City of Kansas City v. Mary Don Co.

• Decision Date: 01 October 1980
• Docket Number: No. WD 31192.,WD 31192.
• Citation: 606 S.W.2d 411
• Parties: CITY OF KANSAS CITY, Missouri, Appellant, v. MARY DON COMPANY et al., Respondents.
• Court: Missouri Court of Appeals

606 S.W.2d 411

CITY OF KANSAS CITY, Missouri, Appellant, v. MARY DON COMPANY et al., Respondents.

No. WD 31192.

Missouri Court of Appeals, Western District.

September 2, 1980.

Motion for Rehearing and/or Transfer Denied October 1, 1980.

Aaron A. Wilson, City Atty., James C. Bowers, Jr., Barbara A. Schenkenberg, William D. Geary, Asst. City Attys., Kansas City, for appellant.

James M. Thompson, Philip C. Ehli, Kansas City, for respondents.

Robert H. Freilich, Kansas City, for amicus curiae movants.

Before CLARK, P. J., and DIXON and SOMERVILLE, JJ.

Motion for Rehearing and/or Transfer to Supreme Court Denied October 1, 1980.

SOMERVILLE, Judge.

The appellant in this case is the City of Kansas City, Missouri, a municipal corporation (City). The respondents are Mary Don Company, a Missouri corporation, and three individuals who comprise its officers and board of directors (collectively Mary Don).

The City filed a petition in the Circuit Court of Jackson County against Mary Don seeking injunctive relief. The trial court, pursuant to a motion to dismiss filed by Mary Don, dismissed the City's petition. Although Mary Don predicated its motion to dismiss on seven (7) alternate grounds, the order of the trial court dismissing the City's petition was wholly lacking in specificity as it merely recited that Mary Don's "Motion to Dismiss . . . is, by the court, sustained."

Reduction of the City's petition to its simplest terms justifies the following recapitulation: the City had duly enacted ordinances for the promotion of the health, safety, convenience, comfort, morals, prosperity and general welfare of the public, among which were ordinances governing construction and maintenance of residential buildings and premises, declaration and abatement of nuisances, littering, and control of weeds; the ordinances referred to consisted of Committee Substitute for Ordinance No. 25020, as amended, commonly called the Building Code, Chapter 20, Code of General Ordinances of Kansas City, Missouri (the Property Maintenance Code), Chapter 25, Code of General Ordinances of Kansas City, Missouri (Nuisances), Chapter 16, Code of General Ordinances, Article III (Littering), and Chapter 18, Code of General Ordinances, Article VIII (Weeds and Noxious Plants); Mary Don owned numerous residential, rental properties at various locations in the city upon which existed more than 103 violations of various ordinances heretofore listed; Mary Don failed to abate said violations after being given notice and an opportunity for a hearing; the substandard conditions on Mary Don's properties "are of long duration . . . constitute a severe blighting influence on the neighborhoods in which they exist . . . and depress values of surrounding properties"; specific facts were averred showing the location, type and nature of the claimed ordinance violations, which averments, liberally construed, also pleaded the maintenance of a public nuisance; the City, to no avail, had expended substantial amounts of time and money in an effort to obtain compliance by Mary Don with the requirements of said ordinances; the City had pursued its administrative and legal remedies against Mary Don to secure compliance with said ordinances, but Mary Don had failed and refused to abate said conditions and the City therefore was without an adequate remedy at law; the City's only alternative to injunctive relief is continuous, multiple prosecutions in the Municipal Court of Kansas City, Missouri, which lacks authority or jurisdiction to compel Mary Don to bring its properties into compliance with said ordinances; and the City prayed for a mandatory injunction ordering Mary Don to "abate the violations of City Ordinances existing upon their properties at the time of such injunction, and ordering them to refrain from future violations of the City's . . . ordinances upon their said properties", and further prayed "for such other and further relief as to the Court in the premises seems just . . . ."

As garnered from Mary Don's motion to dismiss and the briefs of the respective parties, the appeal may be summed up as revolving around three points, namely, (1) whether the City's petition failed to state a claim because the ordinances purportedly relied upon were not pleaded in haec verba or attached as exhibits to said petition, (2) whether the City by its petition was merely seeking to enjoin the violation of certain quasi-criminal ordinances-an area in which courts of equity have historically refused to entertain jurisdiction, and (3) whether the City had an adequate remedy at law since Mary Don could be prosecuted in municipal court for any alleged ordinance violations and, if found guilty, subjected to substantial penalties.

In reviewing on appeal whether the City's petition stated a cause of action this court gives the petition its broadest intendment, accepts all facts averred therein as true, construes all averments liberally and favorably to the City and determines whether the averments invoked principles of substantive law upon which relief could be granted to the City. Concerned Parents v. Caruthersville Sch. D., 548 S.W.2d 554, 558 (Mo. banc 1977); Shapiro v. Columbia Un. Nat. Bk. & Tr. Co., 576 S.W.2d 310, 312 (Mo. banc 1978) cert. denied 444 U.S. 831, 100 S.Ct. 60, 62 L.Ed.2d 40 (1979); and Sutton v. Sutton, 567 S.W.2d 147, 147-48 (Mo.App.1978). The City's petition, although imperfectly or defectively stated, is not subject to dismissal if its allegations invoke substantive principles of law which may entitle the City to relief. Schnabel v. Taft Broadcasting Company, Inc., 525 S.W.2d 819, 821 (Mo.App.1975); and Ingalls v. Neufeld, 487 S.W.2d 52, 54 (Mo.App. 1972). Concomitantly, the City's general prayer for relief-"for such other and further relief as to the Court in the premises seems just"-brings into consideration the following principle enunciated in Cannon v. Bingman, 383 S.W.2d 169, 173 (Mo.App. 1964): "A general prayer for relief permits the balancing of all the equities which are within the scope of the pleadings and the evidence; for once rightfully in possession of a case the court will not relinquish it short of doing complete justice, so that there may be a full and complete determination of the rights and liabilities of the parties in respect to the controversy involved." See also In Re Marriage of Morriss, 573 S.W.2d 101, 103 (Mo.App.1978).

It is also important at the outset to take cognizance of what constitutes a public nuisance. For this purpose, attention is directed to the broad definition subscribed to in State ex rel. Collet v. Errington, 317 S.W.2d 326, 331 (Mo.1958), cert. denied 359 U.S. 992, 79 S.Ct. 1122, 3 L.Ed.2d 980 (1959): "`A public or common nuisance is an offense against the public order and economy of the state by unlawfully doing any act or by omitting to perform any duty which the common good, public decency, or morals, or the public right to life, health, and the use of property requires, and which at the same time annoys, injures, endangers, renders insecure, interferes with, or obstructs the rights or property of the whole community, or neighborhood, or of any considerable number of persons, even though the extent of the annoyance, injury or damage may be unequal or may vary in its effect upon individuals.'"

Whether the City's petition failed to state a claim because the ordinances alleged therein were inadequately pleaded is posed by the respective briefs in a rather imprecise and convoluted manner....