State ex rel. Myers Memorial Airport Committee, Inc. v. City of Carthage, No. 21433

CourtMissouri Court of Appeals
Writing for the CourtCROW; GARRISON, P.J., and PREWITT
PartiesSTATE 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.
Docket NumberNo. 21433
Decision Date10 September 1997

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.

Page 348

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.

Page 349

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,

Page 350

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...

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6 practice notes
  • State ex rel. Cohen v. Riley, No. 81192
    • United States
    • United States State Supreme Court of Missouri
    • 1 Junio 1999
    ...Inc. v. People's Choice TV, 955 S.W.2d 805 (Mo.App.1997); State ex rel. Myers Memorial Airport Comm. v. City of Carthage, 951 S.W.2d 347 (Mo.App.1997). The trial judge did not, as the principal opinion observes, order a consolidation of the preliminary hearing with the trial on the merits, ......
  • In the Matter of Catherine Beyersdorfer, WD58816
    • United States
    • Missouri Court of Appeals
    • 26 Junio 2001
    ...that the controversy ceases and a decision can grant no relief"); see State ex rel. Myers Mem'l Airport Comm., Inc. v. City of Carthage, 951 S.W.2d 347, 352 (Mo. App. 1997) (holding that when it is evident, because of the appellate court's resolution of a case, that an issue raised on appea......
  • Estate of Hutchison v. Massood, WD 78826
    • United States
    • Court of Appeal of Missouri (US)
    • 28 Junio 2016
    ...unless the parties so agree.” Id. at 290 (quoting 494 S.W.3d 603State ex rel. Myers Mem'l Airport Comm., Inc. v. City of Carthage, 951 S.W.2d 347, 350 (Mo.App.S.D.1997) ). Therefore, the question before this court is three-fold: (1) whether the trial court adjudicated at the preliminary hea......
  • Cook v. McElwain, No. WD 76288.
    • United States
    • Court of Appeal of Missouri (US)
    • 3 Junio 2014
    ...of the hearings on preliminary and permanent injunctive relief. State ex rel. Myers Mem'l Airport Comm., Inc. v. City of Carthage, 951 S.W.2d 347, 350 (Mo.App.S.D.1997). 1Rule 92.02(c)(3) provides: At any time the court may order the trial of the action on the merits to be [432 S.W.3d 290]a......
  • Request a trial to view additional results
6 cases
  • State ex rel. Cohen v. Riley, No. 81192
    • United States
    • United States State Supreme Court of Missouri
    • 1 Junio 1999
    ...Inc. v. People's Choice TV, 955 S.W.2d 805 (Mo.App.1997); State ex rel. Myers Memorial Airport Comm. v. City of Carthage, 951 S.W.2d 347 (Mo.App.1997). The trial judge did not, as the principal opinion observes, order a consolidation of the preliminary hearing with the trial on the merits, ......
  • In the Matter of Catherine Beyersdorfer, WD58816
    • United States
    • Missouri Court of Appeals
    • 26 Junio 2001
    ...that the controversy ceases and a decision can grant no relief"); see State ex rel. Myers Mem'l Airport Comm., Inc. v. City of Carthage, 951 S.W.2d 347, 352 (Mo. App. 1997) (holding that when it is evident, because of the appellate court's resolution of a case, that an issue raised on appea......
  • Estate of Hutchison v. Massood, WD 78826
    • United States
    • Court of Appeal of Missouri (US)
    • 28 Junio 2016
    ...unless the parties so agree.” Id. at 290 (quoting 494 S.W.3d 603State ex rel. Myers Mem'l Airport Comm., Inc. v. City of Carthage, 951 S.W.2d 347, 350 (Mo.App.S.D.1997) ). Therefore, the question before this court is three-fold: (1) whether the trial court adjudicated at the preliminary hea......
  • Cook v. McElwain, No. WD 76288.
    • United States
    • Court of Appeal of Missouri (US)
    • 3 Junio 2014
    ...of the hearings on preliminary and permanent injunctive relief. State ex rel. Myers Mem'l Airport Comm., Inc. v. City of Carthage, 951 S.W.2d 347, 350 (Mo.App.S.D.1997). 1Rule 92.02(c)(3) provides: At any time the court may order the trial of the action on the merits to be [432 S.W.3d 290]a......
  • Request a trial to view additional results

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