Vogt v. Emmons, No. ED 83873.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtGary M. Gaertner, Sr.
Citation158 S.W.3d 243
Docket NumberNo. ED 83873.
Decision Date01 February 2005
PartiesRobert N. VOGT, Trustee for the Robert N. Vogt Trust, Appellant, v. Linda EMMONS, Collector of Franklin County, Franklin County and Scenic Regional Library, Respondent.
158 S.W.3d 243
Robert N. VOGT, Trustee for the Robert N. Vogt Trust, Appellant,
v.
Linda EMMONS, Collector of Franklin County, Franklin County and Scenic Regional Library, Respondent.
No. ED 83873.
Missouri Court of Appeals, Eastern District, Division One.
February 1, 2005.
Rehearing Denied March 23, 2005.

[158 S.W.3d 244]

Byron E. Francis, Jeffery T. McPherson, Jacqueline P. Ulin, Deanna M. Wendler, Armstrong Teasdale LLP, St. Louis, MO, for appellant.

Mark Vincent, Vincent, Hoven & Purschke, Union, MO, Marc H. Ellinger, Blitz, Bardgett & Deutsch, L.C., Jefferson City, MO, for respondent.

GARY M. GAERTNER, SR., Presiding Judge.


Appellant, Robert N. Vogt, Trustee for the Robert N. Vogt Trust ("Taxpayer"),

158 S.W.3d 245

appeals from the judgment of the Circuit Court of Franklin County granting respondent, Scenic Regional Library's ("Scenic"), motion to dismiss and also dismissing the case as to the remaining respondents, Linda Emmons, Collector of Franklin County ("Collector"), and Franklin County ("the County"). We affirm in part and reverse in part.

In December of 2001, Taxpayer filed his real property tax bills under protest. On June 24, 2002, Taxpayer filed a second amended petition,1 in which he alleged the County and Scenic are political subdivisions of the State of Missouri, and that they did levy taxes for the year 2001 upon Taxpayer's real property. Taxpayer brought his action under Article X, Section 23 of the Missouri Constitution on behalf of himself, all taxpayers owning property and receiving tax bills from the County, and all taxpayers of the Scenic Library district. Taxpayer alleged all of these taxpayers are entitled to an adjudication concerning their entitlement to a refund of taxes that violate the Hancock Amendment, Article X, Section 22 of the Missouri Constitution.

Taxpayer alleged that in calculating the general revenue tax rate levy for the year 2000, the County violated the judgment of the Circuit Court of Franklin County in a similar action, Jack Koehr, et al. v. Mary Ann Henderson, et al., Franklin County Circuit Court No. CV 198-0297CC ("the 1999 judgment").2 In particular, Taxpayer argued the County did not use the 1999 tax rate ceiling of $.2914 to calculate the general revenue tax rate levy for the year 2000. Instead, Taxpayer maintained the County used $.3100 as the tax rate ceiling. Taxpayer alleged this mistake caused $80,008.109 to be collected in excess of the allowable revenue under the 1999 judgment and Article X, Section 22.

Taxpayer argued the County also violated the 1999 judgment in 2001 by using $.3121 as the tax rate ceiling. According to Taxpayer, this mistake caused $211,822.33 to be collected in excess of the revenue allowable under the 1999 judgment and Article X, Section 22.

Scenic, according to Taxpayer, made the same mistake in calculating its tax rate levy for 2000 and 2001, which caused it to collect, respectively, $150,237.3444 and $159,562.028 in excess revenue.

Taxpayer alleged the County made a similar mistake with similar results in the computation of the tax rate levy for road and bridges purposes, which caused an excess of $43,081.2896 to be collected in 2000 and $232,168.937 to be collected in 2001. Taxpayer also argued the County failed to "adjust the sales tax revenue collected in the year 2000 for the year 2001 in accordance with section 67.505.3(6)."

Taxpayer sought a declaration that the County's tax levy for the year 2001 was unlawful, and asked the trial court to direct the County to calculate the tax rate levy for general revenue in the year 2001 using the tax rate ceiling set in the 1999 judgment. Taxpayer also asked the court to enjoin the Collector and the County from collecting any taxes under the unlawful tax rate or any amount over the lawful tax rate, and to refund to Taxpayer and

158 S.W.3d 246

those on whose behalf he acts any sums paid over the amount due on their respective lawful tax bills. Taxpayer also sought punitive damages, costs, and expenses.

Taxpayer sought the same relief for his claim regarding Scenic's tax rate levy and for the tax rate levy for bridge and road purposes and for the year 2001. Taxpayer does not pray for relief with respect to any 2000 taxes.

In its answer, Scenic admitted it was a political subdivision of the State of Missouri, and that it was authorized to and did levy taxes upon real property for the year 2001. Scenic also asserted, as affirmative defenses, that (1) Taxpayer failed to state a claim upon which relief may be granted; (2) Taxpayer's allegations regarding the 1999 and 2000 tax rates were barred because they were not asserted in a timely manner; (3) Taxpayer sought relief from persons not party to this action; and (4) Taxpayer was barred from enforcing the 1999 Judgment by the doctrine of laches and the statute of limitations for property tax suits.

The Collector and the County filed a separate answer in which they asserted, as affirmative defenses, that (1) Taxpayer failed to state a claim upon which relief may granted because there are no allegations that any calculation pertaining to the tax year in question was in violation of the Hancock Amendment; (2) the allegations regarding the 1999 and 2000 tax rates were barred because they were untimely; (3) Taxpayer's claim was invalid because it was a collateral attack on properly established tax rates; and (4) Taxpayer's claim was barred by the doctrine of laches.

Taxpayer filed a motion for class certification. At the hearing on class certification, Scenic argued the wrong parties were named in this suit. Scenic argued it was not a political subdivision of the State of Missouri and that it had no taxing powers and thus, was not a proper party to this suit. Taxpayer argued that Scenic had almost two years to assert this argument, but unnecessarily waited until the class certification hearing. Further, Taxpayer argued Scenic did not assert this argument when the same parties were named in a similar case, Koehr I.

On July 28, 2003, Scenic filed a motion to dismiss along with suggestions in support alleging Taxpayer named an improper party, failed to name an indispensable party, and failed to comply with the statute of limitations. In particular, Scenic argued it was not a political subdivision of the State of Missouri, rather it was a contractual entity without any authority to enter or levy any property taxes. Further, Scenic argued the statute of limitations ran for tax year 2001 and 2002, making it impossible to add the Franklin County Library District ("FCLD"), which was an indispensable party.

On August 13, 2003, Scenic filed a motion for leave to amend its answer to the second amended petition. In its original answer, Scenic had admitted it was a political subdivision and was authorized to and levied taxes for the year 2001. Scenic denied all of these allegations in its amended answer by interlineation.

On September 18, 2003, the trial court granted Scenic's motion to dismiss. It found that "the inclusion of a defendant [Scenic] which is not a political subdivision is clear on its face." Therefore, it had no subject matter jurisdiction with respect to Scenic. The trial court also found that Taxpayer had not requested that the court substitute the FCLD, the proper political subdivision, and that, in any case, FCLD could not be substituted because such a substitution would violate the statutory timely protest requirement. Further, the trial court dismissed with prejudice the

158 S.W.3d 247

entire case regarding the 2001 tax rate because Taxpayer failed to comply with section 137.073.8 in filing the action.

Taxpayer filed a motion for new trial, arguing Scenic should have been barred by collateral estoppel and/or res judicata from challenging its role as a defendant; if Scenic was not a proper party, FCLD should have been substituted; and the case should not have been dismissed for failure to comply with section 137.073.8. The motion for new trial was denied, and this appeal followed.

Our standard of review when considering a trial court's grant of a motion to dismiss is de novo. McCarthy v. Peterson, 121 S.W.3d 240, 243 (Mo.App. E.D.2003). We can affirm the trial court's dismissal on any ground before the trial court in the motion to dismiss, even if that ground was not relied upon by the trial court in dismissing the claim. Id. We accept all of plaintiff's averments as true and view the allegations in the light most favorable to the plaintiff. Id.

Because Taxpayer's third and fourth points concern which entities are proper parties to this suit, we address them first.

In his third point on appeal, Taxpayer argues the trial court erred in dismissing Scenic Regional Library ("Scenic") because Scenic is barred by res judicata from challenging its status as a proper taxing authority.

A court may take judicial notice of its own records and may take judicial notice of the records of other cases when justice so requires. Sher v. Chand, 889 S.W.2d 79, 84 (Mo.App. E.D.1994).

Res judicata, commonly referred to as claim preclusion, bars the reassertion of a cause of action that has been previously adjudicated in a proceeding between the same parties or those in privity with them. Lomax v. Sewell, 50 S.W.3d 804, 809 (Mo.App. W.D.2001), quoting Robin Farms, Inc. v. Beeler, 991 S.W.2d 182, 185 (Mo.App. W.D.1999). Res judicata will bar a claim if the following elements are satisfied: (1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of persons or parties to the action; and (4) identity of the quality of the person for or against whom the claim is made. Lomax, 50 S.W.3d at 809, quoting Jordan v. Kansas City, 929 S.W.2d 882, 886 (Mo.App. W.D.1996). The doctrine of res judicata renders...

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28 practice notes
  • DePriest v. State, ED 102307
    • United States
    • Court of Appeal of Missouri (US)
    • 27 Octubre 2015
    ...interwoven, we take judicial notice of her case file. See Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889, 894 (1943) ; Vogt v. Emmons, 158 S.W.3d 243, 247 (Mo. App. E.D. 2005). In her motion, she stated that the police found two pounds of marijuana in a common area of the home, but the rest ......
  • Mo. Land Dev. I, LLC. v. Raleigh Dev., LLC., No. ED 99258.
    • United States
    • Court of Appeal of Missouri (US)
    • 1 Octubre 2013
    ...judicial notice of its own records and may take judicial notice of the records of other cases when justice so requires. Vogt v. Emmons, 158 S.W.3d 243, 247 (Mo.App. E.D.2005). Here, in addition to the statute allowing for a correction deed, the record contains other competent evidence suffi......
  • Xiaoyan Gu v. Da Hua Hu, No. ED 100001.
    • United States
    • Court of Appeal of Missouri (US)
    • 29 Julio 2014
    ...in the prior action. See Kesterson v. State Farm Fire & Cas. Co., 242 S.W.3d 712, 715–16 (Mo. banc 2008) ; see also Vogt v. Emmons, 158 S.W.3d 243, 247 (Mo.App. E.D.2005) (“The doctrine of res judicata renders conclusive a judgment in a subsequent action between the same parties as to all i......
  • Jennings v. Bd. of Curators of Mo. State Univ., No. SD 31900.
    • United States
    • Court of Appeal of Missouri (US)
    • 18 Septiembre 2012
    ...The trial court granted MSU's motion. Plaintiff appeals the dismissal of Jennings II. Our review is de novo. Vogt v. Emmons, 158 S.W.3d 243, 247 (Mo.App.2005). As the trial court did not state the reason for its ruling, we will affirm if dismissal was proper on any ground stated in MSU's mo......
  • Request a trial to view additional results
24 cases
  • DePriest v. State, ED 102307
    • United States
    • Court of Appeal of Missouri (US)
    • 27 Octubre 2015
    ...interwoven, we take judicial notice of her case file. See Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889, 894 (1943) ; Vogt v. Emmons, 158 S.W.3d 243, 247 (Mo. App. E.D. 2005). In her motion, she stated that the police found two pounds of marijuana in a common area of the home, but the rest ......
  • Mo. Land Dev. I, LLC. v. Raleigh Dev., LLC., No. ED 99258.
    • United States
    • Court of Appeal of Missouri (US)
    • 1 Octubre 2013
    ...judicial notice of its own records and may take judicial notice of the records of other cases when justice so requires. Vogt v. Emmons, 158 S.W.3d 243, 247 (Mo.App. E.D.2005). Here, in addition to the statute allowing for a correction deed, the record contains other competent evidence suffi......
  • Jennings v. Bd. of Curators of Mo. State Univ., No. SD 31900.
    • United States
    • Court of Appeal of Missouri (US)
    • 18 Septiembre 2012
    ...The trial court granted MSU's motion. Plaintiff appeals the dismissal of Jennings II. Our review is de novo. Vogt v. Emmons, 158 S.W.3d 243, 247 (Mo.App.2005). As the trial court did not state the reason for its ruling, we will affirm if dismissal was proper on any ground stated in MSU's mo......
  • Gu v. Da Hua Hu, & Ace Ina Ins. Co., No. ED 100001.
    • United States
    • Court of Appeal of Missouri (US)
    • 2 Septiembre 2014
    ...in the prior action. See Kesterson v. State Farm Fire & Cas. Co., 242 S.W.3d 712, 715–16 (Mo. banc 2008); see also Vogt v. Emmons, 158 S.W.3d 243, 247 (Mo.App. E.D.2005) (“The doctrine of res judicata renders conclusive a judgment in a subsequent action between the same parties as to al......
  • Request a trial to view additional results

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