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Emerald Pointe, LLC v. Taney County Planning Commission

Court of Appeals of Missouri, Southern District

July 1, 2019

EMERALD POINTE, LLC, Plaintiff-Appellant,
v.
TANEY COUNTY PLANNING COMMISSION, et al., Defendants-Respondents.

          APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY Honorable Laura J. Johnson

          REVERSED AND REMANDED WITH DIRECTIONS

          GARY W. LYNCH, J.

         Emerald 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 opinion.[1]

         Standard of Review

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)).

         Factual and Procedural Background[2]

         The 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.

         Emerald 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 Constitution)."[3]

         The 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."[4] 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.

         Essentially 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.

         In response to Defendants' motion to dismiss, the trial court entered its judgment dismissing the petition on two bases. First,

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.

         Emerald Pointe timely appeals the trial court's dismissal judgment. Its first point relied on ...


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