Landolt v. Glendale Shooting Club

• Court: Missouri Court of Appeals
• Citation: Landolt v. Glendale Shooting Club, 18 S.W.3d 101 (Mo. App. 2000)
• Decision Date: 04 April 2000
• Parties: (Mo.App. E.D. 2000) . William K. Landolt and Jeri F. Landolt, et al., Substitute Plaintiffs-Respondents, v. Glendale Shooting Club, Inc., Defendant-Appellant. Case Number: ED76728 Missouri Court of Appeals Eastern District Handdown Date: 0

18 S.W.3d 101 (Mo.App. E.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

William K. Landolt and Jeri F. Landolt, et al., Substitute Plaintiffs-Respondents, v. Glendale Shooting Club, Inc., Defendant-Appellant.

Case Number: ED76728

Missouri Court of Appeals Eastern District

Handdown Date: 04/04/2000

Appeal From: Circuit Court of Franklin County, Hon. Jeffrey W. Schaeperkoetter

Counsel for Appellant: Kevin L. Klug

Counsel for Respondent: David L. Baylard and Gordon R. Upchurch

Opinion Summary: The defendant shooting club appeals the trial court's judgment dismissing its motion to dissolve a permanent injunction without an evidentiary hearing and allowing twenty-two additional plaintiffs to intervene in the suit as a matter of right.

REVERSED AND REMANDED.

Division Three holds: (1) The trial court erred in allowing the twenty-two additional plaintiffs to intervene in the suit as a matter of right, because the intervenors had failed to allege their interest in the suit and the inability of the existing plaintiffs to adequately represent that interest as required by Rule 52.12(a). (2) The trial court erred in refusing to apply section 537.294 RSMo. on the ground that it was enacted after the injunction was issued, given the continuing nature of the relief afforded by an injunction. (3) The trial court erred in dismissing the shooting club's motion without an evidentiary hearing, because its motion alleged sufficient facts, which if true, may entitle it to relief.

Opinion Author: Lawrence E. Mooney, Judge

Opinion Vote: REVERSED AND REMANDED. Teitelman, P.J., and Ahrens, J., concur.

Opinion:

Glendale Shooting Club, Inc. ("Defendant") appeals the trial court's dismissal of its motion to dissolve a permanent injunction that was issued against it in 1987, restricting the use of its property as a shooting range. Defendant argues on appeal that the trial court erred in: (1) allowing twenty-two additional plaintiffs ("Intervenors") to intervene in the suit as a matter of right under Rule 52.12(a); (2) refusing to apply Section 537.294 RSMo. (1994), a law enacted after the injunction was issued in this case that grants certain shooting ranges immunity from nuisance actions; (3) refusing to hold an evidentiary hearing on its motion to dissolve the injunction. We reverse and remand.

FACTS

Defendant owns and operates a shooting range in rural Missouri. Raymond and Veronica Racine were the owners of land adjacent to the shooting range. In 1983, the Racines filed a nuisance action against Defendant due to the level of noise emanating from the shooting range.¹ The trial court issued an injunction against Defendant in 1987, which, while not shutting down the shooting range, substantially limited its operations. Pursuant to the injunction, Defendant was restricted to holding only ten shooting matches per year, with only two in any one month and only one Sunday match per month. Only two of these shooting matches could involve high-power rifles. Shooting of weapons higher than .22 caliber was allowed only during such rifle matches or between 9:00 am and 6:00 pm on Tuesdays, Thursdays and Saturdays, but .22 caliber weapons could be shot anytime between 9:00 am and 6:00 pm. There were also various restrictions placed on the number of persons allowed to shoot at any one time. In Racine v. Glendale Shooting Club, Inc., 755 S.W.2d 369 (Mo.App. E.D. 1988), this court affirmed the trial court's award of relief.

In 1988, after the issuance of the injunction, the Missouri legislature enacted Section 537.294, a new statute that in essence grants shooting ranges immunity from nuisance actions. More specifically, Section 537.294 provides that the owner of a firearm range in existence as of the date of enactment "shall not be subject to any action for public or private nuisance or trespass and no court of this state shall enjoin the use or operation of such firearm ranges on the basis of noise or sound emission resulting from the normal use of any such firearm range."

Defendant moved to dissolve the injunction in 1998, claiming that the injunction had been rendered absurd and unjust due to the enactment of Section 537.294 and material modifications made to the shooting range for noise abatement purposes.

After Defendant filed its motion to dissolve, William and Jeri Landolt ("Plaintiffs") sought substitution as plaintiffs /*for the Racines, who had sold their land to the Landolts sometime after the issuance of the injunction in 1987. Defendant did not object to this substitution of parties, and the trial court granted Plaintiffs' motion. The trial court also allowed twenty-two additional plaintiffs² to intervene in the suit as a matter of right under Rule 52.12(a) over Defendant's objection.

Plaintiffs filed a motion to dismiss Defendant's motion to dissolve on the ground that Defendant failed to allege a change in the law or facts sufficient to establish that continuation of the injunction would cause an unjust or absurd result. The trial court granted Plaintiffs' motion to dismiss, finding it unnecessary to conduct an evidentiary hearing because Defendant's pleaded allegations were insufficient on their face. The trial court also held that Section 537.294 was inapplicable as it was enacted after the injunction was issued in this case. Defendant timely filed this appeal, raising three points of error.

ANALYSIS

Intervention

First, Defendant challenges the trial court's decision to allow Intervenors to intervene in the suit as a matter of right under Rule 52.12(a). Defendant contends that intervention was improper, because Intervenors neither specifically defined their interest in the subject matter of the lawsuit nor claimed that Plaintiffs could not adequately represent that interest. We agree.

A party can intervene as a matter of right under Rule 52.12(a) "when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect his interest, unless the applicant's interest is adequately represented by existing parties." The party seeking intervention bears the burden of proving his right to intervene. Borgard v. Integrated Nat. Life Ins. Co., 954 S.W.2d 532, 535 (Mo.App. E.D. 1997).

Intervenors' counsel admitted at oral argument before this court that his clients failed to make the requisite showing under Rule 52.12(a). Although Intervenors alleged that they were "present owners of land adjacent to or surrounding the Glendale Shooting Club," they failed to state their proximity to the range. On the record before us, it is unclear whether Intervenors' property is situated immediately adjacent to the shooting range or five miles away. As such, it is impossible to say that Intervenors have an interest in the lawsuit requiring their intervention. Further, Intervenors failed to show that Plaintiffs, who are the owners of the tract of land nearest to the shooting range, could not adequately represent any interest they had in the suit.

Intervenors cite State ex rel. Algonquin Golf Club, Inc. v. Lewis, 395 S.W.2d 522 (Mo.App. St.L. 1965) in support of their argument that the allegations in their motion to intervene were sufficient and therefore intervention was appropriate. However, in Algonquin, the proposed intervenors alleged their interest in the outcome of the suit with specificity, alleged that their interest would be impaired if they were not allowed intervention, and further demonstrated that the plaintiffs could not adequately represent that interest. Id. at 523. Here, Intervenors failed to allege their interest in the suit and that Plaintiffs would be unable to represent their interest. Thus, Algonquin does not persuade us of the correctness of the trial court's decision here.

Finally, Defendant correctly asserts that intervention was also erroneous in this case, because Intervenors failed to include with their motion to intervene a pleading setting forth their claim or defense for which intervention is sought as required by Rule 52.12(c). The record refutes Plaintiffs' contention that Defendant waived this argument by failing to present it to the trial court. Defendant explicitly presented this argument for the trial court's consideration in its Memorandum in Opposition to Intervention.

Defendant also claims that because the motion to intervene was untimely, Intervenors were required and yet failed to show that substantial justice mandated their intervention in the case. We express no opinion as to the timeliness of Intervenors' motion as we have held above that even assuming Intervenors' motion was timely, they have failed to prove the prerequisites for intervention as a matter of right.

Acknowledging that the trial court may have erred in allowing them to intervene as a matter of right, Intervenors maintain that we should affirm on this issue, because the trial court might have exercised its discretion and allowed permissive intervention pursuant to Rule 52.12(b). However, the only relief sought by Intervenors in their motion to intervene was intervention as a matter of right under Rule 52.12(a). Given the trial court's failure to specify which type of intervention it was granting, we assume that it simply granted Intervenors' request to intervene as a matter of right, a ruling we have held to be in error above.

Thus, the trial court's judgment is reversed insofar as it allows intervention as a matter of right.

Dismissal of the Motion to Dissolve the Injunction

Defendant next argues that the enactment of Section 537.294, which again essentially grants immunity to certain gun ranges from nuisance actions, constitutes a change in the underlying law that makes the injunction against it unjust.

Clearly, "a permanent injunction based on a condition subject to change may be vacated or...