Smith v. City of St. Louis

• Decision Date: 09 April 2013
• Docket Number: No. SC 92646.,SC 92646.
• Citation: 395 S.W.3d 20
• Parties: Bonzella SMITH and Isaiah Hair, Respondents/Cross–Appellants, and Cheryl Nelson and Elke McIntosh, Respondents/Cross–Appellants, v. CITY OF ST. LOUIS, Board of Aldermen for the City of St. Louis, TIF Commission for the City of St. Louis, and Northside Regeneration, LLC, Appellants/Cross–Respondents.
• Court: Missouri Supreme Court

395 S.W.3d 20

Bonzella SMITH and Isaiah Hair, Respondents/Cross–Appellants,
and
Cheryl Nelson and Elke McIntosh, Respondents/Cross–Appellants,
v.
CITY OF ST. LOUIS, Board of Aldermen for the City of St. Louis, TIF Commission for the City of St. Louis, and Northside Regeneration, LLC, Appellants/Cross–Respondents.

No. SC 92646.

Supreme Court of Missouri,
En Banc.

April 9, 2013.

[395 S.W.3d 22]

Paul J. Puricelli and Robb E. Hellwig, Stone, Leyton & Gershman, St. Louis, for Northside Regeneration.

Gerard T. Carmody, James P. Carmody and Edwin C. Ernst IV, Carmody MacDonald PC, St. Louis, for City of St. Louis.

W. Bevis Schock, Schock Law, St. Louis, for Nelson and McIntosh.

D.B. Amon, Eric E. Vickers, Independent Practitioner, James W. Schottel Jr., Schottel & Associates PC, St. Louis, for Smith and Hair.

RICHARD B. TEITELMAN, Chief Justice.

This is an appeal from a declaratory judgment that voided ordinances authorizing a tax increment financing (TIF) plan to redevelop approximately 1500 acres in the City of St. Louis. The judgment declared that the ordinances are void because they did not include “defined redevelopment projects and cost-benefit analysis of such projects as required by [sections] 99.820.1(3), 99.820.1(5) and 99.845.1.” The trial court also overruled a motion for attorney fees filed by the plaintiffs and intervenors. The judgment is reversed to the extent it declares the ordinances void because of the lack of a defined redevelopment project and cost-benefit analysis referable to such a project. In all other respects, the judgment is affirmed.

I. Background

The City of St. Louis passed ordinances authorizing a redevelopment plan proposed by Northside Regeneration, LLC. The plan includes 1500 acres and is estimated to cost approximately $8.1 billion dollars over 20 years. The redevelopment plan identified a redevelopment area, which was then divided into four smaller areas generally

[395 S.W.3d 23]

referred to as redevelopment project areas A, B, C, and D. The redevelopment plan proposed land uses and development concepts for each redevelopment project area. The city board of aldermen passed two ordinances to implement the plan.

Ordinance 68484 provided for the city's adoption and approval of the redevelopment plan pursuant to the TIF act, the designation of the redevelopment area as described in the plan, the approval of the redevelopment area, and the creation of a special fund for the allocation and administration of payment of redevelopment costs. Ordinance 68484 also provided findings that the redevelopment area was blighted, that the redevelopment plan conformed to the city's comprehensive plan for the redevelopment of the city, that a cost-benefit analysis had been filed and that the redevelopment would not be financially feasible without tax increment financing assistance.

Ordinance 68485 designated the redevelopment, proposed the preparation of redevelopment areas A and B for “the development of new commercial, residential, institutional and industrial uses,” and authorized the city to enter into an agreement with Northside. The city then entered into an agreement with Northside to execute the redevelopment plan.

Bonzella Smith and Isaiah Hair (plaintiffs) filed a petition requesting a preliminary injunction to prevent the city and Northside from “moving forward” with the redevelopment plan. Plaintiffs filed an amended petition requesting a temporary restraining order, a preliminary injunction and a permanent injunction against respondents. Plaintiffs filed a second amended petition adding a request for a declaratory judgment. No version of plaintiffs' petition alleged that the redevelopment plan was invalid for failing to include a specific redevelopment project. The trial court denied plaintiffs' request for a preliminary injunction and set the case for trial.

Cheryl Nelson and Elke McIntosh (intervenors) subsequently intervened and filed a petition for declaratory judgment alleging that the redevelopment plan is “in direct violation of and contrary to conditions set forth in [section] 99.820, et seq.” Like plaintiffs' petition, intervenors' petition did not allege that the redevelopment plan was invalid for failing to include a specific redevelopment project. The case proceeded to trial.

Plaintiffs first raised the issue of the lack of a specific project in a motion in limine filed on the first day of trial. Intervenors did not join in this motion. The motion alleged that the ordinances did not include a “redevelopment project” as required by the TIF Act. Plaintiffs requested that the trial court exclude any evidence of a redevelopment project without laying a foundation for the existence of the “redevelopment project as being specific and identifiable.” The trial court took the motion with the case.

In July 2010, the trial court entered a judgment declaring that ordinances are “void and of no force or effect as in conflict with [the TIF Act]” because the redevelopment plan lacked “the inclusion of defined redevelopment projects and a cost-benefit analysis of such projects as required by [sections] 99.820.1(3), 99.820.1(5), and 99.845.1.” The court recognized that the issue of whether the ordinances included a specific project was an issue “detected by the court” and may not be “fairly embraced by the pleadings in this case.” However, the court determined that plaintiffs raised the issue through the motion in limine and by introducing the ordinances

[395 S.W.3d 24]

into evidence. ¹ The court overruled the motions for attorney fees filed by plaintiffs and intervenors.

Northside and the city appeal. Plaintiffs and intervenors have filed cross appeals.

I. Standard of Review

“The standard of review in a declaratory judgment case is the same as in any other court-tried case.” Levinson v. State, 104 S.W.3d 409, 411 (Mo. banc 2003). “The judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.” Id. The issue of whether the ordinances comply with the TIF statutes is a question of law that is reviewed de novo. JG St. Louis West Ltd. Liability Co. v. City of Des Peres, 41 S.W.3d 513, 522 (Mo.App.2001).

II. The “specific project” argument was not raised at trial

The trial court held that the general allegations in the pleadings, coupled with the motion in limine and the fact that the ordinances were introduced into evidence, adequately raised the issue of whether there was a sufficiently specific redevelopment project. Northside asserts that the trial court erred in ruling that the ordinances lacked a redevelopment project because plaintiffs and intervenors did not properly raise the issue. Northside is correct.

A. The petitions do not raise the specific project issue

“The purpose of a pleading is to limit and define the issues to be tried in a case and [to] put the adversary on notice thereof.” City of St. Joseph, Mo. v. St. Joseph Riverboat Partners, 141 S.W.3d 513, 516 (Mo.App.2004). “To the extent that [a] judgment goes beyond the pleadings, it is void.” Residential & Resort Assocs., Inc. v. Wolfe, 274 S.W.3d 566, 569 (Mo.App.2009); see also McCord v. Gates, 159 S.W.3d 369, 375 (Mo.App.2004).² As noted above, neither plaintiffs nor intervenors asserted in their petitions that the ordinances violated the TIF act by failing to include a specific redevelopment project. The petitions did not place Northside on notice that the specific project issue was a subject of this litigation and, therefore, did not preserve that issue for purposes of this case.

B. Motion in limine

Instead of raising the issue in their petition or other substantive pleading, plaintiffs first raised the issue of the lack of a specific project in a motion in limine filed on the first day of trial. Plaintiffs' motion in limine sought to prevent Northside and the city from introducing evidence of a redevelopment project, which is the normal purpose of a motion in limine. A motion in limine seeks “ ‘a preliminary expression of the court's opinion as to the admissibility of the evidence.’ ” Brown v. Hamid, 856 S.W.2d 51, 55 (Mo. banc 1993) (quoting Ball v. American Greetings Corp., 752 S.W.2d 814, 824 (Mo.App.1988)).

[395 S.W.3d 25]

In neither the form nor the substance of the motion did plaintiffs ask to amend their petition to raise the issue of the lack of a specific project, and the trial court erroneously considered the motion in determining that the plaintiffs had sufficiently raised the issue.

C. The issue was not tried by implied consent

In the absence of a pleading raising the issue, the question becomes whether the issue was tried by implied consent. The doctrine of trial by implied consent provides that issues not raised by the pleadings may be determined by the trial court when evidence is offered, without objection by any other party, bearing solely on that issue. City of St. Joseph, 141 S.W.3d at 516; see also Rule 55.33(b).³ The evidence offered must relate only to the proposed new issue, without bearing upon other issues in the case. Id.;Shuler v. Premium Standard Farms, Inc., 148 S.W.3d 1, 6 (Mo.App.2004). It is the burden of the party contending that an issue was tried by implied consent to demonstrate implied consent. ...