Henry County Water Company, A Not-For-Profit Corporation, Appellant v. Karla M. McLucas, Director of State of Missouri Department of Labor and Industrial Relations, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Henry County Water Company, A Not-For-Profit Corporation, Appellant v. Karla M. McLucas, Director of State of Missouri Department of Labor and Industrial Relations, Respondent. Case Number: WD56938 Handdown Date: 11/30/1999 Appeal From: Circuit Court of Cole County, Hon. Byron L. Kinder Counsel for Appellant: Robert Lee Cox Counsel for Respondent: David Meyer Opinion Summary: Henry County Water Company appeals from a summary judgment and findings of fact and conclusions of law issued, which found that the Prevailing Wage law applied to public works projects undertaken by Henry County Water Company, including the Water Intake and Treatment Plant Project DISMISSED. Division holds: Since the water company paid the prevailing wage on the project, there is no controversy. The issue in this case is moot, and the appeal is dismissed. Citation: Opinion Author: Albert A. Riederer, Presiding Judge Opinion Vote: DISMISSED. Smart and Ellis, JJ., concur. Opinion: Henry County Water Co. ("HCW") appeals from a summary judgment and findings of fact and conclusions of law issued by the Circuit Court of Cole County, Byron L. Kinder, J., which found that the Prevailing Wage law applied to public works projects undertaken by HCW, including the Water Intake and Treatment Plant Project. Because we find that the issue in this case is moot, we dismiss the appeal.

Facts HCW was established in 1983 to provide water for Henry County. In May of 1986, HCW filed a petition against certain tax collectors in Henry County to recover taxes paid in 1984 and 1985, under protest, claiming it was exempt from taxes as a political subdivision or alter ego of the City of Clinton. The court in that case determined that HCW was not exempt from taxation, that it was not the City of Clinton or a department of the city, and that if HCW or the City of Clinton wanted HCW to be free of taxation, the assets would have to be transferred to the City and become property of the City. In 1996, HCW applied for and received a resolution from the State Environmental Improvement Resources Authority, allowing the authority to issue bonds in the principal amount to provide funds for the Henry County Water Intake and Treatment Plant Project. HCW requested and received a letter from the Division of Labor Standards on November 20, 1997, stating that the prevailing wage law did not apply to the project. On January 7, 1998, the Division of Labor Standards issued another letter to HCW stating that it had received additional information regarding the nature of the HCW organization and that based on that information, the prevailing wage law did apply to the Water Intake and Treatment Plant Project. On January 27, 1998, HCW filed an application with the Labor and Industrial Relations Commission ("LIRC") to review the decision of the Division of Labor Standards. The LIRC issued an order stating it did not have jurisdiction. HCW then filed a petition for Declaratory Judgment and Administrative Review in the Circuit Court of Henry County, seeking a determination that the prevailing wage does not apply to the project. The LIRC filed an answer and motion for summary judgment with suggestions in support, requesting a finding that the prevailing wage law does apply. On February 9, 1999, the circuit court granted LIRC's summary judgment and issued findings of fact and conclusions of law, finding that the prevailing wage law applies to "public work aspects of projects undertaken by the Henry County Water Company" and to "the Henry County Water Company's Water Intake and Treatment Plant Project." This appeal ensued. I. Appellant argues in its sole point on appeal that the trial court erred in determining that the Prevailing Wage Law applies to public work projects undertaken by Appellant, including the Water Intake and Treatment Plant Project. A threshold question in any appellate review of a controversy is the mootness of the controversy. State ex rel. Chastain v. City of Kansas City, 968 S.W.2d 232, 237 (Mo. App. 1998). "Because mootness implicates the justiciability of a case, an appellate court may dismiss a case for mootness sua sponte." Id. A case is moot if a judgment rendered has no practical effect upon an existent controversy. Id. "While courts should generally not decide moot issues, a court

has discretion to review a moot case where the case presents a recurring unsettled legal issue of public interest and importance that will escape review unless the court exercises its discretionary jurisdiction." State ex rel. County of Jackson v. Missouri Public Service Commission, 985 S.W.2d 400, 403 (Mo. App. 1999). However, this is a very narrow exception. Id. If an issue of public importance in a moot case is likely to be present in a future live controversy practically capable of review, this "public interest" exception does not apply. Id. Here, Appellant informed the court at oral argument that based on the January 7, 1998, letter from the Division of Labor Standards stating that the prevailing wage law did apply to the Water Intake and Treatment Plant Project, Appellant paid the workers on the project the prevailing wage. Since Appellant paid the prevailing wage to workers on the project, there is no existent controversy between Appellant and Respondent. Therefore, the issue is moot. "When an event occurs that makes a decision on appeal unnecessary or makes it impossible for the appellate court to grant effectual relief, the appeal is moot and generally should be dismissed." Chastain, 968 S.W.2d at 237. While the issue in this case, whether the prevailing wage law applies to "public work aspects of projects undertaken by the Henry County Water Company" is a recurring unsettled legal issue of public interest, it is likely to be present in a "future live controversy practically capable of review." State ex rel. County of Jackson, 985 S.W.2d at 403. Therefore, this court declines to exercise its discretionary jurisdiction to determine this issue under the "public interest exception" to mootness. Cause dismissed. All concur. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.