State ex rel. Casey's General Stores, Inc. v. City of Louisiana

• Decision Date: 30 June 1987
• Docket Number: No. 51618,51618
• Citation: 734 S.W.2d 890
• Parties: STATE of Missouri, ex rel., CASEY'S GENERAL STORES, INC., and Cleo Kuhns, Plaintiffs-Appellants, v. CITY OF LOUISIANA, et. al., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 890

734 S.W.2d 890

STATE of Missouri, ex rel., CASEY'S GENERAL STORES, INC. and Cleo Kuhns, Plaintiffs-Appellants, v. CITY OF LOUISIANA, et. al., Defendants-Respondents.

No. 51618.

Missouri Court of Appeals,

Eastern District,

Division Three.

June 30, 1987.

Motion for Rehearing and/or Transfer Denied July 30, 1987.

Application to Transfer Denied Sept. 15, 1987.

E. Rex Bradley, Mary C. Mc Williams, Asst. Public Defender, Louisiana, for plaintiffs-appellants.

Evans & Dixon, Gerre S. Langton, St. Louis, for defendants-respondents.

PUDLOWSKI, Presiding Judge.

Appellants herein, plaintiffs below, are Casey's General Stores, Incorporated, hereinafter Casey's, and Cleo Kuhns, Casey's District Manager for the area that included the City of Louisiana, Missouri. The respondents, defendants below, are the City of Louisiana, Missouri, Phillip Smith, the city's attorney, Shelby Ward, former city marshall, Jane Ray, city clerk, Junior Clark, the city's mayor, Ray Geeson, building inspector, city council members Gene Robinson, Priscilla Giltner, Lona Wallace, Robert Ince, James Criley, Robert Fritz, James Smith, and R.D. Hamlett, and Board of Adjustment Members David Robinson, George Collier, McCune Dudley, August Artus, and Porter Elliott. This appeal stems from the trial court's dismissal of Counts I, VIII and IX of appellants' second amended petition, and its ruling, after a trial to the court, for respondents on counts two, three, four, six and seven.

The dispute stems from the enactment of a zoning ordinance for the City of Louisiana which declared the site where Casey's intended to build a new convenience store to be part of a residential area. At the time the ordinance was passed, May 2, 1983, Casey's had already bought the lot on which the store was to be placed and was in the process of obtaining the necessary licenses. Prior to May of 1983, there had been no zoning ordinance in effect in the City of Louisiana.

On September 29, 1983, Casey's, through its agent Leo Cole, made a request for a variance. The Board of Adjustment, appointed after enactment of the ordinance, held a hearing on November 15, 1983 on the request. No sworn testimony was taken and the hearing was not recorded. After the hearing, the variance was denied and appellants then filed their initial petition in this action. The thrust of the second amended petition embodied a theory of equitable estoppel but the petition also pled the legal invalidity of the ordinance.

Count I sought a writ of certiorari directed to the Board of Adjustment to reverse the Board of Adjustment and order the granting of the variance. Count I also sought an award of $5,825 to cover Casey's costs to that point. Counts VIII and IX, which like Count I were dismissed with prejudice, alleged that the mayor, Junior Clark, the city attorney Phillip G. Smith, the city marshall, Shelby Ward, the city clerk, Jane Ray, and city council members Gene D. Robinson, Priscilla Giltner, Lona Wallace, Robert D. Ince, James Criley, James Smith and R.D. Hamlett had discriminated against appellant Casey's and violated its right to equal protection (Count VIII), and had committed a prima facie tort against it (Count IX). Casey's again prayed for its attorney's fees and costs and in both counts requested punitive damages in the amount of $50,000. All three counts were brought in the name of appellant Casey's alone.

Count II incorporated by reference all the allegations of Count I and sought permanent injunctive relief preventing the city from enforcing the zoning ordinance as it affected Casey's. Casey's also sought a mandatory injunction under Count II requiring the city to issue a building permit and a liquor license for the proposed store.

Counts III through VII were mandamus counts directed at various city officials, each count again incorporating by reference the allegations made in Count I. Count III was against the Board of Adjustment and sought a peremptory writ requiring the granting of a variance. Count IV was directed to the issuance of a building permit by the city clerk, Jane Ray. Count V, the only count in which appellant Cleo Kuhns was the plaintiff, was brought against Mayor Clark, City Attorney Smith, Marshall Ward, and City Clerk Ray. The prayer was for an order mandating the approval and issuance of a liquor license to Kuhns who had first applied for a liquor license on March 24, 1983.

The license was initially issued by the city clerk, Jane Ray, but was then rescinded because the mayor and the other named city officials refused to approve the license. The reason given at that time, prior to passage of the zoning ordinance, was that liquor licenses could only be issued, by law, to residents, and Kuhns was not a resident. In Count V, Kuhns alleged that he was then a resident of Louisiana; and that he had submitted an amended application for the license, April 19, 1983, with an affidavit demonstrating residency. The trial court ruled in favor of appellant Kuhns, on this count; and since it was the only count in which he, as opposed to Casey's, was the plaintiff, he is not an aggrieved party. Appellant Kuhns appeal is therefore dismissed.

Count VI was directed to the city street commissioner, Pete Johnson. It alleged that an excavation permit would be needed, but that based on the city's past actions, it would be refused arbitrarily and capriciously. The prayer was for an order mandating the issuance of the permit.

Count VII sought an order mandating that the city clerk, Jane Ray, issue a business license "upon Relator Casey's application for the same."

We first note with regard to counts VI and VII that the permits involved had never been applied for and refused. Therefore, the request for relief on those two counts was premature and the courts ruling on those counts is not appealed from.

There was no request for findings of fact and conclusions of law from the trial court and none was filed. In its order, the court stated only with regard to each count that it found the factual issues in favor of defendants-respondents.

On appeal, Casey's alleges first that the trial court erred in dismissing its petition for certiorari to review the decision of the Board of Adjustment. Secondly, Casey's asserts the trial court erred in denying all equitable remedies relative to the "unlawful enactment of the Louisiana zoning ordinance." In its third point on appeal, Casey's alleges several specific reasons why the ordinance was not legally enacted and is void.

Casey's first asserts that public hearings and notices thereof were not adequate or in conformity with Sections 89.050 and 89.360 RSMo 1986. Casey's then asserts that in contravention of the requirements of Section 89.070 RSMo 1986, legislative action on the ordinance was taken without submission of a final report of the zoning commission. Casey's also notes that the ordinance does not specifically require that, pursuant to Section 89.080 RSMo 1986, all members of the Board of Adjustment be freeholders. Casey's final assertion under Point III involves the fact that no record was made of the vote of each of the council members pursuant to Section 77.080 RSMo 1986; and that the hearing on the nunc pro tunc motion which was granted allowing the amendment of the city council minutes to reflect the vote was held without the requisite notice. The record, however, reflects that notice was given on November 1, 1985 by mail of a November 18 hearing on motion. We find no error in the granting of the motion.

In its fourth point on appeal, Casey's argues that the trial court erred in failing to order the issuance of a building permit. Casey's fifth point alleges error in the trial court's failure to find a violation of its equal protection rights. Casey's sixth point asserts that the trial court erred in failing to find in favor of Casey's and in failing to award damages on Casey's prima facie tort claim. In point seven, Casey's alleges reversible error in the trial court's exclusion of cassette tapes, purportedly recordings of two city counsel meetings, which Casey's contends were admissible as business records. Points eight and nine relate to the trial court's allegedly erroneous failure to admit evidence concerning Casey's legal fees and costs, respectively; and to award attorney's fees and costs.

The first four points on appeal can be resolved by an examination of the validity of the zoning ordinance. If the ordinance was invalid, then the trial court's failure to grant a writ of certiorari to consider the Louisiana Board of Adjustments denial of a variance is moot. Likewise, if the ordinance is void, as asserted in Casey's second point, then equitable relief was called for.

We note that respondents assert the issue of whether the ordinance was validly enacted was not before the court because the invalidity of the ordinance was, according to respondents, never pled. Respondents objected on that basis at trial when plaintiffs, Casey's and Kuhns, sought to introduce evidence on the issue of the ordinance's validity. The trial court overruled the objection, and we agree that it has no merit.

Paragraph 22 of Plaintiffs' Seconded Amended Petition states:

That on May 2, 1983, the City of Louisiana unlawfully enacted Ordinance Number 6266, entitled Ordinance Establishing Zoning Regulations in Districts within and for the City of Louisiana, Missouri, and providing penalties for violations; that said ordinance does not conform to the requirements of Revised Statutes of Missouri 77.080, and is not validly enacted; and further is void for vagueness in that said ordinance does not adequately describe the various zoned areas nor does the same adequately incorporate any zoning map, making the zoning districts and boundaries indefinitely described in Article 3 of said ordinance and therefore, the ordinance is unenforceable.

Emphasis added.

That paragraph specifically mentions only Section 77.080 RSMo 1986, the statute dealing...