FROM THE CIRCUIT COURT OF TANEY COUNTY Honorable Laura J.
REVERSED AND REMANDED WITH DIRECTIONS
W. LYNCH, J.
Pointe, LLC ("Emerald Pointe"), is the developer of
Emerald Pointe subdivision (the "subdivision")
located in Taney County. It appeals the trial court's
judgment dismissing its petition (the "petition")
challenging the Taney County Board of Adjustment's (the
"Board") denial of its appeal of the Taney County
Planning Commission's (the "Commission")
issuance of a stop work order (the "Stop Work
Order"). Determining that the petition states a claim
for relief under section 64.870.2, we reverse the trial
court's judgment and remand the case to the trial court
for further proceedings consistent with this
A judgment sustaining a motion to dismiss for failure to
state a claim upon which relief can be granted is reviewed de
novo. Avery Contracting, LLC v. Niehaus, 492 S.W.3d
159, 161-62 (Mo. banc 2016). "A motion to dismiss for
failure to state a claim" is solely a test of "the
adequacy of a plaintiff's petition." Id. at
162. Exhibits attached to the petition are reviewed as part
of the petition. Rule 55.12. The facts alleged in the
petition are assumed to be true, and all reasonable
inferences are liberally construed in favor of the plaintiff.
Avery, 492 S.W.3d at 162. "[T]he petition is
reviewed in an almost academic manner, to determine if the
facts alleged meet the elements of a recognized cause of
action, or of a cause that might be adopted in that
case." Nazeri v. Mo. Valley Coll., 860 S.W.2d
303, 306 (Mo. banc 1993).
Smith v. Humane Soc'y of United States, 519
S.W.3d 789, 797-98 (Mo. banc 2017). "A judgment of
dismissal will be affirmed if it is supported by any ground
raised in the motion to dismiss." Avery, 492
S.W.3d at 162 (citing Dujakovich v. Carnahan, 370
S.W.3d 574, 577 (Mo. banc 2012)).
and Procedural Background
Commission issued the Stop Work Order on September 21, 2016.
It ordered Emerald Pointe to immediately cease all ongoing
road construction activities within the subdivision. On
December 21, 2016, Emerald Pointe timely filed with the Board
its application for appeal of the Stop Work Order. The Board,
on April 19, 2017, denied Emerald Pointe's appeal.
Pointe filed the petition in the Circuit Court of Taney
County on May 18, 2017. The petition named the Board, the
Commission, and the individual members of each entity in
their "official capacity only" as defendants (the
"Defendants"). The petition is entitled
"Petition for Declaratory Judgment and Injunctive
Relief." It initially contains 56 paragraphs following
the subheading "Allegations Common to all Counts."
It thereafter sets forth four more subheadings, each with
additional paragraphs, denominated as counts: Count I is
entitled "Preliminary Injunction to Stop Enforcement of
Stop Work Order (Rule 92.02 and § 526.030 et seq.
R.S.Mo.)"; Count II is entitled "Declaratory
Judgment (Private Roads and Gated Community) (Pursuant to
§ 527.010 R.S.Mo.)"; Count III is entitled
"Declaratory Judgment (Illegal, Retroactive Application
of Road Standards)"; and Count IV is entitled
"Declaratory Judgment (Violation of Procedure [sic] and
Substantive Due Process Under Missouri and United States
Defendants thereafter filed a motion to dismiss the petition,
claiming that "Plaintiff's Petition should be
dismissed with prejudice because it failed to file a petition
in certiorari within 30 days of the challenged
decision." In their suggestions in support of their
motion and this particular claim, Defendants argued that
Emerald Pointe's exclusive remedy for review of the
Board's decision denying its appeal was by filing a
petition in certiorari under section 64.870.2 within thirty
days of the Board's decision. Defendants contended:
Here, [Emerald Pointe] failed to file a petition for
certiorari, and instead attempted an end run around §
64.870 because it desired relief that was not available under
the law. While a reviewing court addressing a petition for
certiorari may affirm, reverse or modify the underlying
decision under § 64.870, there is no provision for
granting an injunction or declaratory judgment, nor does it
provide for an award of costs.
conceding that section 64.870 provided its exclusive remedy
for challenging the Board's decision and that a petition
under section 64.870 had to be filed within thirty days after
the Board's denial of its appeal, Emerald Pointe argued
to the trial court that the petition, which was filed within
that time, stated a claim for relief under section 64.870.
response to Defendants' motion to dismiss, the trial
court entered its judgment dismissing the petition on two
the Petition fails to meet the requirements of Section 64.870
in several significant respects. In fact, it is clear from
the Petition that [Emerald Pointe] had no intention of
complying with Section 64.870. For example, the Petition
never mentions Section 64.870 and the counts are clearly and
expressly brought pursuant to the statutes on injunctive and
declaratory relief. Furthermore, the relief sought in the
Petition is not relief allowed by Section 64.870. Section
64.870 authorizes the Court only to reverse, affirm or modify
the decision brought up for review. It does not authorize
either injunctive or declaratory relief. The fact that the
Petition filed in this case is not remotely similar to a
petition for writ of certiorari allowed by Section 64.870
causes the Court to conclude that it should not be construed
to be a petition under Section 64.870.
Second, the trial court determined that
even if the Court construed [Emerald Pointe's] Petition
to comply with Section 64.870, it must still dismiss the
Petition. The injunctive and declaratory relief sought by
[Emerald Pointe] is not contemplated by the statute.
Furthermore, Missouri cases hold that the Court does not have
subject matter jurisdiction over [Emerald Point's] claims
for declaratory relief.
Pointe timely appeals the trial court's dismissal
judgment. Its first point relied on ...