         SUPREME COURT OF MISSOURI
                                   en banc



LINDA LABRAYERE AS TRUSTEE                      )
OF THE DON E. LABRAYERE TRUST,                  )
ET AL.,                                         )
                                                )
             Appellants,                        )
                                                )
vs.                                             )      No. SC93816
                                                )
BOHR FARMS, LLC, ET AL.,                        )
                                                )
             Respondents.                       )

        APPEAL FROM THE CIRCUIT COURT OF BOONE COUNTY
                   The Honorable Jodie Asel, Judge

                           Opinion issued April 14, 2015

      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 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

1
  All statutory references are to RSMo 2000, as updated by RSMo Supp. 2011, unless
otherwise indicated.
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.

2
 This Court has jurisdiction over the appeal because Appellants challenge the validity of
section 537.296. MO. CONST. art. V, sec. 3.
3
  At common law, an action for temporary nuisance damages allowed recovery of both
economic and non-economic damages. McCracken v. Swift & Co., 265 S.W. 91, 92
(Mo. 1924). Economic damages included decrease in rental value while the nuisance
existed as well as medical costs caused by the nuisance. Id.; see also Frank v. Envtl.
Sanitation Mgmt., 687 S.W.2d 876, 883 (Mo. banc 1985) (temporary nuisance damages
include loss of rental value). Non-economic damages included items such as
inconvenience, discomfort and loss of quality of life. McCracken, 265 S.W. at 92; see
also Brown v. Cedar Creek Rod & Gun Club, 298 S.W.3d 14, 21 (Mo. App. 2009)
(overruled on other grounds by Badaham v. Catering St. Louis, 395 S.W.3d 29 (Mo. banc
2013).


                                            3
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 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


                                         4
judgment on the conspiracy and negligence claims. The trial court entered

summary judgment in favor of Respondents.

                              II. Standard of Review

       A summary judgment will be affirmed on appeal when there are no genuine

issues of material fact and the moving party is entitled to judgment as a matter of

law. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d

371, 380 (Mo. banc 1993). Appellants’ argument that section 537.296 is

unconstitutional raises legal issues subject to de novo review. See State v.

Honeycutt, 421 S.W.3d 410, 414 (Mo. banc 2013). “Statutes are presumed

constitutional and will be found unconstitutional only if they clearly contravene a

constitutional provision.” Id. “The person challenging the validity of the statute

has the burden of proving the act clearly and undoubtedly violates the

constitutional limitations.” Id.

                          III. Constitutional Arguments

1. Section 537.296 does not authorize an unconstitutional private taking

       Appellants argue that section 537.296.2 authorizes an unconstitutional

private taking. Appellants argue that the statute effectuates a taking because

limiting temporary nuisance damages to diminution of rental value requires

Appellants to forfeit their right to the use and enjoyment of their properties for

Respondents’ private benefit. Appellants assert that the taking is private because

the statute “effectively provide[s] the right of eminent domain to private




                                          5
companies” in that the activity causing the alleged taking is a private farming

operation rather than a public use or benefit.

       Article I, section 28 of the Missouri Constitution provides “[t]hat private

property shall not be taken for private use with or without compensation, unless by

consent of the owner ....” 4          To demonstrate that section 537.296 authorizes

an unconstitutional private taking, the text of article I, section 28 requires

Appellants to identify: (1) “property” (2) that was “taken” (3) for “private use” (4)

without Appellants’ consent. Assuming for the sake of argument that the statutory

limitations on nuisance damages constitute a taking of private property,

Appellants’ private takings claim fails because they cannot overcome the

presumption of constitutional validity by clearly establishing that the alleged

taking is for private use. 5

       The distinction between a public use and a private use is not based on

actual use or occupation of the property by the public. State ex rel. Jackson, et al.

v. Dolan, 398 S.W.3d 472, 476 (Mo. banc 2013). The fact that private parties

benefit from a taking does not eliminate the public character of the taking so long

as there is some benefit to “any considerable number” of the public. Id., quoting

In re Kansas City Ordinance No. 39946, 252 S.W. 404, 408 (Mo. banc 1923). A
4
  Article I, section 28 provides exceptions to the general prohibition against private
takings by allowing for “private ways of necessity” and “drains and ditches across the
lands of others for agricultural and sanitary purposes.”
5
  Article I, section 28 provides: “when an attempt is made to take private property for a
use alleged to be public, the question whether the contemplated use be public shall be
judicially determined without regard to any legislative declaration that the use is public.”



                                             6
use is public if it is reasonably likely to create some “public advantage” or “public

benefit.” Dolan, 398 S.W.3d at 476 (citing In re Coleman Highlands, 401 S.W.2d

385, 388 (Mo. 1966)).

       There are two deficiencies in Appellants’ argument that section 537.296.2

effectuates a private taking. First, the plain language of section 537.296.2 does

not delegate any authority to private parties or authorize any landowner to create a

nuisance. To the contrary, the statute provides that a nuisance is unlawful and

authorizes the party suffering a nuisance to recover damages.

       Second, this Court has previously noted that regulations enacted to promote

economic development generally have a valid public purpose sufficient to satisfy

the public use requirement. Dolan, 398 S.W.3d at 478. More specifically, this

Court has held that promoting the agricultural economy is a legitimate public

purpose. State ex rel. Webster v. Lehndorff Geneva, Inc., 744 S.W.2d 801, 806

(Mo. banc 1988) (a statute requiring foreign corporations to sell farmland serves

the legitimate public purpose of promoting the agricultural economy by reducing

concentrated property ownership). Section 537.296 is plainly aimed at promoting

the agricultural economy to create a public advantage or benefit. The fact that

some parties will receive direct benefits and others will sustain direct costs does

not negate the public purposes advanced by section 537.296. Dolan, 398 S.W.3d

at 476; see also Phillips Pipe Line Co. v. Brandstetter, 263 S.W.2d 880, 886 (Mo.

App. 1954) (condemnation of property for a privately operated oil pipeline

satisfied the public use requirement because of the resulting public benefits). To


                                          7
the extent, if any, that section 537.296 effectuates a taking, the taking advances a

legitimate public purpose and, therefore, meets the “public use” requirement.

Appellants have not overcome the presumption of constitutional validity by clearly

establishing that section 537.296.2 constitutes a private taking.

2. Section 537.296 does not authorize a taking for public use without just
   compensation

       Appellants argue that section 537.296.3 authorizes an unconstitutional

taking for a public use without just compensation because the statute requires that

all nuisance claims subsequent to the initial temporary nuisance claim will be

“considered a permanent nuisance.” By requiring that all subsequent nuisance

claims are claims for permanent nuisance, Appellants assert that the statute

effectively amounts to the grant of an easement allowing Respondents to

permanently interfere with Appellants’ full use and enjoyment of their properties.

Appellants also assert that section 537.296.2(2) effectuates a regulatory taking by

limiting temporary nuisance damages to diminution of rental value and barring

recovery of specific damages for the loss of use and enjoyment of their

properties. 6 Article I, section 26 of the Missouri Constitution provides: “private


6
  A regulatory taking occurs when a government regulation does not result in a physical
invasion of property or the denial of all economically viable use but, instead, “goes too
far” in restricting the exercise of property rights. The Supreme Court of the United States
has set out three factors to consider whether the regulation has gone “too far:” (1) “the
economic impact of the regulation on the claimant;” (2) “the extent to which the
regulation has interfered with distinct investment-backed expectations;” and (3) “the
character of the governmental action,” particularly “whether it amounts to a physical
invasion” or appropriation of property or instead merely affects property interests through
“some public program adjusting the benefits and burdens of economic life to promote the
common good.” Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978).


                                            8
property shall not be taken or damaged for public use without just compensation.”

Unlike article I, section 28, which categorically bars the state from taking property

for private uses, article I, section 26 authorizes the state to take private property

for a public use provided just compensation is paid. See Dolan, 398 S.W.3d at

476; State ex rel. Doniphan Tel. Co. v. Public Serv. Comm’n, 369 S.W.2d 572,

575 (Mo. 1963) (the constitution contemplates a lawful taking of private property

for public use).

       “Property is defined as including not only ownership and possession but

also the right of use and enjoyment for lawful purposes.” Hoffmann v. Kinealy,

389 S.W.2d 745, 752 (Mo. banc 1965). The state constitutional provisions barring

the taking of private property apply “equally to the enjoyment and the possession

of lands.” Id. at 753. Consequently, “[a]n arbitrary interference by the

government, or by its authority, with the reasonable enjoyment of private lands is

a taking of private property without due process of law, which is inhibited by the

Constitution.” Id.

        Appellants’ argument that section 537.296.3 effectively creates an

easement is not ripe for consideration. Ripeness is determined by whether “the

parties’ dispute is developed sufficiently to allow the court to make an accurate

determination of the facts, to resolve a conflict that is presently existing, and to

grant specific relief of a conclusive character.” Schweich v. Nixon, 408 S.W.3d

769, 774 (Mo. banc 2013). While “[t]here can be a ripe controversy before a




                                           9
statute is enforced,” there must be “an immediate, concrete dispute” to render the

case ripe for resolution by this Court. See Planned Parenthood of Kansas v.

Nixon, 220 S.W.3d 732, 738-769 (Mo. banc 2007).

       Section 537.296.3 applies only to “any subsequent claim against the same

defendant or defendant’s successors for temporary nuisance related to a similar

activity or use of the defendant’s property ….” Appellants are seeking damages

only for a temporary nuisance. Section 537.296.3 does not apply to this case.

There is no immediate, concrete dispute between the parties regarding the

permanent nuisance provision of section 537.296.3. Appellants’ easement

argument is not ripe.

       Appellants also assert that section 537.296.2(2) effectuates a regulatory

taking because the statute denies compensation for their constitutionally protected

right to the use and enjoyment of their property. 7 Assuming for the sake of

argument only that the statute effectuates a regulatory taking, Appellants’


7
  Appellants’ argument that section 537.296 effectuates a taking by sanctioning the
maintenance of a private nuisance is not inconsistent with Missouri law. As noted, a
taking can occur when there is an arbitrary interference by the government, or by its
authority, with the reasonable enjoyment of private lands …. Hoffman, 389 S.W.2d at
753. Subsequently, this Court tacitly recognized that a taking by inverse condemnation
can result when the government maintains a sewer facility that emits odors sufficient to
constitute a nuisance. Byrom v. Little Blue Valley Sewer District, et al., 16 S.W.3d 573,
577-578 (Mo. banc 2000). It is, therefore, conceivable that a statute limiting recovery of
nuisance damages could sufficiently diminish a landowner’s right to recover damages for
an unreasonable interference with the use and enjoyment of his or her property could
amount to a regulatory taking without just compensation. As established, however, the
temporary nuisance cause of action defined in section 537.296.2(2) does not authorize a
nuisance and provides for damages consistent with constitutionally required just
compensation.



                                            10
constitutional challenge fails because diminution of rental value is the benchmark

for awarding just compensation for a temporary taking.

       “Just compensation” is the amount of the fair market value of the property

taken. St. Louis Cnty. v. River Bend Estates Homeowners’ Ass’n, 408 S.W.3d 116,

137 (Mo. banc 2013). The requirement of just compensation is a minimum

measure that must be paid, not a maximum one. Id. “Under this standard, the

owner is entitled to receive ‘what a willing buyer would pay in cash to a willing

seller’ at the time of the taking.” Kirby Forest Indus., Inc. v. United States, 467

U.S. 1, 10, 104 S.Ct. 2187 (1984).

       To determine the fair market value of the property taken, courts must

identify the nature of the taking. Appellants allege a taking caused by a temporary

nuisance. The alleged taking is, therefore, a temporary taking. 8 When there is a

temporary taking, just compensation requires payment of the “diminution in value

of the use of occupancy” of the property for period in which the property was


8
  The distinction between a temporary and permanent taking is not strictly based on
temporal considerations and is, instead, based primarily on the nature of the intrusion.
Petro-Hunt, L.L.C. v. United States, 90 Fed.Cl. 51, 64 (Fed. Cl. 2009) (quoting Bass
Enterprises Prod. Co. v. United States, 133 F.3d 893, 896 (Fed. Cir. 1998)). The nature
of the intrusion is paramount because temporary takings that deny a landowner all use of
his or her property are like permanent takings because in both instances the property
owner is deprived of his or her property rights. First English Evangelical Lutheran
Church of Glendale v. Los Angeles Cnty., Cal., 482 U.S. 304, 318 (1987). For this
reason, the Supreme Court in First English held that a zoning ordinance was a temporary
taking because the ordinance did not deprive the owner of all property rights and, instead,
amounted to a restriction on use that was subject to expiration if the ordinance was
declared unconstitutional or repealed. Id. Appellants’ takings theory is predicated on a
statutory temporary nuisance claim that is based on non-permanent interference with the
use and enjoyment of property. Appellants’ claim is for a temporary taking.


                                            11
taken or damaged. Byrom v. Little Blue Valley Sewer District, et al., 16 S.W.3d

573, 577 (Mo. banc 2000). The loss of “use of occupancy” is generally measured

as the rental value of the property for the period of the taking. Id.; see also

Kimball Laundry Co. v. United States, 338 U.S. 1, 7 (1949) (just compensation for

a temporary taking “is the rental that probably could have been obtained” and not

“the difference between the market value of the fee on the date of taking and that

on the date of return.”). Damages for loss of use during the temporary taking can

be factored into the fair rental value of the property. Byrom, 16 S.W.3d at 578.

       By authorizing a plaintiff to recover the diminution in rental value in a

temporary nuisance, section 537.296.2(2) provides for the constitutionally

required just compensation in the event that the alleged temporary nuisance

amounts to a temporary taking of private property. Therefore, Appellants have not

met their burden of demonstrating that section 537.296.2(2) constitutes a taking

for public use without just compensation. 9

3. Section 537.296.2 does not deny equal protection

       Appellants argue that section 537.296.2(2) denies equal protection because

the statute does not survive strict scrutiny in that the damage limitations are not


9
  Appellants also assert that section 537.296.5 is unconstitutional because the statute does
not allow compensation for a person who “rightfully occupies” property. Section
537.296.5 provides that persons with an “ownership interest,” which includes those with
a “leasehold interest,” have standing to file a nuisance action under the statute. The plain
language of section 537.296.5 refutes Appellants’ assertion that a renter would have no
standing to sue. An occupant who lacks an ownership interest has no property right to
take. Barring an occupant from asserting a nuisance action is not an unconstitutional
taking.



                                            12
necessary to advance a compelling state interest. Appellants assert that strict

scrutiny is required because the statute creates a suspect classification of rural

landowners and residents and infringes on their fundamental property rights.

       There are two steps to an equal protection analysis. Amick v. Director of

Revenue, 428 S.W.3d 638, 640 (Mo. banc 2014). The first step requires a court to

identify the classification at issue to ascertain the appropriate level of scrutiny. Id.

If the challenged law draws a distinction on the basis of a suspect classification or

curtails the exercise of a fundamental right, then strict scrutiny applies. Id. If

there is no suspect classification or fundamental right at issue, a court will apply

rational-basis review to determine whether the challenged law is rationally related

to some legitimate end. Id. 10

       A. Suspect classification

       Appellants assert that rural landowners and residents have been “effectively

marginalized as a suspect class” because they lack the political influence and

attendant power of urban residents to “push the nuisance away from their

boundaries through the representative process.” Even assuming that section

537.296 creates a classification based on residency, Appellants have not cited a

single case that holds or even hints that rural landowners and residents are a

suspect class.




10
  Gender-based classifications are subject to intermediate scrutiny. Comm. for Educ.
Equality v. State, 294 S.W.3d 477, 496, n. 4 (Mo. banc 2009).


                                           13
       “Suspect classes are classes such as race, national origin, or illegitimacy

that ‘command extraordinary protection from the majoritarian political process’

for historical reasons.” State v. Young, 362 S.W.3d 386, 397 (Mo. banc 2012)

(quoting Etling v. Westport Heating & Cooling Services, Inc., 92 S.W.3d 771, 774

(Mo. banc 2003)). Appellants do not argue that rural landowners, the very people

who played a central role in founding and forging this country, are a historically

marginalized class in need of protection from the majoritarian political process.

Further, Appellants overlook the fact that section 537.296 provides obvious

benefits to the large number of rural landowners who devote their property

primarily to agriculture. There is no basis for concluding that section 537.296

creates a suspect classification requiring strict scrutiny.

       B. Fundamental rights

       Appellants also argue that section 537.296 is subject to strict scrutiny

because the statute “impinges on fundamental rights” to property. The

fundamental rights requiring strict scrutiny are the rights to interstate travel, to

vote, free speech, and other rights explicitly or implicitly guaranteed by the

constitution. In re Marriage of Woodson, 92 S.W.3d 780, 784 (Mo. banc 2003).

Appellants cite no cases holding that a statute that regulates private property is

subject to strict scrutiny.

       There is no doubt that individuals have a fundamental constitutional right to

use and enjoy property free from arbitrary governmental interference. See MO.

CONST. art. I, sec. 26 (private property shall not be taken for public use without


                                           14
just compensation); Hoffman, 389 S.W.2d at 753. If, as Appellants argue, a statute

that restricts property rights is subject to strict scrutiny, then the state would have

to justify all property regulations and its exercise of eminent domain on grounds

that the action was necessary to achieve a compelling state interest. Land use

regulations are not subject to heightened judicial scrutiny under the equal

protection clause. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440

(1985) (applying rational basis review in an equal protection challenge to a zoning

ordinance); see also Wrigley Properties, Inc. v. City of Ladue, 369 S.W.2d 397,

400 (Mo. 1963) (zoning ordinance substantially restricting land use is

constitutional if the reasonableness of the restrictions are fairly debatable).

Further, adopting Appellants’ strict scrutiny argument would conflict with long-

established takings jurisprudence providing that the state can directly confiscate

private property for public use as long as the taking is shown to “substantially

advance[s] a legitimate state interest.” Nollan v. California Coastal Comm’n, 483

U.S. 825, 834 (1987). Section 537.296 is not subject to strict scrutiny. The statute

is subject to rational basis review.

       C. Section 537.296 is rationally related to a legitimate state purpose

       When applying rational-basis review, this Court presumes that a statute has

a rational basis, and the party challenging the statute must overcome this

presumption by a “clear showing of arbitrariness and irrationality.” Amick, 428

S.W.3d at 640, quoting Foster v. St. Louis Cnty., 239 S.W.3d 599, 602 (Mo. banc

2007). The issue is not whether the reviewing court perceives the challenged law


                                           15
as wise or desirable. The issue is whether the challenger has demonstrated that the

law is completely irrational. Id.

       “It is within the province of the legislature to enact a statute which

regulates the balance of competitive economic forces in the field of agricultural

production and commerce, thereby protecting the welfare of its citizens

comprising the traditional farming community, and such statute is rationally

related to a legitimate state interest.” Lehndorff Geneva, Inc., 744 S.W.2d 801 at

806; see also Linton v. Missouri Veterinary Med. Bd., 988 S.W.2d 513, 516 (Mo.

banc 1999) (licensing requirements for veterinarians advance the legitimate state

interest in “a sound agricultural economy”). Irrespective of the perceived

desirability of section 537.296, the statute rationally advances the legitimate state

interest in promoting the agricultural economy by reducing the litigation risk faced

by Missouri farmers while permitting nearby landowners to recover the diminution

in property value caused by agricultural operations. Appellants have not

established that section 537.296 is completely irrational and unrelated to

advancing a legitimate state interest.

4. Section 537.296.2 does not violate due process

       Appellants argue that section 537.296 violates article I, section 2 of the

Missouri Constitution and the “substantive due process standards inherent therein”

because the statutory damage limits destroy the guarantee of the right to the

enjoyment of one’s own industry. Appellants’ argument is premised on the

proposition that the statute deprives them of fundamental property rights and is


                                          16
unrelated to a legitimate state interest. The same reasons that foreclosed

Appellants’ equal protection arguments also foreclose Appellants’ arguments that

the statute denies substantive due process and violates the constitutional right to

the gains of one’s own industry.

5. Separation of powers

       Appellants assert that section 537.296.5 unconstitutionally delegates the

standing determination to the legislature by providing that no person shall have

standing unless he or she has an “ownership interest” in the affected property.

Appellants assert that standing is a judicial doctrine that is not subject to

legislative definition.

       Appellants do not assert that the claims of any litigants in this case were

dismissed for lack of standing due to the lack of an “ownership interest” as

required by section 537.296.5. Appellants’ separation of powers argument is

premised on a theoretical possibility rather than the record of undisputed facts in

this case. This Court will not declare a statute unconstitutional absent an actual or

threatened application of the statute to a party challenging the statute. See State v.

Richard, 298 S.W.3d 529, 533 (Mo. banc 2009) (party challenging the

constitutional validity of a statute prohibiting possession of a loaded firearm while

intoxicated had “no standing to raise hypothetical instances” in which it might be

applied unconstitutionally). Consequently, Appellants do not have standing to

challenge the validity of section 537.296.5 because they have not demonstrated the

requisite “personal stake arising from a threatened or actual injury” from


                                          17
application of the statute. Schweich v. Nixon, 408 S.W.3d 774 (Mo. banc 2013)

(quoting State ex rel. Williams v. Mauer, 722 S.W.2d 296, 298 (Mo. banc 1986).

6. Appellants have not demonstrated that section 537.296.2 violates the open
   courts clause

       Appellants argue that section 537.296 violates the open courts provision of

article I, section 14 of the Missouri Constitution because the statute “denies access

to the courts to lawful possessors and occupiers of land.” The open courts

provision of the Missouri Constitution guarantees “the right to pursue in the courts

the causes of action the substantive law recognizes.” Harrell v. Total Health

Care, Inc., 781 S.W.2d 58, 62 (Mo. banc 1989). Appellants do not argue that

section 537.296 restricts access to the courts to pursue a recognized cause of

action. Therefore, Appellants’ arguments do not implicate the interests protected

by article I, section 14, and Appellants have not demonstrated that section 537.296

violates article I, section 14.

7. Section 537.296.2 is not an unconstitutional special law

       Appellants assert that section 537.296 is an unconstitutional “special law”

in violation of article III, section 40 of the Missouri Constitution. Appellants

argue that section 537.296 “benefits only the corporate farming industry” by

specifically limiting temporary nuisance damages “where the alleged nuisance

emanates from property primarily used for crop or animal production purposes.”

Section 537.296.2. This argument is without merit.




                                         18
       Article III, section 40 prohibits the legislature from enacting “special laws”

when a general law can be made applicable. Special laws are “statutes that apply

to localities rather than to the state as a whole and statutes that benefit individuals

rather than the general public.” Glossip v. Missouri Dep’t of Transp. and Highway

Patrol Employees’ Ret. Sys., 411 S.W.3d 796, 808 (Mo. banc 2013) (citing

Jefferson Cnty. Fire Prot. Districts Ass’n v. Blunt, 205 S.W.3d 866, 868-71 (Mo.

banc 2006)). In other words, a special law “includes less than all who are

similarly situated ... but a law is not special if it applies to all of a given class alike

and the classification is made on a reasonable basis.” Glossip, 411 S.W.3d at 808

(quoting Savannah R-III Sch. Dist. v. Pub. Sch. Ret. Sys. of Mo., 950 S.W.2d 854,

859 (Mo. banc 1997)).

       When a law is based on open-ended characteristics, it is not facially special

and is presumed to be constitutional. Glossip, 411 S.W.3d at 808. Classifications

are open-ended if it is possible that the status of members of the class could

change. Id. An open-ended law is not special as long as the classification is

reasonable. Id.

       Appellants argue that section 537.296 creates a presumptively

unconstitutional closed-ended classification because the statute “classifies on the

basis of who the tortfeasors are.” Section 537.296 does not create a facially

unconstitutional closed-ended classification because providing some protection

from nuisance lawsuits for those who devote their property primarily for

agriculture creates an open-ended classification based on current land use. This


                                            19
class is open-ended because landowners and land uses can change. Just as a

classification based on occupation such as real estate broker, attorney, or an

auctioneer is open-ended, classifications based on current land use are open-ended

and not facially special because the class is not based on an immutable

characteristic. Kansas City Premier Apartments, Inc., v. Missouri Real Estate

Comm’n, 344 S.W.3d 160, 171 (Mo. banc 2011).

       The open-ended classification in this case is reasonable. As established

above, section 537.296 advances the legitimate state purpose of promoting the

agricultural economy. Section 537.296 is not an unconstitutional special law.

IV. The trial court did not err in granting judgment on Appellants’ claims for
                  negligence and conspiracy against Cargill

       Appellants’ final argument is that the trial court erred by entering judgment

on their negligence and conspiracy claims. Appellants assert that they are entitled

to recover “use and enjoyment” damages pursuant to a negligence or conspiracy

cause of action. They also assert that the undisputed facts are insufficient to show

that Cargill was not vicariously liable for Bohr’s alleged negligence.

       Section 537.296.6(1) provides that section 537.296 does not “[p]rohibit a

person from recovering damages for annoyance, discomfort, sickness, or

emotional distress; provided that such damages are awarded on the basis of other

causes of action independent of a claim of nuisance.” This language means that

Appellants can recover their alleged non-economic “use and enjoyment” damages




                                         20
only if their negligence and conspiracy claims are “independent of a claim of

nuisance.”

       The nature of an alleged cause of action is based on the substance of the

pleading, not the title. See Gunter v. City of St. James, 189 S.W.3d 667, 677-678

(Mo. App. 2006). The substance of Appellants’ negligence, conspiracy and

vicarious liability claims is that operation of the CAFO created offensive odors

and particulates that substantially interfere with the use and enjoyment of their

properties. In other words, the negligence, conspiracy and vicarious liability

claims are based on the same facts forming the basis of the nuisance claim.

Appellants’ negligence, conspiracy and vicarious liability claims are not

“independent of a claim of nuisance” because those claims are, in fact, dependent

on the nuisance allegations. Given the allegations in this case, Appellants’

nuisance, conspiracy and vicarious liability claims are inseparable from the

nuisance allegations and are barred by section 537.296.6(1).

                                       V. Conclusion

       The judgment is affirmed.

                                             _________________________________
                                             Richard B. Teitelman, Judge
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.




                                            21
            SUPREME COURT OF MISSOURI
                                        en banc

LINDA LABRAYERE AS TRUSTEE OF )
THE DON E. LABREYERE TRUST,      )
ET AL.,                          )
                                 )
                    Appellants,  )
                                 )
        v.                       )                       No. SC93816
                                 )
BOHR FARMS, LLC, ET AL.,         )
                                 )
                    Respondents. )

                                CONCURRING OPINION

       "No man [or woman] should be allowed to be the [judge] who does not understand

hogs, or hasn’t been around a manure pile." 1 I do, I have, and I concur in the principal

opinion. Assuming the State has taken property by enacting § 537.296.2, 2 it did so for

public use and provided just compensation. But in my view, there has been no taking. 3

       Prior to the enactment of § 537.296, the common law nuisance cause of action

provided for damages due to loss of use and enjoyment. Byrom v. Little Blue Valley



 1
   Harry S. Truman, who completed one year of law school at the University of Missouri-Kansas
City School of Law, my alma mater, suggested this as a requirement to be president of the
United States.
 2
   Statutory citations are to RSMo Supp. 2013.
 3
   This Court may affirm summary judgment on any appropriate theory supported by the record.
Columbia Cas. Co. v. HIAR Holding, L.L.C., 411 S.W.3d 258, 264 (Mo. banc 2013). Section
537.296.2 sets out the compensatory nuisance damages recoverable from crop and animal
Sewer Dist., 16 S.W.3d 573, 576 (Mo. banc 2000); McCracken v. Swift & Co., 265 S.W.

91, 92 (Mo. 1924). The appellants argue that the State of Missouri has taken their

property because § 537.296 prohibits recovery of use and enjoyment damages from crop

and animal producers. They cite Hoffmann v. Kinealy, 389 S.W.2d 745, 752-53 (Mo.

banc 1965), in which this Court defined "property," for purposes of determining whether

a taking has occurred, to include "the right of use and enjoyment" of property.

       The takings provisions in the Missouri Constitution are nearly identical to the

federal takings protections embodied in the Fifth Amendment, 4 and the appellants do not

argue that this Court should interpret the Missouri provisions differently. See U.S. Const.

amend. V; Mo. Const. art. I, §§ 26, 28; Kelo, 545 U.S. at 477-78; State ex rel. Jackson v.

Dolan, 398 S.W.3d 472, 478 (Mo. banc 2013). Under United States Supreme Court

precedent, takings generally fall into three categories: (1) permanent physical invasions

of property by the government; (2) governmental deprivations of "all economically

beneficial use" of property; and (3) "regulatory" takings of property under the Penn

Central balancing test. See Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 538-39 (2005)

(emphasis, alterations, citations, and internal quotation marks omitted).

       The takings analysis necessarily begins, however, with whether the government's

action actually interfered with constitutionally protected property rights, known as the

"bundle of rights." Sunrise Corp. of Myrtle Beach v. City of Myrtle Beach, 420 F.3d 322,



producers. Because that provision defeats all of the appellants' claims, I would not reach their
challenges to other subsections of the statute, including the separation of powers claim.
 4
    The Fifth Amendment Takings Clause applies to the states through the Fourteenth
Amendment. Kelo v. City of New London, Connecticut, 545 U.S. 469, 472 n.1 (2005).

                                               2
330 (4th Cir. 2005). If the government has not interfered with this bundle of rights, there

has been no taking. Id.

       Here, the State has not interfered with the appellants' bundle of rights. Section

537.296.2 does not take the appellants' rights to use and enjoy property. It eliminates a

category of damages for certain nuisances. The right to seek injunctive relief is still

intact. See Clutter v. Blankenship, 144 S.W.2d 119 (Mo. 1940); Edmunds v. Sigma

Chapter of Alpha Kappa Lambda Fraternity, Inc., 87 S.W.3d 21 (Mo. App. 2002);

Hulshof v. Noranda Aluminum, Inc., 835 S.W.2d 411, 419 (Mo. App. 1992). This makes

abundantly clear that the State continues to recognize and give effect to the appellants'

rights to use and enjoy their property, to the exclusion of crop and animal producers.

       The principal opinion states that it is "conceivable that a statute limiting recovery

of nuisance damages could sufficiently diminish a landowner's right to recover damages

for an unreasonable interference with the use and enjoyment of his or her property that

the statute could amount to a regulatory taking . . . ." Slip op. at 10 n.7. Viewing

§ 537.296.2 as effectuating a taking would be erroneous because it does not infringe on

the appellants' bundle of rights. See Sunrise, 420 F.3d at 330. Also, unlike in the cases

cited by the principal opinion, the State itself did not invade the appellants' land, see

Byrom, 16 S.W.3d at 575, 577-78 (involving a public sewer district's noxious odors), or

attempt to dictate how appellants use their land, see Hoffmann, 389 S.W.2d at 746, 753

(involving the denial of a land use permit). The State did not "delegate" the power of

eminent domain to private crop and animal producers, as the appellants contend. And by

restricting the nuisance damages recoverable for temporary nuisance, it did not convert


                                             3
that cause of action into one for permanent nuisance—regardless of the analogy drawn

previously by this Court, cleverly spun by the appellants, that a permanent nuisance

judgment is like a grant of an easement. See Owen v. City of Springfield, 741 S.W.2d 16,

18 (Mo. banc 1987).

          The State's action here was to enact legislation modifying a common law cause of

action.     Except as to vested rights, the General Assembly is free to "'design the

framework of the substantive law' by abolishing or modifying common law or statutorily

based claims." Kilmer v. Mun, 17 S.W.3d 545, 550 (Mo. banc 2000); see also De May v.

Liberty Foundry Co., 37 S.W.2d 640, 647 (Mo. 1931). When § 537.296 went into effect,

the farm had not yet populated its CAFO with swine. The State could not have taken any

vested property rights in the appellants' temporary nuisance claims because those claims

had not yet accrued. See Kilmer, 17 S.W.3d at 550; De May, 37 S.W.2d at 647.

          In my view, there was no taking. Although I concur in the principal opinion's

analyses of private/public use and just compensation, the Court need not reach those

issues. Section 537.296.2 sets out the nuisance damages recoverable from crop and

animal producers. It does not purport to take the appellants' rights to use and enjoy their

property, and the State still recognizes and enforces those rights through injunctive relief.

Because the appellants' bundle of rights has not been disturbed, the State has not taken

their property. See Sunrise, 420 F.3d at 330.



                                                         ___________________________
                                                         Zel M. Fischer, Judge



                                              4
