Levinson v. City of Kansas City et al

• Decision Date: 23 January 2001
• Citation: 43 S.W.3d 312
• Parties: (Mo.App. W.D. 2001) . Mark H. Levinson, Appellant, v. City of Kansas City, et al., Respondent. WD58205 Missouri Court of Appeals Western District Handdown Date: 0
• Court: Missouri Court of Appeals

43 S.W.3d 312 (Mo.App. W.D. 2001)

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

Mark H. Levinson, Appellant, v. City of Kansas City, et al., Respondent.

WD58205

Missouri Court of Appeals Western District

Handdown Date: 01/23/2001

Appeal From: Circuit Court of Jackson County, Hon. Edith L. Messina

Counsel for Appellant: Michael T. White

Counsel for Respondent: Galen P. Beaufort

Opinion Summary: Mark Levinson appeals summary judgment for Kansas City and its Commissioner of Revenue Tracy Smedley, and the denial of his cross-motion for summary judgment. On appeal, Levinson contends the summary judgment was based on the erroneous finding that the City had authority to increase the convention and tourism tax, because the ordinance that actually imposed the tax and the date that the tax went into effect were after the effective date of the state statute authorizing the tax increase.

REVERSED AND REMANDED.

Division 1 holds: The trial court erred in entering summary judgment for the City and Commission of Revenue because, as a matter of law, the City was without authority to proceed in increasing the convention and tourism tax prior to the effective date of the enabling statute authorizing the increase. The ordinance passed and election held prior to the effective date of the enabling statute were contrary to existing law and were, thus, void ab initio. Having found that this ordinance and election were null and void, the second ordinance, which actually imposed the tax increase, was ineffective since it did not comply with the statutory requirements for imposition of the convention and tourism tax.

Opinion Author: Patricia Breckenridge, Judge

Opinion Vote: REVERSED AND REMANDED. Holliger, P.J., and Smart, J., concur.

Opinion:

Mark Levinson appeals from the trial court's grant of summary judgment in favor of the City of Kansas City, Missouri, and its Commissioner of Revenue, Tracy Smedley, and the denial of his cross-motion for summary judgment. Mr. Levinson contends that the trial court's summary judgment for the City was based upon its erroneous finding that the City of Kansas City had authority to increase the convention and tourism tax because the ordinance that actually imposed the tax and the date that the tax went into effect were after the effective date of the state statute authorizing the tax increase. Mr. Levinson argues that the City of Kansas City had no authority to take actions to increase the tax prior to the effective date of the state enabling statute and, thus, the City's actions were invalid. Because this court finds as a matter of law that the City of Kansas City was without authority to proceed in increasing the convention and tourism tax prior to the effective date of the enabling statute authorizing the increase, the judgment of the trial court is reversed. This case is remanded to the trial court with directions to enter summary judgment in favor of Mr. Levinson and conduct such further proceedings as are necessary and consistent with this opinion.

Factual and Procedural Background

In 1989, the legislature enacted section 92.327.2, RSMo 1989, which authorized any "City" to impose "a tax not to exceed five and one-half percent of the amount of sales or charges for all sleeping rooms paid by the transient guests of hotels, motels and tourist courts" and a tax not to exceed one and three-fourths percent of the gross receipts from retail food sales.¹ These taxes are collectively known as the "convention and tourism tax." Id. In April 1990, the City of Kansas City, Missouri, began levying the five and one-half percent tax on the amount of sales or charges for all rooms paid by the transient guests of hotels, motels and tourist courts as authorized by section 92.327, RSMo 1989. On April 27, 1999, the legislature passed Senate Committee Substitute for House Bill 35, which authorized an increase in the tax on sleeping rooms by one percent, after voter approval. The bill was signed by the governor on July 14, 1999, and became effective August 28, 1999.

Prior to the effective date of this bill, the City Council of Kansas City, on May 20, 1999, passed Ordinance No. 990314, which authorized the submission of the question of the tax increase to voters and called a special election to be held on August 3, 1999. The question submitted to voters read as follows:

Shall the City of Kansas City be authorized to increase the convention and tourism tax from 5 ½ % to 6 ½ % on the amount of sales or charges for all rooms paid by the transient guests of hotels, motels and tourist courts after August 28, 1999, the effective date of Senate Committee Substitute for House Bill 35 passed by the First Regular Session of the 90th General Assembly of the State of Missouri.

In the August 3 election, the voters of Kansas City approved the proposition authorizing the City to increase the tax. Following the approval, on August 26, 1999, the City Council passed Committee Substitute for Ordinance No. 991076, which repealed the then existing Section 68-551 of the Code of Ordinances and replaced it with a new section, the relevant subpart reading as follows:

(b) Beginning January 1, 2000, an increase in the convention and tourism tax authorized by subsection (a)(1) is hereby imposed by one per cent as permitted by RSMo 92.325--92.340 and in accordance with the approval of the voters of the City on August 3, 1999, as follows:

(1) An additional tax of 1 percent of the amount of sales or charges for all sleeping rooms paid by the transient guests of hotels, motels and tourist courts situated within the city, and doing business within the city (excluding sales tax).

Committee Substitute for Ordinance No. 991076 became effective on September 5, 1999.

Three days later, Mr. Levinson filed a petition for declaratory judgment and injunction in the Circuit Court of Jackson County challenging the City's imposition of the increase. In his petition, Mr. Levinson claimed that the City of Kansas City could not legally hold an election to authorize an increase in the tax until after the effective date of the statute. Thus, as a transient guest of hotels in Kansas City who was obligated to pay taxes on sleeping rooms and who was adversely affected by the illegal tax increase, he requested that the trial court declare two ordinances null and void and the special election authorizing the increase null and void. The ordinances he challenged were Ordinance No. 990314, which authorized the submission of the question of the tax increase to voters, and Committee Substitute for Ordinance No. 991076, which amended section 68-551 of the City of Kansas City Code of Ordinances and provided for the tax increase to begin January 1, 2000. Finally, he requested that the trial court enjoin the City from assessing and collecting the additional one percent tax.

The City filed its answer to the petition denying that the tax was unlawful and, as an affirmative defense, alleged that Mr. Levinson failed to state a claim upon which relief could be granted. This defense was based upon the City's assertions that the ordinance that actually imposed the tax became effective eight days after the state enabling statute became effective and that imposition of the tax was delayed until January 1, 2000, over four months after the statute's effective date.

The City subsequently filed a motion for summary judgment in which it argued, once again, that the ordinance imposing the tax and the actual increase did not take effect until after the effective date of the enabling statute. Mr. Levinson then filed his response and a cross-motion for summary judgment in which he argued that the City's actions in passing the two ordinances and holding the special election were without authority and, thus, null and void. On December 23, 1999, the trial court entered summary judgment in favor of the City, denying Mr. Levinson's motion. The court found that because the ordinance that actually imposed the additional one percent tax became effective after the effective date of the enabling statute, the City "clearly had the authority to impose the additional 1% Tax on September 5, 1999, when the ordinance became effective, as well as on January 1, 2000, when the tax actually begins to be imposed pursuant to the ordinance." The court refused to invalidate the election, stating that the irregularities in the election were "[a]t best . . . 'mere non-essential irregularities.'" Mr. Levinson appeals the trial court's summary judgment in favor of the City and Ms. Smedley.

Standard of Review

This court will review an appeal from a trial court's entry of summary judgment de novo, viewing "the record in the light most favorable to the party against whom judgment was entered." ITT Commercial Finance Corporation v. Mid-America Marine Supply Corporation, 854 S.W.2d 371, 376 (Mo. banc 1993); Rule 74.04. The trial court's decision will be affirmed if "there are no genuine issues of material fact and . . . the movant is entitled to judgment as a matter of law." Id. at 377. Yet, this court "need not defer to the trial court's order granting summary judgment." Id. at 376. To be entitled to summary judgment, the movant must "show a right to judgment flowing from facts about which there is no genuine dispute." Id. at 378.

Because the City was the defending party in this case, the City was entitled to summary judgment if it established any one of the following:

(1) facts that negate any one of the claimant's elements facts, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly-pleaded affirmative defense.

Id. at 381.

A Statute Has No...