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Labrayere v. Bohr Farms, LLC

Supreme Court of Missouri, En Banc

April 14, 2015

BOHR FARMS, LLC, ET AL., Respondents

Argued and Submitted September 2, 2014

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The property owners were represented by Anthony L. DeWitt, Edward D. Robertson Jr. and Mary Doerhoff Winter of Bartimus Frickleton Robertson & Goza PC in Jefferson City; Charles F. Speer, Peter B. Bieri and Charles D. Miller Jr. of the Speer Law Firm PA in Kansas City.

Bohr Farms was represented by D. Keith Hanson of Paule, Camazine & Blumenthal PC in St. Louis.

Cargill Pork was represented by Jacob D. Bylund of Faegre Baker Daniels LLP in Des Moines.

The state attorney general, who filed a brief as a friend of the Court, was represented by Solicitor General James R. Layton and Thomas M. Phillips of the attorney general's office in Jefferson City.

The National Pork Producers Council and Missouri Farmers Care, which filed a brief as friends of the Court, were represented by Jean Paul Bradshaw II, Kurt U. Schaefer and Chad E. Blomberg of Lathrop & Gage LLP in Kansas City; Eugene E. Matthews III and Tennille J. Checkovich of McGuire Woods LLP in Richmond, Virginia.

Stith and Draper, JJ., and Journey, Sp.J., concur; Fischer, J., concurs in separate opinion filed; Russell, C.J., and Wilson, J., concur in opinion of Fischer, J. Breckenridge, J., not participating.


Richard B. Teitelman, Judge.

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Several landowners and other individuals (Appellants) filed suit against Cargill Pork LLC and Bohr Farms (Respondents) alleging damages for temporary nuisance, negligence, and conspiracy due to alleged offensive odors emanating from a concentrated animal feeding operation (CAFO) owned and operated by Bohr Farms. Appellants alleged that their damages for temporary nuisance consisted solely of the loss of use and enjoyment of their property. Appellants admitted that they were not claiming damages for diminution of rental value or documented medical conditions as authorized by section 537.296(2))(2) and section 537.296(2)(3).[1] Appellants also asserted that Bohr Farms was negligent, that Cargill was vicariously liable for the nuisance and negligence, and that Bohr Farms and Cargill engaged in a civil conspiracy.

The circuit court entered summary judgment for Respondents. The court determined that section 537.296 was constitutional and that the statute did not authorize

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an award of damages for Appellants' alleged loss of use and enjoyment of their property. The court also denied recovery on Appellants' negligence and civil conspiracy claims. This appeal follows.

Appellants argue that section 537.296 is unconstitutional because the statute: (1) violates article I, section 28 of the Missouri Constitution by authorizing a private taking; (2) violates article I, section 26 of the Missouri Constitution by authorizing a taking for public use without just compensation; (3) violates the equal protection clause of the state and federal constitutions; (4) denies substantive due process and violates article I, section 2 of the Missouri Constitution; (5) violates the separation of powers required by article II, section I of the Missouri Constitution by statutorily defining " standing; " (6) violates the open courts provision of article I, section 14 of the Missouri Constitution; and (7) violates the prohibition against special laws set forth in article III, section 40 of the Missouri Constitution. Appellants also assert that the trial court erred in granting summary judgment on their claims for negligence and conspiracy because there was a genuine issue of material fact regarding the level of control that Cargill exerted over Bohr.

The judgment is affirmed.[2]

I. Background

Section 537.296 went into effect on August 28, 2011. The statute supplants the common law of private nuisance in actions in which the " alleged nuisance emanates from property primarily used for crop or animal production purposes." Unlike a common law private nuisance action, section 537.296 precludes recovery of non-economic damages for items such as loss of use and enjoyment, inconvenience, or discomfort caused by the nuisance.[3] Instead, the statute only authorizes the recovery of economic damages in the form of diminution in the market value of the affected property as well as documented medical costs caused by the nuisance.

In September 2011, just days after section 537.296 became effective, Bohr Farms began operating a CAFO that can accommodate more than 4,000 hogs. Bohr Farms owns and operates the CAFO. Cargill owns the hogs, and Bohr raises them. The CAFO includes an on-site sewage disposal system as well as a system for composting deceased hogs.

Appellants own or possess property in Callaway and Montgomery counties. The properties are located near the CAFO. Appellants filed suit against Cargill and Bohr alleging that the CAFO causes offensive odors, particulates, pathogens, hazardous substances, flies, and manure to " escape" onto their property. Appellants alleged that the offensive emissions constitute a temporary nuisance that substantially impairs the " use and quiet enjoyment" of their property. Appellants did

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not claim damages for diminution in rental value or documented medical costs as authorized by section 537.296(2)(2).

Respondents filed a motion for summary judgment asserting that section 537.296(2)(2) foreclosed Appellants' claim for use and enjoyment damages. Respondents also asserted that Appellants' claim for damages for negligence and conspiracy was barred by section 537.296(6)(1), which provides that damages for " annoyance, discomfort, sickness, or emotional distress" are recoverable " provided that such damages are awarded on the basis of other causes of action independent of a claim of nuisance." Respondents asserted that negligence and conspiracy claims are not " independent of a claim of nuisance" because they are based on the alleged nuisance.

In response, Appellants asserted that section 537.296 violated several constitutional provisions and that there were insufficient facts to warrant summary judgment on the conspiracy and negligence claims. The ...

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