Tillis v. City of Branson, s. 22094
| Decision Date | 28 September 1998 |
| Docket Number | Nos. 22094,22095,s. 22094 |
| Citation | 975 S.W.2d 949 |
| Parties | Judy TILLIS, et al., Appellants-Respondents, and Sharon Klein, et al., Intervenors-Appellants-Respondents, v. CITY OF BRANSON, Missouri, Respondent-Appellant. |
| Court | Missouri Court of Appeals |
Joseph A. Bohrer, Yates, Mauck, Bohrer, Elliff, Croessmann & Wieland, P.C., Springfield, for Appellant City of Branson.
Nolen W. Berry, Branson, Bradley J. Baumgart, Richard M. Paul, III, Shughart, Thomson & Kilroy, P.C., Kansas City, for Respondents Tillis and Klein, et al.
All parties appealed to the Missouri Supreme Court, and the appeals were subsequently transferred to this Court. The appeals arose after the circuit court entered judgment following a mandate issued by the Supreme Court of Missouri. See Tillis v. City of Branson, 945 S.W.2d 447 (Mo.banc 1997). Appellants Judy Tillis and Sharon Klein challenged the constitutionality of the "municipal tourism tax" assessed by the City of Branson. In this opinion, they and others in their stead are referred to as "Appellants." The City of Branson is referred to here as "the City."
In Tillis, the Supreme Court declared that legislation authorizing a tourism tax,ss 94.800-94.825, RSMo 1994, was unconstitutional because it was a "special law." Id. at 448. The Supreme Court concluded: "[T]he judgment of the circuit court is reversed and the cause remanded with directions to declare the tourism tax unconstitutional and for further proceedings consistent with this opinion." Id. at 449. After the opinion, the Supreme Court issued a mandate stating:
Now at this day come again the parties aforesaid, by their respective attorneys, and the court here being now sufficiently advised of and concerning the premises, doth consider and adjudge that the judgment aforesaid, in form aforesaid, by the said Circuit Court of Taney County rendered, be reversed, annulled and for naught held and esteemed, and that the said Appellants be restored to all things which they have lost by reason of the said judgment. It is further considered and adjudged by the court that the said cause be remanded to the said Circuit Court of Taney County for further proceedings to be had therein, in conformity with the opinion of this court herein delivered; and that the said Appellants recover against the said Respondent costs and charges herein expended, and have execution therefor.
Filing fee: $ 50.00
Transcript fee: $195.50
Total Costs 245.50
On August 7, 1997, after the mandate was issued, Appellants filed a Motion for Entry of Judgment, requesting [J]udgment in accordance with the mandate of the Missouri Supreme Court, and specifically:
(a) declare the Branson Tourism Tax, and municipal ordinances supporting it, unconstitutional;
(b) award plaintiffs/intervenors a refund of the tourism taxes they have paid since the entry of this Court's erroneous judgment on December 5, 1996;
(c) award plaintiffs/intervenors their attorney's fees;
(d) award plaintiffs/intervenors their costs and expenses; and
(e) award plaintiffs/intervenors such further relief as this Court deems just and proper.
The City objected to the circuit court granting Appellants any relief other than a declaration that the statute was unconstitutional and awarding the costs itemized in the mandate. On November 24, 1997, the trial court entered judgment declaring the legislation unconstitutional, finding that Appellants were entitled to a refund of the taxes they paid from December, 1996, through May, 1997, and determining that the Appellants were entitled to an award of their costs both at the trial and appellate levels under § 527.100, RSMo 1994. The judgment did not award Appellants attorney's fees.
Appellants argue here that the circuit court erred in refusing to award attorney's fees under § 527.100, RSMo 1994, because of the special circumstances in this case, and because such award was necessary to balance the benefits. The City counters that the circuit court was limited to the entry of a judgment declaring that § 94.800, et seq., RSMo 1994, was unconstitutional and that the mandate issued by the Missouri Supreme Court did not permit the circuit court to perform any further judicial act. 1
On its appeal, the City contends that the trial court erred in entering the judgment entitling Appellants to a refund of the tourism taxes paid because the trial court's authority was limited to the entry of a judgment declaring the legislation unconstitutional.
A mandate is to be read in conjunction with the appellate opinion filed in the case, and the trial court is required to follow the directions in conjunction therewith. Parker v. Parker, 857 S.W.2d 873 (Mo.App.1993). The opinion is silent as to attorney's fees and any refund of taxes paid. Appellants assert, however, that they are entitled to the recovery of taxes paid since the initial judgment, as the mandate provides that the "Appellants be restored to all things which they have lost by reason of the said judgment."
Appellants argue that the mandate is a "general mandate," and cite to Associated Industries of Missouri v. Director of Revenue, 918 S.W.2d 780 (Mo.banc 1996), for support. In Associated Industries, the Supreme Court of Missouri was called upon to interpret a mandate issued from the United States Supreme Court, which mandate called "for further proceedings not inconsistent with this opinion." Id. at 782. The Supreme Court of Missouri interpreted that language to indicate "simple reversal and remand," concluding that the mandate was "a general mandate and was not explicitly limited to a determination of available remedies." Id. The court contrasted the simple reversal and remand with a remand that imports a "direction of specified things." Id.
The remand in Tillis directed the circuit court "to declare the tourism tax unconstitutional and for further proceedings consistent with [that] opinion." Tillis, 945 S.W.2d at 449. The specific and limiting directions preceding the general language does not transform the remand into a simple reversal and remand. Therefore, the mandate of Tillis is not, as Appellants urge this Court to accept, a "general mandate," but a mandate with specific directions.
The circuit court had a duty to render judgment in accordance with the mandate. City of St. Charles v. Schroeder, 510 S.W.2d 202, 203 (Mo.App.1974). See also Hankins v. Hankins, 864 S.W.2d 351, 353 (Mo.App.1993)("Where a remand is with directions, a trial court is bound to render judgment in conformity with the mandate."); Papin v. Papin, 475 S.W.2d 73, 75 (Mo.1972)("Where the case is decided on appeal on its merits and no...
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