Rasse v. The City of Marshall

• Decision Date: 18 April 2000
• Citation: 18 S.W.3d 486
• Parties: (Mo.App. W.D. 2000) Louis J. Rasse, Appellant v. The City of Marshall, et al., Respondent. WD57082 0
• Court: Missouri Court of Appeals

18 S.W.3d 486 (Mo.App. W.D. 2000)

Louis J. Rasse, Appellant v. The City of Marshall, et al., Respondent.

WD57082

Missouri Court of Appeals Western District

04/18/2000

Appeal From: Circuit Court of Saline County, Hon. John E. Frerking

Counsel for Appellant: Stephen J. Moore and Lawrence R. McClure

Counsel for Respondent: Catherine P. Logan and Stanley M. Thomas

Opinion Summary: Louis J. Rasse petitioned the City of Marshall to build improvements on his land under the Neighborhood Improvement District Act, section 67.453 through 67.475, RSMo 1994 and Supp. 1999. The City approved the project, created the Salt Fork Neighborhood Improvement District (NID), and developed the land by constructing roads, sewers, and utility connections. Payment for the improvements was to be made through special assessments payable in twenty annual installments. Mr. Rasse failed to pay the 1996 and the 1997 installments.

When the City arranged a tax sale to collect the unpaid special assessments, Mr. Rasse sued for declaratory and injunctive relief. In his lawsuit, Mr. Rasse contested the validity and timing of the special assessments. The City moved for summary judgment based on a ninety-day special statute of limitation. Section 67.465 prohibits suits to set aside NID special assessments or to otherwise question the validity of the proceedings that are brought ninety days after the mailing of notice to the property owners. On the special assessments claim, the trial court granted summary judgment for the City. On the timing claim, the trial court granted Mr. Rasse declaratory relief by prohibiting collection of the 1996 installment.

In this appeal, Mr. Rasse contends that the special statute of limitation is inapplicable. He maintains that the ordinance imposing the special assessments was rendered invalid by the City's failure to comply with the Neighborhood Improvement District Act. He asserts that the City improperly enacted that ordinance before the project was completed according to plans and specifications as required by section 67.463.2. In appealing the partial summary judgment, Mr. Rasse insists that disputed material facts remain on the completion of the NID project. He also complains about his notice of the special assessments, disputes allegedly inconsistent judgments, and raises claims of procedural errors.

AFFIRMED.

Division One holds: The special statute of limitation in section 67.465 barred Mr. Rasse's special assessments challenge. Mr. Rasse's claim contesting the special assessments and questioning the validity of the proceedings fit well within the ambit of the special statute of limitation. His petition was filed more than two years after the ninety-day limitation. Because the special statute of limitation cut off the cause of action, Mr. Rasse had no right to present evidence in support of his case. Thus any facts on the completion of the NID project were not material. Uncontested facts established that Mr. Rasse received actual notice and had actual knowledge of the special assessment proceedings. The notice of the imposition of the special assessments met statutory requirements. By granting Mr. Rasse declaratory relief, the trial court implicitly determined that the special statute of limitation did not bar his timing claim. The judgment was, therefore, internally consistent. None of Mr. Rasse's claims of procedural errors merit reversal on appeal.

Thomas H. Newton, Judge

Louis J. Rasse appeals from the Order and Judgment disposing of his action for declaratory and injunctive relief against the City of Marshall and various city and county officials.¹ In his lawsuit, Mr. Rasse contested the imposition and collection of special assessments for improvements to a subdivision created under the Neighborhood Improvement District Act.² The principal issue on appeal is whether Mr. Rasse's challenge to the special assessments was barred by the special statute of limitation in section 67.465, RSMo 1994. Concluding that the special statute of limitation applies and finding no reversible error, we affirm the Order and Judgment.

I. Background and Procedural History

A. Formation of Neighborhood Improvement District

In May 1994, Louis Rasse petitioned the City of Marshall for creation of the Salt Fork Neighborhood Improvement District. The purpose of the petition was to provide for improvements on a 26.13 acre tract of land that Mr. Rasse owned in fee simple. The petition proposed development of the land by constructing roadways, streets, curbs, gutters, driveway entrances, drainage works, sewers, water mains, and utility connections. The petition estimated the cost of the proposed improvements at $639,676.00. A later amendment provided for the final costs of the improvements to be made by special assessments on a per lot basis and to be payable in substantially equal annual installments over twenty years.

The City approved the project after adopting resolutions, holding public meetings, solicting bids, securing general obligation bonds, and hiring a construction company. Construction began and the neighborhood improvement district was eventually renamed the Cypress Point Subdivision. In July 1995, Charles Tryban, the city administrator, expressed his belief that the project was near completion. Disputing that statement, Mr. Rasse advised him of numerous deficiencies in the project and complained about the timeliness and quality of the work.

On January 2, 1996, Mr. Rasse attended a city council meeting at which the ordinance making the final assessments was presented for ratification. Mr. Rasse opposed wording in the ordinance that the work had been completed according to plans and specifications. He stated that the incomplete work involved minor details and technicalities. In the ensuing discussion, Mr. Tryban noted his disagreement with Mr. Rasse about the completion of the work. Other council members related that the construction company had committed to rectify deficiencies. In spite of Mr. Rasse's opposition, the city council enacted Ordinance No. 6929. Ordinance 6929 recited that the Salt Fork Neighborhood Improvement District Project had been completed in accordance with plans and specifications. The ordinance set the final costs of the improvements at $798,500.00 and assessed $15,066.04 against each lot. On January 16, 1996, the city council repealed portions of Ordinance 6929 and enacted Ordinance No. 6933 which added a section allowing the property owners the option to pay the special assessments in full within thirty days of January 16, 1996 or to pay with interest in twenty annual installments. The city clerk, Janet French, mailed notice of the special assessments to Mr. Rasse on January 17, 1996. Mr. Rasse elected not to pay the special assessments in full.

Because the special assessments were not paid in full, the City divided the amount due plus interest into annual installment payments. After certification of assessment rolls to the county, those installments were added to the annual real property tax bills. Mr. Rasse's 1996 and 1997 tax bills included the first and second annual installments for the special assessments on the Salt Fork Neighborhood Improvement District. Mr. Rasse paid neither the 1996 nor the 1997 special assessment installments. To collect the 1996 and 1997 special assessment installments, the City advertised a tax sale of Mr. Rasse's land in July 1998. In response, Mr. Rasse filed the lawsuit that is the subject of this appeal.

B. Special Assessments Dispute

On August 19, 1998, Mr. Rasse filed his Petition for Declaratory and Injunctive Relief. In that lawsuit, Mr. Rasse contended that the special assessments against him were invalid because the construction project had not been completed according to specifications. In support, he cited section 67.463.2, RSMo 1994, that requires that the improvement be "completed in accordance with the plans and specifications" before the city computes and apportions the costs of the special assessments. Mr. Rasse also disputed the timing of the 1996 and 1997 installment payments. As relief, Mr. Rasse sought declarations that the special assessments were invalid and injunctions prohibiting imposition or collection of the special assessments. On that same day, the trial court entered a temporary restraining order, which was extended on August 31, 1998. The TRO apparently enjoined the City from conducting the land tax sale to collect the unpaid special assessments. Although hearings were scheduled, no preliminary injunction was ever imposed.

The City initially moved to dismiss for failure to state a cause of action. It later filed a motion for summary judgment in which it maintained that Mr. Rasse's action to challenge the special assessments was barred by the special statute of limitation in section 67.465. That statute provides that no suit to set aside special assessments or to question the validity of those proceedings shall be brought after ninety days from the mailing of notice to property owners.

After the submission of numerous suggestions, briefs, and affidavits and after holding a hearing and conferences, the trial court entered its Order and Judgment on March 12, 1999. First, granting partial summary judgment for the City, the trial court found that the claim for a declaration invalidating the special assessments and the claim for an injunction prohibiting their collection were barred by special statute of limitation in section 67.465. Next, finding for Mr. Rasse, the trial court declared that City was prohibited from collecting the first installment of the special assessment in 1996; that 1997 installment was the first installment of the special assessment; that interest due on the 1997 installment would date from January 16, 1997 until it was billed; and that subsequent installments of the special assessments would be payable annually after 1997 with interest for one year on all unpaid installments to be added to...