City of Kirkwood v. City of Sunset Hills

Decision Date21 August 1979
Docket Number40804 and 40863,40677,40676,Nos. 40603,40735,s. 40603
Citation589 S.W.2d 31
PartiesCITY OF KIRKWOOD, Missouri, a Municipal Corporation, Plaintiff-Appellant, v. CITY OF SUNSET HILLS, Missouri, a Municipal Corporation, Defendant-Respondent.
CourtMissouri Court of Appeals

Robert B. Hoemeke, Evans, Hoemeke, Casey & McGhee, St. Louis, for plaintiff-appellant.

Robert C. Jones, Ziercher, Hocker, Tzinberg, Human & Michenfelder, Clayton, for defendant-respondent.

KELLY, Judge.

This is a consolidated appeal from two judgments entered in two divisions of the St. Louis County Circuit Court the subject matter of which, reduced to simple terms, is whether the City of Kirkwood (hereinafter Kirkwood), a city of the third class, may legally acquire and operate a public swimming pool and recreational facility within the city limits of the City of Sunset Hills (hereinafter Sunset Hills), a city of the fourth class.

The facts are that the two cities adjoin, Kirkwood's southern city limits abutting onto the northern city limits of Sunset Hills. Kirkwood commenced negotiations with Mr. and Mrs. Kermit Reed for the purchase of their property known as Club Fountainbleau which is located within the city limits of Sunset Hills but which abuts Emmenegger Nature Park which is situate within the city limits of Kirkwood, and owned by Kirkwood. These negotiations continued over a period of approximately one and one-half years and while they were in progress representatives of Kirkwood met on two occasions with representatives of Sunset Hills in January of 1977 for the purpose of discussing the possibility of Kirkwood and Sunset Hills purchasing and using the Reed property jointly. As early as September 17, 1976, Sunset Hills had informed Kirkwood of its own interest in purchasing the property.

At this stage of the negotiations Kirkwood officials proceeded with an initial reading of an ordinance authorizing the purchase of the Club Fountainbleau property at a regularly scheduled meeting of the Kirkwood City Council. The second and third readings of the ordinance were to take place at the meeting of the Kirkwood City Council on February 3, 1977.

On January 26, 1977, the Mayor of Sunset Hills sent a letter informing Kirkwood officials that Sunset Hills was not interested in purchasing the property, and on February 1, 1977, the Sunset Hills Board of Aldermen introduced Ordinance No. 622, read it three times, and enacted it. According to the terms of this ordinance the creation, maintenance or operation of any public recreational facility, or swimming pool within the City, except by the City itself, was prohibited. Excluded from the prohibition of the ordinance was property being so used by a private owner or operator at the time of its adoption. A police officer of Sunset Hills delivered a copy of the ordinance to the Kirkwood officials on February 2, 1977, and at the regular meeting of the Kirkwood City Council on February 3, 1977, the Kirkwood ordinance for the acquisition of the property was tabled and the City Attorney was directed to contest the validity of Sunset Hills Ordinance No. 622 and to obtain a determination of Kirkwood's rights were it to purchase the Club Fountainbleau property.

On February 25, 1977, Kirkwood instituted a suit praying for a declaration of its rights under §§ 77.140 and 90.010 RSMo. 1969 1 and whether it could acquire property for parks or pleasure grounds outside its city limits, and if so, its rights to control the use of said property for parks or pleasure grounds immune from the jurisdiction of the city wherein said property should be situate, and for a declaration that Ordinance No. 622 of Sunset Hills was void, illegal and without force and effect.

After the issues in this action were joined, the parties each filed motions for summary judgment, but Kirkwood alone supported its motions with affidavits. Sunset Hills submitted exhibits. The motions were submitted to the trial court without further evidence, and on December 21, 1977, a judgment was entered sustaining both parties' motions. This judgment declared that § 90.010 gave Kirkwood the power to acquire, for the purposes mentioned therein, property located in Sunset Hills; it did not rule on that portion of Kirkwood's prayer with respect to its rights to control the use of said parks or pleasure grounds immune from jurisdiction of Sunset Hills unless its holding can be construed as a ruling on that issue. As to the validity of Ordinance No. 622, the judgment reads:

Ordinance 622 of the City of Sunset Hills cannot be and is not now by this judgment being held invalid under the general attack levied against it as being 'without legal force or effect' and 'void, illegal and contrary to the laws of the State of Missouri.' Whether it could be successfully attacked on other or more specific grounds is not being ruled by this judgment. Nor does this Court rule any issue which might be raised after action by the defendants under Ordinance 622.

Thereafter, on January 26, 1978, Kirkwood passed Ordinance No. 6231 authorizing the purchase of the Club Fontainbleau property and on February 17, 1978, the sale was closed. A pool care contract was entered into with a professional maintenance company and letters were sent to Sunset Hills' Director of Public Health and City Attorney informing them of the intention of Kirkwood to open the pool facility for the summer of 1978.

On May 5, 1978, Sunset Hills filed an action seeking a temporary restraining order, a preliminary injunction and a permanent injunction to prevent Kirkwood from proceeding with the opening of the pool and the operation of the recreational facility. No temporary restraining order or temporary injunction issued, and the cause came on for trial on May 24, 1978. The trial court took judicial notice of the file in the prior declaratory judgment action, evidence was adduced, and on June 29, 1978, a judgment was entered enjoining Kirkwood permanently from creating, maintaining or operating a public recreational facility or public swimming pool on the property.

Kirkwood filed a timely notice of appeal from this judgment on August 24, 1978, and this court granted it leave to take an appeal out of time from the judgment in the declaratory judgment action pursuant to the provisions of Rule 81.07 on July 6, 1978, and on November 28, 1978, ordered the appeals consolidated.

The judgment in the declaratory action was entered pursuant to motions for summary judgment filed by Kirkwood and the defendants therein. The general rule with respect to review of a summary judgment is that the reviewing court must determine whether there is an issue of fact to be tried or whether the moving party is shown by unassailable proof to be entitled to judgment as a matter of law, Rule 74.04(e); it is equivalent to reviewing a court-tried or equity proceeding, and if, as a matter of law, the judgment is sustainable upon any theory, the judgment of the trial court must be sustained. Kaw Valley State Bank & Trust v. Commercial Bank of Liberty, N.A., 567 S.W.2d 710, 712(1) (Mo.App.1978); Kerr v. Grand Foundries, Inc., 525 S.W.2d 783, 784(2) (Mo.App.1975); Swink v. Swink, 367 S.W.2d 575, 577(2) (Mo.1963).

From our vantage point, we conclude that while the trial court's judgment declared that Kirkwood had the power to acquire the property pursuant to the authority of § 90.010 for the purposes mentioned therein despite the fact it was located within the city limits of Sunset Hills, it did not rule on the question whether Kirkwood had the right to control the use and operation of the property acquired, immune from the jurisdiction of Sunset Hills as prayed in Kirkwood's petition. Nor did it rule on the validity of Ordinance No. 622. We derive this conclusion from the wording of the judgment wherein the trial court said: "Ordinance 622 of the City of Sunset Hills cannot be and is not now by this judgment being held invalid under the general attack levied against it as being 'without legal force or effect' and 'void, illegal and contrary to the laws of the State of Missouri.' Whether it could be successfully attacked on other grounds is not being ruled by this judgment. Nor does this court rule any issue which might be raised after action by the defendants under Ordinance 622." 2

The first point to be reviewed is whether the trial court erred in failing to declare Ordinance No. 622 of Sunset Hills invalid.

As best we can discern from the judgment and a memorandum filed therewith by the trial court, this question was not reached because the trial court was of the opinion that Kirkwood's pleadings were not sufficiently specific to entitle this issue to consideration. In the memorandum the trial court said: "Ordinance 622 might have been challenged on specific grounds which the court refrains from delineating."

While it has been held that allegations such as "illegal, invalid, void, unlawful, unconstitutional, improper, arbitrary and capricious," when unsupported by pleaded facts to show their basis, are conclusions of the pleader and not statements of fact and not to be considered whether a claim or a defense have been stated, State ex rel. City of Creve Coeur v. St. Louis County, 369 S.W.2d 184, 187(1) (Mo.1963), and that when one relies upon unreasonableness to avoid a city ordinance facts which render it unreasonable must be alleged, Holland Furnace Company v. City of Chaffee, 279 S.W.2d 63, 66(2) (Mo.App.1955), we conclude that Kirkwood's petition did, in fact, allege sufficient facts to point out the legal issues involved in this declaratory judgment action.

In determining the sufficiency of plaintiff's petition to state a claim for declaratory judgment, we must accord it the benefit of every favorable and reasonable intendment the fact well pleaded will permit. A...

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