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Bethman v. Faith

Court of Appeals of Missouri, Eastern District, Second Division

June 9, 2015

TONY BETHMAN, et al., Appellants,
v.
SALLY A. FAITH, et al., Respondents

Page 896

[Copyrighted Material Omitted]

Page 897

Appeal from the St. Charles County Circuit Court. Honorable Jon A. Cunningham.

FOR APPELLANT: Daniel L. Goldberg, Timothy A. Kohlenhoefer, St. Charles, Missouri; Jonathan F. Andres, Martin M. Green, Green Jacobson, P.C., St. Louis, Missouri.

FOR RESPONDENT: Robert J. Golterman, Sarah E. Mullen, Lewis Rice, LLC, St. Louis, Missouri.

Philip M. Hess, Judge. Sherri B. Sullivan, P.J. and Mary K. Hoff, J. concur.

OPINION

Page 898

Philip M. Hess, J.

Introduction

Plaintiffs Tony Bethmann and Justin Rinaldi appeal the dismissal of their petition for writ of mandamus and civil negligence action brought against the City of St. Charles (City) and numerous city officials (collectively, " Defendants" ). In their mandamus action, Plaintiffs sought to compel city officials to collect allegedly unpaid license taxes from restaurant businesses in the City. In their civil suit, Plaintiffs sought monetary damages against the City and city officials based on claims of negligence and respondeat superior. On appeal, Plaintiffs challenge the trial court's dismissal of both actions for lack of standing and failure to state a claim.[1] We affirm.

Factual Background

On December 30, 2013, Plaintiffs, on behalf of themselves and " others similarly situated," filed a petition for writ of mandamus against the Mayor of the City of St. Charles, the Director of Finance, and several Council Members. Specifically, Plaintiffs sought to compel the collection of allegedly unpaid license taxes " from all persons responsible for the payment of the same under Chapter 620 from January 1,

Page 899

2009 to the present." [2] Plaintiffs alleged that Defendants had failed to properly collect license taxes from " all entities engaged in the business of a restaurant as defined in Chapter 620." Plaintiffs based their right to mandamus relief on their status as taxpayers, asserting that they had " a special interest, distinct from the general public, in the collection and expenditure of the funds generated by the [l]icense [t]ax." On December 31, 2013, Plaintiffs filed a " Class Action Petition," [3] on behalf of themselves and " others similarly situated," against the City of St. Charles and numerous current and former city officials, seeking actual and punitive damages, attorney's fees, and costs based on claims of negligence and respondeat superior for " failing to properly and fully collect the [l]icense [t]ax" from 2009 to the present. The petition also included a 42 U.S.C. § 1983 claim, which was later dismissed by Plaintiffs.[4]

In January 2014, the trial court entered a preliminary order directing Defendants to " take all actions to collect the [l]icense [t]ax as provided for in Chapter 620 of the [o]rdinances of the City of St. Charles . . . from all entities located in the City . . . which operate a 'restaurant' as defined in Chapter 620." Defendants filed a motion to quash the preliminary order and motions to dismiss both the mandamus action and the civil suit asserting that Plaintiffs lacked standing and failed to state a claim. Following a hearing and arguments by counsel, the trial court granted Defendants' motions and dismissed both actions based on the grounds alleged. Plaintiffs appeal.

Standard of Review

Appellate review of a trial court's dismissal for lack of standing is de novo. Missouri Pub. Serv. Comm'n v. Oneok, Inc., 318 S.W.3d 134, 137 (Mo. App. W.D. 2009). The issue of standing is determined " as a matter of law on the basis of the petition, along with any other non-contested facts accepted as true by the parties at the time the motion to dismiss was argued, and resolve the issue as a matter of law on the basis of the undisputed facts." Id. (citation and quotation omitted). We will affirm the dismissal if ...


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