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Wilkendon Partnership v. St. Louis County Board of Equalization

Court of Appeals of Missouri, Eastern District, Third Division

September 6, 2016

WILKENDON PARTNERSHIP, et al., Plaintiff/Appellants,
ST. LOUIS COUNTY BOARD OF EQUALIZATION, et al., Defendant/Respondent.

         Appeal from the Circuit Court of St. Louis County Honorable Joseph L. Walsh


          Lisa Van Amburg, Judge.

         Wilkendon Partnership and Joseph C. Sansone Company appeal from the trial court's judgment dismissing their lawsuit against the St. Louis County Board of Equalization under the Missouri Sunshine Act. We reverse and remand.


         The respondent Board is a statutorily created body that hears approximately 20, 000 property tax assessment appeals annually for St. Louis County. Taxpayers and the county assessor may present evidence at an appeal hearing, after which the Board either deliberates and decides the appeal immediately or takes it under advisement and deliberates later as time allows, usually the latter when an appeal involves commercial or multiple residential properties. Pursuant to its governing statute, the Board must hold these hearings in July and August and decide them all by the fourth Saturday in August.

         Appellant Wilkendon Partnership owns commercial property in St. Louis County. Appellant Joseph C. Sansone Company represents Wilkendon and other taxpayers in property assessment appeals before the Board. In July 2015, Sansone began appearing for hearings on its clients' property tax valuations, including Wilkendon's, and observed an absence of publicly posted meeting notices at either of the Board's meeting locations. Evidently in response to Sansone's complaint, in a letter dated August 5, the Board indicated that it was "willing to provide posted notices" of all hearings and deliberations, and that "all hearings and deliberations are open to the public." The Board notified Appellants via email of the date and time of their hearing. The Board posted a public notice dated August 10 stating that it would conduct "an open meeting, hearings, and deliberations" on August 11. Appellants attended and presented evidence on August 11 and 12.

         At some point on August 11, a recess was taken, and the Board, its attorney, and the county assessor convened privately in a "back room." When Appellants' attorney protested, the attorney for the Board returned to the hearing room to place on the record that the Board was going into a closed session "to discuss legal matters." A few minutes later, the Board returned and voted to enter a closed session to discuss legal matters, subsequently emptying the room. During hearings on August 12, the Board again voted to enter a closed session to discuss legal issues. Appellant's attorney objected on the basis that the Board did not post notice of the meeting twenty-four hours in advance. The Board eventually relocated to complete its closed session.

         On August 13, Appellants filed a lawsuit against the Board alleging multiple violations of the Sunshine Act. Specifically, the petition alleged that the Board: failed to notify Appellants of their tax appeal hearing by mail or personal service; failed to post public notice of Appellants' hearing in certain locations and in a manner reasonably calculated to advise the public; conducted the August 11 and 12 closed meetings without posting notice 24 hours in advance; as a general practice, fails to post notice in a manner reasonably calculated to advise the public of its meetings to deliberate on and decide appeals; deliberates in secret, depriving taxpayers of the rationale for its decisions; and refused Appellants' request for certain records. Count I of Appellants' petition sought civil penalties and attorney fees. Count II sought declaratory judgment as to the foregoing violations and the Board's re-hearing of Appellants' property tax appeals. Count III sought injunctive relief in the form of the Board's compliance with Sunshine notice provisions and re-hearing of all of Sansone's clients' property tax appeals.

         On Friday, August 21, one day before the fourth Saturday of August 2015, Appellants filed a separate motion for a temporary restraining order to compel the Board's compliance with the Sunshine Act open meetings requirements. On Tuesday, August 25, the trial court granted the motion in part, finding that the Board was subject to Sunshine requirements. The court ordered the Board to open all meetings involving Sansone clients for the remainder of the 2015 session[1] but provided that the Board could hold closed meetings without 24 hours' notice to discuss legal matters, though not with county personnel present.

         In October 2015, Board responded to Appellants' petition with a motion to dismiss for (1) failure to state a claim on which relief could be granted, in that the Board acts in a judicial capacity when deciding tax appeals and therefore is not subject to Sunshine requirements, and (2) lack of subject matter jurisdiction in that Appellants failed to exhaust their administrative remedies by appealing the underlying property tax assessment to the Missouri State Tax Commission.

         The trial court granted the Board's motion to dismiss on both grounds. Appellants challenge each determination in separate points.

         Standard of Review

         Our review of a dismissal for failure to state a claim is de novo. Chochorowski v. Home Depot U.S.A., Inc., 295 S.W.3d 194, 197 (Mo. App. E.D. 2009). A motion to dismiss for failure to state a claim upon which relief can be granted is solely a test of the adequacy of the petition. Id. We accept all properly pleaded facts as true, giving the pleadings their broadest intendment, and we construe all allegations favorably to the pleader. Id. We do not weigh the factual allegations to determine whether they are credible or persuasive. Id. Instead, we review the petition in an almost academic manner to determine if the facts alleged meet the elements of a recognized cause of action. Id.

         Applicable Statutes

         Two separate statutory schemes govern the Board's notice procedures. Chapter 138 applies to the Board specifically. Chapter 610 (the Sunshine Act) applies to public governmental bodies generally. Where the two overlap, compliance with the former constitutes compliance with the latter. §610.022.6. Relevant provisions state as follows.

         Chapter 138 - Board of Equalization

         §138.060. 1. [The Board] shall, in a summary way, determine all appeals from the valuation of property made by the assessor, and shall correct and adjust the assessment accordingly. There shall be no presumption that the assessor's valuation is correct. […] In the event the assessor fails to provide sufficient evidence to establish that the physical ...

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