Court of Appeals of Missouri, Eastern District, Third Division
from the Circuit Court of St. Louis County Honorable Joseph
Van Amburg, Judge.
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.
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.
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.
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
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.
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 but provided that the Board
could hold closed meetings without 24 hours' notice to
discuss legal matters, though not with county personnel
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.
trial court granted the Board's motion to dismiss on both
grounds. Appellants challenge each determination in separate
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
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.
138 - Board of Equalization
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