371 S.W.3d 14
Mo. Ct. App.2012Background
- City of Lebanon appeals trial court’s denial of challenge to Alltel’s settlement-class rejection.
- Settlement defined Business License Tax to include various taxes or similar taxes, but expressly excluded right of way usage fees.
- City submitted ordinances claiming a Business License Tax; Alltel rejected, labeling them right of way fees.
- Trial court held Section 26.8 imposes a right of way usage fee, not a Business License Tax.
- Court reviews de novo the interpretation of the contract and ordinance at issue.
- Section 26.8 requires a 5% use or rental fee on gross receipts, in lieu of license taxes, payable by providers using the right of way.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Section 26.8 impose a right of way fee rather than a Business License Tax? | Lebanon argues 26.8 is a Business License Tax. | Alltel contends 26.8 is a right of way fee, excluded from the Settlement. | Section 26.8 is a right of way use fee, not a Business License Tax. |
| Is the contract interpretation governed by plain language or extrinsic factors like titles? | City claims the title/heading misled the court; focus should be on fee nature. | Court should interpret based on plain language of the ordinance and agreement. | Plain language governs; headings have no controlling effect. |
| Does the gross-receipts basis convert the fee into a Business License Tax? | Fee calculated on gross receipts should be a gross receipts tax under the Settlement. | Gross receipts basis does not convert a right of way fee into a tax. | Gross receipts-based calculation does not transform the fee into a Business License Tax. |
| Was the City’s franchise-tax argument properly preserved for review? | Franchise tax theory was embraced within City’s challenge to 26.8 as a Business License Tax. | Franchise-tax theory was not raised in opening brief and not properly preserved. | Franchise-tax theory not considered on appeal due to preservation rules. |
Key Cases Cited
- Sunswept Properties, LLC v. Ne. Pub. Sewer Dist., 298 S.W.3d 153 (Mo.App. E.D. 2009) (interpretation of ordinances and statutes; plain language governs)
- Brinker Missouri, Inc. v. Dir. of Revenue, 319 S.W.3d 433 (Mo. banc 2010) (plain language governs interpretation; legislative intent)
- Daniels Express & Transfer Co. v. GMI Corp., 897 S.W.2d 90 (Mo.App. E.D. 1995) (uses ordinary meaning of terms in determining ambiguity)
- City of St. Louis v. Western Union Telegraph Co., 760 S.W.2d 577 (Mo.App. E.D. 1988) (distinguishes charges vs. rents; interpretation based on terms)
- City of Dellwood v. Twyford, 912 S.W.2d 58 (Mo. banc. 1995) (municipal power to impose rights-of-way fee under state statutes)