State ex inf. Riederer ex rel. Pershing Square Redevelopment Corp. v. Collins

• Citation: 799 S.W.2d 644
• Decision Date: 27 November 1990
• Docket Number: No. WD,WD
• Parties: STATE, ex inf. Albert RIEDERER, Jackson County Prosecuting Attorney, ex rel., PERSHING SQUARE REDEVELOPMENT CORPORATION, Relator-Appellant, v. Robert COLLINS, Director of City Development, City of Kansas City, Missouri, Defendant-Respondent. 43143.
• Court: Missouri Court of Appeals

Page 644

799 S.W.2d 644

STATE, ex inf. Albert RIEDERER, Jackson County Prosecuting Attorney, ex rel., PERSHING SQUARE REDEVELOPMENT CORPORATION, Relator-Appellant, v. Robert COLLINS, Director of City Development, City of Kansas City, Missouri, Defendant-Respondent.

No. WD 43143.

Missouri Court of Appeals Western District.

Nov. 27, 1990.

Paul E. Vardeman, Michael T. White, Aaron G. March, Kansas City, for relator-appellant.

William G. Levi, David F. Oliver, N. Louise Ellingsworth, Kansas City, for defendant-respondent.

Before LOWENSTEIN, P.J., and SHANGLER and MANFORD, JJ.

LOWENSTEIN, Presiding Judge.

The appellant-relator, Pershing Square Redevelopment Corp., ("Pershing") appeals the trial court's dismissal of its petition for writ of mandamus.

Although Pershing raises several points on appeal, the dispositive issue is whether the trial court properly granted the respondent's motion to dismiss.

The convoluted factual and procedural posture of this case merits an introductory explanation. This litigation grows out of Pershing's contract with Kansas City (City) to redevelop Union Station and the surrounding area. In general, mandamus is an extraordinary remedy effective to compel performance of a particular act by one who has an unequivocal duty to perform the act. See, State ex rel. Casey's General Stores v. City Council of Salem, 699 S.W.2d 775, 776 (Mo.App.1985). Furthermore, the right petitioner seeks to enforce must be clearly established and presently existing. State ex rel. Patterson v. Tucker, 519 S.W.2d 22, 24 (Mo.App.1975). Although, Riederer is a named party-appellant, he has no part in this appeal.

Pershing's petition for mandamus is one of the final acts in a complicated series of acts between the City of Kansas City and Pershing. In July 1974, Pershing submitted to the City Clerk a redevelopment plan for the area located generally north of Pershing Road between Grand Avenue and Broadway. In December 1974, the City Council passed an ordinance approving Pershing's plan and authorized the Director of Finance to contract with Pershing. Between May 1978 and January 1985, Pershing asked the City Council to approve four amendments to the original contract. These amendments generally modified construction schedules and placement of buildings. They were approved.

In September 1988, apparently frustrated by what it considered to be Pershing's lack of progress, the City filed suit against Pershing alleging a default under the terms of the Development Plan and Contract regarding the rehabilitation and reconstruction of Union Station. Pershing maintains this suit was filed in violation of the Code of General Ordinances of Kansas City ("CGOKC") 36.25. ¹

In October 1988, after the Union Station suit had been filed, the City applied for a hearing before the City Plan Commission on the issue of default. In November 1988, the application for hearing was taken up. Pershing appeared, objecting that the proceedings were illegal because the Union Station suit had already been filed without the required hearing.

In December 1988, the City Council passed a formal resolution declaring Pershing to "be in default of its duties and obligations under the development plan and contract, as amended ..." The report of the City Development Commission, upon which the resolution was based, stated that the scope of the hearing did not "extend beyond the question of default in Phase I ..."

In October 1989, Pershing filed yet another application for approval of amendments to the Redevelopment Plan and Contract. This amendment would have extended the time of performance of Phases II through V. In November 1989, respondent Collins, Director of City Development, informed Pershing that he removed Pershing's application from the City Plan Commission's agenda because it had been declared in default.

Later that month, Pershing filed this petition for writ of mandamus to compel Collins to place its application on the City Plan Commission's agenda. The trial court granted a preliminary writ, but then dissolved that order and granted Collins' motion to dismiss.

The scope of review for a motion to dismiss requires an examination of plaintiff's petition, allowing the petition its broadest intendment, treating all facts alleged as true, and construing the allegations favorably to plaintiff to determine whether they invoke principles of substantive law. Gaines v. Monsanto, 655 S.W.2d 568, 570 (Mo.App.1983). This court is not required, however, to accept petitioner's conclusions as true. Counts v. Morrison-Knudsen, Inc., 663 S.W.2d 357, 360 (Mo.App.1983). If the trial court does not specify reasons for dismissal, the reviewing court may assume the trial court acted for one or more of the grounds asserted in defendant's motion to dismiss. Terre Du Lac Ass'n v. Terre Du Lac, Inc., 737 S.W.2d 206, 211 (Mo.App.1987). Because the trial court did not state why it granted the dismissal, this court must affirm the trial court's dismissal if any ground asserted in defendant's motion is valid. Id.

Because the relator's factual allegations are taken as true, this court must examine the petition. Significant facts are as follows:

Relator (plaintiff-Pershing) is a Missouri urban redevelopment corporation established under Chapter 353 of the Revised Statutes of Missouri and is duly licensed to conduct business in Missouri; Respondent Collins is now and was at all material times Director of City Development of the City of Kansas City, Missouri, and is an administrative officer under the charter and ordinances of Kansas City, Missouri; in July 1974, Pershing Square Redevelopment Corporation ("Pershing") filed with the City Clerk of Kansas City, Missouri, an application for approval of a development plan ("Development Plan") providing for the construction of a redevelopment project in Kansas City, Jackson County, Missouri; in December 1974, the City Council of Kansas City, Missouri, ("City Council") passed an ordinance approving the application and Development Plan and also authorized and directed the Director of Finance to enter into a contract with Pershing; in December 1974, Pershing and the Director of Finance executed a contract; in May 1978, Pershing filed with the City Clerk an application for approval of certain amendments to the Development Plan; in July 1978, the City Council passed an ordinance approving Pershing's application and amendments ("First Amended Development Plan"); in May 1983, Pershing filed with the City Clerk an application for approval of amendments to the First Amended Development Plan; in September 1983, the City Council passed an ordinance approving the application and amendments to the First Amended Development Plan ("Second Amended Development Plan"); in March 1984, Pershing filed with the City Clerk an application for approval of amendments to the Second Amended Development Plan; in August 1984, the City Council passed an ordinance approving the application and amendments to the Second Amended Development Plan ("Third Amended Development Plan"); in October 1984, Pershing filed with the City Clerk an application for approval of amendments to the Third Amended Development Plan; in January 1985, the City Council passed an ordinance approving the application and amendments to the Third Amended Development Plan; in September 1988, the City of Kansas City, Missouri, filed suit in the Circuit Court of Jackson County, Missouri, against Pershing, among others, alleging a default under the terms of the contract and all of its amendments; the City's action did not follow procedures set forth in § 36.35 of the Code of General Ordinances of Kansas City ("CGOKC") before filing suit; in November 1988, the City Plan Commission heard the issues of Pershing's alleged default and its performance under the Fourth Amended Development Plan and Fourth Supplemental Contract; in December 1988, Resolution No. 63433, came for hearing before the City Council; pursuant to Resolution No. 63433, the City Council declared Pershing to "... be in default of its duties and obligations under the Development Plan and Contract, as amended ...;" in October 1989, Pershing filed with the City Clerk an application for approval of amendments to the Fourth Amended Development Plan ("Application for Fifth Amended Development Plan") pursuant to § 36.10 CGOKC; ² Relator has complied in all respects with the requirements and provisions of § 36.10 CGOKC; there is no discretion on the part of Respondent Collins about scheduling Relator's Application for Fifth Amended Development Plan for hearing before the Redevelopment Coordinating Committee and the City Plan Commission; in November 1989, Respondent Collins informed Pershing that its Application for Fifth Amendment to the Development Plan and Contract was removed from consideration by the City Plan Commission because Resolution No. 63433 declared Pershing in default "under the Development Plan and Redevelopment Contract, as amended;" Resolution No. 63433 only declares Phase I in default.

Pershing's petition included the following legal conclusions:

that the City's act of filing suit against Pershing alleging default under the Redevelopment Plan and Contract was illegal and void because it did not first follow procedure set forth in § 36.25 of CGOKC; that the decision of respondent to cancel the Redevelopment Coordinating Committee meeting and remove from consideration Pershing's application for Fifth Amended Development Plan from the City Plan Commission agenda was unlawful, unreasonable, arbitrary, capricious and involved an abuse of discretion; that Resolution No. 63433 was void ab initio since it was passed after the City filed suit alleging that relator was in default of the Plan and Contract; Respondent's actions in denying relator a hearing pursuant to Chapter 36 CGOKC on its application for Fifth Amended Development Plan was arbitrary, capricious and an abuse of discretion in that Resolution No....