Sullivan v. City of Univ. City

Docket NumberED111084
Decision Date22 August 2023
PartiesTHOMAS SULLIVAN, ET AL., Appellants, v. CITY OF UNIVERSITY CITY, ET AL., Respondents.
CourtMissouri Court of Appeals

Appeal from the Circuit Court of St. Louis County Honorable Krista Peyton



Thomas Sullivan and David Harris ("Appellants") appeal the circuit court's judgment dismissing with prejudice their first amended petition for a declaratory judgment against University City and numerous individual respondents ("Respondents"). Appellants raise six points on appeal. In Point I, Appellants argue their petition sufficiently stated a cause of action. In Point II Appellants argue University City was a proper defendant. In Point III, Appellants argue their petition sufficiently stated a cause of action under section 115.646,[1] which prohibits public officials expending public funds to advocate for or against any ballot measure. In Point IV, Appellants argue their claim is not moot. In Point V, Appellants argue their claim fits the public interest exception to mootness. In Point VI, Appellants argue the trial court erred in dismissing their petition with prejudice, because this disposition was "too harsh."

Because Appellants do not have a private cause of action under section 115.646, we deny Point III. Because a trial court does not abuse its discretion in dismissing a petition with prejudice when any amendment would be futile, we deny Point VI. Because Points III and VI are dispositive, we decline to address Appellants' remaining points.

We affirm.

Factual and Procedural History

Appellants describe their case as a "taxpayer suit against a municipality and its officials." The suit concerns Proposition F, a ballot measure in University City. On March 24, 2022, Appellants filed a petition for a temporary restraining order, preliminary injunction, and permanent injunction. Appellants pled they are taxpayers in University City and the ballot measure, set for a public vote on April 5, 2022, would have raised the local sales tax by one quarter of one percent. Appellants alleged University City officials used public funds to employ Creative Entourage Agency, LLC to generate support for the proposal. Appellants alleged Creative Entourage agreed to produce promotional materials including "a brochure, slides, postcards, emails, text messages, social media posts, advertisements, a station banner, and videos." Appellants alleged "[t]he estimated cost of the work to be performed by Creative Entourage is $41,000." Appellants alleged the sums paid to Creative Entourage "have been or will be used to advocate or support the passage of Proposition F," rather than mere informational purposes. Appellants pled any use of public funds to promote Proposition F "would violate Section 115.646." Appellants requested the trial court enjoin Respondents from paying or reimbursing with public funds Creative Entourage or others to promote Proposition F and to cease using materials already created.

On April 1, 2022, after a hearing, the trial court denied Appellants' relief on all counts, finding they did not demonstrate immediate and irreparable injury, immediate harm or a sufficient likelihood of success on the merits. The trial court also found the "materials [Appellants] complain of have all been distributed," the videos and website have been viewed, and "[n]o additional monies will be paid and no additional materials are being prepared."

On April 3, 2022, Appellants filed their first amended petition seeking, instead of injunctive relief, "a declaratory judgment that the direct expenditure of public funds by the city's public officials" to promote Proposition F violated section 115.646. Appellants describe this filing as "almost identical" to its March 2022 petition, but sought declaratory judgment instead of injunctive relief. Proposition F failed on April 5, 2022. After the election Respondents moved to dismiss Appellants' first amended petition, alleging: (1) the petition failed to state a claim on which relief could be granted because Appellants' claim is moot; (2) Appellants have no private right of action[2] under section 115.646; (3) section 115.646 does not apply to government entities, only to public officials; and (4) Respondents did not violate section 115.646. The trial court sustained Respondent's motion and dismissed Appellants' first amended petition with prejudice.

Appellants moved to amend the judgment, requesting the trial court state its reasoning for the dismissal, dismiss their petition without prejudice, and grant them sixty days to file an amended petition. The trial court sustained Appellants' motion to amend its judgment in part to provide their petition was "insufficient and would not entitle [Appellants] to relief, given that there is no private cause of action under §115.646 RSMo. coupled with the election of Proposition F having occurred several months ago." The trial court denied Appellants' request to amend its judgment to issue a dismissal without prejudice and denied their request for leave to amend their amended petition.

The trial court found Appellants "have not provided a viable amended petition or articulated how an amended petition would address the myriad of deficiencies" raised in the motion to dismiss.

This appeal follows.

Standard of Review

We review the trial court's grant of a motion to dismiss de novo. Vinson v. Mo. Comm'n on Hum. Rts, 622 S.W.3d 218, 221 (Mo. App. E.D. 2021) (citing Lang v. Goldsworthy, 470 S.W.3d 748, 750 (Mo. banc 2015)). We review all grounds raised in the motion to dismiss, and we will affirm if the dismissal can be sustained on any of those grounds. Id. (citing Foster v. State, 352 S.W.3d 357, 359 (Mo. banc 2011)). A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiff's petition. Green Tree Servicing, LLC v. Chicago Title Ins. Co., 499 S.W.3d 771, 774 (Mo. App. E.D. 2016) (citing Otte v. Edwards, 370 S.W.3d 898, 900 (Mo. App. E.D. 2012)). We assume the plaintiff's averments are true and liberally grant all reasonable inferences to the plaintiff. Id. A motion to dismiss for failure to state a claim assesses whether the petition alleged facts giving rise "to a cognizable cause of action or of a cause that might be adopted." Graves v. Mo. Dep't of Corr., Div. of Prob. &Parole, 630 S.W.3d 769, 772 (Mo. banc 2021) (citing State ex rel. Henley v. Bickel, 285 S.W.3d 327, 329 (Mo. banc 2009)) (emphasis added).

"The primary rule of statutory construction is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider words used in the statute in their plain and ordinary meaning." Anani v. Griep, 406 S.W.3d 479, 482 (Mo. App. E.D. 2013) (quoting City of Willow Springs v. Mo. State Librarian, 596 S.W.2d 441, 445 (Mo. banc 1980)). Provisions "not plainly written in the law, or necessarily implied from what is written, should not be added by a court under the guise of construction to accomplish an end the court deems beneficial." Id. (quoting Harrison v. MFA Mut. Ins. Co., 607 S.W.2d 137, 143 (Mo. banc 1980)). "This Court's obligation is to examine the language used by the legislature, not to supply what the legislature omitted by engrafting additional language into the statute." Mo. State Conf. of NAACP v. State, 607 S.W.3d 728, 733 (Mo. banc 2020).

A trial court's dismissal with prejudice will not be disturbed absent a finding of clear abuse of discretion by the trial court. Dorris v. Mo. Substance Abuse Couns. Certification Bd., Inc., 10 S.W.3d 557, 559 (Mo. App. W.D. 1999). Judicial discretion is abused only where the trial court's ruling is clearly against the logic of the circumstances before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Id. (citing Speck v. Union Elec. Co., 731 S.W.2d 16, 22 (Mo. banc 1987)).

Point III: Private Right of Action Party Positions

In their third point, Appellants argue the trial court erred in dismissing their first amended petition because they believe section 115.646 provides taxpayers as a protected class with a private right of action to sue to enforce its provisions. Appellants maintain such a right must be implied for the statute to achieve its purpose because the statute prohibits both purposeful conduct, which constitutes a crime, and non-purposeful conduct, which is prohibited but not criminalized. Appellants further argue the statutory enforcement mechanisms the legislature has provided the Secretary of State and the Missouri Ethics Commission are permissive and not mandatory. Accordingly, Appellants urge this Court to fashion a remedy for taxpayers to further the purpose and ensure the effectiveness of section 115.646.

Respondents contend the trial court appropriately dismissed Appellants' amended petition with prejudice because taxpayers do not have a private right of action under section 115.646 in that the legislature did not provide one expressly or by clear implication. Respondents argue a declaratory judgment action cannot serve as a basis for relief when the party seeking the declaration does not have a direct cause of action concerning the matter at issue. Respondents further contend the legislature's establishment of other means of express enforcement by the Secretary of State and the Missouri Ethics Commission of alleged violations underscores the implication of the exclusivity of this remedy. Because the legislature could, but did not, manifest its intent to create additional or alternative means of enforcement Respondents argue the designated administrative agency had the exclusive right to sue,...

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