Hart v. Board of Adjustment of City of Marshall, WD

• Decision Date: 04 May 1981
• Docket Number: No. WD,WD
• Citation: 616 S.W.2d 111
• Parties: Fred HART and Virginia Michael Hart, Plaintiffs-Respondents, v. BOARD OF ADJUSTMENT OF the CITY OF MARSHALL, Missouri, et al., Defendants- Appellants, and John P. Huston, et al., Intervenors. 31712.
• Court: Missouri Court of Appeals

Page 111

616 S.W.2d 111

Fred HART and Virginia Michael Hart, Plaintiffs-Respondents, v. BOARD OF ADJUSTMENT OF the CITY OF MARSHALL, Missouri, et al., Defendants- Appellants and John P. Huston, et al., Intervenors.

No. WD 31712.

Missouri Court of Appeals, Western District.

May 4, 1981.

R. Lin Alexander, Marshall, for appellants.

Everett S. Van Matre, Robert R. Sterner, Van Matre & Van Matre, Mexico, for respondents.

Before DIXON, P. J., and KENNEDY and NUGENT, JJ.

DIXON, Presiding Judge.

This appeal is by the defendant Board of Zoning Adjustment from a circuit court order directing the issuance of a building permit to plaintiffs.

The circuit court purported to act under Section 89.110 RSMo 1978, and the dispositive issue is the jurisdiction of the circuit court to enter its order in the procedural circumstances shown by the record.

Plaintiffs requested a zoning variance from the Board of Adjustment of Marshall after the city building inspector denied their building permit. After a full evidentiary hearing before the board, at which plaintiffs were represented by counsel, the board, after making extensive findings, denied plaintiffs' request for the variance. The evidence before the board was reported by an official court reporter in accordance with the provisions of the zoning ordinance of the city requiring such a record.

Plaintiffs then brought an action in two counts in the circuit court. Count I sought a writ of certiorari to the board to review the decision, a reversal of the decision, and an order directing the issuance of a building permit. Count II sought a declaration that the ordinance was void due to unconstitutionality. No writ of certiorari was ever issued, and there was no filing by the board of a return or its record of the proceedings.

After a hearing on the matter, the court made extensive findings of fact and issued an order directing the granting of a building permit to plaintiff.

To place the issue in proper focus for disposition, there must be a statement of the pretrial proceedings in the circuit court. A joint motion to intervene as defendants was filed by fourteen people who alleged that the requested relief in plaintiffs' petition would adversely affect their interests. No disposition of this motion is shown. An answer was filed by these intervenors with the motion to intervene. The answer to Count I affirmatively stated that the actions of the board were authorized by law and supported by competent and substantial evidence, that the court could not substitute its judgment for that of the board, and that there was no constitutional infirmity in the ordinance. These intervenors, through counsel, actively participated in the circuit court proceedings, and no issue was raised as to their standing despite the failure of the record to show an order permitting intervention.

The intervenors' answer to Count II reiterated what was said in Count I and prayed for a determination that the ordinance was constitutional. The Board and the City, as original defendants, then answered in like fashion.

On the morning of trial in October of 1979, defendants and intervenors joined in motions to strike Counts I and II of the petition. The motion to strike Count I of the petition stated:

Come now defendants and move the court to strike Count I of plaintiffs' petition for the reason that ... a Writ of Certiorari ... has never been issued.

(A)ccordingly there is nothing for this Court to review under Section 89.110 MRS and Count I of Plaintiffs' petition, and that Defendants and Intervenors are entitled to at least 10 days after such Writ be issued in which to file their Return to said Writ under the express provisions of said Section 89.110 MRS ...."

The motion to strike Count II asserted "Plaintiffs have not exhausted the specific statutory remedy providing Certiorari for review of the Board of Adjustment decision under Section 89.110 MRS as required by American Hog Company v. The County of Clinton, 495 S.W.2d 123, l.c. 126 (Mo.App.1973), and that until such specific statutory remedy is exhausted constitutional issues should not be litigated."

The motions were argued to the court. The court overruled the motions "for this time at least." After the motions to strike were overruled, the court proceeded to hear evidence on the merits of the dispute over the objections of the board and intervenors. It is patently clear that the board never filed a return and that its records and proceedings, including the recorded testimony, were not before the circuit court. During the trial, plaintiffs successfully introduced, over defendants' objection, the uncertified "order" of the board which had denied plaintiffs' variance request. The court, in ruling on the objection, stated "the court rules that the defendants by filing answer waive the issuance of a writ. Objection is overruled. Exhibit Five is admitted in evidence."

The precise issue for decision is the propriety of the circuit court hearing evidence and ruling on the merits without issuance of a writ and a proper return by the board. The relevant part of the statute governing this issue follows:

89.110. Board of adjustment decisions subject to review procedure. Any person ... aggrieved by any decision of the board of adjustment, ..., may present to the circuit court ... a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. .... Upon the presentation of such petition the court may allow a writ of certiorari directed to the board of adjustment to review such decision ... and shall prescribe ... the time within which a return thereto must be made ..., which shall not be less than ten days .... The board of adjustment shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies thereof .... The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from .... The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review."

It is unquestioned that plaintiffs were aggrieved by the decision of the Board, that they filed a petition in the circuit court asserting the illegality of the decision, and that the filing occurred within the statutorily required thirty days of the adverse decision.

Regardless of the manner in which it is stated, it is a well-settled principle of law that where the trial court did not have jurisdiction to determine the issues presented on the merits, the court of appeals jurisdiction does not extend to a determination of the appeal on the merits. Shepler v. Shepler, 348 S.W.2d 607 (Mo.App.1961); Lincoln County Memorial Hospital v. Missouri State Board of Mediation, 549 S.W.2d 665 (Mo.App.1977). It is also equally established that jurisdiction may not be conferred on a court by waiver and that a court has a duty to sua sponte inquire into and determine whether it has jurisdiction, Corder v. Corder, 546 S.W.2d 798 (Mo.App.1977); In Re Marriage of Allen, 570 S.W.2d 352 (Mo.App.1978).

Although the statement is generally made that "issuance of the writ is ordinarily necessary to confer jurisdiction on the reviewing court," 14 Am.Jur.2d Certiorari § 42, no Missouri court has ever expressly stated the rule. However, cases dealing with certiorari, or § 89.110 RSMo 1978, or both, indicate that issuance of the writ was necessary to confer jurisdiction on the circuit court to dispose of the case on the merits.

In State ex rel. Gardner v. Hall, 282 Mo. 425, 221 S.W. 708 (banc 1920), the central issue was the proper venue of a certiorari action challenging tax assessments. In passing on this question, the court equated a summons in a civil case to a writ of certiorari. The court stated: "A summons is but a form or process, or as it is repeatedly termed ... an original writ. A prerogative writ, as in the case at bar, is but process, and the words, therefore, may without destroying their sense, be used interchangeably, or, as we said in Wilson v. Railroad, 108 Mo. l.c. 599, 18 S.W. 286, ... any means authorized by law of acquiring jurisdiction may properly be designated process ..." (Emphasis added) 221 S.W. at 711.

State ex rel. Nigro v. Kansas City, 325 Mo. 95, 27 S.W.2d 1030 (1930), discussed the statutory scope of review accorded the circuit court under § 89.110 upon issuance of a writ of certiorari:

The review of a decision of a board of zoning appeals by the circuit court being purely statutory, the court's jurisdiction in such proceeding does not extend beyond that conferred by the statute. Looking to the statute it is apparent that the court is not vested with the power to supervise the discretion lodged with a board of zoning appeals; it is not authorized to entertain a hearing de novo and then make such order as in its opinion the board should have made. The court's authority is plainly limited to correcting illegality. If the court finds the order under review illegal, in whole or in part, it may reverse or affirm, wholly or partly, or may modify, the order, as may be necessary in order to correct the illegality. As the board of zoning appeals in this case was wholly without the power to grant the relief sought by respondent, its order denying such relief could not in any respect have been illegal.

(Emphasis added.)

The ordinance language in Nigro which allowed the board to grant variances is essentially the same as that used in the ordinance here questioned. The court in Nigro held that the circuit court could not do what the board was powerless to do. The parallel to the instant case is the factual similarity of the relief requested by the landowner, denied by the board, granted by the circuit court and overturned on appeal.

State v. Ladue Professional Building, Inc., 395 S.W.2d 316 (Mo.App.1965), also dealt with certiorari review under § 89.110. In Ladue,...