State ex rel. Myers Memorial Airport Committee, Inc. v. City of Carthage

• Decision Date: 10 September 1997
• Docket Number: No. 21433,21433
• Citation: 951 S.W.2d 347
• Parties: STATE of Missouri ex rel. MYERS MEMORIAL AIRPORT COMMITTEE, INC., a Missouri Not-For-Profit Corporation, et al., Appellants, v. The CITY OF CARTHAGE, Missouri, a Missouri municipal corporation, et al., Respondents.
• Court: Missouri Court of Appeals

Page 347

951 S.W.2d 347

STATE of Missouri ex rel. MYERS MEMORIAL AIRPORT COMMITTEE INC., a Missouri Not-For-Profit Corporation, et al., Appellants, v. The CITY OF CARTHAGE, Missouri, a Missouri municipal corporation, et al., Respondents.

No. 21433.

Missouri Court of Appeals,

Southern District,

Division One.

Sept. 10, 1997.

Robert H. Freilich, Stephen J. Moore, Freilich, Leitner & Carlisle, Kansas City, for appellants.

David C. Dally, Crandall, Dally & Podleski, Carthage, George M. Johnson, Andereck, Evans, Milne, Peace & Baumhoer, L.L.C., for respondents.

CROW, Judge.

Plaintiffs, Myers Memorial Airport Committee, Inc. and eight individuals, brought this action seeking to prevent the City of Carthage ("City") from closing Myers Memorial Airport ("Airport"), which City had operated since 1933. Named as Defendants in addition to City were its mayor and members of its city council.

The chronology of the action during its brief habitancy in the trial court was:

October 29, 1996. Plaintiffs file petition.

November 14, 1996. Plaintiffs file first amended petition ¹ comprising seven counts.

December 2, 1996. Defendants file motion to dismiss.

December 27, 1996. Trial court holds hearing on Defendants' motion to dismiss and Plaintiffs' prayer for a preliminary injunction barring Defendants from closing Airport "pending final determination of this cause."

December 31, 1996. Trial court enters judgment denying all relief sought by Plaintiffs in all counts. ²

Plaintiffs appeal. The first of their three points relied on avers the trial court erred by entering judgment on all counts in that:

"(1) the City filed no responsive pleadings; (2) the parties only appeared before the trial court for a hearing regarding the preliminary injunction; (3) the trial court did not give notice that it would consolidate the trial with the preliminary injunction hearing; (4) the parties did not consent to consolidation of the trial with the preliminary injunction hearing; (5) [Plaintiffs] only presented evidence in support of the preliminary injunction; (6) neither [Plaintiffs] nor [Defendants] presented evidence on the merits of the first amended petition; and (7) there has never been a trial on the merits of the first amended petition."

We first address clause "(1)" in the above point, which avers City filed no responsive pleadings.

The first paragraph of the statement of facts in Plaintiffs' brief proclaims the allegations in their first amended petition "are deemed admitted because no responsive pleadings were filed controverting any allegations." The proclamation is fatuous.

Defendants' motion to dismiss asserted Plaintiffs' first amended petition failed to state a cause of action for which relief may be granted; Defendants' motion further pled that Plaintiffs lacked standing to bring this action. Defendants' motion to dismiss was timely. Rules 55.25(a) and 55.27(a).

The trial court's judgment contained no ruling on Defendants' motion to dismiss. Inasmuch as Defendants' motion to dismiss was never denied, Defendants were never required to file an answer. Rule 55.25(c). Consequently, Rule 55.09--which sets forth the consequences of failure to deny averments in a pleading to which a responsive pleading is required--never became applicable. All of this is clearly explained in Olson v. Auto Owners Insurance Co., 700 S.W.2d 882, 885 (Mo.App. E.D.1985). Plaintiffs' averment that the allegations in their first amended petition are deemed admitted is patently meritless.

Having set that straight, we shift our attention to the substance of Plaintiffs' first point, i.e., Plaintiffs' contention that the trial court erred by entering judgment on all claims in Plaintiffs' first amended petition when the only issues before the court on December 27, 1996, were those raised by Defendants' motion to dismiss and Plaintiffs' prayer for a preliminary injunction.

A trial court is authorized to issue three types of orders granting relief in an injunction proceeding: (1) a temporary restraining order, (2) a preliminary injunction and (3) a permanent injunction. St. Louis Concessions, Inc. v. City of St. Louis, 926 S.W.2d 495, 497 (Mo.App. E.D.1996); Jackes-Evans Manufacturing Co. v. Christen, 848 S.W.2d 553, 556 (Mo.App. E.D.1993); Pomirko v. Sayad, 693 S.W.2d 323, 324 (Mo.App. E.D.1985). The purpose of the first two is to preserve the status quo until the trial court adjudicates the merits of the claim for a permanent injunction. St. Louis County v. Village of Peerless Park, 726 S.W.2d 405, 410 (Mo.App. E.D.1987); Pomirko, 693 S.W.2d at 324.

Rule 92.02(a)(2) authorizes a trial court, before or after commencement of a hearing on an application for a preliminary injunction, to order the trial of the action on the merits to be consolidated with the hearing on the application. Jackes-Evans, 848 S.W.2d at 556; Reproductive Health Services, Inc. v. Lee, 660 S.W.2d 330, 339-40 n. 7 (Mo.App. E.D.1983). However, any such order must be clear and unambiguous. Big Valley, Inc. v. First National Bank of Pulaski County, 578 S.W.2d 616, 618 n. 3 (Mo.App. S.D.1979). The record in the instant case contains no such order.

Absent such order, a trial court may not adjudicate the merits of a claim for a permanent injunction on the evidence presented at a hearing on an application for a preliminary injunction unless the parties so agree. Pomirko, 693 S.W.2d at 325; Reproductive Health Services, 660 S.W.2d at 339. The record in the instant case displays no such agreement.

Furthermore, as noted earlier, ³ Plaintiffs' first amended petition sought more than injunctive relief; it prayed, inter alia, that the trial court declare City has sundry duties and obligations regarding Airport and that the court order an accounting as to certain funds. Nothing in the record indicates those issues were tried--by agreement or otherwise--at the hearing December 27, 1996.

It thus appears the trial court erred in entering judgment on issues other than those raised by Defendants' motion to dismiss and Plaintiffs' prayer for a preliminary injunction.

However, Defendants argue:

"The trial court did not err by entering judgment on all counts of the petition because the trial court should have considered the motion to dismiss filed by the [Defendants] to be a motion for summary judgment in that [the court] had heard evidence and received affidavits and other written evidence in the matter."

In support of that argument, Defendants cite State ex rel. Childress v. Anderson, 865 S.W.2d 384, 386 (Mo.App. S.D.1993), which holds that when a party introduces evidence beyond the pleadings, a motion to dismiss is automatically converted to a motion for summary judgment.

The short answer to Defendants' argument is that the trial court heard no evidence on Defendants' motion to dismiss. At the outset of the hearing on December 27, 1996, the parties presented argument on the motion. At the conclusion of argument, the trial court announced it was "going to take the motion to dismiss under advisement." Thereafter, Plaintiffs presented evidence in support of their prayer for a preliminary injunction. Defendants presented no evidence except a map, received by the court during Plaintiffs' evidence. It had no bearing on the motion to dismiss.

Furthermore, the judgment itself demonstrates the trial court did not treat Defendants' motion to dismiss as a motion for summary judgment. As reported earlier in this opinion, the judgment contains no ruling on Defendants' motion to dismiss. ⁴

Finally, had the trial court meant its judgment to be a summary judgment, it would have erred. As explained in Counts v. Morrison-Knudsen, Inc., 663 S.W.2d 357, 363[17, 18] (Mo.App. S.D.1983):

"Before a trial court may treat a motion to dismiss as one for summary judgment when matters outside the pleadings are presented and not excluded, it must first notify the parties that it is treating the motion as one for summary judgment and give the parties opportunity to present all material pertinent to a motion for summary judgment. Rule 55.27(a). American Drilling v. City of Springfield, 614 S.W.2d 266, 270 (Mo.App.1981). The record fails to disclose that the trial court complied with the foregoing procedure before it treated the motion as one for summary judgment and accordingly it had no right to do so. Gramlich v. Travelers Ins. Co., 640 S.W.2d 180, 183 (Mo.App.1982)."

As in Counts, the record in the instant case fails to demonstrate that the trial court alerted the parties it was treating Defendants' motion to dismiss as one for summary judgment. We therefore reject Defendants' hypothesis that the trial court should have considered (or did consider) the motion to dismiss as one for summary judgment.

We hold the trial court erred in entering judgment on claims in Plaintiffs' first amended petition other than those for a temporary restraining order and a preliminary injunction. ⁵ The portions of the judgment denying Plaintiffs' claims other than those for a temporary restraining order and a preliminary injunction ⁶ must be reversed. State ex rel. Eagleton v. Cameron, 384 S.W.2d 627 (Mo.1964); Bayer v. Associated Underwriters, Inc., 402 S.W.2d 11 (Mo.App.1966).

That brings us to Plaintiffs' second point, which reads:

"The trial court erred by denying a temporary[ ⁷] injunction to keep the Airport open, because [Plaintiffs] demonstrated (1) the threat of irreparable harm to [them] as well as the citizens and business community of Carthage, (2) that the harm to [Plaintiffs] outweighs the City's interest in closing the Airport, (3) a probability that [Plaintiffs] will succeed on the merits, and (4) that the public interest lies in keeping the Airport open."

Plaintiffs concede in their brief that a denial of a preliminary injunction is not appealable. This court so held in Hagen v. Bank of Piedmont, 763 S.W.2d 384 (Mo.App. S.D.1989):

"Generally orders entered during the temporary injunction stage are not...