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01/14/98 LEONARD KEEVEN v. CITY HIGHLAND

January 14, 1998

LEONARD KEEVEN, AS TRUSTEE OF THE LEONARD KEEVEN TRUST, ET AL., PLAINTIFFS-APPELLANTS,
v.
THE CITY OF HIGHLAND, A BODY POLITIC AND CORPORATE, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Madison County. No. 94-MR-331. Honorable David R. Herndon, Judge, presiding.

Rule 23 Order of December 4, 1997, Redesignated Opinion and Ordered Published January 14, 1998.

Honorable Gordon E. Maag, J., Honorable Clyde L. Kuehn, J., and Honorable Richard P. Goldenhersh, J., Concur. Justice Maag delivered the opinion of the court.

The opinion of the court was delivered by: Maag

ORDER

This cause coming to be heard on defendant-appellee's motion to publish, and the court being advised in the premises:

IT IS THEREFORE ORDERED that defendant-appellee's motion to publish shall be and hereby is, GRANTED.

The Honorable Justice MAAG delivered the opinion of the court:

Plaintiff, Leonard Keeven, representing himself and other nonresidents of the City of Highland, filed a class action lawsuit against the defendant, the City of Highland (Highland), alleging that water rate ordinances enacted by Highland on and after April 2, 1990, violated his and other nonresidents' common law right against unreasonable discrimination in water rates. Keeven sought an accounting and a refund of the overcharged amount and an injunction prohibiting Highland from overcharging the class members in the future. After a bench trial, the trial court ruled in favor of Highland. Keeven appeals.

The facts are as follows. Highland supplies water to its residents and certain customers outside the city. In late 1989, Highland hired an engineering firm, Black & Veatch, to prepare a financial plan and rate analysis report for its water service, to be used in a proposal for new water rates. Based upon this report and other factors considered by the city manager, Highland enacted an ordinance that allows it to charge nonresidents 75% more for water than residents of Highland are charged. Keeven brought an action alleging unreasonable discrimination in water rates. From the trial court's ruling in favor of Highland, Keeven appeals.

The issues presented for review are:

1. Whether the trial court erred as a matter of law in utilizing the wrong factors to determine if the discrimination in water rates is reasonable.

2. Whether the court's judgment and findings are against the manifest weight of the evidence.

3. Whether the court erred as to the effect of stipulations and admissions made by Highland.

4. Whether the court erred as a matter of law in the admission and ...


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