Carroll Electric Cooperative Corp. v. Lambert

403 S.W.3d 637, 2012 WL 4470236, 2012 Mo. App. LEXIS 1209
CourtMissouri Court of Appeals
DecidedSeptember 28, 2012
DocketNos. SD 31416, SD 31589
StatusPublished
Cited by2 cases

This text of 403 S.W.3d 637 (Carroll Electric Cooperative Corp. v. Lambert) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carroll Electric Cooperative Corp. v. Lambert, 403 S.W.3d 637, 2012 WL 4470236, 2012 Mo. App. LEXIS 1209 (Mo. Ct. App. 2012).

Opinion

JEFFREY W. BATES, J.

This is a condemnation case. Carroll Electric Cooperative Corporation (Carroll Electric) filed a petition to condemn a right-of-way for an electric transmission and distribution line across properties owned by two couples: Ralph and Mary Lambert; and William Darch and his wife, Frances Bon Tempo (collectively, Landowners).1 After Carroll Electric presented evidence at a hearing, Landowners moved to dismiss the action -without prejudice pursuant to § 523.256.2 The trial court granted Landowners’ motion for two reasons: (1) Carroll Electric “exceeded its authority” in seeking eminent domain for “communication purposes”; and (2) Carroll Electric did not comply with all the requirements in § 523.256 and, therefore, did not engage in good faith negotiations. The condemnation petition was dismissed without prejudice, and the trial court also awarded Landowners attorney’s fees and costs.

On appeal, Carroll Electric presents five points for decision. Because our decision on Points I and II resolves the entire appeal, Points III-V will not be addressed. In Point I, Carroll Electric contends the trial court erred in dismissing the petition because § 394.080.1(11) RSMo (2000) authorizes Carroll Electric to condemn property for “constructing or operating electric transmission and distribution lines or systems” and the communication lines are an essential part of the transmission and distribution system. In Point II, Carroll Electric contends the trial court erred in dismissing the petition and awarding attorney’s fees pursuant to § 523.256. Carroll Electric argues that the court misapplied the law when it determined that Carroll Electric failed to comply with a good faith negotiation requirement in that statute. Because both points have merit, the summary judgment is reversed. The cause is remanded for further proceedings consistent with this opinion.

I. Standard of Review

“As a general rule, review of the trial court’s ruling on a motion to dismiss [640]*640is limited to the sufficiency of the pleadings on their face.” City of Smithville v. St. Luke’s Northland Hosp. Corp., 972 S.W.2d 416, 419 (Mo.App.1998).3 In this case, however, evidence beyond the pleadings was introduced prior to the dismissal. Under such circumstances, the motion to dismiss was converted into a motion for summary judgment. See id.; Rule 55.27(b). “Appellate review is de novo.” Wyatt v. Taney County, Mo., 347 S.W.3d 616, 618 (Mo.App.2011). We view the evidence in a light most favorable to Carroll Electric, the party against whom the summary judgment was entered. See City of Smithville, 972 S.W.2d at 419. “The propriety of summary judgment is purely an issue of law. As the trial court’s judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court’s order granting summary judgment.” ITT Commercial Finance Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).

II. Factual and Procedural Background

Carroll Electric is a member-owned rural electric cooperative that serves parts of Northwest Arkansas and Southwest Missouri. Carroll Electric’s system has transmission lines that feed its substations, and there are distribution lines that run from the substations to its members. Carroll Electric has two substations in the Shell Knob, Missouri area.

Carroll Electric sought to condemn an easement for a new 69,000 volt transmission line to run from its Holiday Island substation to its Viola substation. Landowners own land at the end point of the line.

Carroll Electric intended to create a “loop feed” with which to improve reliability of its system in the Shell Knob area. This loop feed would meet the increasing demand for power in the area and thus better serve its members. Currently, the Holiday Island and Viola substations operate on radial feeds, which have one source of electricity. When an outage occurs or maintenance needs to be done, the substation must be de-energized to work on it. A loop feed, on the other hand, would result in fewer outages by enabling Carroll Electric to take one line out of service [641]*641while still maintaining electricity for its members.

The proposed line would also cross Table Rock Lake, which requires a permit from the U.S. Army Corps of Engineers (the Corps). The Corps’ safety concerns about the line included potential hazards to airplane traffic and parasailers on the lake. Carroll Electric employed Finley Engineering (Finley) to address engineering issues and work with the Corps. Bryce Barton (Barton) was a Finley engineer working on the project. According to Barton, the crossing points were chosen through “a collaborative effort that began with working with [the Corps] to determine an acceptable crossing site of the lake.” It “took a long time to identify a site that was acceptable to them as well as us.” Preliminary consultation with [the Corps] had begun in 2006. Carroll Electric submitted its final site plan in the summer of 2010. The Corps approved the project in late 2010 or early 2011.

In early 2010, Finley contacted Landowners about the project on behalf of Carroll Electric. In August 2010, Finley mailed 60-day notices of “Intended Acquisition for Electric Line Easement” to Landowners by certified mail pursuant to § 523.250. The notices described an “improvement project” that would “include the installation of a 69,000 volt transmission line that will improve the reliability of the electrical service in the area.” Barton testified that, within 30 days after the notice was mailed, Finley received no written request from Landowners to relocate the easement, as provided under § 523.265.

In December 2010, Carroll Electric mailed an “Offer Letter” to each of the Landowners, offering to purchase their respective easements for a stated price. Attached to the Offer Letter was a proposed right-of-way easement, which as to each Landowner was described in part as:

the perpetual easement and right to enter upon the lands of the Grantor ... to erect, operate, survey, maintain ... one or more electric power transmission and/or distribution hne(s) and appurtenant communication lines ... and to license, permit, or otherwise agree to the joint use or occupancy of the line or system by any other person, association or corporation for electrification or communication purposes together with the right of ingress and egress to, from, and over said lands for doing anything necessary or useful to the enjoyment of the easement herein granted....”

(Emphasis added.) Each Offer Letter also included a legal description of the proposed easement, a drawing depicting the location of the easement, and a “Summary Appraisal Report.”

In January 2011, Carroll Electric filed this action.

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Bluebook (online)
403 S.W.3d 637, 2012 WL 4470236, 2012 Mo. App. LEXIS 1209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carroll-electric-cooperative-corp-v-lambert-moctapp-2012.