State ex. Sanders v. City of Lake Lotawana

• Decision Date: 06 February 2007
• Docket Number: No. WD 66758.,WD 66758.
• Citation: 220 S.W.3d 794
• Parties: STATE of Missouri, ex inf. Michael SANDERS, ex rel. CITY OF LEE'S SUMMIT, Respondent, v. CITY OF LAKE LOTAWANA, Arthur R. Van Hook, David Cooley, Mark Pfefferkorn, Jack Kirse, Frances Grossman, Robert Reid, and Arthur R. Lascala, Appellants.
• Court: Missouri Court of Appeals

220 S.W.3d 794

STATE of Missouri, ex inf. Michael SANDERS, ex rel. CITY OF LEE'S SUMMIT, Respondent, v. CITY OF LAKE LOTAWANA, Arthur R. Van Hook, David Cooley, Mark Pfefferkorn, Jack Kirse, Frances Grossman, Robert Reid, and Arthur R. Lascala, Appellants.

No. WD 66758.

Missouri Court of Appeals, Western District.

February 6, 2007.

Motion for Rehearing and/or Transfer to Supreme Court Denied March 27, 2007.

Application for Transfer Denied May 29, 2007.

Stephen James Moore, Kansas City, for appellant.

Neil Ronald Shortlidge, Overland Park, KS, for respondent.

PAUL M. SPINDEN, Judge.

Jackson County municipalities Lee's Summit and Lake Lotawana have been vying against each other since 2001 to annex approximately 1200 acres, known as the Barber property, situated between the two cities. After Lake Lotawana completed annexation of the tract, Lee's Summit initiated this quo warranto action, authorized by Jackson County Prosecuting Attorney Michael Sanders, to oust Lake Lotawana from exercising jurisdiction over the tract. Lee's Summit coupled the action with a declaratory judgment action in which it asked the circuit court to declare that it took the first valid step toward annexing the tract and therefore had superior claim to it and that Lake Lotawana's annexation was defective. The circuit court entered judgment for Lee's Summit. It issued an order in quo warranto ousting Lake Lotawana from the tract, and it declared that Lake Lotawana's annexation was void. It further declared that Lee's Summit had "prior jurisdiction" over the tract and enjoined Lake Lotawana from proceeding with annexation of it until Lee's Summit had an opportunity to complete its annexation process. Lake Lotawana appeals.

JURISDICTION

Lake Lotawana first challenges the circuit court's jurisdiction to consider Lee's Summit's petition. Because the scope of the circuit court's subject matter jurisdiction is a question of law, we review it de novo. Pettigrew v. Hayes, 196 S.W.3d 53, 56 (Mo.App.2005).

Lake Lotawana asserts that, because it completed annexation, Lee's Summit had only "expectancy jurisdiction," not prior jurisdiction. It contends that Lee's Summit had only an expectation of attaining prior jurisdiction if it could establish that Lake Lotawana had erred in its annexation process and that this expectation was not enough to satisfy the requisite prior jurisdiction. We reject the point.

Although Lake Lotawana had completed annexation, the circuit court correctly recognized that Lee's Summit should still prevail if it could establish that it took the first valid step and, therefore, had prior jurisdiction. City of St. Joseph v. Village of Country Club, 163 S.W.3d 905, 907 (Mo. banc 2005). Because the petition filed by Lee's Summit averred that it had taken the first valid step — an averment that the circuit court was obligated to accept as true in considering Lake Lotawana's motion to dismiss — the petition stated a cause of action for which relief could be granted. The circuit court, therefore, had jurisdiction to consider it.

Lake Lotawana also argues that Lee's Summit lacked standing because it did not assert its action under Section 71.012, RSMo 2000, its exclusive remedy. Section 71.012.2(3) says:

If a written objection to the proposed annexation is filed with the governing body of the city . . . not later than fourteen days after the public hearing by at least five percent of the qualified voters of the city, . . . or two qualified voters of the area sought to be annexed if the same contains two qualified voters, the provisions of sections 71.015 and 71.860 to 71.920, shall be followed.

Lake Lotawana argues that, because Lee's Summit was not a qualified voter living in Lake Lotawana or a resident of the Barber property, Section 71.012.2(3) did not authorize it to object to Lake Lotawana's annexation. Lake Lotawana's argument would be correct were Lee's Summit seeking to object to Lake Lotawana's "proposed annexation." Instead, it is contesting Lake Lotawana's authority to annex the Barber property via a proper method, quo warranto. Lake Lotawana's assertion has no merit.

Lake Lotawana further argues that the circuit court lacked jurisdiction because Lee's Summit had abandoned the basis for Sanders' authorizing the quo warranto action; i.e., Lee's Summit's 2001 resolution of intent to annex.¹ Lake Lotawana argues that, by abandoning the basis for Sanders' authorizing the quo warranto, Lee's Summit lost standing. We do not need to pass judgment concerning the validity of Lake Lotawana's position because Sanders' information declared a dual basis for authorizing the lawsuit. In addition to the matter of the 2001 resolution, Sanders articulated a second purpose for the action: resolution of "disputes and issues pertaining to Lake Lotawana's annexation Ordinance No. 718." Validity of Ordinance No. 718 is a central issue of this dispute. It purportedly effectuated a voluntary annexation of the tract. Lee's Summit had standing to initiate the action.

Lake Lotawana further argues that the circuit court lacked jurisdiction because Sanders' information did not establish that Lee's Summit had a special interest in the Barber property. To pursue an action in quo warranto, a private relator must "have an interest in the subject matter of the litigation apart from that of a member of the general public." State ex inf. Graham, ex rel. Bishop v. Hurley, 540 S.W.2d 20, 23 (Mo. banc 1976). But "[t]he threshold level of interest required to be shown by a private relator is not difficult to attain." State ex rel. Crist v Nationwide Financial Corporation of Missouri, 588 S.W.2d 8, 12 (Mo.App.1979).

Lee's Summit had an interest in Lake Lotawana's annexation of the Barber property that exceeded that of the general public. As Lee's Summit pleaded in its petition, Lake Lotawana's claim of jurisdiction over the property directly affected Lee's Summit's legal status as the municipality with prior jurisdiction. Having taken steps to annex the land and having actively pursued the matter in competition with Lake Lotawana, Lee's Summit had a special interest in testing the legality of Lake Lotawana's annexation. That Sanders' information did not plead these facts and cited only Lee's Summit's 2001 resolution of intent to annex and Lake Lotawana's Ordinance No. 718 is not significant because the facts pleaded in the petition, rather than those in the information, were the operable facts that shaped the lawsuit's issues.

The purpose for an information in quo warranto changed during 1981 when the Supreme Court promulgated Rule 98, which set procedures for quo warranto actions. None of the components of Rule 98 mentions the filing of an information, which, before Rule 98, was traditionally the initial affirmative pleading in a quo warranto action. See, e.g., State ex inf. Ellis, ex rel. Patterson v. Ferguson, 333 Mo. 1177, 65 S.W.2d 97, 98 (1933). Instead of the filing of an information as the initial affirmative pleading, Rule 98.03 provides for the filing of "a petition . . . in the appropriate court." The only mention of "information" is in Rule 98.02, and it is not referring to the filing of a document. It merely is recognizing that the attorney general or a prosecuting attorney may authorize a private relator "when action is brought upon information at the relation of another[.]" We need not decide whether or not the filing of an information remains necessary under Rule 98. We conclude from Rule 98.03's identification of a petition as the initial affirmative pleading and the lack of mandate that an information also be filed that the only function served by the filing of an information in addition to a petition is, as the circuit court stated, to provide "the means of interposition by which a proper state official exercises discretion in the public interest by lending his or her name to the proceedings so that a private relator can proceed in quo warranto."²

Lake Lotawana alternatively argues that Lee's Summit did not allege any special interest in its petition. This is incorrect. The petition referred to its original attempt to annex via its 2001 resolution, later abandoned, and its later adoption of Ordinance No. 5800 calling for an election to annex. It also referred to some of the steps that it had taken in preparing to annex the tract, including studies and analyses to determine how it could provide public services to the area. These averments constituted allegations of special interest, although not specifically identified as such.

Lake Lotawana next asserts that Lee's Summit did not have standing because its petition did not allege that it suffered prejudice from Lake Lotawana's procedural annexation errors. We disagree. Lee's Summit clearly alleged prejudice by arguing that it, as a city with prior jurisdiction, would be thwarted in annexing the tract if the circuit court considered Lake Lotawana's annexation process to be valid.

Lake Lotawana further argues that the circuit court erred in concluding that Lee's Summit established standing to question the validity of Lake Lotawana annexation because the annexation was de facto. We again disagree. Lake Lotawana's completed annexation did not "pull the plug" on Lee's Summit's continuing to pursue annexation. Prior jurisdiction based on a first valid step is the significant factor, not completion of the annexation process. City of St. Joseph, 163 S.W.3d at 907; Mayor, Councilmen, and Citizens of City of Liberty v. Dealers Transport Company, 343 S.W.2d 40, 42 (Mo. banc 1961).

Relying on City of Bridgeton v. Ford Motor Credit Company, 788 S.W.2d 285 (Mo. banc 1990), Lake Lotawana argues that Lee's Summit lacks standing because the Supreme Court has held that "[a] party has standing to challenge the validity of an [annexation] ordinance only if standing is conferred by statute or another applicable ordinance or if the party can demonstrate that he is directly and adversely affected...