Allen v. City of Greenville

• Citation: 336 S.W.3d 508
• Decision Date: 23 March 2011
• Docket Number: No. SD 30594.,SD 30594.
• Parties: Roger T. ALLEN, John Bennett, C.L. McClure, John Molloy, and Oscar Witte, Appellants,v.CITY OF GREENVILLE, MISSOURI, Respondent.
• Court: Court of Appeal of Missouri (US)

336 S.W.3d 508

Roger T. ALLEN, John Bennett, C.L. McClure, John Molloy, and Oscar Witte, Appellants,

v.CITY OF GREENVILLE, MISSOURI, Respondent.

No. SD 30594.

Missouri Court of Appeals, Southern District, Division One.

March 23, 2011.

Wallace L. Duncan, Duncan & Pierce, Poplar Bluff, for Appellant.Benjamin E. Thompson, Hackworth, Ferguson & Thompson, LLC, Piedmont, for Respondent.ROBERT S. BARNEY, Presiding Judge.

Roger T. Allen, John Bennett, C.L. McClure, John Molloy, and Oscar Witte (collectively “Appellants”) appeal the trial court's grant of a motion to dismiss filed by the City of Greenville, Missouri (“the City”), which disposed of their petition for an injunction, declaratory judgment, and damages in connection with a city ordinance prohibiting Appellants from parking in front of their properties on Maple Street. We affirm.

The record reveals Appellants are residents of the City and that they have owned property on Maple Street in the City for several years. For a number of years Appellants have apparently parked their vehicles along “the edge” of Maple Street in order to have, as they contend, “reasonable access to their properties.” Appellants assert it is necessary for them to park on the edge of the street because their properties are situated on low-lying land, which has standing water on it much of the year. While they can connect to their properties by automobile by way of a back alley, they contend they would have to build expensive driveways to access their properties.

On August 11, 2009, the City's Board of Aldermen adopted Ordinance No. 51.090 (“the ordinance”), which made it unlawful to park vehicles within the city limits except where authorized. Pursuant to the ordinance, parking was barred in any place where official signs were located prohibiting stopping, standing, or parking. After the ordinance passed, the City notified its residents in a letter that they were no longer allowed to park along Maple Street and that the City had begun erecting “No Parking” signs along that street. Any violation would be punishable by fines of up to $500.00 and/or confinement in jail not to exceed 180 days.

In response to the passage of the ordinance and the prohibition of street parking on Maple Street, Appellants filed a Petition for Temporary Restraining Order, Injunction, Declaratory Judgment and Damages on February 22, 2010. In Count I of their petition, Appellants requested a temporary restraining order and injunction preventing the City from enforcing the ordinance until a trial could be held on the merits. In Count II, Appellants pleaded they had no reasonable access to their property, and the only legal access was by way of an alley behind their properties situated in an area where there is constantly standing water on the land requiring extensive construction and attendant costs to reasonably access their properties. They prayed for a declaratory judgment declaring the ordinance “illegal and void” because the ordinance is “discriminatory, unreasonable and invalid” for several reasons that Appellants enumerated. In Count III, Appellants petitioned the court for damages against the City for “Inverse Condemnation,” re-alleging that they had no reasonable access to their property, save for an alley behind their properties in an area of standing water, which would require extensive and expensive construction to reasonably access their properties. They also alleged that the ordinance prohibited them from parking on the public street in front of their homes; that the fair market value of these properties had been reduced; that they otherwise had no access to the properties; and that there was no place for the parking of their motor vehicles thereby constituting a “wrongful appropriation” of their land resulting in damages in excess of $25,000.00.

In response to Appellants' petition, the City filed a motion to dismiss for failure to state a claim upon which relief can be granted. After hearing oral arguments on the City's motion to dismiss, the trial court took the matter under advisement. Counsel for Appellants and the City submitted memoranda of law in opposition to and in support of the motion to dismiss. Concerning Count II, the City argued that Appellants failed to state a viable claim in that they “failed to allege any violation of the City's police power or of any state statute or a deprivation of any right or privilege guaranteed by the State or Federal Constitution.” ¹ The City also argued Count III should be dismissed because Appellants failed to plead any personal private property right to park along Maple Street which the ordinance deprived them of. The trial court sustained the City's motion to dismiss and on June 24, 2010, entered a formal judgment dismissing Appellants' petition with prejudice. The court did not provide any basis for its dismissal. This appeal timely follows.

In their sole point relied on, Appellants aver that the trial court erred in sustaining the City's motion to dismiss

in that the trial court failed to treat all the facts in the Appellants' [p]etition as true, as the petition invoked principles of substantive law, including elements constituting a violation of the Appellants' 14th Amendment Due Process Rights and the defacto exercise of eminent domain authority under Article I, Section 26 of the Missouri Constitution.

Review of a circuit court's order granting a motion to dismiss is de novo and we examine the pleadings to determine whether they invoke principles of substantive law entitling the plaintiffs to relief. Weems v. Montgomery, 126 S.W.3d 479, 484 (Mo.App.2004); Fenlon v. Union Elec. Co., 266 S.W.3d 852, 854 (Mo.App.2008). In an appeal from a motion to dismiss for failing to state a claim upon which relief can be granted, the following standard of review applies:

[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.

State ex rel. Henley v. Bickel, 285 S.W.3d 327, 329 (Mo. banc 2009) (quoting Bosch v. St. Louis Healthcare Network, 41 S.W.3d 462, 464 (Mo. banc 2001)). “ ‘The ruling on a motion to dismiss is ordinarily confined to the face of the petition, which must be given a liberal construction.’ ” Solberg v. Graven, 174 S.W.3d 695, 699 (Mo.App.2005) (quoting Matt v. Burrell, Inc., 892 S.W.2d 796 (Mo.App.1995)). Where, as here, the trial court does not provide a basis for its dismissal, we presume the dismissal was based on the grounds stated in the motion to dismiss, and we will affirm if the dismissal was appropriate on any such grounds. Lueckenotte v. Lueckenotte, 34 S.W.3d 387, 391 (Mo. banc 2001).

In Missouri, a petition must contain “a short and plain statement of the facts showing that the pleader is entitled to relief....” Rule 55.05.² This means that it must identify the facts upon which the plaintiff's claim rests and present factual allegations in support of each essential element of the claim. Solberg, 174 S.W.3d at 699; Berkowski v. St. Louis Bd. of Election Comm'rs, 854 S.W.2d 819, 823 (Mo.App.1993). We disregard mere conclusions in the petition that are not supported by facts. Solberg, 174 S.W.3d at 699; Westphal v. Lake Lotawana Assoc., Inc., 95 S.W.3d 144, 150 (Mo.App.2003). In order to withstand a motion to dismiss, a petition must invoke “ ‘substantive principles of law entitling plaintiff to relief and ultimate facts informing the defendant of that which plaintiff will attempt to establish at trial.’ ” Henley, 285 S.W.3d at 329–30 (quoting State ex rel. Union Elec. Co. v. Dolan, 256 S.W.3d 77, 82 (Mo. banc 2008)). However, on a “motion to dismiss for failure to state a claim, defendant bears the burden of establishing that the elements pled by plaintiff fail to state a cause of action.” Saidawi v. Giovanni's Little Place, Inc., 987 S.W.2d 501, 504 (Mo.App.1999).

First we examine the trial court's dismissal of Count II of Appellants' petition wherein they argued the ordinance was “discriminatory, unreasonable and invalid” for allegedly denying them “reasonable access to their property” and compelling them to construct expensive driveways from an alley through their low-lying lots if they wished to comply with the parking ban. The fatal flaw with Count II as pled is that it is uncertain from the face of the petition which principle of substantive law Appellants are invoking as grounds for declaratory relief. From the Appellants' appeal brief, it is clear they believe that the City's enforcement of the ordinance as described in Count II of the petition “constituted deprivation of due process under the 14th Amendment of the United States Constitution.” Appellants, however, did not expressly raise this constitutional due process claim in their petition, and our review of the adequacy of the pleadings is confined to the face of the petition itself. Solberg, 174 S.W.3d at 699. “To properly raise a constitutional issue ... a pleading must, among other requirements, ‘designate specifically the constitutional provision claimed to have been violated.’ ” Westphal, 95 S.W.3d at 150 (quoting Laubinger v. Laubinger, 5 S.W.3d 166, 173 (Mo.App.1999)). Because Appellants' petition did not specifically designate which of their constitutional rights were violated by the ordinance, they failed to invoke a substantive principle of law in Count II. The mere assertion that a government action is “discriminatory” and “unreasonable” does not constitute a substantive legal claim without reference to a specific constitutional or statutory provision. See id....