Davis v. J.C. Nichols Co.

• Decision Date: 06 December 1988
• Docket Number: No. WD,WD
• Parties: Donald L. DAVIS and Russell Correll, Appellants, v. J.C. NICHOLS COMPANY and Harwood Operating Company, Respondents, v. BOARD OF ZONING ADJUSTMENT, CITY OF KANSAS CITY, Missouri, Respondent. 40297.
• Court: Missouri Court of Appeals

Page 735

761 S.W.2d 735

Donald L. DAVIS and Russell Correll, Appellants, v. J.C. NICHOLS COMPANY and Harwood Operating Company, Respondents, v. BOARD OF ZONING ADJUSTMENT, CITY OF KANSAS CITY, Missouri, Respondent.

No. WD 40297.

Missouri Court of Appeals,

Western District.

Dec. 6, 1988.

Christopher C. Marsh, Springfield, for appellants.

Timothy S. Frets, Baker & Sterchi, Kansas City, for J.C. Nichols & Harwood Operating Co.

Before SHANGLER, P.J., and NUGENT and COVINGTON, JJ.

SHANGLER, Presiding Judge.

The plaintiffs Davis and Correll appeal from a summary judgment entered on their petition for damages for private nuisance against the defendants J.C. Nichols Company and Harwood Operating Company for the unreasonable use of their parking lot. The plaintiffs complain that the summary judgment violates the mandate and opinion of this court in Davis v. J.C. Nichols Co., 714 S.W.2d 679 (Mo.App.1986), which remanded the cause to the circuit court "for a new trial, all in accordance with the Opinion of this Court." The plaintiffs argue that the summary judgment violates the holding of Davis that the city ordinances, excluded by the trial court, were admissible to define nuisance and to show that the special permit under which the parking lot was constructed was in violation of the ordinance so that its maintenance by the defendants constituted an unreasonable use. The plaintiffs say that the circuit court on remand was bound to this holding as the law of the case, but that the trial court by the summary judgment denied the ordinances any efficacy as evidence and so failed its duty of compliance the law imposes.

The formal entry of summary judgment expresses the rationale upon which the decision rests:

The directed verdict entered in defendants' favor at the close of plaintiffs' evidence at the July, 1985 trial was reversed and remanded by the Missouri Court of Appeals, Western District based on the exclusion of two Kansas City, Missouri ordinances from evidence at trial. ¹ The first ordinance was § 39.446(I)(A) (the zoning ordinance under which defendant obtained the authority to expand an existing parking lot). The Court of Appeals held the ordinance should have been admitted into evidence as it was relevant to prove that defendants' parking lot, as constructed, exceeded the scope of the special use permit. 714 S.W.2d at 684. The uncontroverted evidence developed after remand unassailably proves that defendants did not exceed the scope of the Special Use Permit in constructing the parking lot expansion. This Court finds ² that the parking lot was constructed as the permit authority required and in the manner contemplated and approved by the BZA. The Court further finds that there was no "over-extension" of the parking lot beyond the boundaries set forth in the ordinance or of the permit. The uncontroverted evidence on file shows that there is no genuine issue of material fact on this point. Rule 74.04(c).

The other ground of reversal of this Court's Directed Verdict concerned the exclusion of § 25.4, Code of General Ordinances, from evidence. That ordinance has since been repealed; therefore, the terms of a repealed ordinance are no longer relevant nor admissible in evidence on a re-trial. [emphasis added]

The initiatives open to a trial court on remand are as rendered in the mandate and opinion of the appellate court. Manor v. Manor, 706 S.W.2d 603, 605[1, 2] (Mo.App.1986). Where a remand is with directions, a trial court is bound to render judgment in conformity with the mandate. Keltner v. Harris, 204 S.W. 561, 562 (Mo.App.1918). The trial court is without power to modify, alter, amend or otherwise depart from the appellate judgment. Its proceedings contrary to the directions of the mandate are "null and void." Morrison v. Caspersen, 339 S.W.2d 790, 792[1-3] (Mo.1960). A reversal and remand "for a new trial, all in accordance with the Opinion of this Court" [as our mandate in Davis directs], on the other hand, is a general remandment for a new trial, and without specific directions. Feinstein v. McGuire, 312 S.W.2d 20, 24[2, 3] (Mo.1958); Brocco v. May Department Stores Co., 227 Mo.App. 395, 55 S.W.2d 322, 325[4, 5] (1932). A general remand nevertheless has the effect of a direction to proceed in accordance with the holdings entered by the opinion of the court of review as the law of the case. State ex rel. Melbourne Hotel Co. v. Hostetter, 344 Mo. 472, 126 S.W.2d 1189, 1192[3-6] (banc 1939).

These principles yield the fundamental rule that:

"[A] prior decision by an appellate court becomes the law of that case, with rare exceptions, and must be recognized as such in all subsequent proceedings had therein in the lower courts and, with rare exceptions, in the appellate court itself which rendered such decision upon a subsequent appeal to it upon the same point."

Jenkins v. Wabash Ry. Co., 232 Mo.App. 438, 107 S.W.2d 204, 211 (1937) cert. denied, 302 U.S. 737, 58 S.Ct. 139, 82 L.Ed. 570 (1937). The law of the case is more than merely a courtesy: it is the very principle of ordered jurisdiction by which the courts administer justice.

" 'When a point, once decided by this [supreme] court, comes before either the circuit court or the Court of Appeals on further proceedings in the same case, neither of the courts last named has jurisdiction to overrule this court ... Here the question is as to the duty of that court to follow the prior decision of this court in the same case. It becomes, not a question of whether that court is right or wrong in its construction of the decision of this court, but whether that court is within its lawful jurisdiction, if it disregards the law of the case as previously declared by this court.' " [emphasis added]

Id. 107 S.W.2d at 210 [citing the separate opinion of Judge Ferriss, approved by the majority opinion in State ex rel. Curtis v. Broaddus, 238 Mo. 189, 142 S.W. 340, 349 (1911) ].

Our first opinion in Davis was a review of a judgment entered on a directed verdict for the defendants on claims of private nuisance at the close of the evidence for the plaintiffs. The claims of nuisance by the area residents were based upon the manner of the construction of a customer-employee parking lot on residentially-zoned property and upon the manner of its operation thereafter. The construction was enabled by the grant of a special use permit issued by the municipal Board of Zoning Adjustment [BZA] under § 39.446(I)(A) of the municipal ordinances. That enactment authorizes the BZA to:

permit as an auxiliary use for customers and employees of neighboring business establishments, a parking area for passenger automobiles, on [residential lots], all of which lot or lots are within five hundred feet of a business or industrial district.... [emphasis added]

Other municipal ordinances--ss 25.1, 25.2, 25.3, 25.4, 25.5, 25.14 and 25.15--prohibit the maintenance of nuisances, define them, and describe complaint procedures. The plaintiffs offered these ordinances as evidence, but the court disallowed them as irrelevant on the proof of private nuisance. Davis held the exclusions error, and remanded for a new trial because of that error. In the course of opinion, Davis renders the rationale for the probativeness of each set of ordinances, first as to § 39.446(I)(A), and then as to the § 25 series.

Davis explains that in that first trial of the nuisance claims, the defendants used the fact of the special use permit issued by the BZA under § 39.446(I)(A) for the inference that the construction and operation of the parking lot were with official sanction, and hence could not be a nuisance. The plaintiffs offered § 39.446(I)(A) to show that the parking lot was not constructed as the ordinance required--but rather, as the evidence would show, exceeded the 500 foot limitation from the nearest commercial or industrial zone. The defendants argued to the Davis court that the ordinance was properly rejected by the trial court since the use of § 39.446(I)(A) tendered by the plaintiffs constituted "a collateral attack on the decision of the Board of Zoning Adjustment" to allow the special permit, an issue altogether irrelevant to the claims for nuisance. Davis responded that the ordinance was probative as "countering the defense of the permit itself and would also be some evidence bearing on the reasonableness of the property use." 714 S.W.2d at 684.

The defendants on motion for rehearing reasserted that the decision of the BZA to issue the special use permit, since final, was res judicata to any inquiry of its illegality under § 39.446(I)(A). So, to validate that ordinance as evidence on the nuisance claims--as does Davis--violates principles of adjudicative finality and constitutes an impermissible collateral attack on the final decision of the BZA. Davis responded by a per curiam memorandum opinion expressly to guide the treatment of the evidence on the retrial. The response opinion iterated, but with more emphasis, the original rationale for the probativeness of the ordinance as evidence on the nuisance causes of action: that the parking lot could not have been lawfully constructed without the special use permit; that the only authority for the BZA to issue the permit was ordinance § 39.446(I)(A); and that--since without dispute--all but 10 feet of the ground site for the lot exceeded the maximum distance of 500 feet from a commercial district which ordinance § 39.446(I)(A) imposes the special use permit was unlawful. The ordinance was therefore relevant to prove that the area covered by the parking lot was not a lawful subject for a permit nor of the use made of the lot.

The per curiam memorandum opinion took particular note of the argument in the motion for rehearing that "[t]he BZA specifically held that § 39.446[ (I)(A) ] did not require the entire lot to be within the five hundred foot requirement"; that, in any event, after the passage of time for review of a decision of the BZA, even...