Leiser v. City of Wildwood

• Decision Date: 06 November 2001
• Docket Number: ED79016
• Citation: 59 S.W.3d 597
• Parties: Steven James Leiser, Plaintiff/Respondent, v. City of Wildwood, Defendant/Appellant, and City of Eureka, Defendant. ED79016 Missouri Court of Appeals Eastern District
• Court: Missouri Court of Appeals

Steven James Leiser, Plaintiff/Respondent v City of Wildwood, Defendant/Appellant, and City of Eureka, Defendant

ED79016

Missouri Court of Appeals Eastern District

11/06/2001

Appeal From: Circuit Court of St. Louis County, Hon. Kenneth M. Romines

Counsel for Appellant: Daniel G. Vogel, Paul V. Rost, Leslye M. Winslow and Katherine Lynne Butler

Counsel for Respondent: Ted F. Frapolli and Cynthia Garnholz

Opinion Summary:

Leiser sought a declaratory judgment that real estate he owns and on which he operates a golf driving range is in the city of Eureka, not Wildwood, and was subject to section 72.424, RSMo 2000. He also sought an injunction to prevent Wildwood from exercising control over his real estate. Wildwood appeals from the summary judgment entered in favor of Leiser.

Division One holds: 1. Wildwood has no administrative jurisdiction over Leiser's election under section 72.424 to belong to the city of Eureka and, therefore, Leiser had no administrative remedies to exhaust with the City of Wildwood.

2. An order nunc pro tunc corrects a clerical error and relates back to the original judgment.

3. A "tract" of land under section 72.424 may be made up of four adjacent parcels under one ownership.

4. To give effect to the intent of the legislature and to avoid an illogical and absurd result, we excise the words "of the first classification" in section 72.424 as improvidently included.

5. The denial of a motion for summary judgment is not appealable.

6. Because Wildwood did not properly plead either of the matters it styled as affirmative defenses, Leiser was under no obligation to establish the non-viability of those defenses in its motion for summary judgment.

Crandall, Jr., P.J., and R. Dowd, Jr., J., concur.

Kathianne Knaup Crane, Judge

Defendant, City of Wildwood, appeals from the summary judgment entered in favor of plaintiff, Steven James Leiser. Plaintiff filed a five-count petition in the Circuit Court of St. Louis County, which, after amendment and as relevant to this appeal, sought a declaratory judgment that real estate which he owns and on which he operates a golf driving range is in the City of Eureka, not in the City of Wildwood, and was subject to Section 72.424 RSMo (2000). He also sought an injunction to prevent Wildwood from exercising control over his real estate. The trial court entered summary judgment declaring that the real property "has by operation of section 72.424 RSMo (as amended 2000) been transferred to the Jurisdiction of the City of Eureka, Missouri, to the exclusion of the City of Wildwood, and that the City of Wildwood shall exercise no jurisdiction over the real property set out in exhibit one." We affirm.

The undisputed facts established by the motion for summary judgment are as follows: The City of Eureka is a city of the fourth class located within St. Louis County, Missouri with a population of 4,653. The City of Wildwood is a charter city originally incorporated in 1995 as a third class city in St. Louis County. Plaintiff owns real property (real estate) within St. Louis County, as shown by a legal description attached to the motion for summary judgment. This real estate is approximately 22.18 acres and consists of four adjacent parcels owned and operated as one piece of land. It may be fairly inferred that, prior to July 16, 1975, plaintiff's real estate was within unincorporated St. Louis County.

On July 16, 1975, the Circuit Court of St. Louis County entered a judgment of annexation in City of Eureka v. St. Louis County, Cause No. 367-885. Wildwood did not include this judgment in the record on appeal. On September 26, 2000, the circuit court entered a judgment nunc pro tunc in that case which recited that it corrected a clerical error in the legal description of the annexation area in its July 16, 1975 judgment to include that portion of plaintiff's real estate which was within the annexation area of the map depicting the annexation area. The judgment nunc pro tunc includes the legal description of a portion of plaintiff's real estate.

Initially, plaintiff attempted to transfer jurisdiction of the real estate to Eureka pursuant to section 72.424 RSMo (Cum. Supp. 1999). Wildwood refused to recognize this transfer because it claimed that section 72.424 did not apply to Wildwood, Eureka, or the real estate. Plaintiff then filed his initial petition in this lawsuit. Subsequently, the legislature made an amendment to section 72.424 which was to become effective in August 2000. Section 72.424 RSMo (2000). On August 28, 2000, plaintiff notified Eureka that he intended to transfer his property to Eureka pursuant to section 72.424 RSMo (2000). Eureka passed Ordinance No. 1480 to accept jurisdiction over the real estate. Plaintiff then amended his petition to include claims under Section 72.424 as amended.DISCUSSION

Standard of Review

When we consider appeals from summary judgments, we take as true all facts set forth by the affidavit or otherwise in support of a party's motion unless contradicted by the non-moving party's response to the summary judgment motion. ITT Commercial Finance v. Mid-Am. Marine, 854 S.W.2d 371, 376 (Mo. banc 1993). We review the record in the light most favorable to the party against whom judgment was entered and accord the non-movant the benefit of all reasonable inferences from the record. Id. Our review is essentially de novo, and, as such, our criteria for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially. Id. The propriety of summary judgment is purely an issue of law, and because the trial court's judgment is founded on the record submitted and the law, we need not defer to the trial court's order granting summary judgment. Id.

A. Exhaustion of Remedies

For its first point Wildwood contends that the trial court erred in granting plaintiff's motion for summary judgment because plaintiff failed to exhaust his administrative remedies under Wildwood's administrative review ordinance and therefore the trial court did not have subject matter jurisdiction. Wildwood claims that its Code of Administrative Procedure required plaintiff to litigate this claim before its Board of Administrative Review before he could file an action in circuit court. Wildwood relies on section 150.040(B) of this Code which mandates: "Any aggrieved party shall petition to the Board [of Administrative Review] for a review of any final decision of any City Officer, employee, board, commission or the Council. To the fullest extent permitted by law, the review procedures herein must be exhausted before any action may be filed by the court...." Wildwood argues that plaintiff is an "aggrieved party" under its code who "is seeking to force the City Council to legislatively recognize his secession from Wildwood and to thus comply with a statute he feels applicable."

Wildwood relies on State ex rel. Maynes Constr. Co. v. Wildwood, 965 S.W.2d 949 (Mo. App. 1998) for the proposition that this court has upheld its administrative exhaustion requirement. However, Maynes involved a subdivision developer who sought to bring a court challenge to an adverse decision of Wildwood's Planning and Zoning Commission without pursuing review of the commission's decision by Wildwood's Board of Administrative Review. In that case the dispute was one for which relief was available from an administrative agency.

In contrast, in this case plaintiff sought a declaratory judgment that, as a result of a previous annexation by the City of Eureka and compliance with Section 72.424 RSMo (2000), his real estate was in the City of Eureka. The City of Wildwood has no administrative jurisdiction over plaintiff's election under section 72.424 to belong to the City of Eureka. This is not a dispute over which Wildwood or any of its agencies "is empowered to grant relief." See Maynes, 965 S.W.2d at 952 (quoting Pessin v. State Tax Comm'n of Missouri, 875 S.W.2d 143, 146 (Mo. App. 1994)). Accordingly, there are no administrative remedies to exhaust. Point one is denied.

B. Application of Section 72.424 RSMo (2000)

For its second point, Wildwood contends that the trial court erred in granting summary judgment because "as a matter of law section 72.424 RSMo (2000) does not apply to the real estate in that the real estate was not split as a result of incorporation of a municipality, was not within the City of Eureka prior to June 2000, is not a single tract of land, and is not located in a county of the first class with a charter form of government."¹

Section 72.424 RSMo (2000) provides:

72.424. Election of municipality by owner of certain tract of land located in two municipalitiesNotwithstanding any other provisions of sections 72.400 to 72.423, any owner of a tract of land of thirty acres or less owned by a single owner and that is located within two or more municipalities, one municipality being a city of the fourth classification with a population between four thousand six hundred and five thousand, and the other municipality being a constitutional charter city with a population between sixteen thousand three hundred and seventeen thousand, and both municipalities located within a county of the first classification having a charter form of government and having a minimum population of nine hundred thousand, may elect which municipality to belong to by agreement of that municipality. Such owner's election shall occur within ninety days of August 28, 2000. Such agreement shall consist of the enactment by the governing body of the receiving municipality of an ordinance describing by metes and bounds the property, declaring the property so described to be detached and annexed, and stating the reasons for and the purposes to be accomplished by the detachment and annexation. A copy of said ordinance shall be mailed to the county clerk and to the city clerk and...