Zoological Park Subdistrict of the Metro. Park Museum Dist. v. Smith, ED 105784

• Decision Date: 06 November 2018
• Docket Number: ED 105784
• Citation: 561 S.W.3d 893
• Parties: ZOOLOGICAL PARK SUBDISTRICT OF THE METROPOLITAN PARK MUSEUM DISTRICT, Respondent, v. Jeffry K. SMITH, Appellant.
• Court: Missouri Court of Appeals

561 S.W.3d 893

ZOOLOGICAL PARK SUBDISTRICT OF THE METROPOLITAN PARK MUSEUM DISTRICT, Respondent,

v.Jeffry K. SMITH, Appellant.

ED 105784

Missouri Court of Appeals, Eastern District, DIVISION TWO.

Filed: November 6, 2018

Adam D. Hirtz, Jackson Lewis P.C., 222 South Central Avenue, Suite 900, Clayton, MO 63105, for respondent.

Jane C. Hogan, J.C. Hogan & ASSOC., LLC, 4940 Sutherland Ave., St. Louis, MO 63109, for appellant.

OPINION

Lisa P. Page, Presiding Judge

Jeffry K. Smith ("Smith") appeals the trial court’s grant of summary judgment in favor of the Zoological Park Subdistrict of the Metropolitan Park Museum District ("Zoo") on the Zoo’s petition seeking to permanently enjoin Smith from entering the Zoo with a firearm. We reverse and remand.

BACKGROUND

The Zoo is a political subdistrict of the state of Missouri. It is open to the public, free of charge, and averages twenty to thirty thousand visitors per day during the summer months. Zoo policy prohibits visitors from carrying firearms on Zoo property. Signs posted at the entrances state "No Firearms Or Weapons Allowed On This Property."

Smith is a gun rights activist who resides in Ohio. He carries an Ohio concealed handgun license. On May 31, 2015, Smith contacted the Zoo regarding its policy of prohibiting firearms on the Zoo’s premises. On June 11, 2015, after multiple communications, Smith informed the Zoo he intended to enter the premises with a firearm on June 13, 2015. Thereafter, the Zoo obtained a temporary restraining order, enjoining Smith from entering the Zoo in possession of a firearm. Smith traveled to St. Louis and entered the Zoo carrying an empty holster.

The trial court held a two-day contested evidentiary hearing on the preliminary injunction. On February 19, 2016, the court entered a preliminary injunction, enjoining Smith from entering the Zoo in possession of a firearm. Thereafter, the Zoo filed a motion for summary judgment on its petition for permanent injunction. The trial court granted summary judgment in favor of the Zoo. This appeal follows.

DISCUSSION

In each of his four points on appeal, Smith challenges the trial court’s judgment in favor of the Zoo. Smith’s first two points on appeal challenge the trial court’s decision to enter a permanent injunction; however, the trial court’s ruling was actually in favor of the Zoo on its motion for summary judgment.¹ The confluence of injunctive relief and summary judgment presented the trial court with a unique procedural posture. However, each are extreme remedies, to be exercised with great caution and only in extraordinary circumstances. Therefore, we must carefully review the propriety of granting summary judgment on the Zoo’s petition for permanent injunction.

Standard of Review

Summary judgment is reviewed de novo.

ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp. , 854 S.W.2d 371, 376 (Mo. banc 1993). We will affirm the court’s decision only if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Id. We review the summary judgment record in the light most favorable to the party against whom judgment was entered. Id.

It is crucial that, "[g]reat caution must be exercised in granting summary judgment because it is an extreme and drastic remedy that borders on denial of due process in that the opposing party is denied its day in court." Walters Bender Strohbehn & Vaughan, P.C. v. Mason , 316 S.W.3d 475, 481 (Mo. App. W.D. 2010) (internal citation omitted).

Analysis

An injunction is a remedy, not a cause of action; thus, an injunction must be based on a recognized and pleaded legal theory.² Goerlitz v. City of Maryville , 333 S.W.3d 450, 455 (Mo. banc 2011) (citing Farm Bureau Town and Country Ins. Co. of Missouri v. Angoff , 909 S.W.2d 348, 354 (Mo. banc 1995) ); See also Section 526.040 RSMo (2016) ("Before any party shall be entitled to the injunction herein provided, he shall have filed in the circuit court, or in the office of the clerk thereof, having jurisdiction of the suit, his petition setting forth his cause of action ....") (emphasis added). The purpose of an injunction is to prevent actual or threatened acts that constitute real injury. Bates v. Webber , 257 S.W.3d 632, 636 (Mo. App. S.D. 2008) (internal citation omitted). To be entitled to an injunction, a party must demonstrate: 1) no adequate remedy at law; and 2) irreparable harm will result if the injunction is not awarded. Beauchamp v. Monarch Fire Prot. Dist. , 471 S.W.3d 805, 813 (Mo. App. E.D. 2015). Similar to summary judgment, a permanent injunction is an extraordinary and harsh remedy. Id. It should only be granted sparingly and in clear cases. Neaf v. Mallory , 622 S.W.2d 372, 373 (Mo. App. E.D. 1981) (internal citations omitted).

There are three phases of injunctive relief: 1) a temporary restraining order granted against a defendant with or without notice or hearing; 2) a temporary or preliminary injunction granted following notice and hearing; and 3) a permanent injunction following the final disposition of the merits of the case. Cook , 432 S.W.3d at 289 (internal citations omitted). Rule 92.02(c)(3) authorizes the trial court to consolidate the hearings on the preliminary and permanent injunctions. However, the preliminary injunction hearing is generally not considered a trial on the merits and does not merge the two proceedings. Id. (citing State ex rel. Cohen v. Riley , 994 S.W.2d 546, 548 (Mo. banc 1999) ). Instead, the fact that the rule contemplates evidence received at the hearing may be received into the record of the trial on the merits indicates the two proceedings should remain separate. Id.

An order properly consolidating the preliminary injunction hearing with a trial on the merits for a permanent injunction must be clear and unambiguous.

Id. When balancing the trial court’s consolidation of the proceedings with the principle of due process, we must consider whether sufficient notice was given to the party against whom the injunction is being entered. Id. A party must be afforded notice of the consolidation to provide a reasonable opportunity to present his evidence. Id. ; See also Estate of Hutchison v. Massood , 494 S.W.3d 595, 602 (Mo. App. W.D. 2016). Absent these due process requirements of the order and notice, the trial court may only adjudicate the merits of a claim for permanent injunction on the evidence presented at the hearing on a preliminary injunction if the parties consent. Id. (internal citations omitted) (emphasis added).

Here, in the absence of such consent, the trial court failed to consolidate the evidence from the two-day evidentiary hearing on the preliminary injunction into the proceedings on the permanent injunction with the proper deference to due process. The trial court simply granted summary judgment in favor of the Zoo on its request for permanent injunction. This is problematic because the Zoo solely sought injunctive relief without an underlying cause of action for a declaratory judgment. Thus, the Zoo was required to prove it lacked an adequate remedy at law and would suffer irreparable harm. Both issues were highly contested by the parties during the November 2015 evidentiary hearings on the preliminary injunction. As a result, the trial court was subsequently precluded from finding the critical element of summary judgment that there was no genuine issue of material fact for a permanent injunction.

Therefore, even though the Zoo might have been be entitled to declaratory judgment as a matter of law, this is not the relief prayed for to the trial court. Rather, the procedural posture of the specific relief the Zoo sought required a showing that there was no genuine issue of material fact as to the injunctive relief elements to be entitled to summary judgment. The summary judgment record before us is very clear those issues were not established by undisputed fact but were hotly controverted by the parties. Thus, summary judgment on the Zoo’s claim for a permanent injunction was improper.

CONCLUSION

The trial court erred in granting summary judgment in favor of the Zoo. The judgment is reversed and remanded for further proceedings consistent with this opinion.

Roy L. Richter, J., concurs in a separate opinion.

Philip M. Hess, J., concurs.

I concur in the result, but would find that Smith is prohibited from carrying a weapon, concealed or not, onto the Zoo premises.

Smith contends that while Section 571.107 RSMo (2016)¹ prohibits carrying a concealed firearm in certain enumerated locations, he was not prohibited by law from openly carrying a firearm at the Zoo, and therefore the court erred in granting judgment in favor of the Zoo. I agree with the majority that the trial court erred in granting summary judgment on the Zoo’s petition for permanent injunction because the issues of adequate remedy at law and irreparable harm were not established by undisputed fact. Instead, a genuine issue of material fact exists regarding each of the elements of injunctive relief. However, I believe regardless of this issue of fact, Smith was prohibited by law from carrying a weapon, openly or concealed, onto the Zoo’s premises.

Pursuant to Section 571.107.1, a concealed carry permit issued pursuant to Missouri statute or issued by another state "shall authorize a person in whose name the permit or endorsement is issued to carry concealed firearms on or about his or her person or vehicle throughout the state." The statute then sets forth an express limitation on this authorization prohibiting a person from carry concealed firearms into seventeen different enumerated locations. According to Smith, Section 571.107 concerns only the concealed carry of a firearm into the named locations. He contends openly carrying a firearm into these locations is allowed by law and not covered by any of the exceptions set forth in Section 571.107. Smith’s argument ignores the plain language of Section 21.750 and the basic tenets of statutory...