                                   Missouri Court of Appeals
                                               Southern District
                                                   Division One


EMERALD POINTE, LLC,                                   )
                                                       )
           Plaintiff-Appellant,                        )
                                                       )
vs.                                                    )       No. SD35733
                                                       )
TANEY COUNTY PLANNING                                  )       Filed July 1, 2019
COMMISSION, et al.,                                    )
                                                       )
           Defendants-Respondents.                     )

                    APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY

                                          Honorable Laura J. Johnson

REVERSED AND REMANDED WITH DIRECTIONS

           Emerald Pointe, LLC (“Emerald Pointe”), is the developer of Emerald Pointe subdivision

(the “subdivision”) located in Taney County. It appeals the trial court’s judgment dismissing its

petition (the “petition”) challenging the Taney County Board of Adjustment’s (the “Board”)

denial of its appeal of the Taney County Planning Commission’s (the “Commission”) issuance of

a stop work order (the “Stop Work Order”). Determining that the petition states a claim for relief

under section 64.870.2, we reverse the trial court’s judgment and remand the case to the trial

court for further proceedings consistent with this opinion. 1




1
    All statutory references are to RSMo Supp. 2016.

                                                           1
                                             Standard of Review

                   A judgment sustaining a motion to dismiss for failure to state a claim upon
          which relief can be granted is reviewed de novo. Avery Contracting, LLC v.
          Niehaus, 492 S.W.3d 159, 161–62 (Mo. banc 2016). “A motion to dismiss for
          failure to state a claim” is solely a test of “the adequacy of a plaintiff's petition.”
          Id. at 162. Exhibits attached to the petition are reviewed as part of the petition.
          Rule 55.12. The facts alleged in the petition are assumed to be true, and all
          reasonable inferences are liberally construed in favor of the plaintiff. Avery, 492
          S.W.3d at 162. “[T]he petition is reviewed in an almost academic manner, to
          determine if the facts alleged meet the elements of a recognized cause of action,
          or of a cause that might be adopted in that case.” Nazeri v. Mo. Valley Coll., 860
          S.W.2d 303, 306 (Mo. banc 1993).

Smith v. Humane Soc'y of United States, 519 S.W.3d 789, 797–98 (Mo. banc 2017). “A

judgment of dismissal will be affirmed if it is supported by any ground raised in the motion to

dismiss.” Avery, 492 S.W.3d at 162 (citing Dujakovich v. Carnahan, 370 S.W.3d 574, 577

(Mo. banc 2012)).

                                  Factual and Procedural Background 2

          The Commission issued the Stop Work Order on September 21, 2016. It ordered

Emerald Pointe to immediately cease all ongoing road construction activities within the

subdivision. On December 21, 2016, Emerald Pointe timely filed with the Board its application

for appeal of the Stop Work Order. The Board, on April 19, 2017, denied Emerald Pointe’s

appeal.

          Emerald Pointe filed the petition in the Circuit Court of Taney County on May 18, 2017.

The petition named the Board, the Commission, and the individual members of each entity in

their “official capacity only” as defendants (the “Defendants”). The petition is entitled “Petition

for Declaratory Judgment and Injunctive Relief.” It initially contains 56 paragraphs following



2
  In accordance with our standard of review, the factual background is drawn from the allegations in the petition,
which we assume for purposes of this appeal are true. Smith, 519 S.W.3d at 798. While this case has an extensive
procedural background, we recite only those procedural events that are pertinent to the issue addressed and resolved
in this opinion.

                                                         2
the subheading “Allegations Common to all Counts.” It thereafter sets forth four more

subheadings, each with additional paragraphs, denominated as counts: Count I is entitled

“Preliminary Injunction to Stop Enforcement of Stop Work Order (Rule 92.02 and § 526.030 et

seq. R.S.Mo.)”; Count II is entitled “Declaratory Judgment (Private Roads and Gated

Community) (Pursuant to § 527.010 R.S.Mo.)”; Count III is entitled “Declaratory Judgment

(Illegal, Retroactive Application of Road Standards)”; and Count IV is entitled “Declaratory

Judgment (Violation of Procedure [sic] and Substantive Due Process Under Missouri and United

States Constitution).” 3

        The Defendants thereafter filed a motion to dismiss the petition, claiming that “Plaintiff’s

Petition should be dismissed with prejudice because it failed to file a petition in certiorari within

30 days of the challenged decision.” 4 In their suggestions in support of their motion and this

particular claim, Defendants argued that Emerald Pointe’s exclusive remedy for review of the

Board’s decision denying its appeal was by filing a petition in certiorari under section 64.870.2

within thirty days of the Board’s decision. Defendants contended:

        Here, [Emerald Pointe] failed to file a petition for certiorari, and instead attempted
        an end run around § 64.870 because it desired relief that was not available under
        the law. While a reviewing court addressing a petition for certiorari may affirm,
        reverse or modify the underlying decision under § 64.870, there is no provision
        for granting an injunction or declaratory judgment, nor does it provide for an
        award of costs.

Essentially conceding that section 64.870 provided its exclusive remedy for challenging the

Board’s decision and that a petition under section 64.870 had to be filed within thirty days after




3
  All counts begin with a paragraph that “adopts by reference” all other paragraphs in the petition.
4
  In their motion to dismiss, Defendants asserted two additional grounds for dismissal. The trial court did not
mention, address or rely upon either of these additional grounds in its judgment dismissing the petition. Moreover,
in their brief on appeal, Defendants do not mention either of these grounds or advance any argument that the trial
court’s judgment is correct based upon either ground. Defendants, apparently therefore, have abandoned these
grounds as any basis upon which the trial court’s dismissal judgment should be affirmed.

                                                         3
the Board’s denial of its appeal, Emerald Pointe argued to the trial court that the petition, which

was filed within that time, stated a claim for relief under section 64.870.

       In response to Defendants’ motion to dismiss, the trial court entered its judgment

dismissing the petition on two bases. First,

       the Petition fails to meet the requirements of Section 64.870 in several significant
       respects. In fact, it is clear from the Petition that [Emerald Pointe] had no
       intention of complying with Section 64.870. For example, the Petition never
       mentions Section 64.870 and the counts are clearly and expressly brought
       pursuant to the statutes on injunctive and declaratory relief. Furthermore, the
       relief sought in the Petition is not relief allowed by Section 64.870. Section
       64.870 authorizes the Court only to reverse, affirm or modify the decision brought
       up for review. It does not authorize either injunctive or declaratory relief. The
       fact that the Petition filed in this case is not remotely similar to a petition for writ
       of certiorari allowed by Section 64.870 causes the Court to conclude that it should
       not be construed to be a petition under Section 64.870.

       Second, the trial court determined that

       even if the Court construed [Emerald Pointe’s] Petition to comply with Section
       64.870, it must still dismiss the Petition. The injunctive and declaratory relief
       sought by [Emerald Pointe] is not contemplated by the statute. Furthermore,
       Missouri cases hold that the Court does not have subject matter jurisdiction over
       [Emerald Point’s] claims for declaratory relief.

       Emerald Pointe timely appeals the trial court’s dismissal judgment. Its first point relied

on is meritorious and dispositive.

                                             Discussion

       In its first point relied on, Emerald Pointe contends that the trial court erred in dismissing

the petition because it meets the elemental requirements for a petition under section 64.870.2.

We agree.

       Our de novo, “almost academic” review of the petition, see Smith, 519 S.W.3d at 798,

begins with section 64.870.2, which provides, in relevant part, that

       [a]ny owners, lessees or tenants of buildings, structures or land jointly or severally
       aggrieved by any decision of the board of adjustment . . . , may present to the
       circuit court of the county in which the property affected is located, a petition,

                                                  4
         duly verified, stating that the decision is illegal in whole or in part, specifying the
         grounds of the illegality and asking for relief therefrom. Upon the presentation of
         the petition the court shall allow a writ of certiorari directed to the board of
         adjustment . . . , of the action taken and data and records acted upon, and may
         appoint a referee to take additional evidence in the case. The court may reverse or
         affirm or may modify the decision brought up for review.

The plain and ordinary words of this statute require that a petition filed in circuit court seeking

judicial review of a decision of a board of adjustment must (1) be verified, (2) state that the

decision is illegal in whole or part, (3) specify the grounds of the illegality, and (4) ask for relief

therefrom. 5 We now turn to the allegations in the petition to determine if they meet these

requirements.

         The petition is verified, so the first section 64.870.2 requirement is satisfied.

         The petition satisfies the second section 64.870.2 requirement—state that the decision is

illegal in whole or part. Paragraph 62 of the petition alleges the Stop Work Order is “illegal.”

Paragraphs 67, 68, and 72 allege the Stop Work Order is “illegal, unenforceable and an arbitrary

and capricious act of [the] Commission[.]” Paragraph 73 alleges that “the Stop Work Order is

illegal, unenforceable and an arbitrary and capricious retroactive application of an enacted

standard by [the Commission] and [the Board][.]” Paragraph 85 alleges that “the Stop Work

Order and [the Board’s] denial of [Emerald Pointe’s] Appeal of the same were illegal,

unconstitutional, and unenforceable acts[.]”

          The third section 64.870.2 requirement—specify the grounds of the illegality—is also

satisfied in the petition. Paragraphs 67(d)-(f) of the petition allege three reasons why the Stop

Work Order is illegal:


5
 For purposes of this appeal, we accept as true the petition’s allegations that Emerald Pointe is the developer of the
subdivision, that the subdivision is located in Taney County, and that the Stop Work Order affects Emerald Pointe
because “it stops and prevents [Emerald Pointe] from completing construction and paving of private streets” in the
subdivision. Liberally construing these allegations, as we must, reasonable inferences can be drawn therefrom that
Emerald Pointe is a tenant of the subdivision land in Taney County and that, as such, it is aggrieved by the Board’s
decision denying its appeal of the Stop Work Order.

                                                           5
       d. The streets within [the subdivision] are private streets in “a gated or private
       community” within the meaning of Taney County Road Standard Section 14 such
       that they are not required to be constructed to the same design requirements and
       specifications as public improvements;

       e. The Taney County Road Standards for grading, slope and construction are not
       applicable to the private streets in [the subdivision] because as stated in the Final
       Plat “All streets as shown [in Phase 12] are not dedicated to the public and shall
       be private”; and

       f. The Taney County Road Standards for grading, slope and construction are not
       applicable to the private streets in [the subdivision] because as stated in the Final
       Plat “The County or local authorities shall assume no responsibility for
       improvement of maintenance thereof.”

Paragraphs 67(e)-(j) allege six reasons why the Stop Work Order and the Board’s denial of

Emerald Pointe’s appeal of that order are illegal:

       e. The Road Standards that [the Commission] and [the Board] are imposing on
       [Emerald Pointe] were created on July 16, 2009 after the Final Plat of [the
       subdivision] was approved and [the subdivision] was in existence as of September
       18, 2008;

       f. The Stop Work Order is incorrectly based upon [the Commission’s]
       interpretation that the Taney County Road Standard requirement for maximum
       grade of 15% stated in Section 7 of Section 3 applies to the private streets in [the
       subdivision];

       g. The Stop Work Order is incorrectly based upon [the Commission’s]
       interpretation that the Taney County Road Standard requirements of 5” minimum
       compact aggregate base course, 3” plant mix aggregate base course and 2”
       minimum plant mix bituminous pavement as stated in Table 3.9 apply to the
       private streets in [the subdivision];

       h. The Stop Work Order is incorrectly based upon a requirement that [Emerald
       Pointe] is required to submit Engineering Construction Plans for the private
       streets and storm sewers in [the subdivision] to the Taney County Road and
       Bridge Department for review and approval;

       i. The Stop Work order is incorrectly based upon a requirement that [Emerald
       Pointe] is required to submit an Itemized Cost Estimate for the private streets and
       storm sewers in [the subdivision] to [the Commission] for review and approval;
       and

       j. The subsequently enacted Road Standards do not apply to [the subdivision].



                                                 6
Paragraphs 80 through 83 allege that the Board’s denial of Emerald Pointe’s appeal of the Stop

Work Order was illegal because the Board “provided [Emerald Pointe] no prehearing notice

before April 19, 2017 of the acceptance as evidence the written submissions described herein or

that Defendants intended to rely upon such evidence at such hearing[,]” “provided [Emerald

Pointe] no opportunity to cross examine any witnesses at the April 19, 2017 hearing[,]”

“provided [Emerald Pointe] no opportunity to present rebuttal evidence to the written submission

it received and provided no notice[,]” and “considered and relied upon evidence unrelated to

Phase 12 [of the subdivision] in voting to deny [Emerald Pointe’s] Appeal of the Stop Work

Order.”

       The fourth and final section 64.870 requirement—“asking for relief therefrom”—is also

satisfied in the petition. Paragraphs 67 and 72 of the petition commence with “[Emerald Pointe]

requests that this Court declare the Stop Work order to be illegal[.]” The prayers in Counts II

and III of the petition commence with: “Plaintiff prays the Court to declare, try, ascertain, and

determine that the Stop Work Order dated September 21, 2016 be declared illegal,

unenforceable, and an arbitrary and capricious act of [the Commission].” The prayer to Count

IV commences with: “Plaintiff prays the Court to declare, try, ascertain and determine that the

Stop Work Order dated September 21, 2016 and the denial of [Emerald Pointe’s] appeal of the

same [to the Board] be declared illegal[.]” Liberally construing these statements in the petition

in favor of Emerald Pointe, as we must, see Smith, 519 S.W.3d at 798, Emerald Pointe’s petition

asked for relief from the Commission’s Stop Work Order and the Board’s denial of Emerald

Pointe’s appeal of that order.




                                                 7
         Having determined that the petition meets and satisfies all the requirements for a petition

under section 64.870.2, 6 we now turn to the trial court’s findings and Defendant’s arguments

otherwise. The trial court determined in its judgment that the petition failed to comply with

section 64.870 in five respects: (1) “it is clear from the petition that [Emerald Pointe] had no

intention of complying with section 64.870,” (2) “the petition never mentions section 64.870,”

(3) the petition “is not remotely similar to a petition for writ of certiorari allowed by section

64.870,” (4) the “counts are clearly and expressly brought pursuant to the statutes on injunctive

and declaratory relief[,]” and (5) “the relief sought in the petition is not relief allowed by section

64.870.” Similar to (4) and (5), the trial court additionally determined that “even if the Court

construed [the petition] to comply with Section 64.870, it must still dismiss [it]” because “the

injunctive and declaratory relief sought by [Emerald Pointe] is not contemplated by the statute

. . . and the Court does not have subject matter jurisdiction over [Emerald Point’s] claims for

declaratory relief.”

         As to Emerald Point’s intent in preparing and filing the petition, both the trial court’s

judgment and Defendant’s brief on appeal omit citation to any legal authority that a claimant’s

intent is a relevant consideration as to whether that claimant’s pleading states a claim for relief.

It is not. A motion to dismiss for failure to state a claim is solely a test of the adequacy of the

petition, including its exhibits, if any, to determine if the facts alleged meet the elements of a

recognized cause of action. 7 Smith, 519 S.W.3d at 797-98. Nothing in that test calls for any

consideration of the claimant’s subjective intent in drafting or filing the petition.




6
  As Emerald Pointe’s reply brief correctly observes, Defendant’s responding brief contains no response to Emerald
Pointe’s showing in its initial brief that the petition complied with the requirements of section 64.870.2.
7
  As noted in Smith, that test also includes whether “the facts alleged meet the elements . . . of a cause [of action]
that might be adopted in that case.” Id. Because that scenario is not at issue in this case, we omit it from our
discussion.

                                                          8
        Similarly, neither the trial court’s judgment nor Defendant’s brief on appeal cite to any

legal authority that requires mention or recitation in a petition of the particular statute, by either

title or number, in order to state a claim under that statute. While, as a practical matter, such a

recitation may be extremely helpful to the parties and the court in procedurally processing and

considering the merits of the case and may assist in minimizing errors in such processing and

consideration, it is, nevertheless, not required in order to determine if the facts alleged in the

petition meet the elements of a recognized cause of action. See id.

        The trial court’s third expressed reason—the petition “is not remotely similar to a petition

for writ of certiorari allowed by section 64.870”—also lacks merit. Neither the trial court in its

judgment nor Defendants in their brief on appeal make any attempt to describe the contents or

elements of the hypothesized “petition for writ of certiorari allowed by section 64.870” to which

the petition here is compared and found lacking. Because the sole test of the adequacy of a

petition is to determine if the facts alleged meet the elements of a recognized cause of action, id.,

any comparison of the petition to something other than the elements of that cause of action is

irrelevant.

        All of the remaining asserted reasons are directed toward the effect of the references and

prayers for relief in the petition specifically directed toward injunctive and declaratory relief.

Defendants contend that because Emerald Pointe sought injunctive and declaratory relief in the

petition, which relief is not available to them because section 64.870 review is its exclusive

remedy, relying on Gash v. Lafayette Cnty., 245 S.W.3d 229, 234 (Mo. banc 2008), the petition

cannot otherwise state a claim under section 64.870.2. In their brief in support of this contention,

Defendants quote from Deffenbaugh Indus., Inc. v. Potts, 802 S.W.2d 520 (Mo.App. 1990), for

the proposition that “in a statutory proceeding for judicial review of a final administrative



                                                   9
decision, pleadings for declaratory judgment and injunction are anomalous—and a judgment

entered upon them, coram non judice and void.” Id. at 522. Defendants’ reliance upon this

proposition to support their contention, however, is misplaced, and Deffenbaugh demonstrates

the flaw in their analysis.

        The court in Deffenbaugh was confronted with a “pleading that compounded the petition

for review with two separate counts for declaratory judgment.” Id. at 521. The court determined

that

        [t]he relief sought by the combination of counts was not only the judicial review
        of the administrative decision to deny the application for the special use permit,
        but for a declaration that the sanitary landfill operated by Deffenbaugh was a
        permitted nonconforming use under the zoning ordinances of the city so that the
        provisions of the city zoning ordinance prohibiting the operation of the landfill
        without a special use permit were invalid and unenforceable, and for a declaration
        that the city was without power to deny a special use permit to Deffenbaugh, a
        licensee approved by the State of Missouri under §§ 260.200 et seq.

Id. The trial court entered a judgment that adjudicated in turn Deffenbaugh’s petition for review

and for declaratory judgment, deciding both claims adverse to him. Id. In Deffenbaugh’s appeal

of that judgment, the Western District of our court affirmed the judgment as to judicial review of

the administrative decision, but because the trial court did not have authority to consider

declaratory judgment claims, set aside the judgment denying declaratory relief and dismissed the

petition as to those declaratory claims for relief. Id. at 531.

        Deffenbaugh teaches that while declaratory claims for relief are superfluous to a

contemporaneous claim for judicial review and should be dismissed, the assertion of such claims

do not negate the claim for judicial review. Here, as in Deffenbaugh, Emerald Pointe’s

references and prayers for relief in the petition directed specifically and exclusively toward

injunctive and declaratory relief are superfluous to its stated claim for judicial review but do not

negate that claim.


                                                  10
         Emerald Pointe’s first point is granted. 8

                                                      Decision 9

         The trial court’s judgment dismissing Emerald Pointe’s petition for failure to state a

claim under section 64.870.2 is reversed, and the case is remanded to the trial court for further

proceedings consistent with this opinion.



GARY W. LYNCH, J. – OPINION AUTHOR

DON E. BURRELL, P.J. – concurs

NANCY STEFFEN RAHMEYER, J. – concurs




8
  Because our resolution of this point is dispositive of this appeal, we need not consider Emerald Pointe’s alternative
second point relied on.
9
  Defendants assert in their brief that we should, nevertheless, affirm the trial court’s judgment because the trial
court “properly exercised its discretion to dismiss [the petition] for failure to timely file the administrative record.”
This ground for dismissal was not raised in Defendant’s motion to dismiss and was not mentioned by the trial court
in its dismissal judgment. Indeed, because the trial court expressly dismissed the petition for failure to state a
section 64.870.2 claim for relief and its inclusion of claims for injunctive and declaratory relief, the record is clear
that the trial court never reached nor decided whether the administrative record was timely filed.

                                                           11
