Lakewood Park Cemetery Ass'n v. Metropolitan St. Louis Sewer Dist.

• Decision Date: 10 November 1975
• Docket Number: No. 57666,57666
• Citation: 530 S.W.2d 240
• Parties: LAKEWOOD PARK CEMETERY ASSOCIATION, Plaintiff-Appellant, v. METROPOLITAN ST. LOUIS SEWER DISTRICT et al., Defendants, The Metropolitan St. Louis Sewer District and Bank of St. Louis, Defendants-Respondents.
• Court: Missouri Supreme Court

Page 240

530 S.W.2d 240

LAKEWOOD PARK CEMETERY ASSOCIATION, Plaintiff-Appellant, v. METROPOLITAN ST. LOUIS SEWER DISTRICT et al., Defendants The Metropolitan St. Louis Sewer District and Bank of St Louis, Defendants-Respondents.

No. 57666.

Supreme Court of Missouri, En Banc.

Nov. 10, 1975.

Rehearing Denied Dec. 8, 1975.

Eugene V. Krell, St. Louis, for appellant.

Thompson & Mitchell, Donald J. Stohr, George C. Hays, St. Louis, for defendant Metropolitan St. Louis Sewer District-respondent.

Lowenhaupt, Chasnoff, Freeman & Holland, Richard D. Fitzgibbon, Jr., Harry L. Bell, St. Louis, for Bank of St. Louis, defendant-respondent.

BARDGETT, Presiding Judge.

Plaintiff appeals from a judgment dismissing its two-count petition for injunctive relief and declaratory judgment and from a judgment in favor of defendant-respondent Bank of St. Louis on its counterclaim. The effect of the judgments is that certain special benefit tax bills issued by the Metropolitan St. Louis Sewer District against plaintiff as one of the landowners within Special Benefit Subdistrict No. 42 (Lakewood Area) for the construction of certain lateral sanitary sewers and which were assigned by Crow Contracting Company, the construction company, to defendant Bank of St. Louis were held to be valid.

The alleged basis for Supreme Court jurisdiction of this direct appeal is, at best, tenuous; however, the court has decided to entertain jurisdiction on the basis that one of plaintiff's contentions is that it is not subject to special benefit tax assessments because it is a nonprofit cemetery and exempt from real property taxation under Art. X, sec. 6, Mo.Const.1945, V.A.M.S. and sec. 137.100, RSMo 1969, V.A.M.S. The fact that this litigation dates back to 1959, was once on appeal to the St. Louis Court of Appeals in 1965 and transferred here for lack of jurisdiction in that court under Art. V, sec. 3, Mo.Const.1945, prior to the amendments effective January 1, 1972, Lakewood Pk. C. Assn. v. Metropolitan St. Louis Sewer Dist., 396 S.W.2d 744 (Mo.App.1965), after which the appeal was dismissed as premature by this court in 1966, after which the counterclaim was finally tried in 1971 and appealed just five days after the effective date of our new jurisdiction under Art. V, Mo.Const.1945, as amended, has played a significant part in our decision to retain and decide this case. We do so under authority of Mo.Const., Art. V, Sec. 10. Foremost-McKesson v. Davis, 488 S.W.2d 193, 196 (Mo.1972); Ginnings v. State, 506 S.W.2d 422, 423 (Mo.1974).

Lakewood Park Cemetery Association, plaintiff-appellant, is, admittedly, a nonprofit cemetery located in the south part of St. Louis County and is within the territory which comprises the Metropolitan St. Louis Sewer District, hereafter Sewer District. On September 2, 1958, the board of trustees of the Sewer District adopted ordinance No. 228 confirming a contract between that district and Crow Contracting Co. for the construction of certain lateral sanitary sewers in an area designated Special Benefit Subdistrict No. 42 known as Lakewood Subdistrict and hereafter referred to as such. Crow undertook the construction of the sewers which construction was accepted and approved by the Sewer District.

On October 22, 1959, the Sewer District passed ordinance 336 which levied special benefit assessments against land within the Lakewood Subdistrict. Appellant's cemetery lies, in part, within the Lakewood Subdistrict. The special tax bills were duly recorded and delivered to Crow Contracting Co. which assigned them to the Bank of St. Louis.

On November 24, 1959, appellant filed this suit against the Sewer District, Crow Contracting Co., and Bank of St. Louis, seeking a decree holding the special tax bills issued by the district invalid as to appellant's land. Appellant's original and first amended petition are not in the record on appeal. Defendant Bank filed an answer to plaintiff-appellant's first amended petition and the other two defendants filed motions to dismiss plaintiff's petition. On March 18, 1961, plaintiff, by leave, filed its second amended petition in two counts in which Crow was dropped as a defendant. Count 1 sought an injunction restraining the Sewer District from enforcing ordinance 336; restraining the Bank from enforcing the special tax bills against plaintiff's property; and for an order cancelling the special tax bills. Count 2 prayed for a decree that plaintiff's property was not subject to special assessment for construction of sewer improvements. The Bank and the Sewer District filed motions to dismiss both counts of plaintiff's second amended petition on the ground that it failed to state a claim upon which relief could be granted. Bank of St. Louis filed a counterclaim alleging the special tax bills directed to the property of plaintiff were validly issued and seeking a declaration that said bills to be a valid enforceable lien upon plaintiff's property.

At this point it is noted that the issue presented by both plaintiff's petition and the Bank's counterclaim is essentially the same--the validity or invalidity of the special tax bills.

A year later on November 20, 1962, plaintiff filed a third amended petition against the Sewer District and the Bank. The third amended petition recites that it is filed by leave of court; however, it is questionable as to whether or not the court formally granted leave to file it. In any event, the Sewer District noticed plaintiff that the Sewer District's motion to dismiss filed March 31, 1961, would be heard January 11, 1963, at which time the Sewer District would seek an order dismissing plaintiff's cause of action with prejudice. Plaintiff filed a motion to strike the Bank's and Sewer District's motions to dismiss plaintiff's second amended petition on the grounds that plaintiff had, by leave of court, filed a third amended petition and the previous motions to dismiss were therefore moot.

Plaintiff also filed a motion to strike or dismiss the Bank's counterclaim on the grounds that the Bank had failed to file an answer to plaintiff's second amended petition and that the counterclaim failed to state a claim upon which relief could be granted. The Bank then filed a motion to strike plaintiff's third amended petition alleging several procedural grounds.

On June 1, 1964, the trial court entered the following order:

'FINAL JUDGMENT OF DISMISSAL

'(Caption omitted.)

'This cause, on due notice, came on for hearing on the motion of defendant, The Metropolitan St. Louis Sewer District, for a final judgment of dismissal of the plaintiff's cause of action with prejudice for failure of the plaintiff to amend its petition within the time allowed therefor in the order dismissing the plaintiff's amended petition, as extended by leave of Court.

'The hearing having been held, and the Court being fully advised in the premises, finds that the plaintiff failed to amend its petition in any material respect by the time permitted in the court's order of dismissal of the plaintiff's Amended Petition, as extended by leave of court, and that the plaintiff's failure to amend its petition is not due to excusable neglect.

'It is, therefore, adjudged that the plaintiff's cause of action is finally dismissed.

'Motion of Defendant Bank of St. Louis to strike plaintiff's Third Amended Petition sustained.'

Plaintiff moved the court to set aside its judgment of dismissal and to rehear the matter, or alternatively to dismiss the Bank's counterclaim, which motion was overruled on September 11, 1964, and plaintiff took an appeal to the then St. Louis Court of Appeals in September 1964. As noted supra the court of appeals transferred the appeal to this court, and thereafter this court dismissed the appeal as premature.

After remand to the circuit court, the plaintiff filed its answer to the counterclaim of the Bank by which, inter alia, the validity of the special tax bills was denied.

Trial on the counterclaim began April 29, 1970. One witness testified and the parties were given time to file briefs. On September 3, 1970, the court found that ordinance 336 was legally and validly adopted by the Sewer District trustees; that the tax bill directed to plaintiff's property was delivered to Crow Contracting Co. and thereafter assigned and transferred to the Bank, and concluded that the special tax bill directed to plaintiff's property was validly issued, constitutional, and constituted a lien on plaintiff's property. The decree of the court was: 'THEREFORE it is hereby ordered, adjudged and decreed that the Special Tax bill owned by Defendant Bank of St. Louis Constitutes a valid, enforceable lien upon the property of the Plaintiff. Costs against the plaintiff.'

Plaintiff moved the court to set aside its findings of fact, conclusions of law and decree entered September 3, 1970, and for a rehearing. It appears from the motion that plaintiff's position, inter alia, was that it did not receive adequate notice of the trial so as to prepare to litigate all of the issues with respect to the validity or invalidity of the special tax bills and the liability, if any, of plaintiff, a not-for-profit cemetery, therefor. On December 10, 1970, the trial court sustained plaintiff's motion for rehearing, set aside its findings and decree of September 3, 1970, and reset the cause for the taking of additional testimony and evidence.

At the rehearing Pauline Schulze testified for plaintiff. Mrs. Schulze had been the bookkeeper and secretary for Lakewood Park Cemetery for 28 years and became superintendent of the cemetery on December 19, 1970, when her husband died. Her husband, Wilbur Schulze, had been superintendent of the cemetery for about 28 years and they resided in a home on the cemetery property which was not within the subdistrict territory. In summary, she testified that her husband had been the cemetery superintendent for 28 years and had been an officer of the board of trustees or...