Opinion
No. WD68710
June 24, 2008
Appeal from Cole County Circuit Court, The Honorable Patricia S. Joyce, Judge.
Byron Edward Francis, St. Louis, MO, for appellant.
Mark E. Long, Asst Attorney General, Jefferson City, MO, for respondent.
James E. Welsh, Presiding Judge, Paul M. Spinden, Judge, and Alok Ahuja, Judge.
A group of property owners, to whom we refer collectively as the appellants, appeal the circuit court's judgment denying their petition for a writ of prohibition. They had asked the circuit court to issue a writ prohibiting the State Tax Commission from requiring them to present evidence of their properties' market value in an action challenging as discriminatory the amount of property tax assessed against their properties.
These owners are Ashby Road Partners, LLC, Kenneth R. Baldridge, Baldridge Development Group, LLC, Manchester Ballas Associates, Baldridge Keeven Properties, John H. Berra, Sr., Family Limited Partnership, Beco Concrete Products, Inc., Breihan Construction, Co., Breihan Swanson, Inc., Breihan Construction Co., Inc., Marlborough Development, LLC, The Breihan Development Co., Terry Steele Dunaway, Jefferson County Banchares, Inc., Willoughby, Inc., 8301 Watson, Inc., Yorkshire Village, Inc., John R. McClain, Jr., Judith L. McClain, McClain Partners III, McClain Partners, Brown Sons Foodliner, Inc., Novus Investments, LLC, Terra Holding Co., Inc., JHB Properties, Inc., Yalcin Enver, Cornerstone Industrial Fund I, LLC, Cornerstone West Park, LLC.
The appellants filed complaints with the commission alleging that St. Louis' city assessor had discriminated against them by assessing their properties at a higher percentage of the market value in comparison to other commercial properties in the same taxing area. Before a hearing on their complaint, the commission's hearing officer issued an order requiring the parties to agree to a "lead case" to serve as a representative case.
The appellants objected to this order on the ground that the properties' market values were not in dispute because the appellants agreed with the market value set by the assessor. The appellants stressed that they objected only to their properties' assessed values in relation to the assessment on other properties, which they argued had been systematically undervalued. They also alleged that Section 138.060, RSMo 2000, prohibited the assessor from advocating for a higher market value than the one that he had originally set. The appellants claimed that the hearing officer's order violated Section 138.060 by allowing the assessor to advocate for a higher market value. The commission affirmed the order because the properties' market value was a proof element in a claim of discriminatory assessment.
In filing a petition for a writ of prohibition with the circuit court, the appellants alleged that the commission usurped its authority in the order because it imposed a burden of producing evidence that Section 138.060 prohibited and was irrelevant in light of the appellants not contesting their properties' assigned market values. The circuit court denied the appellants' motion for a preliminary writ of prohibition, but it nevertheless set the case for hearing. After the hearing, the circuit court denied the appellants' petition for a permanent writ of prohibition.
The appellants raise only one point on appeal. They assert that the circuit court's denial was erroneous because the commission's order required them to produce evidence that was irrelevant and prohibited by Section 138.060.
Before considering the merits of the issue, we consider our jurisdiction to consider the appeal. Our jurisdiction depends partly on the circuit court having jurisdiction to enter its judgment. If the circuit court lacked jurisdiction to enter its judgment, we lack jurisdiction to review the judgment and have only enough jurisdiction to determine the jurisdictional issue. Brock v. Blackwood, 143 S.W.3d 47, 55 (Mo.App. 2004).
When a party files a petition seeking a writ of prohibition, the circuit court must determine first whether or not it should issue an order granting a preliminary writ. Section 530.040, RSMo 2000; Rule 97.04. If the circuit court refuses to grant a preliminary writ, the petitioner cannot appeal the denial but must file his or her petition for a writ at a higher court. Atteberry v. Missouri Board of Probation and Parole, 193 S.W.3d 444, 445 (Mo.App. 2006). If the circuit court grants a preliminary writ, it must issue an order directing the opposing party to file an answer within the required time. Rule 97.05. In that regard, the order granting the preliminary writ corresponds to the petition in a regular civil action and formally institutes the proceedings by requiring the respondent to file an answer. Id; State ex rel. Missouri Gaming Commission v. Kinder, 896 S.W.2d 514, 516 (Mo.App. 1995); State ex. rel. Schaefer v. Cleveland, 847 S.W.2d 867, 869 (Mo.App. 1992); State ex rel. Stoecker v. Director of Revenue, 734 S.W.2d 263, 265 (Mo.App. 1987). "Consequently, until such time as the [preliminary] writ issues, the matter is ex parte in limbo and the action has not been commenced as that term is generally understood." State ex rel. Brandon v. Hickey, 462 S.W.2d 159, 160 — 61 (Mo.App. 1970). Hence, unless the circuit court grants a preliminary writ, the proceeding is never formally commenced, and the circuit court has no jurisdiction to grant or to deny a petition for a permanent writ of prohibition. When the circuit court grants a preliminary writ and makes a determination that, based on the merits, the writ should be made permanent or quashed, the adverse party then may appeal the circuit court's judgment. Atteberry, 193 S.W.3d at 445 — 46.
Because the circuit court denied the appellants' motion for a preliminary writ, the writ proceeding was never instituted. Kinder, 896 S.W.2d at 516; Schaefer, 847 S.W.2d at 869; Stoecker, 734 S.W.2d at 265. Hence, the circuit court did not have authority to enter an order denying the appellants' motion for a permanent writ of prohibition. Its judgment, therefore, was void. All we are left with is the circuit court's order denying the appellants' motion for a preliminary writ, which is not appealable. Atteberry, 193 S.W.3d at 445. We, therefore, dismiss the appellants' appeal.
James E. Welsh, Presiding Judge, and Alok Ahuja, Judge, concur.
MISSOURI APPELLATE COURT OPINION SUMMARY
A group of property owners, to whom we refer collectively as the appellants, appeal the circuit court's judgment denying their petition for a writ of prohibition. They had asked the circuit court to issue a writ prohibiting the State Tax Commission from requiring them to present evidence of their properties' market value in an action challenging as discriminatory the amount of property tax assessed against their properties.
Dismissed
Division holds: Because the circuit court denied the appellants' motion for a preliminary writ, the writ proceeding was never instituted. Hence, the circuit court did not have authority to enter an order denying the appellants' motion for a permanent writ of prohibition. Its judgment, therefore, was void. All we are left with is the circuit court's order denying the appellants' motion for a preliminary writ, which is not appealable. We, therefore, dismiss the appellants' appeal.