Goerlitz v. City of Maryville

• Decision Date: 11 January 2011
• Docket Number: No. SC 90699.,SC 90699.
• Citation: 333 S.W.3d 450
• Parties: Kate GOERLITZ, Appellant,v.CITY OF MARYVILLE, Missouri, a Municipal Corporation, Respondent.
• Court: Missouri Supreme Court

333 S.W.3d 450

Kate GOERLITZ, Appellant,

v.CITY OF MARYVILLE, Missouri, a Municipal Corporation, Respondent.

No. SC 90699.

Supreme Court of Missouri, En Banc.

Jan. 11, 2011.

Jerold L. Drake, Stephens, Drake & Larison, Grant City, for Goerlitz.Nikki Cannezzaro, Bradley Nielson, Franke, Schultz & Mullen PC, Kansas City, for the City.ZEL M. FISCHER, Judge.

Kate Goerlitz appeals from the Gentry County circuit court's entry of summary judgment in favor of the City of Maryville in her action for damages and injunctive relief stemming from the City's operation of a gun range near her home. The trial court correctly entered summary judgment for the City. Affirmed.

Facts

Goerlitz lives in a home located in an unincorporated portion of Nodaway County. The City owns and operates a gun range on an adjacent piece of property. The City's property is located within the boundaries of Polk Township.

Goerlitz filed a petition in the Nodaway County circuit court alleging that the City was negligent in its operation of the gun range and that the gun range was a nuisance. Goerlitz asked the court to award damages and to enter an injunction prohibiting the City from operating a gun range on the property. The City filed a timely answer to the petition. Goerlitz's motion for change of venue was sustained, and the case was subsequently transferred to the Gentry County circuit court.

The City filed a motion for summary judgment in which it claimed that the uncontroverted facts established that Goerlitz was precluded from recovering against the City and also asserted affirmative defenses based on the provisions of § 537.294, RSMo Supp.2009, prohibiting certain lawsuits against gun ranges based on nuisance and trespass and also sovereign immunity. Goerlitz filed a timely response. The circuit court entered summary judgment in favor of the City and against Goerlitz.

Standard of Review

The trial court makes its decision to grant summary judgment based on the pleadings, record submitted, and the law; therefore, this Court need not defer to the trial court's determination and reviews the grant of summary judgment de novo. ITT Commercial Fin. Corp. v. Mid–America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993); Rule 74.04. In reviewing the decision to grant summary judgment, this Court applies the same criteria as the trial court in determining whether summary judgment was proper. Id. Summary judgment is only proper if the moving party establishes that there is no genuine issue as to the material facts and that the movant is entitled to judgment as a matter of law. Id. The facts contained in affidavits or otherwise in support of a party's motion are accepted “as true unless contradicted by the non-moving party's response to the summary judgment motion.” Id. Only genuine disputes as to material facts preclude summary judgment. Id. at 378. A material fact in the context of summary judgment is one from which the right to judgment flows. Id.

A defending party, such as the City, may establish a right to summary judgment by demonstrating: (1) facts negating any one of the elements of the non-movant's claim; (2) “that the non-movant, after an adequate period for discovery, has not been able and will not be able to produce sufficient evidence to allow the trier of fact to find the existence of any one” of the elements of the non-movant's claim; or (3) “that there is no genuine dispute as to the existence of the facts necessary to support movant's properly pleaded affirmative defense.” Id. at 381. Each of these three methods individually “establishes the right to judgment as a matter of law.” Id. In this case, the circuit court's entry of summary judgment should be affirmed on both the second and third bases.

In determining whether the City has met this burden:

The record below is reviewed in the light most favorable to the party against whom summary judgment was entered, and that party is entitled to the benefit of all reasonable inferences from the record. However, facts contained in affidavits or otherwise in support of the party's motion are accepted as true unless contradicted by the non-moving party's response to the summary judgment motion.

Hammack v. Coffelt Land Title, Inc., 284 S.W.3d 175, 177–78 (Mo.App.2009) (internal quotations and citations omitted). See also ITT Commercial Fin., 854 S.W.2d at 376. However, an appellate court reviewing the ruling of a circuit court is bound to consider the forms of the affidavits supporting and opposing summary judgment in accord with Rule 74.04(e), which requires the affidavits to be made on personal knowledge and set forth facts that would be admissible in evidence. Additionally, the affidavit “shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Rule 74.04(e).

In its motion for summary judgment, the City argued that Goerlitz's claims were barred by § 537.294 and by sovereign immunity as provided for in § 537.600, RSMo Supp.2009.¹ If, as a matter of law, the circuit court's judgment is sustainable on any theory, it should be affirmed on appeal. ITT Commercial Fin., 854 S.W.2d at 387–88. Goerlitz's points on appeal do not challenge the grant of summary judgment against her claims for damages, but rather assert she remains entitled to injunctive relief.

Goerlitz's Claims are Barred by § 537.294

On appeal, the parties acknowledge that Goerlitz's right to injunctive relief is governed by the law now in effect rather than the version of § 537.294 that was in place at the time she filed suit. This is because an injunction looks forward by addressing what conduct or actions will be permitted in the future. This means that “when the legislature amends the substantive law on which an injunction is based, the injunction may be enforced only insofar as it conforms to the changed law.” Landolt v. Glendale Shooting Club, Inc., 18 S.W.3d 101, 105 (Mo.App.2000). Therefore, § 537.294 as amended in 2009 applies because it is the most current version of the statute. In subsection 2, it provides:

All owners and authorized users of firearm ranges shall be immune from any criminal or civil liability arising out of or as a consequence of noise or sound emission resulting from the use of any such firearm range. Owners and users of such firearm ranges shall not be subject to any civil action in tort or subject to any action for public or private nuisance or trespass and no court in this state shall enjoin the use or operation of such firearm ranges on the basis of noise or sound emission resulting from the use of any such firearm range. Any actions by a court in this state to enjoin the use or operation of such firearm ranges and any damages awarded or imposed by a court, or assessed by a jury, in this state against any owner or user of such firearm ranges for nuisance or trespass are null and void.

(Emphasis added). Section 537.294.4 goes on to state: “Notwithstanding any other provision of law to the contrary, nothing in this section shall be construed to limit civil liability for compensatory damage arising from physical injury to another human, physical injury to tangible personal property, or physical injury to fixtures or structures placed on real property.”

Goerlitz's claim for injunctive relief contains averments about noise emissions, nuisance and danger from bullets invading the airspace of her property. Goerlitz acknowledges any argument based on noise or general nuisance is specifically and unequivocally barred by § 537.294.2. Goerlitz argues, however, that a genuine issue of material fact exists as to whether bullets are ricocheting and flying over her property and that such a claim for relief is not barred by the statute.

Goerlitz urges this Court to interpret the current version of § 537.294 to merely bar damages and injunctions from “noise or sound.” This interpretation completely ignores the plain language of the statute, which, in addition to noise and sound emission resulting from a cause of action based on private nuisance, specifically states:

Any actions by a court in this state to enjoin the use or operation of such firearm ranges and any damages awarded or imposed by a court, or assessed by a jury, in this state against any owner or user of such firearm ranges for nuisance or trespass are null and void.

Section 537.294.2. In addition, this interpretation of § 537.294 would completely ignore the fact that the statute also makes null and void any injunction based on trespass, and the cause of action for trespass always requires more than just a showing of interference by noise and sound. See Hansen v. Gary Naugle Const. Co., 801 S.W.2d 71, 74 (Mo. banc 1990) (“A trespass is a direct physical interference with the person or property of another.”) (emphasis added) (internal citation omitted).

Goerlitz alleges, but fails to support, a claim of bullets ricocheting on her property. In fact, her own affidavit indicates the only bullets she retrieved were found on the gun range owned by the City.

Goerlitz argues that her request for an injunction is supported by (1) her sworn statement that she heard bullets ricochet onto her property, (2) her sworn statement that other people told her that they heard bullets ricocheting through the air, and (3) the unsworn statements of other people claiming that they heard bullets ricocheting on her property, which Goerlitz attached to her affidavit. Rule 74.04(e) requires: “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”

Clearly, the statement that “others heard bullets ricocheting through the air” is not based on personal knowledge and would not be admissible evidence. Just as clear is the fact that not one of these purported witness statements attached to Goerlitz's affidavit is sworn. For this reason, these...