Appeals court upholds ruling against gun club

Wednesday, August 5, 2009 | 12:01 a.m. CDT; updated 11:07 a.m. CDT, Wednesday, August 5, 2009

COLUMBIA — The Missouri Court of Appeals, Western District, has ruled in favor of Daniel and Donna Brown by upholding a December 2007 jury decision that awarded them $700,000 in damages.

The ruling is the latest chapter in a five-year legal battle between the Browns and their former neighbors, Cedar Creek Rod and Gun Club, a 115-acre not-for-profit shooting range about 600 yards from the Brown's home. The gun club was legally dissolved in August 2008 and replaced by a new shooting range, Prairie Grove Shooting Sports Inc.

The Browns v. Cedar Creek Rod and Gun Club

1984-1985: Daniel Brown and his father Sherman Brown build his house on a 2.5-acre plot at 12101 East St. Charles Road. The land has been owned by the Brown family since 1949.

July 1992: Cedar Creek Rod and Gun Club opens about 600 yards away from Daniel Brown's home.

Jan. 9, 2004: Daniel and Donna Brown file a petition with the Boone County Circuit Court asking for an injunction against the gun club.

Dec. 20, 2007: A jury awards the Browns $700,000 in damages after a three-day hearing. After the trial, Judge Beetem grants the Browns a temporary injunction, limiting when they can operate their gun ranges.

Feb. 6, 2008: Rep. Brian Munzlinger, R-Williamstown, sponsors legislation (House Bill 2034) that, among other things, would make all gun clubs in the state legally immune from injunctions or civil lawsuits.

Feb. 20, 2008: Rep. Brian Munzlinger testifies on behalf of the gun club at a permanent injunction hearing.

April 4, 2008: Judge Beetem grants the Browns a permanent injunction limiting the times the gun club can use their shooting ranges.

May 2, 2008: The gun club filed an appeal in order to reduce the $700,000 awarded to the Browns by the jury. The motion is denied.

May 15, 2008: House Bill 2034 is passed in the state legislature by a vote of 142-1. Rep. Jeanette Oxford, D-St. Louis, is the only House member to vote against the bill.

July 2, 2008: The gun club filed an appeal to get the court to dissolve the permanent injunction citing House Bill 2034.

July 17, 2008: The gun club's appeal to dissolve the injunction is denied by Judge Beetem.

July 24, 2008: The gun club filed an appeal to Missouri’s Western District Court of Appeals claiming House Bill 2034 should eliminate the permanent injunction and the Browns' $700,000 award.

Aug. 28, 2008: House Bill 2034 is enacted into law on the same day the gun club is legally dissolved. Prairie Grove Shooting Sports Inc. is formed with a new board of directors. The Browns file an application for a show-cause order, alleging the gun club violated the permanent injunction.

Nov. 12, 2008: The gun club's motion to dissolve the permanent injunction is denied by the circuit court. The Browns motion for a show-cause order is also denied.

April 2, 2009: The Missouri Court of Appeals Western District hears oral arguments from the Browns' lawyers and the gun club's lawyers.

July 31, 2009: The Missouri Court of Appeals Western District upholds the $700,000 in damages awarded to the Browns by the jury.   

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The Browns claimed the noise and vibration of gunfire drastically affected their ability to enjoy their home.

By appealing the circuit court's 2007 ruling, the gun club sought, among other things, a remittitur, which would have reduced the monetary judgment against the club.

The ruling is neither a total victory for the Browns nor a total loss for the gun club. Besides determining whether the damages were excessive, the gun club asked the court to vacate a permanent injunction against the club based on a statutory amendment that grants firing ranges in Missouri immunity from civil lawsuits based on noise nuisance.

The noise immunity statute was signed into law on Aug. 28, 2008 — less than five months after the circuit court enjoined the gun club, limiting its hours of operation.

Daniel Brown said he was "ecstatic" about the ruling, but at the same time he was concerned that the appeals court did not decide on the legality of the injunction against the gun club. Since the passage of the immunity statute, state House Bill 2034, Brown says the gun club has not followed the hours of the injunction.

"(The gun club) has not followed the injunction since Aug. 28," Brown said. "They haven’t stayed within the hours since the law was passed. They totally went against the injunction, so it's going to be interesting how that injunction is handled when it goes to the (circuit) court."   

In August, the Browns filled a petition with the court claiming the gun club was violating the terms of the injunction. Their motion was denied in November 2008 pending a ruling by the appeals court.

The appeals court remanded the question of the legality of the injunction back to the circuit court, which now has to determine whether vibrations caused by the gunfire at the shooting range affects the Browns severely enough to be considered a nuisance. 

In the appeals court's official opinion, Judge Lisa White Hardwick agreed that while the statute protects the gun club from lawsuits stemming from noise nuisance, it does not protect the club from nuisance lawsuits based on vibrations to the ground caused by gunfire.

In the court's ruling, Hardwick writes that the jury was not prejudiced against the gun club based on comments made by the Browns' attorney during closing arguments, and that the $700,000 awarded by the jury was not excessive and was buttressed by "substantial" evidence. 

"The circuit court properly considered the magnitude of the nuisance suffered by the Browns," Hardwick wrote. "The jury award of $700,000 was supported by substantial evidence and was neither excessive nor manifestly unjust."

At the original jury trial in December 2007, Daniel Brown testified that the vibrations as well as sound from gunfire has diminished his family's quality of life.

"Sometimes the vibration from some of the shots just makes your chest just tremble," Brown testified, "just like somebody busted you right in the chest ... You're thinking you're hearing fire even in the quiet peace of the night life."

Ralph Gates, the founder of the gun club and its former president, currently leases land to Prairie Grove Shooting Sports Inc. He said Tuesday he was unsure what the next legal step would be.

"I don’t have much thought as to what we are going to do next," Gates said. "The attorneys will decide what to do. We are working on a plan of action."

Several messages were left at their offices, but neither of the gun club's lawyers, Bruce Ryder of St. Louis and Louis Leonatti of Mexico, could be reached for comment Tuesday. Leonatti's assistant said he was in Topeka, Kan., for the day.

Now that the gun club has been found liable, the Browns will seek to collect damages from the defendants in the case by whatever means available to them, said one of the Browns' attorneys, Tyler Breed of St. Louis.

"The court is going to have to determine who is on the hook," Breed said. "We don't know whether that is the new board of directors at Prairie Grove Shooting Sports or the old gun club or the people that own and lease the land to the new gun club, Mr. and Mrs. Gates."

The questions that still surround the case will have to be answered by Cole County Circuit Judge Jon E. Beetem, who presided in the 2007 trial. The gun club could also appeal the Western District's ruling to the Missouri Supreme Court. In his original ruling, Beetem compared the gunfire the Browns have heard to a Fourth of July celebration.

"Consideration is given to the social and economic utility of the operation of the gun club as same would be given to a Fourth of July fireworks demonstration or a Memorial Day Air Show,” Beetem wrote. “However, only at the (Browns’) home, most every day is the Fourth of July."   

In March, the Browns put their house up for sale. They have had two open houses but have received no offers. Daniel Brown says his next course of action will mainly depend on the circuit court's ruling on the permanent injunction against the gun club.

"It concerns me what is going to be done about the injunction, whether it's gonna be held up or thrown out," Brown said. "What the (circuit) court decides will have a lot of say in what we are going to do next."

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