Earls v. Majestic Pointe, Ltd., 21017

• Court: Missouri Court of Appeals
• Writing for the Court: Before CROW, P.J., and PARRISH, J., and MONTGOMERY; PER CURIAM
• Citation: Earls v. Majestic Pointe, Ltd., 949 S.W.2d 239 (Mo. App. 1997)
• Decision Date: 02 July 1997
• Docket Number: No. 21017,21017
• Parties: Charles EARLS and Scottie Earls, husband and wife, and James Maze and Jeannette Maze, husband and wife, Plaintiffs-Respondents, v. MAJESTIC POINTE, LTD., a Missouri corporation, Defendant-Appellant.

Page 239

949 S.W.2d 239

Charles EARLS and Scottie Earls, husband and wife, and James Maze and Jeannette Maze, husband and wife Plaintiffs-Respondents, v. MAJESTIC POINTE, LTD., a Missouri corporation, Defendant-Appellant.

No. 21017.

Missouri Court of Appeals,

Southern District,

Division Two.

July 2, 1997.

Rehearing Denied July 24, 1997.

Kendall R. McPhail, Thomas M. Benson, Lowther, Johnson, Joyner, Lowther, Cully & Housley, L.L.C., Springfield, for defendant-appellant.

Gail L. Fredrick, Fredrick, Rogers & Vaughn, P.C., Springfield, for plaintiffs-respondents

Before CROW, P.J., and PARRISH, J., and MONTGOMERY, C.J.

PER CURIAM.

Defendant, Majestic Pointe, Ltd., (MPL) a Missouri corporation, appeals from the trial court's judgment granting the relief requested by Plaintiffs ¹ and denying the relief requested by MPL in its counterclaim. The predominant issues in this case involve the validity of a 1989 zoning change regarding property now owned by MPL and the right to use a road providing access to Plaintiffs and MPL's respective tracts of real estate.

Plaintiffs' "Petition for Declaratory Judgment," filed July 1, 1994, contained three counts. Count I, a declaratory action, sought to rescind a Division III Permit No. 00087 issued by the Taney County Planning and Zoning Commission on August 14, 1989, to Majestic Pointe, Inc., a Kansas corporation, which rezoned an agricultural tract to a condominium development. As grounds for relief, Plaintiffs alleged that the permit was void because Majestic Pointe, Inc., did not own the property described in the rezoning application and that, in any event, the permit had lapsed for failure to renew within a one-year time frame as required by Taney County's zoning code. ² Count II sought a judicial determination that a road through Friendly Hills Subdivision (where Plaintiffs reside) providing access to MPL's property is private and that MPL had no right to use the road. Count III requested that MPL be permanently enjoined from using the road through Friendly Hills Subdivision.

MPL's amended counterclaim alleged malicious prosecution in Counts I and II against Plaintiffs for pursuing an appeal of MPL's grading permit and a belated appeal of the 1989 rezoning permit to the Taney County Board of Adjustment and to the Taney County Commission. Count III alleged abuse of process against Plaintiffs for filing the instant suit and the aforementioned appeals.

After a bench trial, the trial court entered a judgment on April 23, 1996, which (1) declared that the 1989 rezoning permit was "void and unlawful" and that it was "revoked and rescinded," (2) decreed that the road through Friendly Hills Subdivision was private and that MPL had no right to use the road, (3) ordered that MPL and its agents, servants, and employees be permanently enjoined from using the road, and (4) found in favor of Plaintiffs on Defendant's counterclaim for malicious prosecution and abuse of process. Each of those results are the subject of this appeal.

Shortly after the filing of Plaintiffs' petition, the trial court overruled MPL's amended motion to dismiss Count I of Plaintiffs' petition. The motion alleged, in pertinent part, that the trial court lacked subject matter jurisdiction because Plaintiffs failed to exhaust their administrative remedies by failing to timely file and pursue their remedies provided for in chapter 64. ³ MPL again raised this issue, to no avail, during trial.

MPL's first point relied on claims the trial court lacked subject matter jurisdiction in that Count I for declaratory judgment was an attack on the validity of the 1989 rezoning of MPL's property after Plaintiffs failed to appeal the rezoning to the Taney County Board of Adjustment within three months of the issuance of the permit as required by Taney County's zoning code and § 64.870. ⁴

According to MPL, "[i]t is well settled in Missouri that Chapter 64 RSMo. provides the remedy for review of a county zoning decision to the exclusion of an action for declaratory judgment or judicial review under Chapter 536 RSMo." In support of this position, MPL relies on State ex rel. Forget v. Franklin County Planning and Zoning Comm'n, 809 S.W.2d 430 (Mo.App.1991), Carter v. Greene County, 765 S.W.2d 665 (Mo.App.1989), and American Hog Co. v. County of Clinton, 495 S.W.2d 123 (Mo.App.1973).

It is undisputed that Plaintiffs failed to timely avail themselves of the right to appeal the 1989 rezoning decision to the Taney County Board of Adjustment as allowed by § 64.870. ⁵ This statute provides that an appeal from such decision must be made to the county board of adjustment within a period of not more than three months after a hearing and decision by that board. An aggrieved person is provided a further right of review by writ of certiorari to the circuit court. The statute then provides for a still further appeal to this Court.

Taney County's zoning code, Chapter III, Section VI, paragraph 2, emphasizes the availability of the right to appeal. That provision states:

RSMo 64.870 grants the right of appeal to any person aggrieved by his or her inability to obtain a permit, by the issuance of a permit, or by any other decision made in the administration of these codes (such as a particular condition imposed by a permit). All appeals shall be heard by the Board of Adjustment.

The next paragraph in the code states that appeals must be filed within three months of the decision being appealed.

Plaintiffs did not follow the procedure set forth in § 64.870. Instead, they chose to file a declaratory judgment action almost five years after the zoning change based upon § 536.100 which reads:

Any person who has exhausted all administrative remedies provided by law and who is aggrieved by a final decision in a contested case, whether such decision is affirmative or negative in form, shall be entitled to judicial review thereof, as provided in sections 536.100 to 536.140, unless some other provision for judicial review is provided by statute; provided, however, that nothing in this chapter contained shall prevent any person from attacking any void order of an agency at any time or in any manner that would be proper in the absence of this section. ... (Emphasis added.)

With respect to the rezoning in this case, § 64.870 specifically provided for the manner of reviewing the determination to rezone. Whether § 536.100 provides Plaintiffs with an alternative review procedure is the crux of the issue before us.

The exclusiveness of the remedy provided by § 64.870 is made clear in the three cases cited by MPL. In American Hog, plaintiff brought a declaratory judgment suit for a determination that it had the right to operate its hog feeding farm as a non-conforming use under the Clinton County Zoning Order and Subdivision Regulations. Plaintiff never appealed the Clinton County Planning Commission's order (finding a violation of its regulations) to the County Board of Adjustment as allowed by § 64.660. ⁶ Plaintiff claimed its suit was authorized by §§ 527.020 and 536.050, the Administrative Procedure Act.

On appeal, the court determined, sua sponte, that subject matter jurisdiction did not exist as to plaintiff's declaratory judgment action since the procedure for review under § 64.660 had not been followed. 495 S.W.2d at 127. The case was remanded for dismissal of plaintiff's petition.

In reaching this result, the court first determined that § 536.050 ⁷ did not apply because the zoning order did not constitute agency rule making but, instead, involved a "contested case" within the terms of § 536.100. Id. at 126. The court further determined that the provisions of § 536.100 did not apply to plaintiff's case "if 'some other provision for judicial review is provided by statute'; and § 64.660 does make 'other provisions'." Id. The court also said that plaintiff's suit was not "authorized under the general Declaratory Judgment Act, § 527.020. The declaratory judgment procedure cannot be used where a different specific statutory method of review is provided." Id. Specifically, the court stated:

The principle to be applied here is essentially the same as that where a party seeks to escape the limitations of a special type of statutory review by trying to resort to the appeal provisions contained in the Administrative Procedures Act, Chapter 536 and Rule 100. The Missouri courts have consistently held that this may not be done and that the special statutory method of appeal is exclusive.

Id. at 127.

This Court decided Carter with substantial reliance on American Hog because the facts and procedure used in both cases were almost identical. Following American Hog, this Court held that since plaintiff "did not avail herself of the statutory procedure for judicial review of the administrative decisions in question, the trial court had no jurisdiction to hear evidence and enter judgment in the declaratory judgment case. Therefore, the judgment entered is void." 765 S.W.2d at 671.

Similarly, in Forget, the appellants contested the county planning and zoning commission's approval of a plat. Both the county board of adjustment and the county commission refused to hear appellants' appeal of that decision. Appellants filed a petition in mandamus in circuit court. The court of appeals affirmed dismissal of the mandamus action based on lack of subject matter jurisdiction for failure to exhaust administrative remedies. The court said:

It has long been the rule that a party aggrieved by an administrative zoning decision who requests an appeal or review of the Board's action must exhaust its administrative remedies before it can resort to an action at law or equity.

809 S.W.2d at 432. The court observed that after the board of adjustment refused to hear the appeal, "Appellants then should have filed a petition for a writ of certiorari with the circuit court stating the illegality of the board's action and asking for relief" under the provisions of §...