Unverferth v. City of Florissant, No. ED98511

CourtMissouri Court of Appeals
Writing for the CourtKurt S. Odenwald
PartiesLAURA UNVERFERTH, JOSEPH CUSUMANO, and FRANCIS CUSUMANO, Appellants, v. CITY OF FLORISSANT and AMERICAN TRAFFIC SOLUTIONS, INC., Respondents.
Decision Date10 September 2013
Docket NumberNo. ED98511

LAURA UNVERFERTH, JOSEPH CUSUMANO,
and FRANCIS CUSUMANO, Appellants,
v.
CITY OF FLORISSANT and AMERICAN TRAFFIC SOLUTIONS, INC., Respondents.

No. ED98511

Missouri Court of Appeals Eastern District DIVISION I

FILED: September 10, 2013


Appeal from the Circuit Court
of St. Louis County

Honorable Tommy W. DePriest, Jr.

Introduction

Appellants Laura Unverferth ("Unverferth") and Joseph and Francis Cusumano ("Cusumanos") (collectively, "Appellants") appeal from the judgment of the trial court granting motions to dismiss filed by Respondents City of Florissant ("Florissant") and American Traffic Solutions, Inc. ("ATS") (collectively, "Respondents"). Appellants received red light camera tickets from Florissant stating that they had committed a "Violation of Public Safety (Failure to Stop at a Red Light)" in violation of a Florissant municipal ordinance ("the Ordinance"). Appellants challenged the validity of the Ordinance in a six-count petition. Appellants alleged the Ordinance violated their due process rights and the privilege against self-incrimination, sought declaratory judgment regarding the validity and constitutionality of the Ordinance and its

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enforcement, and asserted a claim of civil conspiracy against Florissant and ATS. Unverferth also asserted claims of unjust enrichment against Florissant and ATS.

Florissant and ATS filed motions to dismiss Appellants' petition alleging, inter alia, that Appellants' constitutional claims should be dismissed on the bases of standing, waiver, and estoppel. The trial court agreed and granted Respondents' motions to dismiss on those grounds. The trial court then addressed the substantive issues raised by Appellants and dismissed each count with prejudice. Appellants now appeal the trial court's judgment.1

Because the Cusumanos have an adequate remedy at law in their municipal court proceeding, we affirm the trial court's judgment with regard to its dismissal of all of the Cusumanos' claims.

With regard to the claims brought by Appellant Unverferth, we reverse the judgment of the trial court dismissing Unverferth's claims on the bases of standing and waiver. Because Unverferth has pleaded sufficient facts to defeat Respondents' claim of estoppel, we reverse the trial court's judgment dismissing Unverferth's claims due to estoppel and remand that issue to allow for discovery and further proceedings consistent with this opinion.

We further reverse that portion of the trial court's judgment declaring the Ordinance valid and dismissing Count I because it was enacted with proper authority and is consistent with state law. Appellants have pleaded that Florissant exceeded its authority under its police power to enact the Ordinance because the purpose of the Ordinance is to raise municipal revenue and not to regulate traffic or promote safety. Whether the Ordinance is a revenue-generating scheme advanced under the guise of Florissant's police power is a factual question not appropriate for resolution on Respondents' motions to dismiss. We remand this portion of the trial court's judgment for proceedings consistent with this opinion. In addition, Appellants have adequately

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pleaded and we hold that the Ordinance conflicts with Missouri law because it regulates moving violations without requiring the municipal court to report the violation to the Director of Revenue as required by Missouri statute. We reverse the judgment of the trial court dismissing Appellants' claim for declaratory judgment because the Ordinance conflicts with state statutes regulating moving violations.

With regard to Appellants' claims relating to procedural due process, Appellants have adequately pleaded that the Ordinance has denied them notice, a fair hearing and adequate procedural protections as required under Missouri Supreme Court Rules and Article I, Section 10 of the Missouri Constitution. Whether the Ordinance, as enacted or applied, violated Appellants' procedural due process rights is a factual question that is not appropriate for resolution on Respondents' motions to dismiss. Appellants are entitled to pursue discovery and present facts in support of their properly pleaded allegations. Accordingly, we reverse that portion of the trial court's judgment dismissing the allegations contained in Counts I and IV relating to the denial of adequate procedural protections, notice, and fair hearing, and remand those issues to the trial court for proceedings consistent with this opinion. We affirm the trial court's judgment in all other respects.

Factual and Procedural History

Appellants are vehicle owners who received a Notice of Violation from Florissant for violating Florissant's red light camera ordinance, which authorizes the use of automated cameras to enforce "violations of public safety." Under the Ordinance, a person commits the offense of violation of public safety "when such person fails to comply with the rules and regulations when a steady red signal appears at an intersection and the violation is detected through the automated red light enforcement system . . . ." The Ordinance includes a rebuttable presumption that the

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owner of the vehicle was the driver at the time and place the violation occurred. The Ordinance does not provide a specific penalty for violations.

To enforce the Ordinance, Florissant contracted with ATS to install and operate red light cameras at various intersections within the city. The cameras are positioned to record an image of the rear portion of the vehicle and license plate as it enters the intersection. Upon reviewing recorded images that capture an alleged violation of the Ordinance, a police officer with the Florissant Police Department completes a Notice of Violation and sends it to the owner of the vehicle. Should the vehicle have more than one registered owner, the violation is addressed to the primary owner, or the first listed owner if there is no primary owner. The recipient of the Notice of Violation is informed that probable cause exists to believe that he or she committed the offense of "Violation of Public Safety (Failure to Stop at a Red Light)" and is directed to pay a $100 fine to the Florissant Municipal Court. The Notice of Violation states that the violation is a non-moving infraction and no points will be assessed to the recipient's license. The Notice of Violation also informs the recipient that payment of the fine constitutes an "admission of guilt or liability."

If the recipient of the Notice of Violation fails to pay the fine by the due date listed on the notice, Florissant police send the alleged violator a Notice to Appear. The Notice to Appear informs the recipient that he or she has failed to respond in a timely manner to the Notice of Violation issued to the vehicle registered in his or her name. The Notice to Appear provides a new due date for payment of the fine, and states that if payment is not received prior to that date, the recipient must appear at Florissant Municipal Court at a specified date and time. The recipient is further admonished that failure to appear in court or to pay the fine "will cause this matter to be submitted to a collections agency in accordance with applicable state and federal

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collection laws and additional fees to be levied against you. It is in your best interest to pay this immediately."

Appellants filed a class action petition challenging the Ordinance on August 19, 2011. Unverferth sought to represent a class of Missouri citizens who received a Notice of Violation pursuant to the Ordinance and paid the $100 fine. The Cusumanos sought to represent Missouri citizens who received a Notice of Violation pursuant to the Ordinance, had not paid their fines, and whose violations were outstanding.2 Appellants' petition alleged six counts: declaratory judgment (Count I); unjust enrichment against Florissant on behalf of Unverferth (Count II); violation of the prohibition against self-incrimination under Article I, Section 19 of the Missouri Constitution (Count III); violation of due process under Article I, Section 10 of the Missouri Constitution (Count IV); civil conspiracy against Florissant and ATS (Count V); and unjust enrichment against ATS on behalf of Unverferth (Count VI). Unverferth sought monetary damages for the unjust enrichment alleged under Counts II and VI, the constitutional claims in Counts III and IV, and the civil conspiracy theory brought in Count V. All Appellants sought declaratory and injunctive relief for Counts I, III, and IV.

Florissant and ATS each filed a motion to dismiss Appellants' petition. On May 9, 2012, the trial court entered its Order and Judgment dismissing all of Appellants' claims with prejudice. Appellants now appeal the dismissal of their claims.

Points on Appeal

Appellants raise five points on appeal. First, Appellants claim the trial court erred in declaring the Ordinance valid because the Ordinance conflicts with state law on the same subject. Second, Appellants contend that the trial court erred in finding the Ordinance valid

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because the Ordinance was not enacted pursuant to Florissant's statutory authority or police power. In their third point on appeal, Appellants aver that the trial court erred in finding the Ordinance valid because the Ordinance deprives Appellants of their procedural due...

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