Opinion
No. 25250
October 29, 2003
Appeal from the Circuit Court of Scott County, Honorable Steven R. Mitchell, Special Judge.
James E. Mello, Jeffery T. McPherson, and Russell C. Riggan, for Appellant.
James R. Robison, for Respondent.
This suit involves Ordinance No. 5405 enacted by the City of Sikeston ("City") to effect a zoning change. After its enactment, R.E.J., Inc. ("Plaintiff") sued City. In this lawsuit, Plaintiff requested a declaration that the ordinance was void and unenforceable and sought injunctive relief. Before the case was tried, City repealed Ordinance 5405 and moved for dismissal of Plaintiff's suit on the theory that all issues raised therein were moot. Plaintiff opposed City's motion and requested leave to file an amended petition. The trial judge dismissed Plaintiff's petition as "moot" and refused to allow the proposed amendment to the petition. This appeal by Plaintiff charges the trial court erred in both rulings. We affirm.
APPLICABLE PRINCIPLES OF LAW
Generally, Missouri courts do not decide moot cases. Kinsky v. Steiger , 109 S.W.3d 194, 195 (Mo.App. 2003). Mootness relates to the justiciability of a case. Id . at 195[4]. "A question is justiciable only where the judgment will declare a fixed right and accomplish a useful purpose." Local Union 1287 v. Kansas City Area Transp. Auth. , 848 S.W.2d 462, 463 (Mo.banc 1993).
A case is considered moot if rendering a judgment therein would have "no practical effect upon an existent controversy." Chastain v. City of Kansas City , 968 S.W.2d 232, 237 (Mo.App. 1998). "When an event occurs that makes a court's decision unnecessary or makes granting effectual relief by the court impossible, the case is moot and generally should be dismissed." Armstrong v. Elmore , 990 S.W.2d 62, 64 (Mo.App. 1999). The denial of leave to amend a petition is reviewed for a palpable and obvious abuse of discretion, and a court does not abuse its discretion in denying leave to amend when the amendment would serve no useful purpose. Crabtree v. Bugby , 967 S.W.2d 66, 73 (Mo.banc 1998); Snelling v. Washington Apartments Ltd. Partnership , 963 S.W.2d 366, 368 (Mo.App. 1998).
FACTS
The facts recounted herein are derived from allegations in Plaintiff's petition. The underlying suit involved a twelve-acre tract of land (hereafter called "the Property") adjacent to North Main Street in Sikeston, Missouri, owned by Greers Grove Development ("Intervenor"). The Property had been zoned for agricultural and residential uses and surrounded predominately by residential homes and churches. In the spring of 2001, however, Intervenor asked City's Planning and Zoning Commission to rezone the Property. In part, Intervenor sought rezoning as a prelude to selling 2.79 acres thereof to the Scott County health department. The health department intended to use the 2.79 acres as a public health unit site, and the Property's existing zoning classification would not permit such use. After Intervenor filed its rezoning request, Plaintiff, as an adjoining landowner, opposed rezoning of the Property as "inconsistent with the surrounding residential, church, and agricultural uses."
On June 14, 2001, the Planning and Zoning Commission of the City rejected Intervenor's request to rezone the Property from "Agricultural Open Space" to either "C-3" (Highway Commercial) or "C-1" (Neighborhood Shopping District). On July 9, 2001, the City held a public meeting at which Intervenor presented a bill, which if lawfully enacted as Ordinance No. 5405, would have overruled the Planning and Zoning Commission's decision and approved a rezoning of the Property.
The types of establishments allowed under the latter two classifications include retail stores, hotels, clinics, car dealerships, repair shops, bars, and movie theaters.
As a result of what transpired at the July 9, 2001, city council meeting, Plaintiff filed this suit. Documents attached by Plaintiff to its circuit court petition reveal that considerable confusion arose from the July 9 council meeting. Exhibit D is a proposed Ordinance 5405 that rezones the Property to C-3 (Highway Commercial). Exhibit E contains the minutes of the public meeting wherein Ordinance 5405 was passed thereby rezoning the Property to C-1 Neighborhood Commercial. Exhibit F is a copy of Ordinance 5405 signed by the mayor, city counselor, and city clerk that rezoned the Property C-1 Highway Commercial. The City, however, does not have a zoning classification of "C-1" Highway Commercial. If this confusion were not enough, attached to the petition is Exhibit G. This is also a copy of Ordinance 5405 signed by the mayor, city counselor, and city clerk purporting to rezone the Property C-1 Neighborhood Commercial, i.e., in accord with the minutes of the meeting.
Following the purported enactment of Ordinance 5405, the minutes of the July 9 council meeting also recorded that the council members enacted Ordinance 5406. The latter ordinance approved a proposed subdivision of part of the Property (2.79 acres) which Intervenor ultimately sold to the Scott County health department.
On August 13, 2001, Plaintiff filed a three-count petition against City which is entitled "Petition For Declaratory Judgment And Injunction." In Count I, Plaintiff asked the court to "declare . . . Ordinance 5405 . . . void and unenforceable, for an injunction preventing Ordinance 5405 from being enforced, for its costs and attorney fees herein, and for such other and further relief as the Court deems just and proper." In Counts II and III, Plaintiff sought the same relief, except no attorney fees were requested.
While Plaintiff's lawsuit was pending, City adopted another ordinance that expressly repealed Ordinance 5405. Thereafter, City moved for dismissal of Plaintiff's suit on the ground that the repeal had rendered the lawsuit moot. Plaintiff objected to the motion to dismiss and moved for leave of court to file an amended petition. The trial court sustained City's motion to dismiss and denied Plaintiff leave to file the amended petition. Plaintiff appeals from the judgment that incorporated those rulings.
Point I: Mootness Issue
In its first point, Plaintiff alleges the court erred in dismissing its suit based on the doctrine of mootness. Plaintiff claims that it "prayed for a variety of remedies" for the City's "Sunshine Law Violations." Plaintiff argues that simply repealing Ordinance 5405 did not moot certain issues, namely, specific relief requested under certain provisions of the Sunshine Law.
Section 610.010-030 is referred to as the "Sunshine Law" due to the legislature's intent "to let sunshine in on public meetings, records and votes." Wilson v. McNeal , 575 S.W.2d 802, 810 (Mo.App. 1978). The Sunshine Law embodies the state's commitment to open government and is to be liberally construed in favor of that purpose. North Kansas City Hosp. v. St. Luke's Northland Hosp. , 984 S.W.2d 113, 119[5] (Mo.App. 1998).
Plaintiff premises its argument upon the language of its petition. Plaintiff claims the gravamen of the dismissed petition are Sunshine Law violations and that the remedies sought are those provided by that law. Then, Plaintiff claims the trial court erred by dismissing the lawsuit because its request for relief constituted a "continuing valid justiciable controversy," citing Boyer v. City of Potosi , 38 S.W.3d 430, 433 (Mo.App. 2000), and Knapp v. Junior College Dist. of St. Louis , 879 S.W.2d 588, 594 (Mo.App. 1994). Summarily stated, the "issues" that Plaintiff claims were not "mooted" by the repeal of Ordinance 5405 include its request for attorney fees, costs, imposition of civil fines, and a deprivation of Plaintiff's property rights caused by the enactment of Ordinance 5406.
The Sunshine Law provides for a number of remedies "in addition to those provided by any other provision of law." § 610.027.1. The following are among those remedies for violations of the Sunshine Law: (1) actions by governmental bodies are subject to being voided by a court (§ 610.027.4); (2) attorney fees and costs can be awarded to the prevailing party who demonstrates a purposeful violation of the law (§ 610.027.3); and (3) civil fines (§ 610.027.3).
Although Plaintiff insists that the essence of its original pleading is a violation of Missouri's Sunshine Law, a petition must be judged by what it alleges or fails to allege, not by what counsel for either party may say in argument or briefs. King v. Guy , 297 S.W.2d 617, 624 (Mo.App. 1956). A court cannot resort to mere guesswork to determine if a particular cause of action is pleaded, Id. , but must examine the facts stated in the petition, along with the relief sought to determine what cause of action has been pleaded. Goe v. City of Mexico , 64 S.W.3d 836, 840 (Mo.App. 2001).
Since the purposes of pleadings are to inform the parties and the court of the claim made and the issues to be passed upon, they should not be drawn so as to mislead. State ex rel. Harvey v. Wells , 955 S.W.2d 546, 547 (Mo.banc 1997), Rule 55.08, Wollums v. Mut. Ben. Health Accid. Ass'n. , 46 S.W.2d 259, 264 (Mo.App. 1932). "Neither the trial judge nor this court should be `charged with assuming that the pleader intended to conceal one cause of action within another. . . .'" Gover v. Cleveland , 299 S.W.2d 239, 242 (Mo.App. 1957) (quoting Wollums , 46 S.W.2d at 264). This is especially true here because challenges to zoning, rezoning, and refusals to rezone in Missouri have historically been via declaratory judgment or injunction (as contrasted with challenges per the Sunshine Law). State ex rel. Helujon, Ltd. v. Jefferson County , 964 S.W.2d 531, 537 (Mo.App. 1998). With these principles in mind, we turn to Plaintiff's pleadings.
Plaintiff entitled its pleading as a petition for declaratory judgment and an injunction. Both remedies were viable options for Plaintiff's use in procuring relief from an invalid zoning ordinance without invoking the Sunshine Law. For instance, Missouri's Declaratory Judgment Act allows any person to petition a court to challenge the validity of a municipal ordinance when his or her rights have been affected by its enactment. See § 527.020. Likewise, proof of Sunshine Law violations are not a prerequisite to getting injunctive relief to prevent irreparable injury to property rights resulting from enforcement of an invalid ordinance. See Glenn v. City of Grant City , 69 S.W.3d 126, 129 (Mo.App. 2002); J.H. Fichman Co., Inc. v. City of Kansas City , 800 S.W.2d 24, 27-28 (Mo.App. 1990) (holding, "[a]n injunction may lie to prohibit the enforcement of a City Ordinance").
Without question, courts are to judge a pleading by its subject matter and not by its caption. Worley v. Worley , 19 S.W.3d 127, 129[1] (Mo.banc 2000). We believe it is equally true, however, that a party's own characterization of its cause of action should not be ignored when, as here, the "captioned" remedies are available and viable options.
With a single exception, the only mention of Missouri's Sunshine Law in Plaintiff's petition is in paragraph 21. Therein, we find only vague and general allegations that passage of Ordinance 5405 violated the law in the following respects: (1) no notice was given for amending Exhibits D, F, and G; (2) no minutes or records of votes were kept for the foregoing amendments; and (3) there was no record of votes taken for passing Exhibits F and G. In all other paragraphs of the petition, Plaintiff gave reasons other than Sunshine Law violations for claiming Ordinance 5405 was void and unenforceable. For instance, in paragraph 22 of Count I Plaintiff alleged City had violated section 77.080 in at least seven respects. In Count II, after incorporating Count I allegations, Plaintiff alleged in paragraph 25 that Ordinance 5405 was "inconsistent with the current zoning and uses of the Property and is void, unconstitutional, arbitrary and unreasonable" in eleven respects. None of the eleven allegations, however, charged Sunshine Law violations as a basis for voiding Ordinance 5405. Count III was equally devoid of Sunshine Law violation allegations, except to the extent that Count I allegations were incorporated therein. In Plaintiff's Count I prayer for relief it asked the court to "declare that Ordinance 5405 is void and unenforceable, for an injunction preventing Ordinance 5405 from being enforced, for its costs and attorney fees herein, and for such other and further relief as the Court deems just and proper." The prayers for relief in Counts II and III were identical to the prayer in Count I, except they did not ask for attorney fees.
Therein, Plaintiff correctly pleaded that "[s]ection 77.080 . . ., applicable to third-class cities like Sikeston, sets forth requirements for the passage of ordinances." In seven sub-paragraphs of paragraph 22, Plaintiff detailed what it claimed were violations by the City of section 77.080.
With Plaintiff's pleading thus structured, the trial court could reasonably have concluded that Plaintiff's petition did not rely on section 610.027 as its remedy source (as Plaintiff contends), but sought a declaration of invalidity of Ordinance 5405 and to enjoin its enforcement only per the Declaratory Judgment Act. Our judgment in this regard is confirmed by the following.
First, Plaintiff's requests for a declaratory judgment and injunction were not grounded exclusively on allegations of Sunshine Law violations. To the contrary, the majority of Plaintiff's Count I allegations charged violations of section 77.080 which is the statute that sets forth the requirements that City had to follow when enacting ordinances. Except for the incorporation of paragraph 21 into Counts II and III, those counts sought invalidation of Ordinance 5405 for a variety of reasons wholly unrelated to Sunshine Law violations.
Second, although Plaintiff prayed for attorney fees, it did not plead the necessary element for entitlement to an attorney fee award under the Sunshine Law, namely, that the City "purposely" violated the law. Spradlin v. City of Fulton , 982 S.W.2d 255, 262 (Mo.banc 1998); § 610.027.3. Moreover, Plaintiff did not seek imposition of a civil penalty which is an available sanction for purposeful violations of the Sunshine Law. Id.
Third, although Plaintiff now argues a "continuing valid justiciable controversy" existed after the repeal of Ordinance 5405 because Ordinance 5406 (passed the same date as Ordinance 5405) deprived Plaintiff of its property rights, this was not a claim presented to the trial court. Plaintiff's original petition made no mention of Ordinance 5406 and certainly did not seek invalidation of that enactment. An allegation not included in a petition before the trial court cannot be considered on appeal. S W Cabinets, Inc. v. Consol. Sch. Dist. No. 6 of Jefferson County , 901 S.W.2d 266, 267 n. 1 (Mo.App. 1995).
Plaintiff cannot claim it was unaware of Ordinance 5406 when it first filed suit because the exhibits attached to Plaintiff's petition included minutes of the meeting at which Ordinance 5406 was enacted.
These omissions and inclusions, considered together, could reasonably be read as indicating Plaintiff's intent to invoke remedies other than those provided by the Sunshine Law. See State ex rel. Hendrix v. Am. Sur. Co. of New York , 176 S.W.2d 67, 70 (Mo.App. 1943). Upon reading the petition "from its four corners" and once the language therein is accorded the interpretation that fairly appears intended by the pleader, Gover , 299 S.W.2d at 242[6], we find the trial court did not commit reversible error when it implicitly found that Plaintiff's petition did not rely on section 610.027 as its source for a remedy, but sought relief via the Declaratory Judgment Act and equitable injunction.
With Plaintiff's petition thus interpreted, the only cognizable relief available was a judgment declaring Ordinance 5405 invalid and enjoining its enforcement. Once Ordinance 5405 was repealed, a judgment that afforded such relief could have no practical effect upon an existent controversy; consequently, there no longer existed a valid justiciable controversy and dismissal for mootness was warranted. See, e.g. Kinsky , 109 S.W.3d at 195-96; Armstrong , 990 S.W.2d at 64; Chastain , 968 S.W.2d at 237. Based on these cases and other relevant authorities, we find the trial court did not err when it dismissed Plaintiff's petition "as moot as a result of the repeal of City of Sikeston Ordinance No. 5405."
In so concluding, we acknowledge that the repeal of Ordinance 5405 did not resolve certain claims that Plaintiff only now argues were part of the continuing valid justiciable controversy. Two of these claims, however, were never put before the court via Plaintiff's initial pleading. As to the attorney fee issue, we earlier stated that the petition lacked an essential allegation for granting such relief under the Sunshine Law. If Plaintiff had pleaded facts in its petition or included a prayer for relief from which it could reasonably have been inferred that Plaintiff was asserting such claims, the trial judge may well have ruled differently, and if not, this court may have reached a different result on appeal. This, however, is purely speculation. Our review on appeal is limited to issues and theories put before the trial judge by Plaintiff's pleading. See State Farm Mut. Auto. Ins. Co. v. Esswein , 43 S.W.3d 833, 840 (Mo.App. 2000). For the reasons given, Plaintiff's first point is denied.
These two issues, i.e., punishment through the City via civil fines and remedying the deprivation of Plaintiff's property rights that resulted when Ordinance 5406 was enacted (which allowed the sale of at least one parcel of the subdivision), can be found nowhere in Plaintiff's original petition. As such, the trial court cannot reasonably be charged with knowledge that Plaintiff's original pleading presented those issues.
Under section 527.100, "costs" may be awarded in a declaratory judgment suit, and "costs" have been interpreted to include attorney fees. Baumli v. Howard County , 660 S.W.2d 702, 705 (Mo.banc 1983) However, attorneys fees are not assessable as "costs" against the state nor against a subdivision of the state in the absence of a statute explicitly providing for such assessment. Id . at 705[4]. A city is a subdivision of the state against whom attorney fees cannot be recovered in a declaratory judgment suit, unless otherwise provided by contract. Tillis v. City of Branson , 975 S.W.2d 949, 951 n. 1 (Mo.App. 1999). Based on what it pleaded, Plaintiff was not entitled, as a matter of law, to recover attorney fees from City pursuant to the declaratory judgment action; consequently, the attorney fee issue did not remain as a "continuing valid justiciable controversy."
We have not ignored the two cases upon which Plaintiff principally relies. Both are factually inapposite. In Boyer , the court refused to dismiss a case because, at a minimum, the prayer for back pay by Boyer left an unresolved issue. 38 S.W.3d at 433[1]. In Knapp , the court held, "[Knapp's] request for an injunction reversing the suspension was moot because she sued after the suspension period expired, but reference to the suspension remains on her record[;]" consequently, the court found that a "continuing valid justiciable controversy" existed. 879 S.W.2d at 594 (emphasis supplied). Here, no "continuing valid justiciable controversy" existed for the reasons explained.
Point II: Denial of Request to Amend Petition
In its second point, Plaintiff maintains the trial court abused its discretion when it refused to permit a proposed amendment to Plaintiff's petition. Plaintiff argues justice required the court to allow the amendment "because Plaintiff was attempting to supplement its petition to allege new facts and information learned during the course of discovery." In developing this argument, Plaintiff asserts that both its original petition and first amended petition stated a claim under the Sunshine Law. It further claims that the amended petition was not attempting to change the gravamen of its claim (as charged by City), but was merely attempting to allege new facts obtained in discovery and pray for additional remedies. The problem for Plaintiff is that the record does not support that argument.
In Point I, we found the trial court could reasonably have concluded that Plaintiff's original petition did not invoke Sunshine Law remedies and, with the petition thus interpreted and the repeal of Ordinance 5405, there no longer existed a valid justiciable controversy. This conclusion lays to rest Plaintiff's Point II argument that the trial court abused its discretion when it refused Plaintiff leave to file an amended petition. This follows because the proposed amended petition clearly sought relief under the Sunshine Law; however, any such claim was time-barred.
Plaintiffs amended petition omitted one of the alleged Sunshine Law violations that was asserted in its original petition, but added — for the first time — complaints that Ordinance 5406 was invalid. Moreover, the amended petition — for the first time — alleged that Ordinances 5405 and 5406 were "void ab initio" and that City and its officers had "purposely" violated section 610.020. Finally, the amended petition — for the first time — asked that Sunshine Law violation remedies be invoked, i.e., that civil fines be imposed and that city officials be enjoined from violating the Sunshine Law.
Specifically, section 610.027.4 mandates that "[s]uit for enforcement [of the Sunshine Law] must be brought within one year from which the violation is ascertainable and in no event shall it be brought later than two years after the violation." This language has been interpreted as follows:
"The violation of the Sunshine Law and the damage created thereby are one [and] the same — a closed meeting of a public governmental body excluding the oversight by and input of the public. In other words, when the violation is ascertainable, so is the damage. Thus, we find the objective standard of ascertainability applied by our Supreme Court in Sheehan [v. Sheehan , 901 S.W.2d 57, 58-59 (Mo.banc 1995)] should be applied. . . . The question then becomes, when could have the alleged violations been discovered or when was it made known."
Colombo v. Buford , 935 S.W.2d 690, 695 (Mo.App. 1996).
Here, we are dealing with ordinances enacted during a city council meeting on July 9, 2001. Any violations of the Sunshine Law involving Ordinances 5405 or 5406 occurred on or before that date. Since Plaintiff's first amended petition was not filed until August 27, 2002 (well over a year after the alleged violations of the Sunshine Law), the trial court cannot be said to have abused its discretion in refusing to grant leave to file an amended petition that attempted to invoke the time-barred remedies under the Sunshine Law. Allowing the proposed amendment under those circumstances would have served no useful purpose. Crabtree , 967 S.W.2d at 73[21]; Snelling , 963 S.W.2d at 368. Point II is denied.
The judgment of the trial court is affirmed.
PARRISH, J. and RAHMEYER, C.J.-P.J., concur.