Home Builders Ass'n of Greater Kansas City v. Kansas City

509 S.W.2d 134, 1974 Mo. LEXIS 530
CourtSupreme Court of Missouri
DecidedApril 8, 1974
DocketNo. 58424
StatusPublished

This text of 509 S.W.2d 134 (Home Builders Ass'n of Greater Kansas City v. Kansas City) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Home Builders Ass'n of Greater Kansas City v. Kansas City, 509 S.W.2d 134, 1974 Mo. LEXIS 530 (Mo. 1974).

Opinion

SEILER, Judge.

This is the third appeal in this suit for declaratory judgment. Plaintiffs are the assignees of 89 water main extension contracts with the city of Kansas City under which various contractors, builders, and plaintiffs furnished money for extension of water mains and were to receive refunds on their advances from revenues derived from customers who connected into the extensions installed. The present judgment is for $47,478.1Í on count II and $156,148.-53 on count III. The first two appeals went directly to this court, under the jurisdictional provisions then in force. The present appeal went first to the court of appeals, Kansas City district, under the revised jurisdictional provisions of the 1970 amendment to Art. V, 1945 Constitution, V.A.M.S. but was then transferred here by pur order from the court of appeals, before opinion, pursuant to rule 83.06, V.A.M.R. We affirm, with certain modifications.

On the first appeal, Home Builders Association of Greater Kansas City v. Kansas City, 431 S.W.2d 111 (Mo. banc 1968), hereinafter referred to as Home Builders I, we upheld the validity of the water main extension contracts against a challenge that they overextended the city’s debt limit. We held that refunds under the contracts were contingent on the water main extensions producing net revenues from which refunds could be paid. We remanded to the trial court for determination of the net revenues available for refunds to plaintiffs under the contracts. In the course of our opinion we said, 1. c. 115:

“. . . [I]t should be noted that Sec. 48 of the city charter provides that all revenue from the waterworks must be devoted first to payment of operating expenses, maintenance and repair charges, costs due to obsolescence or other causes, and such sums as are required for interest and principal on bonds. The remainder of such revenue then is available for enlargements and extensions. The contracts here involved fall within this latter category.

“. . . [T]he reimbursement to which plaintiffs are entitled under their contracts is to be from net revenue from customers connected to the particular extension in accordance with their contracts and the requirements of Sec. 48 of the charter . . .”

In the trial following Home Builders I, the trial court entered judgment for plaintiffs in the amount of $391,909.05, the total amount which they had advanced to the city for the water main extensions, holding that the refunds could be paid from the net revenue available in the city’s water fund, which contained net revenues from the entire water system for extension and better-ments of the city’s water plant as determined and required by Sec. 48 of the city charter.

The city appealed and this court, in Home Builders Association of Greater Kansas City v. Kansas City, 464 S.W.2d 5 (Mo. banc 1971), hereinafter referred to as Home Builders II, held that payments of refunds could not be made out of the general water fund, which includes net revenues from operation of the entire water department, but that the reimbursements to which plaintiffs are entitled under their contracts were to be from net revenues from customers connected to the particular extensions. This court’s opinion said in part, 1. c. 9:

“. . . [I]t appears that the revenue derived from particular extensions can be shown with reasonable accuracy.

“When this is shown in evidence, the net revenue will be the gross revenue from the extensions less the applicable deductions required by Sec. 48. The city asserts it does not maintain any records relating to the operating expenses assigned to particular water main extensions. Nevertheless, the burden of evidence with respect to the amount of money expended on the priority items is on the city and, consequently, the final figure of net revenue of a particular extension will depend on the city’s ability to prove expense items directly attributable [136]*136to that extension, and the sum remaining, if any, is the net revenue from the particular extension from which refunds can be paid.”

The cause was remanded to the trial court for determination of the funds available for payment of refunds under the method prescribed. The case was again tried and the present appeal followed.

The parties stipulated that the average yearly water use per residential customer on the water main extensions in issue was 12000 cubic feet per year and that the total gross revenues derived from the water main extensions was $386,465.28. The city then proceeded to prove the net revenue by first establishing the expenses which could be deducted from gross revenues from the water main extensions. This the city did by prorating the operating expenses and debt service of the entire water system based on the stipulated amount of water used by the water main extensions in issue. The procedure was to divide the operating expenses and debt service of the water department (excluding obsolescence) by the number of 100 cubic feet units of water sold. This varied from year to year, from a low of $0.1646 to a high of $0.2986 per unit. The trial court accepted the city’s proof of expenses by this averaging or prorating method, and deducted the expenses thus shown from the stipulated gross revenues, thereby determining the net revenues of the water main extensions in issue, the fund from which refunds on the water main extension contracts are payable to plaintiffs.

The trial court filed a written opinion which clearly sets forth the positions of plaintiffs and defendant on appeal as follows:

“. . . [T]he plaintiffs have insisted that the city must prove expenses directly attributable to each water main extension, and failing or being unable to do so, has failed to bear the burden of proof imposed upon it by the Supreme Court to prove its costs and net revenues and therefore plaintiffs are entitled to be paid from the gross revenues to the extent of those revenues. The City maintains that it cannot segregate from its overall expenses of supplying water to its customers the expenses directly attributable to supplying water to a small number of customers connected to a water main extension that constitutes only a small fractional part of the City’s water system because, it says, a water main extension is just that, a small extension of the whole system, and when water for the whole system is taken from the Missouri River at one point, run through the purification plant, pumped through transmission mains, through distribution mains, and infinitesimal portions of the whole finally delivered to customers connected to one of the main extensions in issue it is impossible to isolate the costs directly attributable to supplying water through any particular water main extension and the only way that such costs can be allocated is by averaging. The parties have stipulated to the volumes of water consumed by the customers connected to the main extensions in issue and the gross revenues derived by the City from these customers. The City has introduced evidence of its average costs per 100 cubic feet of water of serving water to its residential customers to determine its net revenues realized from the subject main extensions.”

The trial court accepted the city’s contentions as to deductible expenses and method of proof of those expenses. We agree with the trial court’s treatment of this problem.

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Related

Homebuilders Ass'n of Greater Kansas City v. Kansas City
431 S.W.2d 111 (Supreme Court of Missouri, 1968)
Mead v. Thomas
464 S.W.2d 1 (Supreme Court of Missouri, 1971)
Home Builders Ass'n of Greater Kansas City v. Kansas City
464 S.W.2d 5 (Supreme Court of Missouri, 1971)

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509 S.W.2d 134, 1974 Mo. LEXIS 530, Counsel Stack Legal Research, https://law.counselstack.com/opinion/home-builders-assn-of-greater-kansas-city-v-kansas-city-mo-1974.