Jefferson Cnty. 9-1-1 Dispatch v. Plaggenberg
| Decision Date | 26 April 2022 |
| Docket Number | SC 98904 |
| Citation | 645 S.W.3d 473 |
| Parties | JEFFERSON COUNTY 9-1-1 DISPATCH, Respondent, v. Joseph G. PLAGGENBERG, Acting Director of the Missouri Department of Revenue, Appellant. |
| Court | Missouri Supreme Court |
The director was represented by Jeff P. Johnson of the attorney general's office in Jefferson City, (573) 751-3321.
The dispatch was represented by William Ray Price Jr., Jeffery T. McPherson, Matthew Shorey, Nicholas Cejas and Paul L. Brusati of Armstrong Teasdale LLP in St. Louis, (314) 621-5070; and Robert K. Sweeney and Allison Sweeney of Robert K. Sweeney LLC in Hillsboro, (636) 797-5600.
Respondent, Jefferson County 9-1-1 Dispatch (the "Dispatch"), filed an action seeking a declaratory judgment, a writ of mandamus, and injunctive relief preventing Appellant, the Director of the Department of Revenue ("DOR"), from enforcing section 190.327.5.1 The Dispatch argued it was entitled to such relief because section 190.327.5 violates three different provisions of the Missouri Constitution but only sought – and the circuit court only granted – summary judgment on one of those claims. The other two claims were not denied or dismissed. They remain pending. DOR appeals.
The circuit court's judgment is not a "final judgment" for purposes of section 512.020(5). It is not a "final judgment" in the sense that it does not dispose of all (or at least the last) claims in the lawsuit, and it was not eligible to be certified as "final" under Rule 74.01(b) because it did not resolve all of the claims by or against at least one of the parties, nor did it resolve one or more claims that are sufficiently distinct from those that remain pending. Wilson v. City of St. Louis , 600 S.W.3d 763, 765 (Mo. banc 2020). Finally, even if the judgment were eligible to be certified under Rule 74.01(b), neither party sought such certification and the circuit court did not certify the judgment or make the requisite finding "that there is no just cause for delay." Rule 74.01(b). Accordingly, this Court must dismiss DOR's appeal for want of jurisdiction.
In April 2009, Jefferson County voters voted to replace an existing emergency telephone tax with a sales tax of one-half of one percent for 10 years for the purpose of providing emergency services, including central dispatching for fire protection, law enforcement, and ambulance services. Ten years later, the voters approved continuing the one-half of one percent sales tax for emergency services.
On July 19, 2019, the Governor signed Senate Bill No. 291 ("SB 291") into law. SB 291 amended section 190.327 by adding a new subsection. This new subsection reads:
An emergency services board originally organized under section 190.325 operating within a county with a charter form of government and with more than two hundred thousand but fewer than three hundred fifty thousand inhabitants shall not have a sales tax for emergency services or for providing central dispatching for emergency services greater than one-quarter of one percent. If on July 9, 2019, such tax is greater than one-quarter of one percent, the board shall lower the tax rate.
On August 1, 2019, DOR notified the Dispatch of its intent to decrease the existing one-half of one percent sales tax to one-fourth of one percent beginning October 1, 2019. In response, the Dispatch filed the present action. The Dispatch arranged its petition in four "counts." The first sought a declaratory judgment that section 190.327.5 is unconstitutional because it violates either article III, section 40 or article III, section 42 of the Missouri Constitution pertaining to local or special laws. The second sought a declaration that section 190.327.5 is unconstitutional because it violates article I, section 13, which prohibits laws retrospective in operation. In Count III, the Dispatch requested a writ of mandamus compelling DOR not to follow the unconstitutional statute and, instead, to continue to collect the one-half of one percent emergency services sales tax and pay it to the Dispatch. In Count IV, the Dispatch requested a preliminary and permanent injunction compelling DOR to continue to collect the one-half of one percent emergency services sales tax and pay it to the Dispatch for the same reason.
On July 31, 2020, the Dispatch moved for summary judgment only with respect to its claim that section 190.327.5 violated article III, section 42, which imposes unique notice and publication requirements prior to the legislature passing any local or special law that is not otherwise prohibited by article III, section 40. DOR responded and filed a cross-motion for summary judgment. On November 30, 2020, the circuit court overruled DOR's motion, sustained the Dispatch's motion, and entered judgment for the Dispatch on its claim pertaining to article III, section 42. This judgment did not resolve the Dispatch's other claims, nor did the Dispatch dismiss them. They remain pending.
Before addressing the merits of this appeal, "this Court has a duty to determine whether it has jurisdiction." Wilson, 600 S.W.3d at 765. "The right to appeal is purely statutory, and where a statute does not give a right to appeal, no right exists." Id. at 767 (quotation marks omitted). The only statute even potentially applicable to this case is section 512.020(5), which provides that a "final judgment" is appealable. The judgment in this case is not a "final judgment" for purposes of this statute.
A judgment is a "final judgment" for purposes of section 512.020(5) if it disposes of all claims (or the last pending claim) in a lawsuit. Wilson , 600 S.W.3d at 771. A judgment that is not a "final judgment" in this traditional sense can still be a "final judgment" for purposes of section 512.020(5) if it is eligible to be – and actually is – certified as such by the circuit court under Rule 74.01(b). Id. Neither party contends this judgment was (or even could have been) certified as a "final judgment" under Rule 74.01(b), and rightly so. This judgment was not eligible to be certified under Rule 74.01(b) and the circuit court did not certify it or make the predicate finding that there was no just reason for delay. Accordingly, the analysis in this case turns entirely on whether the judgment disposes of all claims by and against all parties in this suit. Plainly, it does not.
The circuit court's order in this case is a judgment because it met the form requirements in Rule 74.01(a) and it fully resolves the Dispatch's claim that section 190.327.5 violates article III, section 42 of the Missouri Constitution.2 But it is not a "final judgment" for purposes of section 512.020(5) because that is the only one of the Dispatch's three claims that it resolves. The Dispatch's claim that section 190.327.5 violates the complete prohibition for certain types of local or special laws found in article III, section 40, as well as its claim that this statute violates the prohibition against laws that are retrospective in their operation found in article I, section 13, remained (and still remain) pending.
"[I]n determining whether an action presents more than one claim for relief, the focus is on the number of legal rights asserted in the action." Comm. for Educ. Equal. v. State , 878 S.W.2d 446, 451 (Mo. banc 1994) (" CEE "). If a petition "seeks to enforce only one legal right, it states a single claim, regardless of the fact that it seeks multiple remedies." Id. Here, the Dispatch's petition sought to enforce at least three legal rights: (a) the constitutional prohibition against certain local or special laws under article III, section 40 ; (b) the constitutional requirement that local or special laws that are not prohibited outright by article III, section 40 nevertheless cannot be passed without prior notice by publication as set forth in article III, section 42 ; and (c) the constitutional prohibition against the enactment of statutes that are retrospective in their operation found in article I, section 13. The Dispatch's prayers for declaratory judgment, mandamus, and/or an injunction are merely the remedies the Dispatch seeks should it prevail in its efforts to enforce one or more of these three legal rights.
The parties argue that, because the Dispatch sought the same remedies for each of these three plainly different claims, a judgment granting that relief with respect to one claim necessarily disposes of all the other claims and, therefore, is a "final judgment" for purposes of section 512.020(5). Such reasoning might have led the Dispatch to dismiss its remaining claims or to ask the circuit court to deny them on the ground that they were moot. But the Dispatch was under no obligation to do either and plainly did not do so.
The parties point to language in the judgment stating it was "a final judgment that resolves all issues as to all parties." But this does not make it so. The Dispatch's motion did not seek judgment on all of its claims, and nothing in the judgment suggests the circuit court intended to resolve the remaining claims on their merits or deny them as moot in light of the resolution of the Dispatch's claim under article III, section 42. Instead, the Dispatch's remaining unresolved claims are just that: unresolved and still pending in the circuit court. The parties conceded at oral argument that, if this Court were to determine the circuit court erred with respect to the Dispatch's claim under article III, section 42, they would return to the circuit court to take up the Dispatch's remaining claims. Presumably, once another of those claims is resolved, the aggrieved party would appeal, and so on and so on virtually assuring multiple, seriatim appeals. This is the very antithesis of the "final judgment" that is appealable under section 512.020(5).
The parties cite Ndegwa v. KSSO, LLC , 371 S.W.3d 798, 801 (Mo. banc 2012),3 for the proposition that any judgment is appealable...
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