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rejecting a claim that the due process clause of the Missouri Constitution is "self executing," impliedly authorizing a tort action for damages for a violation of its guarantees
Summary of this case from Uscoc of Greater Missouri v. Co. of Franklin, Mo.Opinion
No. WD65589 (Consolidated with WD65605)
February 6, 2007
Appeal from the Circuit Court of Clay County, Missouri, The Honorable Larry D. Harman, Judge.
Before: SMITH, C.J., and BRECKENRIDGE and SMART, JJ.
Maurice and Nancy Gash (Trustees), as trustees for "The Maurice Gash and Nancy Gash Revocable Trusts," appeal the judgment of the Circuit Court of Clay County, dismissing Counts II, III, and IV of their initial, four-count petition against Lafayette County and the Lafayette County Commission (collectively referred to herein as the "County"), arising out of the County's denial of the Trustees' request to rezone trust property from "Agricultural" (A) to "General Business" (B-2). In Counts II and III, the Trustees sought damages for alleged violations of their substantive due process and equal protection rights under the Missouri Constitution, respectively, in connection with their attempt to rezone the trust property. In Count IV, they sought damages for inverse condemnation, alleging that the zoning of the trust property in question as A constituted a compensable taking in that it deprived them of the best economic use of the trust property.
The County cross-appeals the judgment of the trial court for the Trustees on Count I of their initial petition and on Count I of the County's counterclaims. In Count I of their petition, denominated "Declaratory Judgment," the Trustees sought a declaratory judgment declaring that the zoning of the trust property as A was "arbitrary, capricious, unreasonable, unconstitutional, invalid and void" and an injunction, ordering, in effect, the County to rezone the trust property as B-2. As to Count I of the County's counterclaims against the Trustees, it sought payment of $1200 for unpaid building permit fees for four buildings that had already been constructed on the trust property and an injunction enjoining the Trustees from constructing any new buildings without first obtaining the required building permits.
The Trustees raise what they designate as five points on appeal. In Points I-III, they claim that the trial court erred in dismissing Count IV of their initial petition for damages for inverse condemnation, on the grounds that: (1) Count IV failed to allege facts demonstrating a requisite proof element of an inverse condemnation claim based on a zoning classification, that the Trustees' claim of a taking by the County in zoning the trust property in question as A, depriving them of the ability to derive the economic use they sought from their investment in the property, was ripe for review in that Count IV failed to allege facts demonstrating that the County had made a "final determination" of what uses would be permitted for the trust property other than the uses permitted by the B-2 classification, which were denied by the County; and (2) even if Count IV alleged facts demonstrating that such a determination had been made, it failed to allege facts demonstrating that the trust property was rendered "economically idle" in being zoned A, in that the County's zoning regulations for such classification expressly permitted the Trustees to build two residences on the property, because they alleged facts in their petition demonstrating that a "final determination" had been made by the County concerning the zoning classification of the property to support a claim of inverse condemnation and facts demonstrating that they were prevented from realizing their "distinct investment backed expectations" as to the property. In Point IV, they claim that the trial court erred in dismissing Counts II and III of their initial petition, seeking damages for alleged violations by the County of their substantive due process and equal protection rights, under the Missouri Constitution, in connection with their attempts to have the trust property in question rezoned from A to B-2, "on the ground of sovereign immunity because there is no immunity for ministerial acts of public officials in that the [C]ounty in offering to resolve the zoning violations for a payment of $10,000 in lieu of a fine violated the [Trustees'] right[s] to due process and equal protection." In Point V, they claim: "The Appellate Court should dismiss Lafayette County's Appeal of the injunction [enjoining the County 'from enforcing its zoning ordinance against [the trust] property until such time as such property is classified to a use or set of uses that is not arbitrary and unreasonable and capricious in accordance with the above findings which specify that the best use is commercial B-2'], because it is moot in that there is no longer a justiciable controversy since Lafayette County has rezoned [the trust] property to a commercial zoning of B2." Point V is obviously not a claim of trial error, but, in effect, a motion to dismiss the County's cross-appeal. And, given our discussion, infra, as to Points I-III of the Trustees' appeal, in which we hold that the trial court lacked jurisdiction, in the first instance, to review the County's decision denying the Trustees' request to rezone the trust property in question from A to B-2, the Trustees' motion to dismiss is necessarily overruled and will not be discussed, infra.
In its cross-appeal, the County raises thirteen points. In Point I, it challenges the trial court's dismissal of Count I of its counterclaims seeking payment from the Trustees of "$1200.00 for back due permit fees" for four buildings that were constructed on the trust property without the Trustees first obtaining the permits required under the County's zoning regulations. The County claims in this point that the trial court erred in basing its judgment for the Trustees on Count I of the County's counterclaims on the application of the farm-building exemption of § 64.890.2 because, as a matter of law, the exemption did not apply. Alternatively, it claims that the trial court erred in basing its judgment on the exemption because it was an affirmative defense, which was not pled by the Trustees, such that they could not rely on it in defending against Count I of the County's counterclaims. In its remaining points, Points II-XIII, the County challenges the trial court's judgment for the Trustees on Count I of the Trustees' amended petition, declaring that the County's zoning of the trust property in question as A was "arbitrary, capricious and unreasonable and is void as applied to [the trust] land" and enjoining the County "from enforcing its zoning ordinance against [the trust] property until such time as such property is classified to a use or set of uses that is not arbitrary and unreasonable and capricious in accordance with the above findings which specify that the best use is commercial B-2."
All statutory references are to RSMo 2000, unless otherwise indicated.
As to Points I-III of the Trustees' appeal of the trial court's judgment dismissing Count IV of the Trustees' initial petition for damages for inverse condemnation, we dismiss. As to Point IV of the Trustees' appeal of the trial court's judgment dismissing Counts II and III of the Trustees' initial petition for damages for alleged violations by the County of their substantive due process and equal protection rights, under the Missouri Constitution, we dismiss. As to Point I of the County's cross — appeal of the trial court's judgment for the Trustees on Count I of the County's counterclaims for payment of "$1200 back due building permits," we reverse and remand. As to Points II-XIII of the County's cross-appeal of the trial court's judgment for the Trustees on Count I of the Trustees' amended petition, seeking judicial review of the County's denial of the Trustees' request to rezone the trust property in question from A to B-2, we dismiss.
Facts
On November 21, 2001, the Trustees filed an "Application for Rezoning" with the Lafayette County Planning and Zoning Commission (PZC), requesting that approximately twenty acres of land, located in Odessa and held by them as trustees for The Maurice L. Gash and Nancy L. Gash Revocable Trusts, be rezoned from A to B-2. They sought the rezoning in order "to build [a] convenience store, to operate a stable, to operate public storage buildings, [and] to operate [a] garage to service new weight scales." There were two residential buildings, four outbuildings, and a stable already constructed on the property at the time of the rezoning request. The Trustees had obtained building permits for construction of the two residential buildings, but had not obtained permits for the five other structures.
The PZC conducted a public hearing on February 7, 2002, to address the Trustees' application for rezoning. During the hearing, Phillip Varner, an attendee at the meeting, raised a concern that one of the buildings existing on the trust property was in violation of a setback requirement of the A zoning regulations. The PZC concluded their discussion of the Trustees' rezoning request by asking Lisa Eaton, the County Zoning Administrator, "to check into the [violation] situation." A second hearing was held by the PZC on the Trustees' application on February 14, 2002, at which Eaton reported back to the PZC that her investigation disclosed that the west house located on the trust property was in violation of the rear setback requirement of the County zoning regulations. Tom Davis, a member of the PZC, reported that he was concerned that the second home on the property might be in violation of the requirement that it be half the size as the main residence. As such, the PZC decided to "table" the Trustees' rezoning application to "begin violation procedures."
At a meeting of the PZC on June 12, 2003, the PZC decided "to bring [the Trustees'] rezoning request back to the table." After further review of the matter, the PZC found that the trust property was "still in violation," despite the County's prior proposed settlement offer to abate the violations on the trust property in question if the Trustees were to pay a $10,000 fine, which they had not paid. However, it concluded that the ongoing violation did not preclude it from ruling on the Trustees' application for rezoning, noting that the "rezoning could bring the building set-backs into compliance with B-2." However, the PZC was "unclear whether or not an invalid use becomes a nonconforming use [after rezoning]." In any event, the PZC proceeded to deny the Trustees' application.
On October 27, 2003, the Trustees filed their initial four-count petition in the Circuit Court of Lafayette County, entitled "Petition for Declaratory Judgment, Violation of Equal Protection, Inverse Condemnation, Violation of Due Process," naming, inter alia, the respondents, Lafayette County and the Lafayette County Commission, as defendants. On that same date, October 27, 2003, the Trustees filed a "Motion for Change of Venue." On November 24, 2003, the County filed its answer to the Trustees' petition, as well as a two-count counterclaim. In Count I, the County sought payment of $1200 for unpaid building permit fees for four buildings that had already been constructed on the trust property. In Count II of the County's counterclaims, it sought to enjoin the Trustees from constructing any other buildings on the trust property without first obtaining the building permits required by the County's zoning regulations.
On November 24, 2003, the County also filed a "Motion to Dismiss Counts II and III as to Damages and to Dismiss Count IV in its Entirety." As to Counts II and III of the Trustees' initial petition, the County alleged that they should be dismissed because there "is no common law right to sue for damages for constitutional violations." As to Count IV, the County alleged that it should be dismissed because the Trustees' petition failed to allege facts demonstrating a requisite proof element of an inverse condemnation claim based on a zoning classification, that the Trustees' claim of a taking by the County in zoning the trust property in question as A, depriving them of the ability to derive the economic use they sought from their investment in the property, was ripe for review in that Count IV failed to allege facts demonstrating that the County had made a "final determination" of what uses would be permitted for the property. In that regard, the County contended that in order for the Trustees to properly plead a case for inverse condemnation, for a taking based on a zoning classification, there had to be facts alleged in the petition demonstrating that the County had made a "final determination" as to the uses permitted for the land, and to do that they had to allege facts showing that the Trustees had not only sought a rezoning of the whole of the trust property to B-2, which was rejected, but had sought and been denied a variance, conditional use permit, rezoning of less than all of the trust property, or a rezoning other than to the B-2 classification requested. In its motion, the County also sought dismissal of Count IV on the alternative basis that Count IV failed to allege facts demonstrating the requisite proof element of the inverse condemnation action alleged in Count IV that the trust property was rendered "economically idle" in being zoned A, in that the County's zoning regulations for such classification expressly permitted the Trustees to build two residences on the property, which allowed the Trustees to make economic use of the trust property. On December 22, 2003, the Trustees filed an answer to the County's counterclaims, in which they denied all allegations and alleged that the County's counterclaims failed to state a cause of action on which relief could be granted.
On January 22, 2004, the Trustees' motion for change of venue was granted and venue was changed from Lafayette County to Clay County. On May 5, 2004, the Circuit Court of Clay County, by docket entry, sustained the County's "Motion to Dismiss Counts II and III as to Damages and to Dismiss Count IV in its Entirety" of the Trustees' initial petition. The docket entry read: "Motion to Dismiss the claim as to damages as to Count II and Count III granted. Motion to Dismiss Count IV granted." On January 19, 2005, the Trustees filed a three-count "Amended Petition for Declaratory Judgment, Violation of Equal Protection, Inverse Condemnation, Violation of Due Process." The amended petition included Count I of the Trustees' initial petition. Counts II and III, like Counts II and III of the initial petition, alleged violations of the Trustees' substantive due process and equal protection rights under the Missouri Constitution, respectively, in connection with their attempt to rezone the trust property. However, unlike in the initial petition, rather than seeking damages for the alleged constitutional violations, the Trustees sought injunctive relief only. And, unlike their initial petition, the Trustees did not include a count for damages for inverse condemnation.
On February 23, 2005, the Circuit Court of Clay County entered its judgment, finding "all issues in favor of [the Trustees]" as to their amended petition and the County's counterclaims. As to Count I of the Trustees' amended petition, the judgment provided: "Lafayette County's ordinance which zoned [the trust] property as Agricultural is arbitrary, capricious and unreasonable and is void as applied to [the trust] land." The judgment further enjoined the County "from enforcing its zoning ordinance against [the trust] property until such time as such property is classified to a use or set of uses that is not arbitrary and unreasonable and capricious in accordance with the above findings which specify that the best use is commercial B-2." As to the County's counterclaims, the judgment read:
[T]he Lafayette County Zoning Ordinance does not require a building permit for the construction of agricultural buildings in the Agricultural Zone. When constructed the [Trustees'] buildings are nothing more than common pole barns. That [the Trustees] would like to improve them for commercial use if the zoning issues are resolved does not alter their character when built. Frank Reikhof testified that he did not have to obtain a building permit when he constructed his agricultural building before his property was re-zoned B-2 from A.
This appeal follows.
Trustees' Appeal I.
In Points I-III of their appeal, the Trustees claim that the trial court erred in dismissing Count IV of their initial petition for damages for inverse condemnation, on the grounds that: (1) it failed to allege facts demonstrating a requisite proof element of an inverse condemnation claim based on a zoning classification, that the Trustees' claim of a taking by the County in zoning the trust property in question as A, depriving them of the ability to derive the economic use they sought from their investment in the property, was ripe for review in that Count IV failed to allege facts demonstrating that the County had made a "final determination" of what uses would be permitted for the property other than the uses permitted by the B-2 classification, which was denied by the County; and (2) even if Count IV alleged facts demonstrating that such a determination had been made, it failed to allege facts demonstrating that the trust property was rendered "economically idle" in being zoned A, in that the County's zoning regulations for such classification expressly permitted the Trustees to build two residences on the property. They claim that this is so because they alleged facts in their petition demonstrating that a "final determination" had been made by the County concerning the zoning classification of the property to support a claim of inverse condemnation and facts demonstrating that they were prevented from realizing their "distinct investment backed expectations" as to the property.
Even though not raised by the County, before we can address the merits of the Trustees' claims in Points I-III as to the dismissal of Count IV, we are required to first determine, sua sponte, our jurisdiction to do so. Greenbriar Hills Country Club v. Dir. of Revenue , 47 S.W.3d 346, 350 (Mo. banc 2001). In that regard, the question arises as to whether there was a final and appealable judgment as to the dismissal of Count IV of the Trustees' initial petition for inverse condemnation. "A prerequisite to appellate review is that there be a final judgment." Gibson v. Brewer , 952 S.W.2d 239, 244 (Mo. banc 1997) (quotation marks and citation omitted). Hence, if there was no final judgment as to the dismissal of Count IV of the Trustees' initial petition for inverse condemnation, we lack jurisdiction to review it on the merits, requiring us to dismiss the Trustees' appeal as to Points I-III, which seek review of the dismissal by the trial court of Count IV of their initial petition.
The trial court dismissed Count IV of the Trustees' initial petition on May 6, 2004, pursuant to the County's motion to dismiss. As noted, supra, in its motion, the County alleged that Count IV should be dismissed on two grounds. As to the first ground, the failure of Count IV to allege facts demonstrating that there had not been a final determination of the permitted uses of the trust property in question, the County contended, inter alia, in its motion, that for there to be a taking, sufficient to support a claim of inverse condemnation, there had to be a showing that the Trustees had sought and been denied a variance, a conditional use permit, a rezoning of less than all of the trust property, or a rezoning of the property other than to the B-2 classification. The Trustees contended below that they were not required, in order to state a claim for inverse condemnation, to plead in their petition facts demonstrating that they had sought and been denied a variance, a conditional use permit, a rezoning of less than all of the trust property, or a rezoning other than to the B-2 classification.
In dismissing Count IV, the trial court did not state the ground or grounds for dismissal. Hence, we presume that the trial court dismissed Count IV either on one or both of the grounds alleged in the County's motion to dismiss. Guerra v. Fougere , 201 S.W.3d 44, 46 (Mo.App. 2006). In dismissing Count IV, the trial court also did not state whether it was with or without prejudice. It is well settled that in the case of an involuntary dismissal, where the trial court does not state whether it is with or without prejudice, the presumption is that it is without prejudice, see Rule 67.03, which as a general rule, is not a final and appealable judgment subject to appellate review. Guerra , 201 S.W.3d at 47.
All rule references are to the Missouri Rules of Civil Procedure, 2006, unless otherwise indicated.
The rationale for an involuntary dismissal without prejudice not being a final judgment subject to appeal is because "when an action is dismissed without prejudice, a plaintiff may cure the dismissal by filing another suit in the same court." State ex rel. Nixon v. Summit Inv. Co. , 186 S.W.3d 428, 432 (Mo.App. 2006) (quotation marks and citation omitted). Given this rationale for the rule, an exception to the rule has been recognized, that exception being that where the effect of the dismissal without prejudice is to dismiss the plaintiff's action and not simply the pleading, the dismissal is considered an adjudication on the merits subject to appellate review. Guerra , 201 S.W.3d at 47.
Here, inasmuch as the effect of the dismissal without prejudice of Count IV of the Trustees' initial petition was to dismiss the Trustees' claim for damages for inverse condemnation and not simply their pleadings, the dismissal would be considered an adjudication on the merits subject to appellate review. However, that does not end our inquiry into our jurisdiction to review, on the merits, the trial court's judgment dismissing Count IV of the Trustees' initial petition. Our jurisdiction to review the trial court's dismissal of Count IV on the merits is still called into question due to the possible application of the "abandonment-of-pleadings" rule. That rule provides that upon the filing of an amended petition, the prior pleadings not referred to or incorporated in the amended petition are deemed abandoned and cannot be considered for any purpose. State ex rel. Bugg v. Roper , 179 S.W.3d 893, 894 (Mo. banc 2005); State ex rel. Crowden v. Dandurand , 970 S.W.2d 340, 342 (Mo. banc 1998); Lightfoot v. Jennings , 254 S.W.2d 596, 597 (Mo. 1953); Value Lumber Co. v. Jelten , 175 S.W.3d 708, 713 (Mo.App. 2005); Scott v. Clanton , 113 S.W.3d 207, 213 (Mo.App. 2003); Beckmann v. Miceli Homes, Inc. , 45 S.W.3d 533, 543 (Mo.App. 2001); Gittemeier v. Contractors Roofing Supply Co. , 932 S.W.2d 865, 869 (Mo.App. 1996); Prayson v. Kan. City Power Light Co. , 847 S.W.2d 852, 859 (Mo.App. 1992); R.C. v. Sw. Bell Tel. Co. , 759 S.W.2d 617, 619 (Mo.App. 1988). Hence, if that rule applies here, as to Count IV of the Trustees' initial petition, the Trustees, in not including an inverse condemnation count in its amended petition, would be deemed to have abandoned any appeal of the trial court's dismissal of Count IV of their initial petition.
The record reflects that the Trustees' initial petition, filed on October 27, 2003, contained Count IV, purporting to allege a cause of action for damages for inverse condemnation. The Trustees asserted in Count IV that the zoning of the trust property in question as A, rather than B-2, constituted a taking. However, as we discuss, supra, the record reflects further that on May 6, 2004, the trial court dismissed Count IV of the Trustees' initial petition. The Trustees, thereafter, filed their first amended petition on January 19, 2005, on which the trial court entered its judgment and from which they now appeal. Their first amended petition, however, did not contain a Count IV, and none of the three counts alleged therein asserted an action for inverse condemnation. Moreover, the amended petition did not reference or incorporate Count IV of the initial petition. As such, Count IV of the Trustees' initial petition, purporting to allege a claim of inverse condemnation, would appear to have been abandoned under the "abandonment rule," as we discuss, infra. Hence, absent some exception to the rule, there would appear to be no final and appealable judgment as to the trial court's dismissal of Count IV of the Trustees' initial petition for damages for inverse condemnation such that this court would lack jurisdiction to review the dismissal of Count IV on the merits, as requested in Points I-III of the Trustees' appeal, requiring us to dismiss as to those points.
As noted, supra, as a general rule, upon the filing of an amended petition, the prior pleadings not referred to or incorporated in the amended petition are deemed abandoned and cannot be considered for any purpose. Bugg , 179 S.W.3d at 894; Crowden , 970 S.W.2d at 342; Lightfoot , 254 S.W.2d at 597; Value Lumber Co. , 175 S.W.3d at 713; Scott , 113 S.W.3d at 213; Beckmann , 45 S.W.3d at 543; Gittemeier , 932 S.W.2d at 869; Prayson , 847 S.W.2d at 859; R.C. , 759 S.W.2d at 619. Hence, inasmuch as the trial court's dismissal of Count IV of the Trustees' initial petition for damages for inverse condemnation was never certified as a final judgment under Rule 74.01(b), pursuant to the general abandonment rule, unless an exception applies, the Trustees' filing of their amended petition would have acted to abandon Count IV such that there never was a final judgment as to the trial court's dismissal of that count, depriving us of jurisdiction to review its dismissal on the merits, as the Trustees ask us to do in Points I-III of their appeal.
An exception to the abandonment rule was recognized by the Eastern District in R.C. , 759 S.W.2d at 619. In R.C. , the plaintiff brought a negligence action against five defendants. Id. Her claims against three of the five defendants were dismissed. Id. Thereafter, she filed an amended petition, amending her claims as to the two remaining defendants, without any reference to her claims that were dismissed as to the other defendants. Id. On appeal, the plaintiff challenged the trial court's dismissal as to the three defendants below. Id. On appeal, the three dismissed defendants contended, inter alia, that she could not appeal as to the dismissal of her claims as to them because by filing her amended petition without reference to those claims, the abandonment — of — pleadings rule applied to prevent her from raising the issue of the dismissal on appeal. Id. Although paying homage to the abandonment rule, citing Heman v. Glann , 129 Mo. 325, 31 S.W. 589 (Mo. 1895), the court, first recognizing that the trial court's order of dismissal had not been certified for early appeal, pursuant to Rule 74.01(b), held that the plaintiff had not abandoned her cause of action against the three dismissed defendants by filing her amended petition. Id. As to the rationale for holding that the abandonment rule did not apply, the court stated: "Where the reason for dismissal is not correctible [sic] by an amended pleading and the case remains pending against other defendants, the court and the parties should not be required to engage in useless procedural gestures in order to preserve the propriety of the dismissal for review." Id. at 619-20 (emphasis added).
The R.C. exception to the abandonment rule was recognized by this court in Prayson , 847 S.W.2d at 859 . In Beckmann , citing Prayson , the Eastern District stated the exception to the abandonment rule as:
[W]hen a plaintiff has suffered a dismissal or summary judgment with respect to some but not all of the claims in his petition, and the plaintiff then files an amended pleading omitting mention of the defendants in whose favor judgment has already been granted, the appellate courts will not deem that the plaintiff has "abandoned" his claim against those defendants when the reason for which they were dismissed or granted summary judgment is a problem that is "not correctable" by the plaintiff in an amended pleading.
Beckmann , 45 S.W.3d at 543. As for the rationale for the exception, the court stated: "The rationale underlying this exception to the general abandonment rule is that where the reason for dismissal is not correctible [sic] by an amended pleading and the case remains pending against other defendants, the court and the parties should not be required to engage in useless procedural gestures in order to preserve the propriety of the dismissal for review." Id. (emphasis added) (internal quotation marks and citations omitted). Thus, the exception to the abandonment rule requires not only that the reason for dismissal not be correctable, but that the "case remains pending against other defendants." Id . (emphasis added). Here, the reason for dismissal of Count IV was not correctable by amendment, which satisfies the first prong of the exception test to the abandonment rule. However, the second prong of that test is not met in that the Trustees' case, after dismissal of Count IV, effectively remained as to only one defendant, the County, such that the exception would not apply. Logically, for purposes of this case, the Lafayette County Commission and Lafayette County would be considered one defendant.
While the first prong of the test for applying the exception, that the reason for dismissal is not correctable by amendment, is understandably related to the stated underlying rationale for the exception, that the "parties should not be required to engage in useless procedural gestures in order to preserve the propriety of the dismissal for review," the same cannot be said as to the relationship of the second prong to the rationale. In order to fully appreciate the necessity of the two prongs of the test for application of the exception, a brief discussion of the relationship of those prongs to the underlying rationale is appropriate.
As to the first prong, "not correctable by amendment," obviously if the reason for dismissal of a count is not correctable by amendment, the only reason for requiring the plaintiff to include the dismissed count in the amended petition would be to preserve it for appeal, which would in turn require the defendant to re-file the motion to dismiss, triggering the same dismissal. Hence, our appellate courts, in Beckmann , Prayson , and R.C. , have determined, and rightfully so, that this would, at best, amount to nothing more than requiring a "useless procedural gesture" such that to apply the abandonment rule in that circumstance would essentially be elevating form over substance. Such reasoning, however, would seem to apply equally whether there was one or more defendants remaining in the case after dismissal; yet the exception, as enunciated in the cases cited, requires for application of the exception, in addition to the not-correctable-by-amendment requirement, that after dismissal of the count in question, the case remain pending as to other defendants. This leads us to believe that the exception, besides being grounded on the concept of not requiring the parties to engage in "useless procedural gestures," is also grounded on what the trial court can reasonably assume as to the plaintiff's intent with respect to whether he is abandoning a dismissed count upon the filing of an amended petition which makes no mention of that count.
In the case of multiple defendants remaining in the case, after dismissal as to one defendant, which dismissal cannot be corrected by amendment, it is reasonable for the trial court to assume, absent any expression to the contrary, that the plaintiff is not abandoning that count for purposes of appeal, by not mentioning it in the amended petition, in that, in that circumstance there is nothing to suggest that the plaintiff has chosen to pursue an alternative claim or claims as to that defendant, rather than standing on his dismissed pleadings and appealing. However, in the case of only one defendant, either assumption would be equally true: that in not mentioning the dismissed count in the amended petition, the plaintiff was choosing to abandon that count and pursue alternative counts, or was not abandoning that count, but saw no need to engage in a meaningless procedural gesture by including it simply to preserve his appeal as to the dismissal. Given this uncertainty as to what was meant by the failure to include the dismissed count in the amended petition in that circumstance, it would appear that our appellate courts that have addressed the exception have chosen to limit its application so that it does not apply to cases such as ours, where such uncertainty reigns. In any event, absent some compelling reason to amend the exception, we are loath to do so when it has been carefully considered previously on numerous occasions by our appellate courts.
Having determined that the R.C. exception to the abandonment rule does not save the Trustees' claims of error in Points I-III, as to the dismissal of Count IV of their initial petition for damages for inverse condemnation, we turn to the exception to the rule enunciated in Gittemeier , 932 S.W.2d at 869 . There, the court, recognizing the abandonment rule, citing Blum v. Airport Terminal Services , 762 S.W.2d 67, 71[1] (Mo.App. 1988), held that the rule did not apply, without citing any of the cases recognizing the R.C. exception. Gittemeier , 932 S.W.2d at 869. In Gittemeier , three of the four defendants sought to dismiss the plaintiff's appeal as to summary judgment for the defendants on four of the seven counts of the plaintiff's petition on the basis that those counts had been abandoned due to the filing of an amended petition, which did not mention the counts on which summary judgment had been granted. Id. Those summary judgments were certified for early appeal, under Rule 74.01(b). Id. The court held that the abandonment rule did not apply, noting that the summary judgments in question had been certified for early appeal under Rule 74.01(b) and that the reasons for the summary judgments could not be cured by an amendment, such that to require the plaintiff to re-plead the counts that were dismissed would be to "create unnecessary judicial proceedings." Id. While the court did not rely on the fact that there were other defendants remaining in the case as to the amended pleadings, there were, such that both prongs of the exception to the abandonment rule, as enunciated in R.C. , Prayson , and Beckmann , were satisfied. In any event, even if Gittemeier represents a further expansion of the R.C. exception to the abandonment rule, by including the situation where the summary judgment or dismissal is certified for early appeal under Rule 74.01(b) and the reason for dismissal cannot be corrected by amendment, that expansion of the exception would not apply here, so as to save the Trustees as to preserving for appellate review Points I-III, in that it is clear from the record that the trial court's dismissal of Count IV was never certified as final for early appeal under the rule.
We note that not only was the trial court's judgment as to Count IV never certified for early appeal, pursuant to Rule 74.01(b), but it also does not appear that it could have been certified, because it does not dispose of a distinct "judicial unit," defined as "the final judgment on a claim, and not a ruling on some of several issues arising out of the same transaction or occurrence which does not dispose of the claim." Penn-Am. Ins. Co. v. The Bar, Inc. , 201 S.W.3d 91, 95 (Mo.App. 2006); See also Bell Scott, LLC v. Wood, Wood, Wood Invs., Inc. , 169 S.W.3d 552, 554 (Mo.App. 2005) (stating that only a judgment disposing of a "judicial unit" can be certified for early appeal under Rule 74.01(b)).
Even assuming, arguendo, that the abandonment rule did not apply to rob this court of jurisdiction to review, on the merits, Points I-III of the Trustees' appeal, challenging the trial court's dismissal of Count IV of the Trustee's initial petition for damages for inverse condemnation, they still cannot prevail on those points in that from the record it is clear that Count IV was subject to involuntary dismissal, as a matter of law, in that the Trustees could not prevail on Count IV, as pled, unless they first prevailed on Count I of their amended petition, judicial review of the County's decision denying the Trustees' request to rezone the trust property in question from A to B-2, which, as we discuss, infra, was not properly before the trial court such that its judgment for the Trustees on Count I, declaring the A zoning of the Trustees' property void and enjoining the County "from enforcing its zoning ordinance against [the Trustees'] property until such time as such property is classified to a use or set of uses that is not arbitrary and unreasonable and capricious in accordance with the above findings which specify that the best use is commercial B-2" was a nullity, requiring not only the dismissal of Counts I and IV of the Trustees' initial petition, but also the dismissal of the Trustees' Points I-III and the County's cross-appeal as to Count I of the Trustees' amended petition.
In Count IV, the Trustees sought damages for inverse condemnation. "Inverse condemnation is a cause of action against a government agency to recover the value of property taken by the agency, though no formal exercise of the power of eminent domain has been completed." Wyper v. Camden County , 160 S.W.3d 850, 853 (Mo.App. 2005) (quotation marks and citation omitted). As stated by Zumalt v. Boone County , 921 S.W.2d 12, 15 (Mo.App. 1996):
To state a claim for inverse condemnation, a plaintiff must allege his property was taken or damaged by the state for public use without just compensation. The landowner does not have to show an actual physical taking of property, but must plead and prove an invasion or an appropriation of some valuable property right which the landowner has to the legal and proper use of his property which invasion or appropriation . . . directly and specially affect[s] the landowner to his injury.
(Quotation marks and citation omitted.) The Trustees alleged in Count IV that, under the applicable facts and law, the zoning classification of the trust property in question as A "so severely limited and restricted[ ] reasonable viable and economically feasible use of [the trust] property so as to damage and destroy [the Trustees'] property rights and deny [them] reasonable investment backed expectations and all reasonable viable and economically feasible use of [the trust] property," that it constituted a taking by the County, entitling the Trustees to monetary damages under a theory of inverse condemnation. In other words, Count IV was predicated on the Trustees being successful on their claim in Count I of their petition, that the County's zoning of the trust property as A and refusing to rezone it to B-2 was unreasonable and unlawful, and worked to deprive them of their right to realize from the trust property the expected investment income based on a commercial zoning classification.
As to Count I of the Trustees' amended petition, the trial court found in favor of the Trustees, ordering, in effect, inter alia, the County to rezone the trust property to B-2. However, the record makes it clear that the trial court lacked jurisdiction to review the County's decision denying the Trustees' request to rezone the property from A to B-2. This is so, in that in seeking in Count I of their amended petition, judicial review of the County's decision denying their rezoning request, instead of following the mandatory statutory procedure found in § 64.660 for judicial review of such decisions, the Trustees sought review pursuant to the Declaratory Judgment Act, §§ 527.010-.130. In that regard, Count I is entitled "Declaratory Judgment." As to the relief sought in Count I, the Trustees prayed:
WHEREFORE, in Count I, Plaintiffs Maurice Gash and Nancy Gash pray that the Court order, adjudge, decree, determine and declare Plaintiffs' rights under Lafayette County Planning and Zoning Regulations of Defendant Lafayette County; that the Court declare Lafayette County Planning and Zoning Regulations to be illegal, arbitrary, capricious, unreasonable, unconstitutional, invalid and void in its application to Plaintiffs' real property described above; that Defendant Lafayette County and all of its agents and employees be permanently enjoined and restrained from enforcing or attempting to enforce Lafayette Planning and Zoning Regulations against Plaintiffs' real property described above; to rezone the property to a reasonable zoning classification; that Plaintiffs Maurice Gash and Nancy Gash recover their costs and expenses herein incurred and expended, including reasonable attorney's fees; and for such other further and additional relief as the Court deems just and proper.
It is well settled that the "declaratory judgment procedure cannot be used where a different specific statutory method of review is provided." Earls v. Jamestic Pointe, Ltd. , 949 S.W.2d 239, 243 (Mo.App. 1997) (quotation marks and citations omitted). The judicial review provided by § 64.660, governing review of decisions of zoning officers, boards of zoning adjustment, and zoning commissions in second- and third-class counties, does not provide for judicial review of the County's decision denying the Trustees' zoning request by way of declaratory judgment. Section 64.660 provides, in pertinent part:
Section 64.660, which applies to second- and third-class counties, is identical to § 64.870, which applies to fourth-class counties. Hence, even if § 64.870 applied, here, rather than § 64.660, our analysis would be the same.
1. . . . Appeals to the board of zoning adjustment may be taken by any owner, lessee or tenant of land, or by a public officer, department, board or bureau, affected by any decision of the administrative officer in administering a county zoning ordinance. Such appeals shall be taken within a period of not more than three months, and in the manner provided by the rule of the board. . . .
2. . . . Any owners, lessees or tenants of buildings, structures or land jointly or severally aggrieved by any decision of the board of adjustment or of the county commission, respectively, under the provisions of sections 64.510 to 64.695, or board, commission or other public official, may present to the circuit court of the county in which the property affected is located, a petition, duly verified, stating that the decision is illegal in whole or in part, specifying the grounds of the illegality and asking for relief therefrom. Upon the presentation of the petition the court shall allow a writ of certiorari directed to the board of adjustment or the county commission, respectively, of the action taken and data and records acted upon, and may appoint a referee to take additional evidence in the case. The court may reverse or affirm or may modify the decision brought up for review. After entry of judgment in the circuit court in the action in review, any party to the cause may prosecute an appeal to the appellate court having jurisdiction in the same manner now or hereafter provided by law for appeals from other judgments of the circuit court in civil cases.
Therefore, under this statute, in order to obtain judicial review, under Count I of their amended petition, of the denial of their rezoning request by the County, the Trustees should have petitioned the circuit court for a writ of certiorari, rather than seeking a declaratory judgment.
It is well settled that where the legislature provides a method of judicial review of an administrative decision, including decisions by zoning officers, boards of zoning adjustment, and zoning commissions, it is exclusive, precluding review under any other method, including review by way of declaratory judgment. Farmer's Stone Prods. Co. v. Hoyt , 950 S.W.2d 673, 675 (Mo.App. 1997). Hence, here, the Trustees were precluded from seeking, in Count I of their amended petition, judicial review of the County's denial of their request to rezone the trust property from A to B-2 by way of declaratory judgment. Likewise, they were precluded from seeking review pursuant to the Missouri Administrative Procedure Act, specifically §§ 536.140 and 536.150. Earls , 949 S.W.2d at 243.
Failure to follow the mandatory statutory procedure for review of an administrative decision is a matter of jurisdiction, requiring dismissal. Farmer's Stone Prods. Co. , 950 S.W.2d at 675. Because the Trustees, in Count I of their amended petition, sought judicial review, by declaratory judgment, of the denial of their request for rezoning by the County, rather than following the procedure set forth in § 64.660, the trial court had no jurisdiction to decide the issue presented in Count I of the Trustees' amended petition such that the court's judgment, declaring that the County's A zoning classification of the Trustees' property as A was "void" and essentially ordering it to rezone the property to a commercial classification, was a nullity ab initio. And, in light of this fact and as a matter of law, the Trustees could not maintain their cause of action in Count IV for damages for inverse condemnation against the County, as it was necessarily predicated on their being successful on their request for rezoning of the trust property as commercial in Count I, such that the trial court would have been justified in dismissing Count IV on that basis.
For the aforesaid reasons, Points I-III of the Trustees' appeal are dismissed.
II.
In Point IV of their appeal, the Trustees claim that the trial court erred in dismissing Counts II and III of their initial petition, seeking damages for alleged violations by the County of their substantive due process and equal protection rights, under the Missouri Constitution, in connection with their attempts to have the trust property in question rezoned from A to B-2, "on the ground of sovereign immunity because there is no immunity for ministerial acts of public officials in that the [C]ounty in offering to resolve the zoning violations for a payment of $10,000 in lieu of a fine violated the [Trustees'] right[s] to due process and equal protection." For the reasons discussed, infra, we dismiss.
In Counts II and III of their initial petition, the Trustees sought damages for alleged violations by the County of their substantive due process and equal protection rights, under the Missouri Constitution, in connection with their attempt to rezone the trust property to B-2. Those counts were involuntarily dismissed. In Counts II and III of their amended petition, although they alleged violations by the County of their substantive due process and equal protection rights, under the Missouri Constitution, as they did in Counts II and III of their initial petition, they did not seek damages, only injunctive relief. As such, the abandonment-of-pleadings rule, discussed supra, may well apply, denying review of the Trustees' claim of error in this point as to the trial court's judgment dismissing Counts II and III of their initial petition. However, because there are other obvious reasons for dismissing this point, we discuss those alone.
Point IV, by its express terms, only attacks one of the two grounds on which the County, in its motion to dismiss, sought dismissal of Counts II and III of the Trustees' initial petition. In its motion to dismiss, the County alleged two grounds for dismissal, that: (1) Missouri law precluded tort actions by individuals for monetary damages for violations of their rights guaranteed under the Missouri Constitution; and (2) even if such actions were permitted under Missouri law, the Trustees' claims in Counts II and III were barred by sovereign immunity. In granting the County's motion, the trial court did not specify the ground on which it was dismissing. In that circumstance, we presume that the dismissal was granted on one of the grounds alleged in the motion and will affirm on any ground supporting the motion. Chavez v. Walters , 78 S.W.3d 234, 237 (Mo.App. 2002); Johnson v. Vee Jay Cement , 77 S.W.3d 84, 88 (Mo.App. 2002). Hence, to be entitled to the appellate relief they seek in this point, reversal of the trial court's order dismissing Counts II and III of their initial petition, the Trustees, necessarily, have to successfully challenge both grounds alleged in the County's motion to dismiss. See In the Interest of B.J.K. , 197 S.W.3d 237, 246 (Mo.App. 2006); In the Interest of B.N.W. , 115 S.W.3d 869, 871 (Mo.App. 2003); In the Interest of T.F.S. , 52 S.W.3d 44, 48 (Mo.App. 2001) (holding that where multiple statutory grounds are found for termination of parental rights, judgment of termination will not be reversed where less than all such grounds are challenged on appeal).
The Trustees do not challenge both of the grounds raised by the County in its motion to dismiss Counts II and III of the Trustees' initial petition and on which we presume the trial court relied for dismissal. Rather, in their Point Relied On as to Point IV, they simply attack the granting of the County's motion to dismiss on one of the two grounds alleged — that the Trustees' claims were barred by the doctrine of sovereign immunity. Although the alternative basis on which the trial court dismissed Counts II and III of the Trustees' initial petition, that Missouri law precludes tort actions by individuals for monetary damages for violations of their rights guaranteed under the Missouri Constitution, is not raised in their Point Relied On, they do discuss it briefly in their argument on the point. However, Rule 84.04(e), governing arguments in appellate briefs, expressly limits argument "to those errors included in the 'Points Relied On.'" As such, we only review those claims raised in the Points Relied On. Cordes v. Williams , 201 S.W.3d 122, 131 (Mo.App. 2006); B.J.K. , 197 S.W.3d at 246; In re the Adoption of T.J.D. , 186 S.W.3d 488, 494 (Mo.App. 2006); Winter v. Winter , 167 S.W.3d 239, 244 (Mo.App. 2005); Lasker v. Johnson , 123 S.W.3d 283, 288-89 (Mo.App. 2003); Hocker Oil Co., Inc. v. Barker-Phillips-Jackson, Inc. , 997 S.W.2d 510, 519 (Mo.App. 1999). Claims not raised in the Points Relied On are deemed abandoned, and we are not required to review them. Cordes , 201 S.W.3d at 131; B.J.K. , 197 S.W.3d at 246; T.J.D. , 186 S.W.3d at 494; Hocker Oil Co. , 997 S.W.2d at 519. Hence, even though the Trustees challenge the alternative ground for dismissal of Counts II and III of their initial petition in their argument as to Point IV, because they do not raise it in the Point Relied On, they waive their claim as to the alternative ground. And, because they only attack one of the two grounds on which the trial court is presumed to have dismissed Counts II and III of their initial petition, they cannot succeed on Point IV, in which they seek reversal of the trial court's order dismissing Counts II and III. See B.J.K. , 197 S.W.3d at 246; B.N.W. , 115 S.W.3d at 871. Accordingly, we are not required to review the issue of whether the trial court erred in dismissing Counts II and III of the Trustees' initial petition on the ground that was raised in their Point Relied On as to Point IV. See B.J.K. , 197 S.W.3d at 246; B.N.W. , 115 S.W.3d at 871.
Even if we were to review Point IV on the merits, ex gratia, the Trustees still could not succeed thereon, as a matter of law, in that Counts II and III of the Trustees' initial petition do not state a cause of action on which relief can be granted, such that the trial court was justified in dismissing both counts on that basis alone, and we are to affirm a dismissal by the trial court if supported on any ground alleged in the motion to dismiss, even if it is not the ground on which the court dismissed. Pikey v. Bryant , 203 S.W.3d 817, 821 (Mo.App. 2006).
Our review of a grant of a motion to dismiss is de novo. McIntosh v. LaBundy , 161 S.W.3d 413, 415 (Mo.App. 2005). As stated by Bosch v. St. Louis Healthcare Network , 41 S.W.3d 462, 464 (Mo. banc 2001):
A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiff's petition. It assumes that all of plaintiff's averments are true, and liberally grants to plaintiff all reasonable inferences therefrom. No attempt is made to weigh any facts alleged as to whether they are credible or persuasive. Instead, the 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.
(Citation omitted.)
The law is well settled that an individual cannot maintain a common law tort action for damages for violations of his rights guaranteed under the Missouri Constitution. Moody v. Hicks , 956 S.W.2d 398, 402 (Mo.App. 1997). And, while the Trustees readily acknowledge this court's holding in Moody , which is contrary to their position, here, they argue that we should overrule Moody , arguing that article I, section 10, the due process clause of the Missouri Constitution, and article I, section 2, the equal protection clause of the Missouri Constitution, should be construed as being "self executing," impliedly authorizing a tort action for damages for violations of those constitutional guarantees. That same argument was made by the plaintiff in Moody , albeit with respect to Article I, § 15, the unreasonable search and seizure clause of the Missouri Constitution, and rejected by this court, the court stating, in pertinent part:
The trial court found that this count is similar to an action "under United States Code Section 1983 for a civil rights violation." We agree. Such an action is cognizable only because Congress enacted that legislation authorizing suits for federal constitutional violations. The Missouri General Assembly has not enacted similar legislation. Whether such a cause of action should be permitted is best left to the discretion of the General Assembly.
Id. The argument made by the plaintiff in Moody , as to why we should recognize a tort action for damages for state constitutional violations, is no more persuasive today than it was then. The Trustees cite nothing and make no argument that persuades us that we should reject our holding in Moody . It was well reasoned then and now. Hence, even if we were to review this point on the merits, ex gratia, the trial court was justified in dismissing Counts II and III of the Trustees' initial petition, seeking damages for alleged violations of the Trustees' substantive due process and equal protection rights under the Missouri Constitution, respectively, in connection with their request to rezone the trust property to B-2, in that such causes of action are not recognized in the law.
County's Cross-Appeal III.
In Point I of its cross-appeal, the County attacks the trial court's judgment for the Trustees on Count I of its counterclaims, in which it sought payment of $1200 for unpaid building permit fees for permits that should have been obtained and were not for four buildings constructed by the Trustees on the trust property in question. The County claims in this point that the trial court erred in basing its judgment for the Trustees on Count I of the County's counterclaims on the application of the farm-building exemption of § 64.890.2 because, as a matter of law, the exemption did not apply. Alternatively, it claims that the trial court erred in basing its judgment on the exemption because it was an affirmative defense, which was not pled by the Trustees, such that they could not rely on it in defending against Count I of the County's counterclaims.
Since this is a judge-tried case, the standard of review we employ is that found in Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976). In re Foreclosure of Liens for Delinquent Land Taxes , 190 S.W.3d 416, 418 (Mo.App. 2006). We will sustain the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id.
In finding for the Trustees on Count I of the County's counterclaim, the trial court, without making any mention of § 64.890.2, found, inter alia, "that the Lafayette County Zoning Ordinance does not require a building permit for the construction of agricultural buildings in the Agricultural Zone." On appeal, the Trustees contend that the trial court was justified in entering its judgment for them on Count I of the County's counterclaims based on the application of the exemption of § 64.890.2, the farm-building exemption. However, in their reply to Count I of the County's counterclaims, the Trustees did not assert that defense. Similarly, at trial, the Trustees did not argue that statutory exemption; rather, they simply argued that they were not required to obtain building permits for the buildings in question, relying on the testimony of Frank Reikhof, a local farmer, who testified that the Lafayette County Zoning Administrator told him "zoning doesn't have anything to do with an agriculture building. You don't need a permit to put a building on [land zoned as A]." He also testified that the buildings he constructed without permits on his land zoned as A were "pretty close" to the buildings located on the trust property in question.
Section 64.890 reads:
1. Nothing in sections 64.800 to 64.905 shall affect the recovery of natural resources by strip or open-cut mining; provided, that commercial structures shall be permitted in all districts except those zoned for residential or recreational use.
2. The provisions of this section shall not apply to the incorporated portions of the counties, nor to the raising of crops, livestock, orchards or forestry nor to seasonal or temporary impoundments used for rice farming or flood irrigation. As used in this section, the term "rice farming or flood irrigation" means small berms of no more than eighteen inches high that are placed around a field to hold water for use for growing rice or for flood irrigation. This section shall not apply to the erection, maintenance, repair, alteration or extension of farm buildings or farm structures used for such purposes in an area not within the area shown on the flood hazard area map. This section shall not apply to underground mining where entrance is through an existing shaft or shafts or through a shaft or shafts not within the area shown on the flood hazard area map. The powers granted by sections 64.800 to 64.845 and 64.850 to 64.880 shall not be construed:
(1) So as to deprive the owner, lessee or tenant of any existing property of its use or maintenance for the purpose to which it is then lawfully devoted;
(2) So as to deprive any court of the power of determining the reasonableness of regulations and powers in any action brought in any court affecting the provisions of sections 64.800 to 64.905 or the rules and regulations adopted thereunder;
(3) Nor to authorize interference with the public utility services as may have been or may hereafter be authorized or ordered by the public service commission or by permit of the county commission, as the case may be.
3. Nothing contained in sections 64.800 to 64.905 shall affect the existence or validity of an ordinance or order which a county has adopted prior to March 4, 1991.
While it is not clear to us how the exemption of § 64.890.2 would assist the Trustees as to Count I of the County's counterclaim, even assuming, arguendo, that it applies, since it expressly only exempts the construction of farm buildings with respect to the application of § 64.890, and not § 64.865, the section that requires the issuance of a building permit by the appropriate county zoning official before the construction of a building on zoned property, it matters not to our analysis, because, contrary to the Trustees' contention, it is clear that the trial court erred in relying on that exemption in entering judgment for the Trustees on the County's counterclaim in that the exemption constituted an affirmative defense which the Trustees were required to affirmatively plead, but failed to do, precluding them from relying on the exemption at trial.
Section 64.890.2 states that: " This section shall not apply to the erection, maintenance, repair, alteration or extension of farm buildings or farm structures used for such purposes in an area not within the area shown on the flood hazard area map." (Emphasis added.)
Rule 55.01, governing required pleadings, mandates the filing of a reply to a counterclaim. Hence, the Trustees were required to file a responsive pleading to the County's Count I counterclaim. Rule 55.01 also requires that a "defense consisting of an affirmative avoidance to any matter alleged in a preceding pleading must be pleaded." Likewise, Rule 55.08, governing affirmative avoidances or defenses, reads, in pertinent part: "In pleading to a preceding pleading, a party shall set forth all applicable affirmative defenses and avoidances[.] . . . A pleading that sets forth an affirmative defense or avoidance shall contain a short and plain statement of the facts showing that the pleader is entitled to the defense or avoidance." Hence, an affirmative defense to a counterclaim, just like an affirmative defense to a claim, must be pled in the reply to the counterclaim, or is waived, unless the issue is tried by implied or express consent of the parties in accordance with Rule 55.33(b). Tindall v. Holder , 892 S.W.2d 314, 328 (Mo.App. 1994). The purpose in requiring the pleading of an affirmative defense is to give the plaintiff notice of the defense so that he can adequately prepare for that issue at trial. Mobley v. Baker , 72 S.W.3d 251, 258 (Mo.App. 2002).
Although the application of the exemption asserted by the Trustees on appeal, the farm — building exemption of § 64.890.2, as the justification for the trial court's judgment for them on Count I of the County's counterclaims, is not expressly listed in Rule 55.08, the rule has a catch-all provision that makes it applicable to any "matter constituting an avoidance or affirmative defense." An affirmative defense has been defined as a defense that "seeks to defeat or avoid the plaintiff's cause of action, and avers that even if the allegations of the petition are taken as true, the plaintiff cannot prevail because there are additional facts that permit the defendant to avoid the legal responsibility alleged." Smith v. Thomas , No. WD 65881, 2006 WL 2805147, at *2 (Mo.App.W.D. October 3, 2006). Stated another way, an affirmative defense is a "defense, which contends that even if the petition is true, a plaintiff cannot receive the relief sought because there are additional facts which place defendant in a position to avoid legal responsibility, [and the affirmative defense] must[, in accordance with the rule,] be set forth in a defendant's answer." Tindall , 892 S.W.2d at 328. Clearly, in relying on the exemption in question, the Trustees are contending that even if the County could establish their counterclaim as alleged, with respect to the Trustees owing $1200 in building permit fees, additional facts existed which avoided the Trustees' legal responsibility to the County for payment of those fees — facts demonstrating that the exemption of § 64.890.2 applied. As such, the exemption was an affirmative defense, which was not pled by the Trustees in their reply to Count I of the County's counterclaim, and as such, was waived. See Moses v. Carnahan , 186 S.W.3d 889, 905 (Mo.App. 2006) (holding that an exemption to a statute requiring the registration of securities was an affirmative defense, on which the party claiming the exemption had the burden of proof).
Here, it is undisputed that the Trustees did not plead in their reply to Count I of the County's counterclaims the statutory exemption of § 64.890.2. Likewise, there is nothing in the record that indicates that this exemption was tried by consent, implied or express, by the parties. There was nothing that would have impliedly or expressly alerted the County to the fact that the Trustees were relying on the statutory exemption of § 64.890.2 at trial as an avoidance to Count I of the County's counterclaims to have excused the Trustees from including the defense of the exemption in their reply to Count I. Hence, despite the Trustees' contention on appeal, the trial court was not justified in finding for them on Count I of the County's counterclaims based on the exemption of § 64.890.2. Hence, the judgment of the trial court for the Trustees on Count I of the County's counterclaims must be reversed and remanded.
Inasmuch as this was a judge-tried case, on remand, the trial court must determine whether judgment should have been entered for the County on Count I, but for its having found that the farm — building exemption applied. If the trial court finds that to be the case, it must enter judgment for the County on Count I of its counterclaims. However, if it finds that regardless of the exemption, the County did not make its case, then it must re-enter judgment for the Trustees on that basis.
IV.
In Points II-XIII of its cross-appeal, the County attacks the trial court's judgment for the Trustees on Count I of their amended petition, in which they sought judicial review of the County's decision denying their request to rezone the trust property in question from A to B-2. As we discuss, supra, in our discussion of Points I-III of the Trustees' appeal, the trial court did not have jurisdiction to review the County's decision denying their application for rezoning because they sought review by way of declaratory judgment rather than the statutorily mandated procedure set forth in § 64.660. Earls , 949 S.W.2d at 242-43. Hence, there is nothing for us to review, as to the merits, with respect to the trial court's judgment as to its judicial review of the decision of the County in refusing to rezone the trust property from A to B-2, the issue raised in Count I of the Trustees' amended petition. Farmer's Stone Prods. Co. , 950 S.W.2d at 675-76.
Points II-XIII of the County's cross-appeal are dismissed.
Conclusion
As to Points I-III of the Trustees' appeal of the trial court's judgment dismissing Count IV of the Trustees' initial petition for damages for inverse condemnation, we dismiss. As to Point IV of the Trustees' appeal of the trial court's judgment dismissing Counts II and III of the Trustees' initial petition for damages for alleged violations by the County of their substantive due process and equal protection rights, under the Missouri Constitution, we dismiss. As to Point I of the County's cross — appeal of the trial court's judgment for the Trustees on Count I of the County's counterclaims for $1200 for "back due building permits," we reverse and remand. As to Points II-XIII of the County's cross-appeal of the trial court's judgment for the Trustees on Count I of their amended petition, seeking judicial review of the County's denial of the Trustees' request to rezone the trust property in question from A to B-2, we dismiss.