Frison v. City of Pagedale, 66303

Decision Date28 March 1995
Docket NumberNo. 66303,66303
Citation897 S.W.2d 129
PartiesJack FRISON, et al., Plaintiffs/Appellants, v. CITY OF PAGEDALE, et al., Defendants/Respondents.
CourtMissouri Court of Appeals

Michael R. Young, Richard H. Edwards, St. Louis, for appellants.

Frank Susman, Wendy S. Brafman, St. Louis, for respondents.

GRIMM, Chief Judge.

The City of Pagedale refused to allow plaintiffs to operate an outdoor flea market. Plaintiffs sued, alleging constitutional violations under 42 U.S.C. §§ 1983 and 1985, and seeking injunctive relief and a declaratory judgment. The trial court granted summary judgment for City. 1 Plaintiffs appeal; we affirm.

Plaintiffs allege two points of error. First, they allege the trial court erred in granting summary judgment on plaintiffs' substantive due process claims. We disagree; as pled by plaintiffs, City's behavior did not rise to the level required by the standard of "truly irrational." Second, they allege the trial court erred in granting summary judgment on the injunctive relief and declaratory judgment counts. We disagree; City's zoning ordinances did not permit an outdoor flea market and the licenses issued to plaintiffs specifically indicated they were for an indoor flea market.

I. Background

We glean the facts from plaintiffs' fourth amended petition and from the parties' stipulation. On January 18, 1982, plaintiff Jack Frison filed an application for a license "to establish, maintain or conduct a Permanent Indoor FLEA MARKET." Mr. Frison presented the application at the City's regular February 1982 Board of Alderpersons meeting. The minutes reflect that an alderwoman asked if business would be conducted outside the building. "Mr. Frison said that some promotional sales would take place outside the building if this was to the Board's satisfaction."

The Board voted to grant the license, subject to the premises passing inspections. On July 9, 1982, City issued a license to "Jack Frison D/B/A Permanent Indoor Flea Market" to have the business "Frison Indoor Flea Market." Similar licenses were issued in 1983, 1984, and 1985.

From 1982 to the present, Frison has leased space to other tenant-vendors. Both Frison and the tenant-vendors have sold flea market-type merchandise inside and outside the building since 1982.

On June 27, 1986, Frison submitted an application and fee for another renewal of his license. City accepted the application and check, but refused to issue the license.

On July 15, 1986, Frison filed this action. 2 On July 24, 1986, the trial court issued a preliminary injunction restraining City from "closing down any or all business" at the flea market and from "issuing citations or arresting plaintiff, Jack Frison, for selling at retail without a license."

On November 24, 1987, the trial court granted partial summary judgment, ordering City to issue licenses to tenant-vendors. After a fee dispute, City eventually issued licenses to tenant-vendors. Each license authorized a tenant-vendor "to do business [as an] Indoor Flea Market."

On August 7, 1992, members of City's police department went to the flea market. They "advised Frison and all Tenant-Vendors present that if they attempted to do business outdoors, their businesses would be closed down, their property impounded, and they would be arrested."

That same day, plaintiffs applied for a temporary restraining order. The trial court issued the order.

On August 18, 1993, plaintiffs filed their fourth amended petition, containing five counts. Three counts sought money damages for violations of plaintiffs' constitutional rights under 42 U.S.C. §§ 1983 and 1985. The other two counts sought injunctive relief and a declaratory judgment that city could not issue licenses restricting the flea market to indoor use only.

City filed a partial summary judgment motion on the three counts that alleged constitutional violations. The trial court granted this motion. Thereafter, City filed a motion for summary judgment on the remaining counts, and plaintiffs filed a cross motion. City's motion was granted, and by implication plaintiffs' motion was denied.

II. Substantive Due Process

Plaintiffs first point alleges the trial court erred in granting partial summary judgment on the three counts seeking damages for violations of plaintiffs' constitutional rights. Two of the counts alleged substantive due process violations under 42 U.S.C. § 1983. The other count alleged conspiracy to commit these constitutional violations under 42 U.S.C. § 1985. 3 Plaintiffs contend that "a genuine issue of material fact [exists] regarding whether or not [City's] conduct was 'truly irrational.' "

City's motion is labeled a motion for partial summary judgment. However, in essence, it is a motion to dismiss for failure to state a claim for relief. Accordingly, we treat the motion as such.

In determining the sufficiency of a petition which has been dismissed, we give the petition its broadest intendment, treat all factual allegations as true, construe all those allegations liberally and in plaintiffs' favor, and then determine if there is any ground upon which plaintiffs may be entitled to relief. Knapp v. Junior College Dist. of St. Louis, 879 S.W.2d 588, 589 (Mo.App.E.D.1994). Plaintiffs' petition may be dismissed for failure to state a claim only if it appears they could not prove any set of facts which would entitle them to relief. Id.

Plaintiffs, in their fourth amended petition, allege that City "arbitrarily, capriciously and irrationally refused to issue Plaintiffs' merchant's licenses with the intent to deprive Plaintiffs of their right to conduct and transact business with the City of Pagedale...." Plaintiffs further contend that City's "refusal to allow Plaintiffs to operate and sell merchandise outdoors is, at least in part, in retaliation for Plaintiff Jack Frison's cooperation with the Federal Bureau of Investigation, which resulted in the indictment, conviction and/or resignation" of various city officials.

In order to assert a substantive due process claim, plaintiffs "must establish that the government action complained of is 'truly irrational', that is, 'something more than ... arbitrary, capricious, or in violation of state law.' " Anderson v. Douglas County, 4 F.3d 574, 577 (8th Cir.1993) (quoting Chesterfield Dev. Corp. v. City of Chesterfield, 963 F.2d 1102, 1104 (8th Cir.1992)). Even a bad faith violation of state law does not rise to the level of a substantive due process violation. Chesterfield, 963 F.2d at 1105.

The Eighth Circuit Court of Appeals has held that several different actions by city officials do not rise to the level of "truly irrational." In Chesterfield, the City of Chesterfield enacted a comprehensive zoning plan and a zoning ordinance. Id. at 1103. The city failed to provide proper notice before adopting the plan and did not file it with the recorder of deeds. Accordingly, both of the enactments were invalid under state law. Id.

Plaintiff had a contract to purchase land for development as a shopping center. The contract was contingent on the property being rezoned. The city enforced these invalid ordinances against the plaintiff, preventing it from purchasing and developing property. Id.

Plaintiff alleged a substantive due process violation. The Chesterfield court held that this state law error, no matter how fundamental, could not in and of itself create a federal due process claim. Id. at 1105.

A similar issue was also addressed in Anderson. In Anderson, the Douglas County Minnesota Planning and Zoning Commission denied the plaintiff's application to "thinspread" certain land with petroleum-contaminated soil. Anderson, 4 F.3d at 576. The Eighth Circuit again held that the activity could not be labeled "truly irrational." Id. at 527.

In the case before us, City refused to issue licenses until directed by a court. Also City has restricted the flea market's activities to indoors only. Plaintiffs contend that the City's motivation is retaliation because of Jack Frison's cooperation with the F.B.I. At best, plaintiffs have pled a violation of state law.

We find the Eighth Circuit's rationale persuasive. Accordingly, we hold that plaintiffs' allegations do not rise to the level of "truly irrational." Point denied.

III. Declaratory Judgment and Injunctive Relief

In their second point, plaintiffs allege the trial court erred in granting summary judgment on their claims for injunctive relief and declaratory judgment. They contend that, as a matter of law, "outdoor selling is a permitted commercial use of commercially zoned property."

After the trial court granted City's...

To continue reading

Request your trial
9 cases
  • C.S. v. Mo. Dep't of Soc. Servs.
    • United States
    • Missouri Court of Appeals
    • March 22, 2016
    ...“[e]ven a bad faith violation of state law does not rise to the level of a substantive due process violation.” Frison v. City of Pagedale, 897 S.W.2d 129, 132 (Mo.App.E.D.1995).The State has few, if any, interests more important than protecting children from abuse. See In re Baby Girl ––– ,......
  • Gunter v. City of St. James
    • United States
    • Missouri Court of Appeals
    • April 27, 2006
    ...(Mo.2006) (quoting Chesterfield Dev. Corp. v. City of Chesterfield, 963 F.2d 1102, 1104 (8th Cir.1992)); see also Frison v. City of Pagedale, 897 S.W.2d 129, 132 (Mo.App. 1995). Here, Appellants do not dispute the fact that Respondents had a protected property interest in their attempts to ......
  • Duffner v. City of St. Peters
    • United States
    • Missouri Court of Appeals
    • January 12, 2016
    ...Appellants must allege the higher standard of truly irrational conduct, and here they have not done so. See Frison v. City of Pagedale, 897 S.W.2d 129, 132 (Mo.App.E.D.1995) (citing Chesterfield Dev. Corp., 963 F.2d at 1105 ) (noting "[e]ven a bad faith violation of state law does not rise ......
  • State ex rel. v. Board of Adjustment
    • United States
    • Missouri Supreme Court
    • January 8, 2002
    ...to the city, section 400.370 is a permissive use ordinance, so that only expressly listed uses are permitted. See Frison v. City of Pagedale, 897 S.W.2d 129, 133 (Mo.App.1995). The city claims that under-$500 lending is not expressly listed, and therefore not permitted. The interpretation o......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT