Camden County ex rel. Camden County Com'n v. Lake of Ozarks Council of Local Governments

• Decision Date: 16 March 2009
• Docket Number: No. SD 29045.,SD 29045.
• Citation: 282 S.W.3d 850
• Parties: CAMDEN COUNTY, Missouri by and through the CAMDEN COUNTY COMMISSION, et al., Petitioner-Appellant, v. LAKE OF the OZARKS COUNCIL OF LOCAL GOVERNMENTS, et al., Respondents.
• Court: Missouri Court of Appeals

282 S.W.3d 850

CAMDEN COUNTY, Missouri by and through the CAMDEN COUNTY COMMISSION, et al., Petitioner-Appellant, v. LAKE OF the OZARKS COUNCIL OF LOCAL GOVERNMENTS, et al., Respondents.

No. SD 29045.

Missouri Court of Appeals, Southern District, Division Two.

March 16, 2009.

Ivan L. Schraeder, St. Louis, MO, for Appellant.

Marc H. Ellinger, Jefferson City, MO, for Respondents Lake of the Ozarks Council of Local Governments and James Dickerson in his Official Capacity.

Erin E. Lary, Springfield, MO, for Respondents James Dickerson Individually, Ron Lee, Robert O'Keefe, Jim Halloran, Bill Huskerson, and Wayne Morgan.

Conway L. Hawn, Salem, MO, for Respondent Anita Ivey.

DON E. BURRELL, Presiding Judge.

Camden County, Missouri ("County") appeals the dismissal of its petition against the Lake of the Ozarks Council of Local Governments ("Council"), its executive director, and seven individuals who allegedly held themselves out as members of Council's board and executive committee. By means of its rulings on a series of piecemeal motions to dismiss various portions of County's nine-count petition brought over time by various defendants,¹ the trial court ultimately dismissed all of County's claims. Because the factual averments of County's petition were not sufficient to state any claim for which relief could be granted, we affirm.

I. Standard of Review

In reviewing a circuit court's dismissal of a petition, we must determine if the petition states any ground for relief, treating the facts pleaded as true and reasonably construing all inferences in favor of the appellant. Kanagawa v. State, 685 S.W.2d 831, 834 (Mo. banc 1985). "Where a trial court fails to state a basis for its dismissal, we presume the dismissal is based on the grounds stated in the motion to dismiss," but must affirm the dismissal if it can be sustained on any ground supported by the motion to dismiss. Berkowski v. St. Louis County Bd. of Election Comm'rs, 854 S.W.2d 819, 823 (Mo.App. E.D.1993); Keys v. Nigro, 913 S.W.2d 947, 951 (Mo.App. W.D.1996). "Conclusory allegations of fact and legal conclusions are not considered in determining whether a petition states a claim upon which relief can be granted." Willamette Indus., Inc. v. Clean Water Comm'n, 34 S.W.3d 197, 200 (Mo.App. W.D.2000). The rules of civil procedure "demand more than mere conclusions that the pleader alleges without supporting facts." Pulitzer Publ'g Co. v. Transit Cas. Co., 43 S.W.3d 293, 302 (Mo. banc 2001). Such conclusions are to be disregarded in determining whether a petition states a claim. Solberg v. Graven, 174 S.W.3d 695, 699 (Mo.App. S.D.2005).

II. Facts and Procedural Background

At the outset, we note that County's statement of facts violates Rule 84 by not constituting "a fair and concise statement of the facts ... without argument." Rule 84.04(c).² Nevertheless, because the issue before us is the sufficiency of the petition on its face, we exercise our discretion to review the appeal on its merits and not dismiss it based on the rule violation.

County filed a nine-count, forty-one page petition against: 1) Council; 2) James R. Dickerson in his official capacity (as Council's executive director); and 3) Dickerson, Anita Ivey, Ron Lee, Robert O'Keefe, Jim Halloran, Bill Huskerson, and Wayne Morgan in their individual capacities (collectively "Respondents"). County's lengthy, rambling petition averred a disorganized mixture of conclusory facts and legal conclusions. We have construed County's petition as an attempt to first set forth the various statutes and bylaws that govern Council then allege how Respondents acted in contravention to those statutes and bylaws. The following is a summary of County's allegations and the statutes and rules that govern them.

A. Statutory Guidelines

Council was created pursuant to the State and Regional Planning and Community Development Act, sections 251.150-440. That Act provided that Council's "membership composition ... shall be in accordance with resolutions approved by the governing bodies of the local units in the region.... For the purposes of this determination, a county shall be as one local unit...."³ Section 251.250. The identity of other persons or entities that comprised the membership of Council is neither alleged in County's brief nor apparent from the record.

Council is required by statute to make an annual report of its activities to the legislative bodies of the local governmental units within the region, to members of the general assembly elected from districts lying wholly or partially within the region, and to the state department of economic development. Sections 251.310, 251.160. Council is to make and adopt a comprehensive plan for the development of the region, which shall be certified to the local governmental units within the region. Sections 251.320-350. Council "shall keep a record of its resolutions, transactions, findings, and determinations, which shall be a public record." Section 251.270. No compensation shall be paid to members of Council except for reimbursement of actual expenses. Section 251.260. In addition to these statutory requirements, Council also established its own rules of procedure which it adopted pursuant to statute and set forth in a document entitled Lake of the Ozarks Council of Local Governments By-Laws ("bylaws"). Section 251.270.

B. Council's Bylaws

County alleged Council adopted its bylaws:

to govern its operations, to establish offices, to set out its authority consistent with state law, to regulate membership, for the conduct of meetings, for elections and qualifications of elected officers and staff, for the duties of officers and the executive director, for committees, for fiscal controls including budget, and for other activities.

Bylaws section 7.1 directed that "[Council] shall have a board of directors composed of five members from each county. Two of those members shall be elected officials and the other three shall be representatives of the private sector or community-based organizations." "The board shall meet at least quarterly." Under section 7.1a, "[t]he Executive Committee shall be chosen by the Council to transact the business of the Council for the Council except as provided herein. The Executive Committee shall be composed of eleven members, one of which will be a non-elected voting member and one of which will be a representative of minorities." Section 5.1 designated the following officers to be chosen by the members: 1) chairman; 2) vice chairman; 3) secretary; and 4) treasurer.

Under section 6.1, "[t]he executive director shall be the chief administrative officer of the Council and shall be in charge of and responsible for all professional planning work and of the administrative functions and offices of the Council." The executive director is to prepare an annual budget and present it to the Executive Committee pursuant to section 9.5.

Pursuant to section 4.1, all of Council's meetings are required to be public meetings. Council is required to keep minutes of its meetings and attach a copy of them to the notice of its next meeting. Under section 9.1, voting members of the Council were to be assessed dues on an annual basis to provide for the financial support of the Council.

C. Allegations Against Council and Dickerson in His Official Capacity

Dickerson is the executive director of Council. County's petition accused Council and its executive director of the following misdeeds: There is no record that Dickerson filed an annual budget (as required by bylaws section 9.5) for the last several years. Council has not made the annual reports required under section 251.310 in several years. Council has failed to maintain: notices; proof of service of notices and agendas; advance meeting agendas included as a part of a meeting notice; meeting agendas; accurate minutes of meetings; approval of minutes; record roll-call votes on matters decided by Council; information related to the subject matter of closed meetings conducted by Council and action taken during such meetings; and information of other activities conducted by authorized subunits of Council. Council failed to provide minutes of meetings to absent members and failed to permit absent members from casting absentee votes which they are required to allow under bylaws sections 4.5 and 4.6. Further, County alleges that Council has failed to collect dues from any member except County, which has paid assessments to Council since Council was created.

Dickerson has entered into service arrangements with several organizations on behalf of Council without authority to do so, including Lake Ozark 21 st Century Fund (which he either owns or is an agent of) and County, to gain personally from the financial transactions and services to be performed. He has failed to reimburse Council monies other entities paid him for services when Council had already compensated him via his salary.

Dickerson executed a contract obtaining grant funds from the Missouri Department of Elementary and Secondary Education on behalf of County without its authorization. He has failed to participate in the Missouri Association of Councils of Governments (MACOG) by failing to attend meetings and pay dues, resulting in MACOG removing Council and County from participating in MACOG; thereby cutting off County's access to certain federal funds. Dickerson worked with Janet Vaughn, who held herself out to be an agent for County, to obtain funds from the State of Missouri and the Missouri Department of Elementary and Secondary Education in County's name without its permission in order to advance certain programs through which Dickerson and Vaughn personally gained.

D. Allegations Against Certain Respondents in Their Individual Capacities

County's petition contends that O'Keefe, Halloran, Huskerson, and Morgan are not elected officials, are not representatives of County, have not been nominated by County or any participating...