Company misses attorney fee deadline after all, says Southern District

A company’s attorney fees award from the Missouri Mining Commission (MMC) was reversed in the Missouri Court of Appeals Southern District. The court remanded the case with directions to deny the company’s fee application.

The contested attorney fees arise from an underlying case, Fowler Land Co., Inc. v. Missouri Department of Natural Resources, in which Fowler failed to convince the Southern District that Missouri Land Reclamation Commission could approve a 2011 permit revision for the creation of water impoundments on Fowler’s land without its consent.

Fowler appealed the case once more, and the Southern District held in Fowler’s favor. Barton County Circuit Court ordered MMC to deny the application for a permit revision. An Administrative Hearing Commission dismissed Fowler’s attorney fee application after Fowler failed to submit it within 30 days.

The circuit court reversed its dismissal, ordering an AHC hearing and recommendations to MMC. In February 2021, MMC accepted a recommendation to award Fowler $106,402 in attorney fees and $18,707 in expenses.

DNR appealed a month later, represented by Assistant Attorney General Timothy P. Duggan. Chris Nuelle, a spokesman for the Attorney General’s Office, did not respond to an email requesting comment by press time.

Represented by Jeffrey Kent Elnicki of St. Louis, Fowler on appeal claimed MMC determined the outcome of the underlying case. Elnicki could not be reached for comment.

Southern District Judge Jeffrey Bates disagreed, stating that its past appellate instructions had directed the trial court, not MMC.

“The winning owner-consent argument was first accepted by this Court,” Bates wrote. “Our opinion disposed of all issues as to all parties and left nothing for future determination.”

Judges William W. Francis and Jack A.L. Goodman concurred. The court instructed the trial court to deny Fowler’s application for attorney fees.

The case is State of Missouri ex rel. Department of Natural Resources v. Fowler Land Company et al., SD37045.