Cherry v. City of Hayti Heights

• Decision Date: 13 March 1978
• Docket Number: No. 59950,59950
• Citation: 563 S.W.2d 72
• Parties: Virginia Lee CHERRY, Plaintiff-Respondent, v. The CITY OF HAYTI HEIGHTS and David Humes, Mayor, Defendants-Appellants, Mary Emma Branch, Tax Collector, Defendant.
• Court: Missouri Supreme Court

Page 72

563 S.W.2d 72

Virginia Lee CHERRY, Plaintiff-Respondent, v. The CITY OF HAYTI HEIGHTS and David Humes, Mayor Defendants-Appellants Mary Emma Branch, Tax Collector, Defendant.

No. 59950.

Supreme Court of Missouri, En Banc.

March 13, 1978.

Rehearing Denied April 10, 1978.

Shulamith Simon, Husch, Eppenberger, Donohue, Elson & Cornfeld, St. Louis, for appellants.

James E. Reeves, Ward & Reeves, Caruthersville, for respondent.

John D. Ashcroft, Atty. Gen., Dan P. Card, II, Asst. Atty. Gen., Jefferson City, for amici.

SEILER, Judge.

This case was transferred here by this court on application of defendants-appellants following a decision against them by the Springfield district of the court of appeals. We sustained the application to transfer because it raises questions of general interest and importance pertaining to a collateral challenge by a private party to the incorporation of a municipality and an alleged departure from established principles governing such challenges, where questions of laches, de facto incorporation, and absence of appeal from the order of incorporation are involved. We will treat the case as though it were here on original appeal. Mo.Const. Art. V, § 10.

Plaintiff Virginia Lee Cherry, to prevent the assessment and collection of taxes on her real property by the city of Hayti Heights, which result she seeks to obtain by striking at the legal existence of the city, filed her individual suit for declaratory judgment that the incorporation of the city of Hayti Heights by order of the Pemiscot County court on December 28, 1972, was invalid, and that defendant city and its officers should be enjoined from levying or otherwise asserting jurisdiction over her 121 acres of farm land located within the purported city limits. Plaintiff contended that because of claimed non-compliance with the statutory mandates for the incorporation of cities and towns, §§ 72.010 et seq. RSMo 1969, as amended, Supp.1975, the county court proceedings were null and void. The circuit court entered summary judgment in her favor. We reverse and direct entry of judgment in favor of defendants.

Defendants filed their answer, denying the alleged defects and insufficiencies of the incorporation proceedings. Defendants also pleaded the defense of laches on the part of plaintiff and failure on her part to appeal the ruling of the county court authorizing the incorporation election or its subsequent order of incorporation. Defendants, in addition, answered plaintiff's interrogatories. Plaintiff then filed a motion for summary judgment. Thereafter, defendants filed their motion to dismiss the petition for failure to state a claim upon which relief could be granted. Subsequently, defendants filed the affidavit of Mayor David Humes, of Hayti Heights, in opposition to plaintiff's motion for summary judgment and also in support of their motion to dismiss. No counter-affidavits were filed by plaintiff; rather, plaintiff at the hearing on the motions in the trial court offered in evidence as exhibits the answers of the defendants to the interrogatories, together with certain records of the county court, the latter being identified by the county clerk, who testified in person.

Where summary judgment proceedings are involved one rule is that "(t)he facts stated in the affidavits and exhibits filed by defendant (or plaintiff) in support of its motion for summary judgment to which plaintiff (or defendant) filed no verified denial stand admitted for the purpose of the motion for summary judgment," Dietrich v. Pulitzer Publishing Company, 422 S.W.2d 330, 333 (Mo.1968). "Once a motion for summary judgment is made and supported by affidavit, the adverse party can no longer rest on the mere allegations or denials in his pleadings, 'but his response, by affidavits or otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.' " Hurwitz v. Kohm, 516 S.W.2d 33, 36 (Mo.App.1974); See Waltz v. Cameron Mutual Ins. Co., 526 S.W.2d 340, 343 (Mo.App.1975). The foregoing applies in the case before us. Additionally, defendants, by filing the affidavit of Mayor Humes (which also stands uncontradicted by plaintiff) in support of their motion to dismiss, turned said motion into a "speaking" motion, which is expressly permitted by our rule 55.27(a), see Empiregas, Inc. v. Hoover Ball & Bearing Co., 507 S.W.2d 657, 660 n. 4 (Mo.1974). Rule 55.27(a) provides further that such a motion is to be treated as one for summary judgment and disposed of as provided for in the summary judgment rule, rule 74.04.

Thus, the case finds both sides moving for summary judgment and relying on the same proof with no significant dispute between them as to the facts set forth in the affidavits and the exhibits.

These facts are as follows:

At the October 17, 1971 regular meeting of the city council of Hayti, Missouri, a committee of citizens representing the contiguous but unannexed community of Hayti Heights visited the meeting and presented a petition for annexation of their community into the city limits of Hayti.

Their purpose was to secure water, sewer, fire and police protection, street improvements, garbage collection and other city services. The Hayti Heights community was located immediately west of Hayti. Therefore, under § 72.130, RSMo 1969, before it could be incorporated, it had first to request inclusion by extension of boundaries of the existing city, Hayti, and that failing, it could, after expiration of one year, seek incorporation of its own under § 72.080, RSMo 1969. As the incorporation ultimately worked out, the two communities lie side by side with a common boundary between much of the east side of Hayti Heights and the west side of Hayti.

At the October 17, 1971 meeting, the city attorney explained the legal procedure and limitations on the annexation of additional territory and the finances presently available to the city of Hayti. The citizens committee and aldermen then discussed their mutual desire and the various possible ways for the Hayti Heights community to receive the benefit of federal financial assistance, the committee being of the opinion that it might be advantageous to their community to incorporate as a separate city but that the consent of Hayti was a precondition thereto.

Whereupon the city of Hayti aldermen unanimously adopted a motion granting such consent and any other cooperation to aid the citizens of the Heights community in receiving much needed federal and state assistance for the municipal services which the city of Hayti was unable to provide.

A petition for incorporation with the requisite number of signatures was duly filed with the county court of Pemiscot County on November 13, 1972 ¹ and within 280 days following the date on which the first signature was affixed to the petition. ² The petition described by metes and bounds the area to be incorporated, was accompanied by a plat thereof, stated the approximate population of the area, the assessed valuation of all real and personal property therein and stated the facts and basis on which the proposed city would have the ability to furnish normal municipal services within a reasonable time after incorporation and prayed that an incorporation election be held. The county court thereupon ordered that an election be held on the question of incorporation on December 19, 1972, designated the polling places and the hours of election and appointed judges and clerks of the election. Notice of said election was published in a properly qualified weekly newspaper of general circulation in Pemiscot County, the Missouri Herald, on three consecutive Thursdays, November 30, December 7 and December 14, 1972, preceding the day of election. Promptly following the election, the county court canvassed the ballots and declared the results to be 350 votes in favor of incorporation and 16 opposed. On December 28, 1972, the county court entered its order declaring the City of Hayti Heights to be an incorporated municipality and by its further order of the same date designated the first officers mayor, aldermen and police chief of the town.

Immediately thereafter the city organized and proceeded to conduct municipal business. The first meeting of the city council was held on December 28, 1972 and meetings were held on a regular bi-monthly basis thereafter. A staff was employed, elections were held and real estate and personal property taxes, merchants taxes and license fees were assessed and collected. Plaintiff paid the city real property taxes on her 121 acres for the initial year of incorporation without objection.

Land was purchased by the city and a city hall was constructed. The city began to provide a panoply of municipal services, including full time police protection, fire protection, regular street maintenance, weekly garbage pick-up and street lighting. Regular elections for city officers were held in April 1973 and April 1974. A special election to replace an official was held in October, 1974.

The city received a $375,000 grant from the Economic Development Administration for the construction and installation of a complete water project to supply approved water to all land located within the corporate limits. It received a "Step I" grant from the Environmental Protection Agency and from the Missouri Clean Water Commission for the planning of a complete municipal sewer system. The city developed its own twenty-year comprehensive plan for proposed uses of all land within the city limits, including a proposed industrial site located on land owned by the plaintiff and abutting the right-of-way of the proposed state highway by-pass south of the city. The city entered into franchise agreements with the various utilities for electric power, telephone and natural gas services. It participates in the federal Revenue...