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By John Ashcroft Institute for Constitutional Studies

Missouri Court of Appeals Eastern District reverses $1 million verdict that was against the City of O'Fallon in dispute with landowner near Highway 40 who had an annexation agreement with O'Fallon for placing sewer lines on his property. When the landowner's son sold the property to National Paper he had to greatly reduce his asking price because the City had not yet put in sewer lines. Later National Paper acquired sewer service through an adjacent sanitary improvement district. Court of Appeals reverses verdict saying the former landowner had no standing to sue.

David Hemsath, the Estate of Melvin Hemsath and the Lillian Hemsath Trust, Plaintiffs/Respondents v. City of O'Fallon, Missouri, Defendant/Appellant. ED89776 05/20/2008 Circuit Court of St. Charles County, Hon. Ted House
The City of O'Fallon appeals from the judgment in favor of David Hemsath arising from an alleged breach of a sewer provision contained in a Petition for Voluntary Annexation. On appeal, the city argues the trial court erred in finding Hemsath had standing to sue the city after he sold the annexed property, holding the city breached the sewer provision after the annexation petition was approved, finding damages based solely on Hemsath's speculative valuation testimony, awarding judgment to Hemsath when he failed to state a claim under section 432.070, RSMO, and granting Hemsath's motion in limine to deny the city's filing of an amended answer. REVERSED AND REMANDED. Division Four holds: The trial court erred as a matter of law because (a) the sewer provision touches and concerns the property and therefore runs with the land and (b) the sewer provision is an appurtenant benefit tied to the ownership of the property, which passed to National Paper upon sale of the land. After Hemsath conveyed the property to National Paper, through the Deed, National Paper alone possessed the right to enforce the sewer provision. The record clearly demonstrates that, upon receiving the property from Hemsath, with "all rights and appurtenances to the same belonging," National Paper released the city from any claims arising under the sewer provision. Moreover, the substantial weight of the evidence shows the city did not breach or repudiate the sewer provision. Finding Hemsath lacked standing to assert damages regarding a parcel of land he had already sold to a third party, we reverse and remand the trial court's judgment with directions to enter judgment for the city.

Full post as published by Showmeblawgs on May 26, 2008 (boomark / email).