Moynihan v. Gunn, ED 87122.

• Citation: 204 S.W.3d 230
• Decision Date: 22 August 2006
• Docket Number: No. ED 87122.,ED 87122.
• Parties: Robert MOYNIHAN, Appellant, v. Patrick R. GUNN and City of Manchester, Respondents.
• Court: Court of Appeal of Missouri (US)

204 S.W.3d 230

Robert MOYNIHAN, Appellant, v. Patrick R. GUNN and City of Manchester, Respondents.

No. ED 87122.

Missouri Court of Appeals, Eastern District, Division Four.

August 22, 2006.

Motion for Rehearing and/or Transfer to Supreme Court Denied October 11, 2006.

Application for Transfer Denied November 21, 2006.

Patrick C. Dowd, Chesterfield, MO, for appellant.

Patrick R. Gunn, St. Louis, pro se.

Gino F. Battisti, St. Louis, MO, for respondent.

Introduction

NANNETTE A. BAKER, Presiding Judge.

Robert Moynihan ("Moynihan") appeals a final judgment of the circuit court in dismissing his taxpayer's petition for declaratory judgment and injunctive relief. He sought the declaratory judgment under Rule 87.02(a),¹ claiming that attorney Patrick R. Gunn ("Gunn") should be ordered to return compensation he received as city attorney of the City of Manchester ("the City") during the times he was allegedly compensated without proper appointment and that the City should be enjoined from paying Gunn any further compensation until he is properly appointed by the Board of Alderman ("the Board"). In Gunn's and the City's Motions to Dismiss, they claimed that Moynihan lacked standing and failed to state a claim. The trial court granted their Motions to Dismiss. Moynihan appealed. We find no error and affirm.

Factual Background and Proceedings Below

On December 3, 2001, the Board enacted Ordinance Number 01-1309 appointing Gunn as city attorney for the City and authorizing Mayor Larry Miles ("Mayor Miles") to execute a contract delineating the city attorney's duties and rate of compensation.

On February 18, 2003, the Board enacted Ordinance Number 03-1407 ("Ordinance 03-1407"), which re-appointed Gunn as city attorney and authorized Mayor Miles to execute a contract for legal services between Gunn and the City. That contract was attached and incorporated to Ordinance 03-1407 as Exhibit A ("the Contract"). The Contract appointed Gunn as city attorney and set forth the terms and conditions of his employment.

Mayor Miles was re-elected and he was sworn in on April 19, 2004 as mayor of the City. In his Petition, Moynihan alleged that Ordinance 03-1407 expired on April 19, 2004 when Mayor Miles took office under a new mayoral term and Gunn continued to serve as City Attorney without appointment pursuant to Manchester Code ("Code") Section 2-142. Code Section 2-142 states that "[t]he city attorney shall be appointed by the mayor with the consent and approval of the majority of the members of the [Board]." Moynihan further alleged that since Gunn was compensated as city attorney without proper appointment for certain time periods, Gunn should be compelled to return to the City all fees earned during the periods he was not "officially" appointed.

The City and Gunn filed Motions to Dismiss Moynihan's Petition on the grounds that (1) Moynihan lacked standing to assert his claim pursuant to Rule 87.02; (2) his Petition failed to state a claim upon which relief could be granted because the proceedings are governed by the provisions of Ordinance 03-1407; and (3) Article VII, Section 12 of the Missouri Constitution ("Art.VII, Sec.12") permits Gunn, as an "officer," to continue to "hold office for the term thereof, and until [his] successor [ ][is] duly elected and appointed and qualified." On October 12, 2005, following oral argument, the court granted both Motions to Dismiss.

Moynihan raises four points on appeal. Moynihan argues that (1) he had standing; (2) Ordinance 03-1407 does not extend Gunn's term of appointment beyond that specified in Code Section 2-143; (3) Gunn was not entitled under Art. VII, Sec. 12 to continue in office; and (4) he can recover the compensation paid by the City to Gunn notwithstanding the benefit of Gunn's legal services that the City received cannot be returned. We find no error and affirm.

Standard of Review

Our standard of review when considering a trial court's grant of a motion to dismiss is de novo. Vogt v. Emmons, 158 S.W.3d 243, 247 (Mo.App.E.D. 2005). When the trial court fails to state a basis for its dismissal, we presume the dismissal was based on at least one of the grounds stated in the motion to dismiss. Summer Chase Second Addition Subdivision Homeowners Ass'n v. Taylor-Morley, Inc., 146 S.W.3d 411, 415 (Mo.App. E.D. 2004). Further, we can affirm the trial court's dismissal on any ground before the trial court in the motion to dismiss, even if that ground was not relied upon by the trial court in dismissing the claim. Vogt, 158 S.W.3d at 247. When reviewing the dismissal of a petition for failure to state a claim, appellate courts treat the facts contained in the petition as true and construe them liberally in favor of the plaintiffs. Ste. Genevieve Sch. Dist. R II v. Bd. of Aldermen of City of Ste. Genevieve, 66 S.W.3d 6, 11 (Mo. banc 2002).

Taxpayer Standing

In his first point on appeal, Moynihan alleges that the trial court erred in dismissing his Petition on the ground that he lacked standing. He claims that he has standing because he was a taxpayer and that the City's compensation to Gunn after his appointment ended were direct illegal expenditures of public funds generated by taxes.

Specifically, Moynihan claims that the compensation paid to Gunn after April 19, 2004 violated Section 432.070 and the Code Section 2-145 because the City's Board did not authorize and approve a written contract with the said payments. In addition, no such contract was attached to an ordinance appointing Gunn as city attorney for the period after April 19, 2004, thereby constituting an illegal expenditure of public funds.

In analyzing whether Moynihan has standing, we find it necessary to analyze Moynihan's second and third points on appeal in conjunction with his first point on appeal. In his second point on appeal, Moynihan claims that Ordinance 03-1407 cannot be construed to extend Gunn's term of appointment beyond that specified in Code Section 2-143. In his third point on appeal, Moynihan claims that since a city attorney is not an "officer" for the purposes of Art. VII, Sec. 12, Art. VII, Sec. 12 is inapplicable and Gunn cannot continue in office under that constitutional provision. After reviewing the relevant ordinances, municipal codes, statutes, case law and the Missouri Constitution, we find that there were no "illegal expenditures of public funds" triggering taxpayer standing since Gunn and the City complied with Section 432.070 and an extension of Gunn's term as city attorney was constitutional under Art. VII, Sec. 12.

A taxpayer has standing to challenge an alleged illegal expenditure of public funds, absent fraud or compelling circumstances, if the taxpayer can show either a direct expenditure of funds generated through taxation, an increased levy in taxes, or a pecuniary loss attributable to the challenged action of the municipality. Ste. Genevieve, 66 S.W.3d at 10; see also, Eastern Missouri Laborers Dist. Council v. St. Louis County, 781 S.W.2d 43, 47 (Mo. banc 1989). Merely being a taxpayer is not enough to confer standing to bring an action against a municipality. Ours v. City of Rolla, 965 S.W.2d 343, 346 (Mo. App. S.D.1998). Reduced to its essence, standing roughly means that the parties seeking relief must have some personal interest at stake in the dispute, even if that interest is attenuated, slight or remote. Ste. Genevieve, 66 S.W.3d at 10. This "personal stake" is shown by alleging a threatened or actual injury resulting from the challenged action. Bender v. Forest Park Forever, Inc., 142 S.W.3d 772 773 (Mo.App. E.D.2004). The party seeking relief must show that he is sufficiently affected by the challenged action to justify consideration by the court and that the action violates his particular rights and not those of some third party. Id. at 773-74.

Section 432.070, as discussed above, states, in pertinent part, the following:

No county, city, town, village, school township, school district or other municipal corporation shall make any contract, unless the same shall be within the scope of its powers or be expressly authorized by law, nor unless such contract be made upon a consideration wholly to be performed or executed subsequent to the making of the contract; and such contract, including the consideration, shall be in writing and dated when made, and shall be subscribed by the parties thereto, or their agents authorized by law and duly appointed and authorized in writing.

Manchester Code Section 2-145 states that "[f]or the performance of the services set out in section 2-144 of this division,² the city attorney shall be paid a fee as specified by attached contract."

In Missouri, it has been long held that "[t]he primary rule of statutory construction is to ascertain the intent ... from language used, to give effect to that intent if possible, and consider the words used in their plain and ordinary meaning." State ex rel. Nixon v. QuikTrip Corp., 133 S.W.3d 33, 37 (Mo. banc 2004). When construing a city ordinance, the general rules of statutory construction apply. Civil Serv. Comm'n of St. Louis v. Bd. of Aldermen of St. Louis, 92 S.W.3d 785, 787 (Mo. banc 2003). Where a provision's language is clear, courts must give effect to its plain meaning and refrain from applying rules of construction unless there is some ambiguity. Id. "[O]rdinances are presumed to be valid and lawful ... and should be construed to uphold [their] validity unless the ordinance is expressly inconsistent or in irreconcilable conflict with the general law of the state." McCollum v. Dir. of Revenue, 906 S.W.2d 368, 369 (Mo. banc 1995). If two ordinances can reasonably be reconciled, the Missouri Supreme Court has held it is the court's duty to do so and give effect to both. Levinson v. State, 104 S.W.3d 409, 412 (Mo. banc 2003).

On February 18, 2003, the Board passed Ordinance 03-1407 re-appointing Gunn as city attorney.³ Section Two of Ordinance 03-1407 states that "[t]he...