PMS 4583 LLC v. City of New Melle, ED 109696

CourtCourt of Appeal of Missouri (US)
Writing for the CourtKURT S. ODENWALD, Presiding Judge
Citation639 S.W.3d 10
Parties PMS 4583 LLC, Appellant, v. CITY OF NEW MELLE, Respondent.
Docket NumberNo. ED 109696,ED 109696
Decision Date14 December 2021

639 S.W.3d 10

PMS 4583 LLC, Appellant,
CITY OF NEW MELLE, Respondent.

No. ED 109696

Missouri Court of Appeals, Eastern District, DIVISION ONE.

FILED: December 14, 2021

For Appellant: Michael K. Daming, Evelyn I. Sims, 1401 S. Brentwood Blvd., Ste. 875, St. Louis, MO 63144.

For Respondent: Peter J. Dunne, 800 Market St., Ste. 1100, St. Louis, MO 63101, Francine C. Eichhorn, 4167 Fairburn Ct., St. Louis, MO 63129, Stephen A. Martin, 330 Jefferson St., St. Charles, MO 63301.

KURT S. ODENWALD, Presiding Judge


PMS 4583 LLC (the "Schepis")1 appeal from the circuit court's judgment dismissing their declaratory-judgment claim against the City of New Melle (the "City") for failure to bring their claim as a writ of certiorari under Section 89.110.2 The Schepis filed for declaratory judgment under Section 536.150 contesting the denial of their application to rezone the subject property by the City's Board of Aldermen (the "Board"). In their sole point on appeal, the Schepis argue the circuit court erred in granting the City's motion to dismiss because they were not required by the Missouri Administrative Procedure Act ("MAPA")3 to bring their claim under Section 89.110 in that the zoning decision was not an administrative act of the City's Planning and Zoning Commission (the "Commission") or the City's Board of Adjustments resulting from a contested hearing. Rather, the Schepis contend they properly pleaded their claim for declaratory judgment under Section 536.150 challenging the Board's denial of their petition to rezone the subject property. Because the Schepis properly petitioned for declaratory judgment under Section 536.150 to appeal a zoning decision of the Board, the City's legislative body, we grant the point on appeal. Accordingly, we reverse the circuit court's judgment dismissing the petition's claim for declaratory judgment and remand to the circuit court to continue proceedings consistent with this opinion.

Factual and Procedural History

In our review of a motion to dismiss, we take the following facts as pleaded in the petition as true. The Schepis, on behalf of PMS 4583 LLC as its owner-members, filed an application (the "Rezoning Application") requesting the City enact an ordinance amending the City's zoning map to rezone the subject property (the "Property") from residential to commercial. The Schepis sought to expand their long-standing landscaping business operated on an adjacent property. Both the City's Commission and Board reviewed the Rezoning Application.

639 S.W.3d 13

The Commission indicated initial approval of the Rezoning Application, but its approval was subject to a conditional use permit ("C.U.P."). The Board then considered the Rezoning Application and referred the matter back to the Commission for further review of ordinance requirements relating to the recommended C.U.P. Following several meetings, during which local residents opposed the rezoning, the Commission recommended denial of the Rezoning Application. The Board subsequently voted during an aldermanic session to deny the Rezoning Application.

The Schepis petitioned for declaratory judgment in the circuit court under Section 536.150 to declare the City's denial of their Rezoning Application arbitrary, capricious, unreasonable, and an abuse of discretion. The Schepis sought an order from the circuit court directing the City to adopt a reasonable zoning classification for the Property (the "Declaratory-Judgment Claim"). In their second count, the Schepis sought just compensation for the constitutional taking of their property because the denial of the Rezoning Application rendered the Property worthless to them (the "Takings Claim").

The City moved to dismiss both claims. The City sought dismissal of the Declaratory-Judgment Claim for failure to bring the appeal under the writ procedures set forth in Section 89.110 after exhausting related municipal procedures. The City sought dismissal of the Takings Claim for the Schepis’ failure to obtain a final determination from the City through the procedures for seeking variances or exceptions. The circuit court granted the City's motion to dismiss the Declaratory-Judgment Claim, finding that declaratory judgment is unavailable as a remedy for judicial review of administrative actions of zoning agencies. The circuit court denied the motion to dismiss the Takings Claim, and it remains pending.

The Schepis appealed the circuit court's grant of the City's motion to dismiss the Declaratory-Judgment Claim, and the circuit court granted their motion to certify the cause as final for appeal under Rule 74.01(b).4 We ordered the Schepis to show cause why the appeal should not be dismissed for lack of a final, appealable judgment and took the jurisdictional issue with the case.

Point on Appeal

In their sole point on appeal, the Schepis assert that the circuit court erred in granting the City's motion to dismiss the Declaratory-Judgment Claim because they properly pleaded the claim under Section 536.150 as a challenge to the Board's legislative decision refusing to rezone the property. The Schepis maintain that they were not required to plead their claim under Section 89.110 because they were not challenging a contested administrative action.


Preliminarily, the Schepis argue the circuit court's judgment is a final judgment properly certified for appeal under Rule 74.01(b) because it resolves the distinct judicial unit of the Declaratory-Judgment Claim separate from the remaining Takings Claim. The City counters that the Declaratory-Judgment Claim is not sufficiently distinct from the Takings Claim for the circuit court's judgment to be properly certified as final for appeal.

An appeal is proper from a final judgment "resolv[ing] all issues in a case, leaving nothing for future determination." Wilson v. City of St. Louis, 600 S.W.3d 763, 768 (Mo. banc 2020) (internal quotation

639 S.W.3d 14

omitted). The general rule prescribes that "a judgment resolving one or more claims but leaving one or more claims unresolved is not a ‘final judgment’ for purposes of [S]ection 512.020(5)[.]" Id. (internal citation omitted). However, under Rule 74.01(b), "the circuit court may certify for immediate appeal a ‘judgment as to one or more but fewer than all of the claims or parties’ if the court expressly finds there is no just reason for delaying the appeal until all claims are resolved." Id. (quoting Rule 74.01(b)). Whether certification under Rule 74.01(b) is proper "depends on ‘the content, substance, and effect of the order,’ not the circuit court's designation." Id. at 771 (quoting Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997) ).

To properly certify a judgment for appeal under Rule 74.01(b), the judgment must resolve a distinct "judicial unit" that either resolves all claims by or against one or more parties or resolves one or more claims that are distinct from those claims that remain to be resolved. Id. at 769 (quoting Gibson, 952 S.W.2d at 244 ). "[A] judgment resolves a ‘distinct’ judicial unit if it resolves claims that do not arise ‘from the same set of facts, and the same transactions and occurrences, as the counts’ yet to be disposed of in the [circuit] court." Id. at 770 (quoting Gibson, 952 S.W.2d at 244 ). "[T]he ‘effect of Rule 74.01(b) is to permit severance of any unrelated substantive claim for relief of the parties and to allow appeal of a final judgment on those severed claims.’ " Id. (quoting First Nat'l Bank of Dieterich v. Pointe Royale Prop. Owners’ Ass'n, Inc., 515 S.W.3d 219, 222 (Mo. banc 2017) ). Claims may be considered separate if they require proof of different facts and the application of distinguishable law, even if there is some connection in the facts or circumstances between the resolved and unresolved claims. Id. at 770–71 (internal quotations omitted); but see Energy Market 709, LLC v. City of Chesterfield, 614 S.W.3d 643, 650 (Mo. App. E.D. 2020) (quoting Ndegwa v. KSSO, LLC, 371 S.W.3d 798, 802 (Mo. banc. 2012) ) (noting " ‘[d]iffering legal theories or issues presented for recovery on the same claim’ do not create a distinct judicial unit that allows for certification of a judgment pursuant to Rule 74.01(b)").

Here, the Declaratory-Judgment Claim and Takings Claim derive from the same operative facts. Namely, the Schepis applied to have the subject property rezoned from residential to commercial, and the City refused to rezone the property. The Declaratory-Judgment Claim asks the circuit court to declare the City's refusal to pass legislation rezoning the property as arbitrary, capricious, unreasonable, and an abuse of discretion. The unresolved Takings Claim seeks money damages from the alleged unconstitutional taking of the property arising out of the City's refusal to rezone the property. The first claim challenges the validity of the City's zoning decision, and the second claim alternatively accepts the validity of the decision but seeks just compensation.

It is well settled in Missouri jurisprudence that "[a] claim for inverse condemnation [i.e., an unconstitutional taking] under Article I, Section 26 of the Missouri Constitution is not a collateral attack on an administrative decision and is a wholly separate cause of action requesting wholly separate relief from that of a claim for review under MAPA." Metro Fill Dev.,...

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