S & P Properties v. City of University City

• Decision Date: 13 September 2005
• Docket Number: No. ED 85520.,ED 85520.
• Citation: 178 S.W.3d 579
• Parties: S & P PROPERTIES, INC., Appellant, v. CITY OF UNIVERSITY CITY, Respondent.
• Court: Missouri Supreme Court

178 S.W.3d 579

S & P PROPERTIES, INC., Appellant, v.CITY OF UNIVERSITY CITY, Respondent.

No. ED 85520.

Missouri Court of Appeals, Eastern District, Division Three.

September 13, 2005.

Motion for Rehearing and/or Transfer to Supreme Court Denied October 25, 2005.

Application for Transfer Denied December 20, 2005.

COPYRIGHT MATERIAL OMITTED

John Mulligan, Jr., St. Louis, MO, for respondent.

Richard Fischer, St. Louis, MO, for appellant.

David Knieriem, Clayton, MO, Co-counsel for appellant.

OPINION

GLENN A. NORTON, Judge.

S & P Properties, Inc. filed a petition challenging the validity of and methods of enforcement used under University City's refuse collection ordinances and seeking a refund of amounts paid under the ordinances.The trial court granted the City's motion to dismiss for failure to state a claim upon which relief can be granted, and S & P appeals.We affirm.

I.BACKGROUND

The allegations in S & P's petition are as follows.S & P purchased property in University City.The City's refuse collection ordinances authorize the imposition of a special tax bill to act as a lien on property if refuse collection fees are not paid.Under these ordinances, the City demanded payment of the outstanding balances on tax bills relating to refuse collection for the property S & P purchased and would not provide occupancy permits or inspections until the balances were paid.S & P paid some portion of the balance on those tax bills.

S & P filed suit against the City.In the first count of the petition, S & P sought a declaration that the ordinances are unconstitutional and unlawful.In the second count, it alleged that the taxes were collected mistakenly or erroneously and sought a refund under section 139.031.5 RSMo 2000.¹In the third count, S & P claimed that, under section 88.814, the City erred in treating the refuse collection fees as a special tax bill and in collecting taxes from S & P and sought a refund.Finally, in the last count S & P sought a refund under the doctrine of unjust enrichment.The City filed a motion to dismiss for failure to state a claim upon which relief can be granted, which the court granted without further explanation.S & P appeals.

II.DISCUSSION

A motion to dismiss for failure to state a claim is solely a test of the adequacy of the plaintiff's petition; therefore, on appeal, we accept as true all well-pled allegations in the petition and liberally grant the plaintiff all reasonable inferences drawn therefrom.Nazeri v. Missouri Valley College,860 S.W.2d 303, 306(Mo. banc 1993);see alsoFreeman v. Leader National Insurance Co.,58 S.W.3d 590, 596(Mo.App. E.D.2001).This Court does not attempt to weigh whether the alleged facts are credible or persuasive.Nazeri,860 S.W.2d at 306."Instead, the petition is reviewed in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case."Id.Where, as here, the court does not state a reason for its dismissal, we assume the reason for dismissal is in the motion to dismiss and will affirm based on any grounds therein.Berkowski v. St Louis County,854 S.W.2d 819, 823(Mo.App. E.D.1993).

A.Declaratory Judgment

S & P sought a declaration that the City's refuse collection ordinances conflict with the United States Constitution, the Missouri Constitution, Missouri statutes and the City's charter and ordinances.To state a claim for declaratory relief, the plaintiff must: (1) present a justiciable controversy; (2) demonstrate a legally protected pecuniary or personal interest directly at issue and subject to immediate or prospective consequential relief; (3) show that the issue is ripe; and (4) demonstrate that he does not have an adequate remedy at law.Lane v. Lensmeyer,158 S.W.3d 218, 222(Mo. banc 2005).In its motion to dismiss, the City argued, among other things, that S & P had an adequate remedy in the tax protest procedures in section 139.031.1-.4.Those sections allow for a taxpayer to pay taxes under protest and then bring an action for recovery of those taxes.Section 139.031.1-.4.The payment under protest must be accompanied by a written statement setting forth the grounds on which the protest is based.Seesection 139.031.1.The reasons for protest stated in the accompanying statement—including statutory validity and constitutional challenges—then can be adjudicated.See, e.g., Armco Steel v. City of Kansas City,883 S.W.2d 3, 5(Mo. banc 1994)(challenging statutory validity and constitutionality through protest payment);see alsoMetal Form Corp. v. Leachman,599 S.W.2d 922, 924-25(Mo. banc 1980)(limiting appellate review to those issues specifically raised in the protest statement).We agree that S & P had an adequate remedy for addressing the validity and constitutionality of the refuse collection ordinances because it could request a refund after payment under protest of the taxes it believed were imposed and collected illegally and unconstitutionally.SeeLane,158 S.W.3d at 222.

An action for declaratory judgment is inappropriate if an issue can be raised by other means.Id. at 223.S & P has not shown that requesting a refund under section 139.031.1-.4 would not fully redress the validity or constitutionality of the ordinances or be an adequate remedy.Seeid. S & P's petition's count seeking declaratory judgment therefore did not state a claim upon which relief can be granted.

B.Refund under Section 139.031.5

Although it did not pay under protest and seek a refund under sections 139.031.1-.4, S & P did allege that the taxes imposed by the City under its ordinances were mistakenly or erroneously levied against it and sought refund under section 139.031.5.In its motion to dismiss, the City correctly argued that section 139.031.5 only applies to taxes levied by "county collectors of taxes, and the collector of taxes in any city not within a county" and that University City is not a county or a city outside of a county.In response, S & P cites Crest Communications v. Kuehle for the proposition that "an equitable action for refund will lie in some cases to prevent a city from exceeding the assessed valuation placed on property by the county."754 S.W.2d 563, 568(Mo. banc 1988).That holding is limited to its facts, which are completely different than the facts alleged in S & P's petition.SeeLane,158 S.W.3d at 222(stating that Crest has been limited to its facts).S & P did not plead that the City imposed a tax in excess of the valuation made by the county; its allegations in this count related to the taxes imposed by the City, which S & P did not—and cannot—allege is a county or a city not within a county.Therefore, S & P failed to state a claim for a refund under section 139.031.5.

C.Refund under Section 88.814

S & P also sought a refund under section 88.814.Section 88.814.2 provides that "[i]n any action brought on any special tax billthe court may correct any error in the amount of the tax bill."²In its motion to dismiss, the City contended that S & P failed to state a claim because section 88.814 provides no legal basis for relief in this case.We agree, but not for the particular reason the City asserts.

The City argues that section 88.814 only applies to special tax bills for the public improvements outlined in section 88.812, which does not include refuse collection.But claims under section 88.814 are not that restricted.Rather, section 88.812 provides for the creation of special tax bills for specified public improvements, while section 88.814.2 provides for the correction of an error in any special tax bill.Section 88.814 does not refer to section 88.812 except with respect to requests for a public hearing about taxes levied on property, which is not at issue here.Section 88.814.3.There is no authority for the proposition that an action to correct an error in a tax bill under section 88.814 is restricted to the types of tax bills enunciated in section 88.812.

Nonetheless, S & P's assertion that the City "erred in treating the refuse collection fees as a special tax bill and in collecting said taxes from [S & P]" does not state a claim upon which relief can be granted under section 88.814.Section 88.814 does not say anything about the types of fees that can be treated as special tax bills or the ways in which special tax bills are collected.Further, section 88.814 does not provide a legal basis for the relief sought by S & P, namely, a refund of the taxes it paid.That statute relates only to errors in the amount of the tax bill and only provides for the correction of those amounts and for a public hearing.Section 88.814.Moreover, the attorney fees that S & P seeks in this count are recoverable only by one seeking to enforce a special tax bill.Section 88.814.2.

S & P argues that, under Nicolai v. City of St. Louis, dismissal of a petition is improper if interpretation of a statute is required.762 S.W.2d 423, 425(Mo. banc 1988).The holding in Nicolai, however, applied only to the petitioner's pursuit of a declaratory judgment, which S & P does not request in this count of its petition.It is proper to construe the relevant statute to determine the propriety of granting a motion to dismiss in this case because a declaration of rights is not the relief sought.See...