Anderson v. Village of Jacksonville

• Decision Date: 31 January 2003
• Docket Number: No. WD 61389.,WD 61389.
• Parties: Harold ANDERSON, Appellant, v. VILLAGE OF JACKSONVILLE, Respondent.
• Court: Missouri Court of Appeals

103 S.W.3d 190

Harold ANDERSON, Appellant, v. VILLAGE OF JACKSONVILLE, Respondent.

No. WD 61389.

Missouri Court of Appeals, Western District.

January 31, 2003.

Motion for Rehearing and/or Transfer to Supreme Court Denied April 1, 2003.

Application for Transfer Denied May 27, 2003.

COPYRIGHT MATERIAL OMITTED

Robert W. Wheeler, Keytesville, MO, for appellant.

Wayne E. Schirmer, Moberly, MO, for respondent.

Before: ROBERT G. ULRICH, P.J., HAROLD L. LOWENSTEIN and RONALD R. HOLLIGER, JJ.

ROBERT ULRICH, Judge.

Factual and Procedural Background

Harold Anderson ("Mr.Anderson") brought this action against the Village of Jacksonville, Missouri (the "Village"), in the Circuit Court of Randolph County seeking damages for the Village's violation of the Sunshine Law, section 610.010 et seq., RSMo 2000. Mr. Anderson prayed for judgment against the Village for refusing to provide him with information regarding its ownership of certain real estate in breach of the Sunshine Law. His petition stated that the Village purposefully withheld the requested information from him and as such the Village was subject to civil fine, and he was entitled to reasonable attorney's fees. § 610.027.3, RSMo 2000. The Village moved to dismiss the action. A hearing was held, and on February 6, 2002, the trial court entered an order dismissing the petition for failure to state a claim upon which relief could be granted. This appeal followed.

Mr. Anderson has a business located in the Village. His business is situated on property that he leases from a railroad. The Village claimed to have purchased the property from the railroad. On July 27, 2001, Mr. Anderson's attorney pursuant to section 610.023.3, RSMo 2000, sent a letter to the Village's attorney, Wayne Schirmer ("Mr.Schirmer"), requesting proof of the Village's ownership of the property. Mr. Schirmer responded to Mr. Anderson's request for information via a letter faxed to Mr. Anderson's attorney on July 30, 2001. Mr. Schirmer's letter requested a copy of the lease between Mr. Anderson and the railroad and a legal description of the property. He stated that he would contact the Village regarding Mr. Anderson's request once he received both items. At Mr. Anderson's request, the Attorney General sent a letter to the Village on August 14, 2001, requesting "any documentation of the city's ownership interest in current or former railroad property within the village limits of Jacksonville." The events that happened after that request are in dispute. Mr. Anderson claims that the Village did not respond to the Attorney General's request. The Village claims that it contacted the Attorney General's office via telephone to advise it that it was waiting for additional information from Mr. Anderson before replying to his request. No further communications between the Village and Mr. Anderson occurred. Mr. Anderson filed suit against the Village thereafter.

Mr. Anderson's petition contained two allegations. First, it alleged that two requests for documentation regarding the Village's ownership of the property were made. Second, the petition averred that the Village failed to respond to either request. The petition also alleged that the Village's failure to respond was purposeful, subjecting it to a civil fine and entitling Mr. Anderson to reasonable attorney's fees. § 610.027.3, RSMo 2000. As previously noted, the Village filed a motion to dismiss that the trial court sustained, and Mr. Anderson appeals the dismissal. The trial court's judgment did not provide the specific grounds for its decision sustaining the motion to dismiss.

Standard of Review

A motion to dismiss for failure to state a claim upon which relief can be granted is solely a test of the adequacy of the plaintiffs petition. Nazeri v. Mo. Valley Coll, 860 S.W.2d 303, 306 (Mo. banc 1993). For that reason, all averments in the petition are assumed to be true and are construed liberally and favorably to the plaintiff. Martin v. City of Washington, 848 S.W.2d 487, 489 (Mo. banc 1993). No attempt is made to weigh the factual allegations contained in the petition to determine whether they are credible or persuasive. Nazeri, 860 S.W.2d at 306. 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." Id. If a petition states any set of facts which, if proved, entitles the petitioner to relief, it should not be dismissed for failure to state a claim. Martin, 848 S.W.2d at 489. This court only sustains the dismissal of a petition if the petitioner "`fails to allege facts essential to a recovery.'" Hayward v. City of Independence, 967 S.W.2d 650, 653 (Mo.App. W.D.1998) (quoting Klemme v. Best, 941 S.W.2d 493, 495 (Mo. banc. 1997)).

Mr. Anderson's sole point on appeal is that the trial court erred in dismissing his petition because his petition alleged a valid cause of action under the Sunshine Law in that (a) Mr. Anderson made two requests for access to documentation regarding the Village's ownership of certain property; (b) the Village violated the Sunshine Law by refusing to provide access to the pertinent records within three business days of Mr. Anderson's request; and (c) the Village's actions in refusing access were purposeful thereby subjecting it to a civil fine and entitling Mr. Anderson to reasonable attorney's fees.

Initially, Mr. Anderson claims that the trial court erred in granting the Village's motion to dismiss because the Village failed to attach an affidavit or statement of uncontroverted facts to its motion. This argument fails because when ruling on a motion to dismiss for failure to state a cause of action, a trial court may only consider the pleadings. L.C. Dev. Co., v. Lincoln County, 26 S.W.3d 336, 339 (Mo. App. E.D.2000) (quoting Baker v. Biancavilla, 961 S.W.2d 123, 126 (Mo.App. W.D. 1998)). The Village was not required to attach an affidavit to its motion. In reviewing a motion to dismiss, moreover, the court treats all facts alleged in the pleading as true. Farm Bureau Town & Country Ins. Co. v. Angoff, 909 S.W.2d 348, 351 (Mo. banc 1995). The fact that the Village did not attach a statement of uncontroverted facts to its motion is irrelevant because the trial court considered all of the facts in Mr. Anderson's petition as true. Thus, the trial court did not err in considering solely the pleadings in granting the motion to dismiss.

Mr. Anderson alternatively claims that the trial court should have treated the motion to dismiss as one for summary judgment because matters outside the pleadings were considered. Although it is true that if information outside of the pleadings is presented to and not excluded by the court, the motion to dismiss shall be treated as one for summary judgment, Mr. Anderson did not identify any evidence in the record on appeal of this occurring. Rule 55.27(a); City of Chesterfield v. DeShetler Homes, Inc., 938 S.W.2d 671, 673 (Mo.App. E.D.1997). Mr. Anderson concedes, moreover, in his brief "that there was no evidence of any kind presented at the hearing for the Motion to Dismiss." Because no evidence outside of the pleadings was presented to the trial court, the motion was properly considered a motion to dismiss for failure to state a cause of action.

Language in the trial court's judgment implies that the court may have treated the motion to dismiss as one for summary judgment and, thereby, considered evidence pertinent to the allegations of the petition. The court stated: "the Court sustains the Defendant's Motion to Dismiss and judgment is granted to the Village of Jacksonville on the Petition for Damages for Violation of Sunshine Law as filed by the Plaintiff in the above styled case." The record does not support a conclusion that the trial court treated the motion to dismiss as a motion for summary judgment and considered evidence extraneous to the pleadings. The court's judgment granted the motion of the Village to dismiss the petition for failure to state a cause of action. Accordingly, this portion of the judgment should be deleted.

Mr. Anderson next claims that his petition alleged facts establishing a cause of action under the Sunshine Law, specifically section 610.023.3, RSMo 2000. To determine whether Mr. Anderson's petition stated a cause of action, pertinent provisions of section 610.023.3 RSMo 2000, are considered:

Each request for access to a public record shall be acted upon as soon as possible, but in no event later than the end of the third business day following the date the request is received by the custodian of records of a public governmental body. If access to the public record is not granted immediately, the custodian shall give a detailed explanation of the cause for further delay and the place and earliest time and date that the record will be available for inspection. This period for document production may exceed three days for reasonable cause.

Three elements are required to state a cause of action under section 610.023.3, RSMo 2000, where the basis for the claim is a governmental entity's refusal or failure to respond to a request made in accordance with the statute. The petitioner's petition must allege that (1) a request for access to a public record was made; (2) such request was received by the custodian of records; and (3) the custodian of records did not respond to the request within three business days of receiving the request.

As to the first element, Mr. Anderson's petition alleged that two requests for information pertaining to the Village's ownership of certain real property were made, one to Mr. Schirmer, the Village's attorney, and one to the Village itself. The Village counters that this portion of Mr. Anderson's petition fails to state a claim because it is ambiguous. Specifically, the Village challenges the form of the allegation regarding Mr. Anderson's request for access. It claims that...