City of Ellisville v. Lohman, 71994
| Decision Date | 19 May 1998 |
| Docket Number | No. 71994,71994 |
| Citation | 972 S.W.2d 527 |
| Parties | CITY OF ELLISVILLE, Plaintiff, v. Janette M. LOHMAN, Director of Revenue, State of Missouri, et al., Defendants/Respondents, and City of Bridgeton, et al., Defendants-Appellants. |
| Court | Missouri Court of Appeals |
William Richter, Peper, Martin, Jensen, Maichel & Hetlage, St. Louis, for Appellant, City of Bridgeton.
Shulamith Simon, Schlueter & Byrne, St. Louis, for Appellants, Cities of Crestwood, Kirkwood and St. Ann.
W. Dudley McCarter, Behr, Mantovani, McCarter & Potter, P.C., Clayton, for Appellant, City of Creve Coeur.
Lloyd E. Eaker, Clayton, for Appellant, City of Jennings.
Katherine L. Butler, Eureka, for Appellants, Cities of Eureka and Valley Park.
F. Douglas O'Leary, Moser & Marsalek, St. Louis, for Appellant, City of Ladue.
Craig Biesterfeld, Peper, Martin, Jensen, Maichel & Hetlage, St. Louis, for Appellant, City of Maplewood.
Robert Spalding, Chesterfield, for Appellant, City of Peerless Park.
Frank Susman, Susman, Schermer, Rimmel & Shifrin, L.L.C., St. Louis, for Appellant, City of Pagedale.
Jeremiah W. (Jay) Nixon, Atty. Gen., Edward F. Downey, Asst. Atty. Gen., Jefferson City, for Respondent Lohman/State of Missouri.
John H. Ross, County Counselor, James J. White, Deputy County Counselor, Cynthia L. Hoemann, Asst. County Counselor, Clayton, for Respondent, St. Louis County.
Richard C. Bresnahan, Clayton, for Respondents, Cities of Beverly Hills and Ferguson and Village of Glen Echo Park.
Sarah A. Siegel, St. Louis, for Respondent, City of Clayton.
Kenneth J. Heinz, St. Louis, for Respondents, Cities of Florissant, Richmond Heights and Town and Country.
Thomas M. Flach, Kell, Flach & Miller, St. Charles, for Respondents, Cities of Northwoods and Pine Lawn and Village of Uplands Park.
Helmut Starr, Suelthaus & Walsh, P.C., St. Louis, for Respondents, City of Oakland and City of Webster Groves.
Patrick R. Gunn, St. Louis, for Respondent, City of Manchester.
Jerry J. Murphy, Reid, Murphy, and Tobben, St. Louis, for Respondents, City of Shrewsbury and Brentwood.
John Mulligan, Clayton, for Respondent, City of University City.
John B. Gray, Florissant, for Respondent City of Woodson Terrace.
Elbert A. Walton, Jr., St. Louis, for Respondent, City of Berkeley.
Timothy James Walk, St. Louis, for Respondent, City of Breckenridge Hills.
Robert Herman, Schwartz, Herman & Davidson, St. Louis, for Respondent, City of Overland.
Peter von Gontard, Sandberg, Phoenix & von Gontard, St. Louis, for Respondent, City of Huntleigh.
Jerome Wallach, Wallach Law Firm, St. Louis, for Respondent, City of Fenton.
Mark F. Haywood, Lafollette, Johnson, Dehaas & Fesler, Clayton, for Respondents, City of Flordell Hills and Pasadena Park.
Carl F. Kohnen, Florissant, for Respondent, Village of Calverton Park.
Helton Reed, Jr., St. Louis, for Respondent, City of Moline Acres.
Donald Kenneth Anderson, Jr., Law Offices of Donald K. Anderson, St. Louis, for Relator City of Ellisville.
Kevin M. O'Keefe, Corinne N. Darvish, Uthoff, Graeber, Bobinette & O'Keefe, St. Louis, for Respondents, Bel-Nor, Bel-Ridge, Bellefontaine Neighbors, Bellerive, Cool Valley, Des Peres, Norwood Court, Pasadena Hills, Riverview, Sycamore Hills, Twin Oaks, Vinita Park, Vinita Terrace, Warson Woods & Wilbur Park.
Douglas R. Beach, Beach, Burcke, Helfers & Mittleman, L.L.C., Clayton, for Respondents, Chesterfield and Normandy.
Howard Paperner, DeVoto, Paperner, DeVoto & Nalick, St. Louis, for Respondents Maryland Heights and Winchester.
This case involves a dispute over the amount of motor vehicle sales tax and use tax distributed by the Missouri Department of Revenue to St. Louis County and the ninety municipalities located wholly or partially therein. Bridgeton, Creve Coeur, Crestwood, Kirkwood, St. Ann, Eureka, Rock Hill, Valley Park, Jennings, Ladue, Maplewood, Peerless Park and Pagedale (appellants) appeal from a judgment entered by the Honorable Robert Campbell on December 11, 1996 granting the various motions of St. Louis County, Director of the Missouri Department of Revenue (Director), Bellefontaine Neighbors, Bellerive, Bel-Nor, Bel-Ridge, Black Jack, Brentwood, Calverton Park, Chesterfield, Clayton, Des Peres, Ferguson, Florissant, Hanley Hills, Manchester, Maryland Heights, Northwoods, Norwood Court, Oakland, Overland, Pasadena Hills, Pine Lawn, Richmond Heights, Riverview, Shrewsbury, Sycamore Hills, Town & Country, Twin Oaks, Uplands Park, Vinita Park, Vinita Terrace, Warson Woods, Webster Groves, Wilbur Park, Winchester, and Woodson Terrace (hereinafter defendants) to dismiss the cross-claims of appellants, Breckenridge Hills, Frontenac, Grantwood Village, Hazelwood, Olivette, Pacific, Rock Hill, St. John, and Sunset Hills against St. Louis County, Director, and other municipalities in St. Louis County for "failure to commence action within [the] three year period of limitations."
On appeal, appellants contend the trial court erred in: (1) entering judgment in favor of defendants on the ground that the three year statute of limitations set out in Section 516.130, RSMo 1994 (all future references will be to RSMo 1994 unless otherwise noted), barred their claim because the applicable limitations period is five years, as provided in Section 516.120(1) and (2), for actions upon obligations or liabilities or upon a liability created by statute and the appellants' claims were timely under Section 516.120; and (2) denying their motions for summary judgment as to respondent Director because appellants were entitled to judgment as a matter of law in that the disputed material facts established that Director, for the period from April 1, 1988 through October, 1989, failed to comply with Missouri Law 444-7, House Bill 210, which amended the distribution formula for St. Louis County's local sales tax distributions to its municipalities, and that during such period appellants were paid less than the amount of sales and use tax to which they were entitled. In their second point, appellants also contend that the defenses raised by Director, the failure of the Missouri Legislature to appropriate funds to implement the revised distribution formula, sovereign immunity and the three-year statute of limitations, are without basis in law.
Additionally, respondent St. Louis County and other respondents have moved to dismiss the appeals of Eureka, Peerless Park, Crestwood, Kirkwood, and St. Ann, alleging that: (1) Eureka should not be allowed to take the position that Ellisville's second amended petition is not barred by the statute of limitations after raising the three-year statute of limitations as a defense to Ellisville's second amended petition; (2) Peerless Park's claim is time barred even if the court applies the five-year statute of limitations; and (3) the appeals of Crestwood, Kirkwood, and St. Ann should be dismissed because they never filed a counter-claim or cross-claim. This motion was taken with the case.
When reviewing the dismissal of a cause of action, 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. City of Chesterfield v. Deshetler Homes, 938 S.W.2d 671, 673 (Mo.App.1997). The trial court's dismissal of an action will be affirmed if any ground supports the motion, regardless of whether the trial court relied on that ground. W.B. v. M.G.R., 905 S.W.2d 134, 136 (Mo.App.1995). If it clearly appears that the cause of action is barred by time limitations, the motion to dismiss is properly sustained. Klemme v. Best, 941 S.W.2d 493, 497 (Mo.banc 1997).
A defense of statute of limitations is an affirmative defense and must be pleaded. Rule 55.08. A motion to dismiss properly raises the defense of statute of limitations when it is clear from the face of the petition that the action is barred by time limitations. Heintz v. Swimmer, 922 S.W.2d 772, 775 (Mo.App.1996). If the statute of limitations is raised as an affirmative defense, the trial court may not dismiss the petition unless it is clearly established on the petition's face and without exception that the cause of action is time barred. H.R.B. v. J.L.G., 913 S.W.2d 92, 96 (Mo.App.1995).
In 1987, our legislature passed Missouri Law 444-7, House Bill 210, which amended the distribution formula for St. Louis County's local sales tax distributions to municipalities within St. Louis County. The law repealed Sections 66.620, 66.630, 67.550, 67.724, 67.729 and 94.700 (RSMo 1986) and enacted Sections 66.620, 66.630, 67.547, 67.550, 67.701, 67.713, 67.724, 67.729, 94.700.1--94.700.14 (Supp.1987).
Section 66.620 provides a mechanism for the distribution of county sales taxes collected by Director on behalf of any county. For the purposes of distributing the county sales tax, governmental entities are divided into two units, "Group A" and "Group B." Group A consists of cities, towns, and villages located wholly or partly within a county that had city sales taxes in effect under the provisions of Sections 94.500 to 94.570, on the day prior to the effective date (April 1, 1988) of the county sales tax ordinance. Group B consists of all other cities, towns, and villages located wholly or partly within a county that had no city sales taxes in effect under the provisions of Sections 94.500 to 94.570, on the day prior to the effective date, April 1, 1988, of Section 66.620. Section 66.630 provides for distributions in St. Louis County and states that, effective April 1, 1988, seventy-five percent of the distributable sales tax revenue shall be distributed in accordance with Section 66.620 and the remaining twenty-five percent shall be distributed monthly to each city, town, or village and the...
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