Court of Appeals of Missouri, Southern District, Second Division
CITY OF ST. ROBERT, MISSOURI, Plaintiff-Respondent,
ALAN CLARK, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY. Honorable Douglas D. Gaston, Associate Circuit Judge.
AFFIRMED IN PART, AND REVERSED IN PART WITH INSTRUCTIONS.
LANCE B. THURMAN, Rolla, MO, for Appellant.
RICHARD T. ASHE, Springfield, MO, for Respondent.
DON E. BURRELL, J. - OPINION AUTHOR. NANCY STEFFEN RAHMEYER, J. - CONCURS IN PART; DISSENTS IN PART. GARY W. LYNCH, J. - CONCURS.
DON E. BURRELL, J.
In early April 2012, the city of St. Robert, a fourth-class city (" City" ), acting by a majority vote of its Board of Aldermen (" the Board" ), terminated its appointed city administrator, Alan Clark (" Administrator" ). A couple of weeks later, City filed a petition for a declaratory judgment in the circuit court. The petition sought judicial declarations that City was not obligated
to: (1) provide Administrator with a post-termination hearing; (2) temporarily suspend Administrator with pay; or (3) pay Administrator two months salary because City code section 105.110(F) (" the Ordinance" ) that provided for these things violated two state statutes: section 71.010 and section 79.240.
Administrator counterclaimed for declarations prohibiting City from interfering with his work as city administrator and enjoining City from recruiting a new city administrator. Administrator claimed that his " purported discharge was improper, unlawful and ineffective in that he was neither" discharged by: (1) a majority vote of the Board with the approval of the mayor, nor (2) discharged by a two-thirds majority vote of the Board.
After the parties filed competing motions for summary judgment, the trial court entered a summary judgment in favor of City. That judgment declared: (1) Administrator " was lawfully removed from his appointed office as City Administrator" ; and (2) the Ordinance was " void ab initio to the extent it exceeds the provisions of Chapter 79.240, RSMo."
Administrator's timely appeal contends the trial court legally erred in entering its summary judgment because: (1) Administrator was not " properly removed from office" in that the removal vote violated the requirements of section 79.240 and the Ordinance as " the vote was neither a simple majority with mayoral consent nor a super-majority without mayoral consent" ;  and (2) the Ordinance did not conflict with section 79.240 as it " only added the right to a name clearing hearing after the employee was terminated."
On what appears to be a question of first impression in Missouri, we hold that the trial court did not err in finding that Administrator had been " lawfully removed from his appointed office" because the relevant statutes did not prohibit the acting president of the Board from both voting in favor of Administrator's removal in his capacity as a board member and also providing the necessary mayoral consent in his capacity as acting mayor during the elected mayor's temporary absence. We therefore affirm that portion of the judgment. However, because no justiciable controversy concerning the legality of the Ordinance was before the trial court, we reverse that portion of the judgment and remand the matter with instructions for the trial court to enter a judgment that denies City's petition for lack of a justiciable controversy.
Applicable Principles of Review and Governing Law
The trial court makes its decision to grant summary judgment based on the pleadings, record submitted, and the law; therefore, this Court need not defer to the trial court's determination and reviews the grant of summary judgment
de novo. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993); Rule 74.04. In reviewing the decision to grant summary judgment, this Court applies the same criteria as the trial court in determining whether summary judgment was proper. Id. Summary judgment is only proper if the moving party establishes that there is no genuine issue as to the material facts and that the movant is entitled to judgment as a matter of law. Id. The facts contained in affidavits or otherwise in support of a party's motion are accepted " as true unless contradicted by the non-moving party's response to the summary judgment motion." Id. Only genuine disputes as to material facts preclude summary judgment. Id. at 378. A material fact in the context of summary judgment is one from which the right to judgment flows.
Goerlitz v. City of Maryville, 333 S.W.3d 450, 452-53 (Mo. banc 2011). " If, as a matter of law, the circuit court's judgment is sustainable on any theory, it should be affirmed on appeal." Id. at 453.
We accept uncontested facts provided in support of the parties' competing summary judgment motions as true. Goerlitz, 333 S.W.3d at 452-53. A factual allegation in a summary judgment motion that is not denied in the response is " treated as admitted." Mothershead v. Greenbriar Country Club, Inc., 994 S.W.2d 80, 85 (Mo. App. E.D. 1999).
City's " MOTION FOR SUMMARY JUDGMENT" (" City's motion" ) alleged particular facts as supporting its request for a declaration that the Ordinance was void ab initio and that Administrator was not entitled to: (1) a hearing; (2) to be placed on suspension; or (3) to receive any payment under the Ordinance. Administrator's response to City's motion admitted some of City's alleged facts and denied others. It also affirmatively asserted other specific facts. City filed a " REPLY TO DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT" (" City's reply" ) that specifically admitted or denied particular facts alleged by Administrator and also asserted still ...