State v. City of Kansas City

• Decision Date: 01 February 2000
• Citation: State v. City of Kansas City, 14 S.W.3d 169 (Mo. App. 2000)
• Parties: (Mo.App. W.D. 2000) . State of Missouri ex rel. Freeway Media, L.L.C., a Missouri Limited Liability Co., Respondent, v. City of Kansas City, Missouri, a Municipal Corporation, and Ricahrd H. Usher, Division Manager of Permits, Codes Administration Department for the City of Kansas City, Missouri, Appellants. WD56945 Missouri Court of Appeals Western District Handdown Date: 0
• Court: Missouri Court of Appeals

14 S.W.3d 169 (Mo.App. W.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

State of Missouri ex rel. Freeway Media, L.L.C., a Missouri LimitedLiability Co., Respondent, v. City of Kansas City, Missouri, a Municipal Corporation, and Ricahrd H. Usher, DivisionManager of Permits, Codes Administration Department for the City of Kansas City, Missouri, Appellants.

WD56945

Missouri Court of Appeals Western District

Handdown Date: 02/01/2000

Appeal From: Circuit Court of Clay County, Hon. Larry D. Harman

Counsel for Appellant: Douglas M. McMillan

Counsel for Respondent: Robert M. Modeer

Opinion Summary:

Richard H. Usher, in his capacity as Division Manager of Permits in the Codes Administration Department for the City of Kansas City, Missouri, and the City of Kansas City, Missouri, appeal from the trial court's default judgment for the respondent, Freeway Media, L.L.C., as to its action for declaratory judgment and writ of mandamus with respect to the denial of their applications for two permits for outdoor advertising signs on Bruce R. Watkins Drive in Kansas City, Jackson County, Missouri.

The appellants assert three points on appeal.In Point I, the appellants claim, "The trial court erred by asserting jurisdiction when venue was not proper in Clay County because the trial court lacked jurisdiction over this case in that the proper venue for this action is Jackson County and not Clay County."In Point II, they claim, "The trial court erred by entering a judgment on the merits without notice or hearing because the appellants were entitled under due process to notice and a hearing prior to the entry of judgment in that no notice or hearing were given to appellants."In Point III, the appellants claim, "The trial court erred by entering a default judgment because the appellants filed their answer prior to the entry of the judgment and they were not in default for failure to answer as appellants filed their answer prior to the entry of the judgment."

Judgment reversed and remanded to the circuit court for dismissal for lack of jurisdiction.

Division Three holds: Before addressing the merits of the appellants' claims on appeal, the appellate court is required to determine, sua sponte, its jurisdiction, which is predicated on the trial court's having jurisdiction to enter its default judgment for the respondent.If, in fact, the trial court lacked jurisdiction with respect to the respondent's action brought below, then any judgment entered thereon would be void, including its default judgment for the respondent, depriving the appellate court of jurisdiction, except to reverse the judgment and remand the cause for dismissal by the trial court.

The declaratory judgment procedure, provided for in the Declaratory Judgment Act, section 527.020, RSMo 1994, cannot be used where a different specific statutory method of review is provided.Kansas City's Building and Fire Codes Board of Appeals(the board) made a decision requiring three city permits the respondent applied for to be issued, but conditioning issuance of two of the three on the respondent's receiving the variances from the Kansas City Board of Zoning Adjustment(the BZA).At the time, the respondent was aware of the fact that its failure to obtain them would result in the denial of these two permits.In addition, it was its position throughout that it was entitled to the issuance of all three permits without the condition precedent of obtaining variances from the BZA.Consequently, as to the board's decision, the respondent was an aggrieved party free to seek judicial review as provided by city ordinance, or if none was provided, pursuant to section 536.140 as a contested case, which it chose not to do.This could have been done while still pursuing the necessary variances from the BZA.If the variances were subsequently granted, the appeal could then have been dismissed as being moot.In any event, because the respondent had available other remedies at law to address the denial of its permits, it could not resort to a declaratory judgment action against the city or Usher, rendering the default judgment of the trial court void for lack of subject matter jurisdiction.

As to the decision of the BZA, the exclusive remedy available to the respondent for judicial review was under section 64.870.2, RSMo 1994.Inasmuch as the respondent here failed to avail itself of this statutory procedure, the trial court lacked jurisdiction to enter judgment in the declaratory judgment action below, rendering void its default judgment with respect thereto.The trial court's default judgment with respect to the issuance of a writ of mandamus requiring Usher to issue the permits would also be void in that mandamus was not appropriate unless the respondent's declaratory judgment action was first successful.This is so in that the law is well settled that mandamus does not confer a right, but only works to enforce a right already established or declared.

Inasmuch as the trial court's default judgment for the respondent was void for lack of jurisdiction, the appellate court lacks jurisdiction except to reverse the trial court's default judgment and remand the cause for it to dismiss the respondent's action for declaratory judgment and for a writ of mandamus.

Opinion Author: Edwin H. Smith, Judge

Opinion Vote: REVERSED AND REMANDED FOR DISMISSAL FOR LACK OF JURISDICTION.Smart, P.J., and Ellis, J. concur.

Opinion:

Richard H. Usher, in his capacity as Division Manager of Permits in the Codes Administration Department for the City of Kansas City, Missouri, and the City of Kansas City, Missouri, appeal from the trial court's default judgment for the respondent, Freeway Media, L.L.C., as to its action for declaratory judgment and writ of mandamus with respect to the denial of their applications for two permits for outdoor advertising signs on Bruce R. Watkins Drive in Kansas City, Jackson County, Missouri.

The appellants assert three points on appeal.In Point I, the appellants claim, "The trial court erred by asserting jurisdiction when venue was not proper in Clay County because the trial court lacked jurisdiction over this case in that the proper venue for this action is Jackson County and not Clay County."In Point II, they claim, "The trial court erred by entering a judgment on the merits without notice or hearing because the appellants were entitled under due process to notice and a hearing prior to the entry of judgment in that no notice or hearing were given to appellants."In Point III, the appellants claim, "The trial court erred by entering a default judgment because the appellants filed their answer prior to the entry of the judgment and they were not in default for failure to answer as appellants filed their answer prior to the entry of the judgment."

We reverse and remand to the circuit court for dismissal for lack of jurisdiction.

Facts

Given our disposition of the appeal on procedural grounds, a truncated version of the facts will suffice.

The respondent is a Missouri limited liability company comprised of Robert Modeer and Phillip Snowden.Sometime in early 1998, it filed three applications with the Missouri Department of Transportation(MoDOT) for state permits to erect outdoor advertising signs at three locations adjacent to Route 71, between 16th and 18th Streets, along Troost and Campbell, located in Kansas City, Jackson County, Missouri, known as Bruce R. Watkins Drive (the freeway), which was under construction by the state.For purposes of issuing outdoor advertising permits, it is classified in the state highway system as a freeway primary highway.The three locations, for which the respondent sought permits, were at 1066 E. 16th Street, 1700 Campbell, and 1712 Troost.The state permits were denied because MoDOT determined that by state law it could not issue permits for the freeway until it was complete and open for traffic.The respondent appealed, and on April 20, 1998, MoDOT ruled that it was without jurisdiction to issue the permits requested, until the freeway was complete and open for traffic.

On April 20, 1998, the respondent proceeded to apply for the necessary city permits for the erection of the signs in question.On May 20, 1998, the respondent was notified by Usher that the city could not issue the requested permits until the necessary state permits were issued.In addition, he advised that the city "cannot hold applications in line pending issuance of the State permit."This was in response to an inquiry by the respondent concerning the priority to be given to the issuance of permits with respect to applications already on file with the city.In this respect, prior to the time the respondent had filed its city applications, two competing applicants had filed applications for city permits with respect to locations at 918 E. 18th Street and 1810 Troost, which were within 800 feet of the 16th Street and Troost locations of the respondent, which violated the city's spacing requirement for signs.These competing applications were initially denied on the same basis as the respondent's.

On May 27, 1998, unlike the competing applicants, the respondent appealed the decision of the city not to issue permits, until the state permits were issued, to the Building and Fire Codes Board of Appeals(the board), as required by city ordinance.A hearing before the board was set for June 23, 1998.Prior to the hearing, city permits were issued on June 19 and 22, 1998, to the competing applicants for the locations at 918 E. 18th Street and 1810 Troost.According to the appellants, it was determined that their initial assessment, that city permits could not be issued until the state permits were issued, was incorrect.By allowing the competing permits, the permits requested by the respondent for the 16th Street and Troost locations could not be issued, unless variances were granted with...