Smith v. Taney Cnty.

• Decision Date: 08 June 2018
• Docket Number: No. SD 34659,SD 34659
• Citation: Smith v. Taney Cnty., 552 S.W.3d 745 (Mo. App. 2018)
• Parties: Greg SMITH, et ux., Plaintiffs-Appellants, v. TANEY COUNTY, Defendant-Respondent.
• Court: Missouri Court of Appeals

552 S.W.3d 745

Greg SMITH, et ux., Plaintiffs-Appellants,

v.TANEY COUNTY, Defendant-Respondent.

No. SD 34659

Missouri Court of Appeals, Southern District, Division One.

Filed: June 8, 2018

Attorney for Appellants: Timothy S. Davis of Branson, MO.

Attorney for Respondent: Louis (Frank X.) Cottey of Springfield, MO.

JEFFREY W. BATES, P.J.

The trial court granted summary judgment in favor of Taney County (the County) and against Greg and Stephanie Smith (the Smiths) in their action to declare a "nightly rental" zoning ordinance invalid. Because the County failed to make a prima facie showing that it was entitled to judgment as a matter of law, we reverse and remand for further proceedings consistent with this opinion.

Factual and Procedural Background

In 2012, the Taney County prosecutor filed class A misdemeanor criminal charges against the Smiths, alleging that they had violated the Taney County Development Guidance Code (Code) between March and August 2012 by operating a "nightly rental" without acquiring the proper special use permit. According to the County, the nightly rental regulation (Regulation) in § 4.7 of Appendix E to the Code was adopted by amendment on May 29, 2009 (Amendment). The Regulation made the lease of a home for a term less than 30 days different from an ordinary residential use, requiring a "Division III ‘Special Use’ permit" from the Taney County Planning Commission (the Commission).

Thereafter, the Smiths filed a two-count declaratory judgment action challenging the validity of the Code (Count 1) and the Amendment (Count 2).¹ The Smiths' petition alleged that the Code and the Amendment were "ultra vires and void" and "unenforceable" because:

1. With respect to the Code, the County failed to satisfy "the required statutory prerequisites to adopting a master plan" by, inter alia , "holding a public hearing and providing sufficient public notice" as required by Chapter 64.

2. With respect to the Amendment, the County failed to: (a) "keep an accurate record of the orders, rules and proceedings of the county commission" pursuant to § 51.120; and (b) record "a ‘yea’ or ‘nay’ vote of each county commissioner [that] must appear in the minutes" showing a "favorable vote of two-thirds of all members of the county commission" as required by § 610.015 and § 64.875.²

These allegations were denied in the County’s answer.

After extensive discovery, the Smiths filed a motion for summary judgment. Their motion, statements of uncontroverted material fact, and attachments (totaling over 2,500 pages) are contained in 23 volumes of the legal file in this appeal.

The County filed an initial motion for summary judgment, but it was withdrawn. Two days later, the County filed a one-page "Second Motion for Summary Judgment" (hereinafter referred to as the County’s motion for summary judgment). The stated legal basis for the County’s motion for summary judgment was that the Code "is presumed valid." The County’s "Statement of Uncontroverted Material Fact" consisted of only one paragraph identifying an exhibit, Exhibit A, as "[a] copy of the present [Code]." The first page of the exhibit included a "Certificate of True Copy" signed by County Clerk Donna Neeley, stating:

I, Donna Neeley, County Clerk in and for said Taney County, do hereby certify that this is a copy of the Taney County Development Guidance Code dated of 13^th of November 1984 with amendments dated September 8, 2008; November 30, 2009; January 1, 2011; March 15, 2012; May 21, 2012; July 19, 2012; February 11, 2013; March 21, 2013.

IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said County Clerk at my office in Forsyth, Missouri, the 21^st day of January 2016.

Neely’s Certificate does not identify any amendment to the Code occurring on May 29, 2009, which is the date the County alleged that the Amendment and Regulation were adopted.³ The second page of Exhibit A was an affidavit of Robert Atchley, who also purported to authenticate the Code as the Commission’s custodian of records.

The trial court granted the County’s motion for summary judgment and denied the Smiths' motion for summary judgment. In the judgment, the trial court declared "that the Taney County Development Guidance Code was enacted validly by the Taney County Commission on November 13, 1984; and that the Nightly Rental regulation, Section 4.7 of the Taney County Development Guidance Code, was enacted validly by the Taney County Commission on May 29, 2009." This appeal followed.

Standard of Review

A summary judgment can only be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 74.04(c)(6); McLallen v. Tillman , 386 S.W.3d 837, 839 (Mo. App. 2012). "A motion for summary judgment shall summarily state the legal basis for the motion." Rule 74.04(c)(1).

"Our review is de novo using the same criteria the trial court should have employed without deference to that court’s decision." Lackey v. Iberia R-V Sch. Dist. , 487 S.W.3d 57, 58 (Mo. App. 2016) ; see also ITT Commercial Finance Corp. v. Mid-Am. Marine Supply Corp. , 854 S.W.2d 371, 376 (Mo. banc 1993). "Appellate review is based upon the record submitted to the trial court." McLallen , 386 S.W.3d at 839. We view the record in the light most favorable to the party against whom judgment was entered, and we accord that party the benefit of all inferences which may reasonably be drawn from the record. ITT , 854 S.W.2d at 376.

"The language of Rule 74.04 establishes the boundaries of Missouri’s summary judgment practice." ITT , 854 S.W.2d at 380. "Because the underlying purpose of Rule 74.04 is directed toward helping the court expedite the disposition of [the] case, compliance with the rule is mandatory." State ex rel. Nixon v. Hughes , 281 S.W.3d 902, 908 (Mo. App. 2009). We use the following three inquiries to determine compliance with the rule.

The first inquiry is the identification of the movant and whether the movant is a "claimant," under Rule 74.04(a), or a "defending party" under Rule 74.04(b). Here, the County is the movant and the "defending party." See Meyers v. Kendrick , 529 S.W.3d 54, 59 (Mo. App. 2017).

The second inquiry is whether the movant’s motion for summary judgment properly pleads all of the elements as detailed in Rule 74.04(c)(1). See ITT , 854 S.W.2d at 380 ; Meyers , 529 S.W.3d at 59. As the defending party, the County can establish a right to summary judgment by showing:

(1) facts that negate any one of the claimant’s elements facts,

(2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant’s elements, or

(3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant’s properly-pleaded affirmative defense.

ITT , 854 S.W.2d at 381 (italics in original). This Rule 74.04(c)(1) inquiry focuses only upon the movant’s summary judgment motion and its required elements. What the non-movant has said or done is not relevant at this stage of the proceedings. See ITT , 854 S.W.2d at 381 ; Meyers , 529 S.W.3d at 60. "If the movant’s motion fully complies with the requirements of Rule 74.01(c)(1) and the movant’s stated material facts, to which movant claims there is no genuine issue, support the movant’s right to judgment as a matter of law, then the movant has made what our supreme court has described as a ‘prima facie showing’ of a right to summary judgment." Meyers , 529 S.W.3d at 60 ; see also ITT , 854 S.W.2d at 380-81.

The third and final inquiry occurs only after the movant has made "a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law[.]" ITT , 854 S.W.2d at 381. At that point, the burden shifts to the non-movant to show that "one or more of the material facts shown by the movant to be above any genuine dispute is, in fact, genuinely disputed." Id . ; Meyers , 529 S.W.3d at 60.

Discussion and Decision

To grant a declaratory judgment, a trial court must be presented with: (1) a justiciable controversy (i.e., a presently existing, real and substantial controversy admitting of specific relief), as distinguished from an advisory decree upon a purely hypothetical situation; (2) a plaintiff with a legally protectable interest at stake; (3) a controversy that is ripe for judicial determination; and (4) an inadequate remedy at law. Missouri Ass'n of Nurse Anesthetists, Inc. v. State Bd. of Registration for Healing Arts , 343 S.W.3d 348, 353-54 (Mo. banc 2011).

As a preliminary matter, we must address whether the Smiths' controversy is ripe for judicial determination because they could raise the invalidity of the ordinance as a defense in any action brought to prosecute them for an alleged ordinance violation. See Alpert v. State , 543 S.W.3d 589, 594-95 (Mo. banc 2018). Even though no criminal proceeding was pending against the Smiths when the trial court entered its judgment, they have a recognized right under Missouri law to seek a determination of their rights in this declaratory judgment action. See id . at 595 (forcing a litigant to wait until he or she is prosecuted puts that person in a dilemma that the Declaratory Judgment Act was designed to ameliorate); Tupper v. City of St. Louis , 468 S.W.3d 360, 368-69 (Mo. banc 2015) (the plaintiffs' challenge to the city’s red light camera ordinance was ripe, despite the fact that neither plaintiff was facing prosecution at the time the challenge was raised); Nicolai v. City of St. Louis , 762 S.W.2d 423, 425 (Mo. banc 1988) (plaintiff’s challenge to a cat kennel licensing ordinance, prior to being cited with a violation, was ripe for judicial resolution). Therefore, we proceed to the merits of this appeal.

In the Smiths' single point, they contend the trial court erred by granting the County’s motion for...