City of Branson v. Hotels.com, LP
| Decision Date | 23 January 2013 |
| Docket Number | No. SD31854,SD31854 |
| Parties | CITY OF BRANSON, Appellant, v. HOTELS.COM, LP; HOTWIRE, INC.; TRIP NETWORK, INC. (d/b/a CHEAP TICKETS.COM); TRAVELPORT, INC. (f/k/a CENDANT TRAVEL DISTRIBUTION SERVICES GROUP, INC.); EXPEDIA, INC.; INTERNETWORK PUBLISHING CORP. (d/b/a LODGING.COM); LOWESTFARE.COM, INCORPORATED; MAUPIN-TOUR HOLDING, LLC; ORBITZ, LLC; PRICELINE.COM INCORPORATED; SITE59.COM, LLC; TRAVELOCITY.COM, LP; TRAVELWEB LLC; TRAVELNOW.COM, INC.; TRAVELZOO, INC.; and INTERACTIVE HOTEL SOLUTIONS, INC., Respondents. |
| Court | Missouri Court of Appeals |
APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY
AFFIRMED.
City of Branson ("Branson") appeals the trial court's grant of a motion to dismiss filed by Hotels.com, L.P., et al.,1 which dismissed with prejudice all counts of Branson's "FIRSTAMENDED PETITION." Branson now asserts two points relied on relating to the dismissal for failure to state a cause of action, as well as the trial court's reliance on a recent case from the Supreme Court of Missouri. We affirm the judgment of the trial court.
On December 28, 2006, Branson filed its initial petition against the OTCs; an amended petition was thereafter filed on January 23, 2007. The amended petition set out that Branson's Municipal Code ("the Code") granted Branson the right to impose a four percent tourism tax on the gross proceeds from the rental of hotel rooms and other accommodations within its boundaries.2 Specifically, section 82-152(1)(a) of the Code required:
Every person engaged in the business of renting, leasing or letting living quarters, sleeping accommodations, rooms or a part thereof in connection with any hotel, motel, condominium unit, timeshare interest in condominiums, campground or tourist court, all as defined in this subsection, shall collect at the time of sale or consumption and pay to the city a tourism tax equal to four percent of the price paid or charged by transient guests.
The collection duties for this four percent tourism tax were then set out in section 82-159(a) of the Code:
Accordingly, Branson argued that because "seller" is defined in section 82-151 of the Code as "the person selling or furnishing tangible personal property or rendering services . . . [,]" the OTCs, who engage "'in the business of renting, leasing or letting living quarters, sleeping accommodations, rooms or a part thereof' were required to collect the full tourism taxes from the consumers of the rooms and pay them to [Branson]." As a result, Branson alleged in Count I "DECLARATORY JUDGMENT" that "the Tourism Tax is lawful and enforceable against the [OTCs]"; in Count II that a "VIOLATION OF TOURISM TAX ORDINANCE" would entitle it to the difference in the amount of taxes paid and those owed; and in Count III "CONVERSION" that the OTCs "willfully, wantonly, and with conscious disregard . . ." took money owed to Branson under the tourism tax ordinance.
On July 29, 2011, the OTCs filed a motion to dismiss the amended petition on the basis that Branson's petition failed "to state a claim upon which relief can be granted[]" due to the legislature's enactment of section 67.662, RSMo Cum. Supp. 2010,3 which "expressly provides that Missouri's tourism tax statutes and ordinances do not apply—and never applied—to the OTCs." Section 67.662 provides:
Notwithstanding any other provisions of law to the contrary, any tax imposed or collected by any municipality, any county, or any local taxing entity on or related to any transient accommodations, whether imposed as a hotel tax, occupancy tax, or otherwise, shall apply solely to amounts actually received by the operator of a hotel, motel, tavern, inn, tourist cabin, tourist camp, or other place in which rooms are furnished to the public. Under no circumstances shall a travel agent or intermediary be deemed an operator of a hotel, motel, tavern, inn, tourist cabin, tourist camp, or other place in which rooms are furnished to the public unless such travel agent or intermediary actually operates such a facility. This section shall not apply if the purchaser of such rooms is an entity which is exempt from payment of such tax. This section is intended to clarify that taxes imposed as a hotel tax, occupancy tax, or otherwise shall apply solely to amounts received by operators, as enacted in the statutes authorizing such taxes.
(Emphasis added). The OTCs further argued dismissal was warranted based on the Supreme Court of Missouri's decision in St. Louis Cty. v. Prestige Travel, Inc., 344 S.W.3d 708 (Mo. banc 2011), wherein the court dismissed a lawsuit against some of the same OTCs for violation of a similar ordinance.
On September 13, 2011, Branson filed its suggestions in opposition to the motion to dismiss. In its suggestions, Branson argued its petition should not be dismissed as it "will [s]how that the OTCs are 'Operators' as that term is used in [s]ection 67.662[,] and therefore, required to remit tax to [Branson]." In support of that argument, Branson maintained under the "merchant model" of business that it could prove the OTCs "controlled" and/or "directed" hotel rooms be furnished to customers, thereby making them "operators" under section 67.662. It further argued the Supreme Court's decision in Prestige Travel is distinguishable from the present matter.
On January 26, 2012, a hearing was held on the OTCs' motion to dismiss. On March 4, 2012, without a stated explanation for its reasoning, the trial court dismissed Branson's "First Amended Petition and all counts thereof" with prejudice. This timely appeal followed.
Branson presents the following points relied on:
This Court reviews a trial court's decision to grant a motion to dismiss under a de novo standard of review. Ryann Spencer Group, Inc. v. Assurance Co. of America, 275 S.W.3d 284, 287 (Mo.App. E.D. 2008). "When reviewing the dismissal, we examine the pleadings, allowing the broadest intendment, treating all alleged facts as true, and construing the allegations in favor of the pleader, to determine whether they involve principles of substantive law." Id. "A court reviews the petition '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.'" City of Lake Saint Louis v. City of O'Fallon, 324 S.W.3d 756, 759 (Mo. banc 2010) (quoting Nazeri v. Mo. Valley Coll., 860 S.W.2d 303, 306 (Mo. banc 1993)). Id. "In order to avoid dismissal, the 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.'" Coons v. Berry, 304 S.W.3d 215, 217-18 (Mo.App. W.D. 2009) (). "'In ruling on a motion to dismiss, the trial court can only consider the pleadings, and appellate review is also limited to the pleadings.'" Atkins v. Jester, 309 S.W.3d 418, 422 (Mo.App. S.D. 2010) (quoting L.C. Dev. Co. v. Lincoln Cty., 26 S.W.3d 336, 339 (Mo.App. E.D. 2000)). Since the trial court did not state its reasons for granting the motion to dismiss, we presume dismissal was based upon one of the grounds presented, and will affirm the dismissal if any ground can sustain the court's action. Wenthe v. Willis Corroon Corp., 932 S.W.2d 791, 793-94 (Mo.App. E.D. 1996).
Branson's contention under this point relied on is that it can demonstrate that the OTCs "control" hotel rooms such that section 67.662 does not preclude its claims and, in the alternative, that "the merchant model" of business applies in this case such that the statute does not impede the lawsuit from continuing....
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