. 1988) wherein the court denied a motion to intervene as untimely because the parties in that case had already settled the case. Strohm, 869 S.W.2d at 304. The Strohm court also deemed significant the fact that the intervenors only moved to intervene when they became unhappy with the government’s settlement of the case, even though, “they knew of their interest in the case for some time but permitted the [government] to represent that interest until the [government] decided to compromise.” Id. see alsoState ex rel. Ashcroft v. American Triad Land Co., 712 S.W.2d 62, 64 (Mo.App.E.D. 1986)(application for intervention subsequent to trial not timely), Emrick v. American Casualty Co., 867 S.W.2d 306, (Mo.App.W.D. 1993)(intervention after settlement denied).

The facts and findings of City of Bridgeton v. Norfolk & W.Ry.Co., are also strikingly similar. 535 S.W.2d 99 (Mo. 1976). In City of Bridgeton, the trial court denied a nearby property owner’s motion to intervene in a zoning dispute as not timely filed. Id. at 101. The court reasoning turned on the fact that the intervenor had knowledge of suits but did not seek to intervene until after entry of a judgment wherein the “city was a losing party and elected not to appeal”. Id. at 99-102. The court dismissed the intervenor’s motion as nothing more than a mere “’dissent’ from the Council’s good-faith decision not to appeal” and a gamble “on the outcome of the proceedings before judgment”. Id. at 101. Like the City of Bridgeton, the Intervenors’ motion is their attempt to “compel a retrial of the original issues.” Id. at 102.

Intervenors Knew Of Their Interest For Over Four Years And Attempted To Intervene Only After Settlement Of The Case By The Parties And Dismissal By The Trial Court

Like the Strohm intervenors, Intervenors in the underlying suit knew of their alleged interest since at least May 2003, wrote to St. Louis County expressing their interests, and participated in at least one public hearing in 2003. R.F. 196, 198-199200-215. Then Intervenors, like the Strohm intervenors, simply permitted St. Louis County to defend the underlying suit for nearly four years, until November 15, 2007, when they became dissatisfied with St. Louis County’s settlement and decision to not appeal.

Intervenors mistakenly assume their right to intervene is triggered when an adverse event in a litigated matter occurs. Intervenors’ Brief pg. 11. Rather, the Strohm court unequivocally found that the right to intervene begins when the intervenors “knew or should have known of [their] interest”. Strohm, 869 S.W.2d at 304. In accordance, Intervenors have known of their interests, as expressed in their letters and testimony, since at least May 22, 2003, for over four years, and resoundingly fail the first factor of the Strohm analysis. R.F. 196, 198-199, 200-215.

Unraveling The Settlement And Plunging The Parties Into Protracted Litigation Will Greatly Prejudice The Parties

For the second factor of the Strohm analysis, the parties would be greatly prejudiced if the Intervenors were permitted entry into this case at this late date. The parties have extensively and expensively litigated this case for over three years. L.F. 1-12. Intervenors’ entry would unravel a finalized case, a portion of which the trial court had decided by summary judgment and another which had been settled by dismissing the remaining five (5) counts in exchange for St. Louis County’s agreement to forego appeal. L.F. 95-106, 133-134, 135. Intervenors have not even deigned to consider that the purported objectionable settlement came on the heels of an adverse order by the trial court on the first count of F.W. Disposal’s Petition. The settlement enabled St. Louis County to dismiss the remaining five (5) civil rights counts against it in which F.W. Disposal had sought extensive monetary damages and attorneys’ fees. R.F. 14-193, 263-265, L.F. 13-94, 95-107. Liability for those five (5) civil rights counts was premised on the trial court’s adverse ruling. R.F. 14-193, L.F. 13-94, 95-107.

Intervenors torture logic when they argue the second “no prejudice” factor of the intervention test is met “because an appeal of the court’s Judgment would be a logical progression of this case and an outcome that the Respondent most certainly should have anticipated.” Intervenor’s Brief, pg. 14. Intervenors fail to recognize that the settlement by the parties to the case – F.W. Disposal and St. Louis County, expressly considered and agreed to not appeal the trial court’s order or any of the other aspects of the case. L.F. 133-134.

Appeals are expensive, time consuming, uncertain, and greatly delay the finality of cases; it is because of this that parties to settlements may choose to forgo appeals. Having to defend an appeal, even this one, was not contemplated nor bargained for in the good-faith settlement of the underlying suit by the parties. If Intervenors are permitted to unravel this settlement, they put St. Louis County at great financial risk with respect to the five (5) civil rights claims against it. Intervenors’ motions represent an effort to retry the original issues at no risk to themselves but significant risk to St. Louis County.

Intervenors Will Not Be Prejudiced If Their Motion Is Denied As They Have Other Legal Avenues To Pursue To Protect Their Interests

Intervenors make conclusory and unsupported allegations of potential adverse consequences attendant to the construction of the trash transfer station. L.F. 108, 118. First, this Court must ignore all unsupported legal conclusions and pure speculation by Intervenors. Langenberg v. City of St. Louis, 197 S.W.2d 621 (Mo. 1946). Second, and to the contrary, the settlement of the underlying suit and the preclusion of intervention by Intervenors does nothing to deter Intervenors from asserting any legal rights in nuisance or otherwise attendant to the construction of the transfer station. Emrick, 867 S.W.2d at 308(denial of intervention did not impair or impede intervenors from having the ability to protect their interest), Mercantile Bank of Lake of the Ozarks, 890 S.W.2d at 394-395 (intervention denied when intervenor could enforce his right by independent suit). For Strohm’s third factor, Intervenors have many legal options available to them to protect their interests.

No Unusual Circumstances Militate Intervenors’ Entry Into This Case When They Had Ample Opportunities To Protect Their Interest In The Past Four Years And The County Counselor Executed Her Lawful Duties In Good Faith

Finally, for the fourth factor in the Strohm analysis, there are no unusual circumstances that would militate Intervenors’ entry into this case. They, adjacent or nearby neighbors in a zoning case, stand in no more a unique a position than the intervenors in the Strohm or City of Bridgeton cases. The Intervenors had ample opportunities, some of which they took advantage of, to interject their interests into the process. Ultimately, however, Intervenors chose four years ago to forgo litigation and rely upon the County Counselor’s discretion to defend the lawsuit.