ARCHIE DUNN,                                 )
                                             )
               Plaintiff-Appellant,          )
                                             )
v.                                           )       No. SD33380
                                             )       Filed: 8-17-15
JASPER COUNTY, MISSOURI, ET AL.,             )
                                             )
               Defendants-Respondents.       )

           APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY

                        Honorable Neal R. Quitno, Special Judge

AFFIRMED

       Archie Dunn (Dunn), a resident and former sheriff of Jasper County, appeals from

a judgment dismissing his second amended petition that alleged two counts challenging

the legality of expenditures of county revenues. The trial court dismissed the petition for,

inter alia, lack of standing under Count I, and failure to state a cause of action upon

which relief could be granted under Count II. On appeal, Dunn contends that the trial

court erred in dismissing the petition on those grounds. We disagree and affirm.

                     The Allegations in the Second Amended Petition

       The second amended petition included the following allegations. In 2005, Dunn

was serving as the Jasper County Sheriff. On August 29, 2005, the Jasper County
Commission (the Commission) passed an ordinance (the Enabling Ordinance) ordering

that a ballot measure be submitted to voters to approve a one-quarter of one percent “law

enforcement sales tax” (LEST). Pursuant to § 67.582, the Enabling Ordinance assessed

the LEST “for the purpose of providing law enforcement services for County funded

public safety offices that are:    the Jasper County Sheriff’s Office, and Prosecuting

Attorney’s Office.”1 In addition, a percentage of the LEST funds also would be available

to other law enforcement agencies located in the county “through annual grant

applications submitted to the Sheriff’s Office.” The grant applications would be “reviewed

by a Grants Application Panel” (the panel) consisting of five members.        The Enabling

Ordinance specified that “[t]he chairperson of the panel shall be the Sheriff. Four members

shall be appointed annually by the Sheriff, and consist of two private citizens and two

members of the Sheriff’s Office. Members of the committee shall serve at the pleasure of the

Sheriff.” According to Dunn, the panel was authorized to make recommendations to the

Commission to distribute LEST funds.

       On November 8, 2005, the ballot measure passed.2 In Dunn’s capacity as the Jasper

County Sheriff, he appointed panel members and made recommendations to the Commission

concerning grant applications through the fiscal year 2010.

       On April 14, 2011, the Enabling Ordinance was amended by the Commission to

change the composition of the panel (the Amending Ordinance). The Amending Ordinance

specified that the five-member panel would be appointed by the Commission instead of the

sheriff. The members then would serve at the pleasure of the Commission. In addition, none


       1
           All references to statutes are to RSMo (2000).
       2
           The ballot question asked: “Shall the County of Jasper impose a countywide
sales tax of one quarter of one percent on all retail sales for the purpose of providing law
enforcement services for the County?”

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of the panel members could be employed by any law enforcement agency. The Commission

removed Dunn and his appointees from the panel and replaced them with new members

appointed by the Commission. At that time, the Commission consisted of John Bartosh, Jim

Honey and Darieus Adams (the Commissioners).

                                      Procedural History

        In July 2011, Dunn filed suit against Jasper County; the Commissioners; and Richard

Webster, the county auditor (the Defendants). Dunn initially alleged that the Commissioners

had no authority to amend the Enabling Ordinance and that Defendants’ distribution of LEST

funds pursuant to the Amending Ordinance was an “illegal and unauthorized expenditure of

county funds ....” When the second amended petition was filed, it included two counts.

Count I sought: (1) a declaratory judgment that the Commissioners had no authority to

amend the Enabling Ordinance and “restructure the makeup” of the panel; and (2) an

injunction or, alternatively, a writ of mandamus ordering that the Amending Ordinance be

held void. Count II similarly sought a declaratory judgment that, according to the Enabling

Ordinance: (1) Defendants had no authority to withhold funds from the LEST funds for

purposes other than those included in the sheriff’s budget, such as improvements to the

county jail, inmate housing or healthcare; and (2) no part of LEST funds could be used for

purposes other than operations of the sheriff’s or prosecuting attorney’s offices.

        Dunn’s term as Jasper County Sheriff ended on December 31, 2012. He was no

longer sheriff when the second amended petition was filed. The second amended petition

alleged that a “justiciable controversy” exists between Defendants and Dunn “as a taxpayer

of Jasper County as to the authority of said Defendants to distribute funds accumulated

through the LEST for uses not approved in the Enabling Ordinance.”

        In October 2013, Defendants filed a motion to dismiss Counts I and II for lack of

standing and failure to state a cause of action upon which relief may be granted. Thereafter,


                                               3
the trial court agreed and entered judgment dismissing the two counts on both grounds. This

appeal followed.

        Presenting three points, Dunn contends the trial court erred by dismissing:           (1)

Counts I and II for lack of standing; (2) Count I for failure to state a cause of action upon

which relief can be granted; and (3) Count II for failure to state a cause of action upon which

relief can be granted. Points I and III are dispositive. For the following reasons, we conclude

the trial court did not err in dismissing Count I for lack of standing and Count II for failure to

state a cause of action upon which relief can be granted. Additional facts will be included as

necessary to discuss Dunn’s arguments below.

                           Point I – Lack of Standing under Count I

        One prong of Dunn’s first point contends the trial court erred in dismissing Count I

due to lack of standing. Standing is a question of law, which this Court reviews de novo.

Manzara v. State of Missouri, 343 S.W.3d 656, 659 (Mo. banc 2011). For the purpose of

reviewing a motion to dismiss, this Court assumes that all plaintiff’s averments are true, and

liberally grants to plaintiff all reasonable inferences therefrom. Weber v. St. Louis Cnty.,

342 S.W.3d 318, 321 (Mo. banc 2011). Because Dunn was no longer sheriff when the

second amended petition was filed, there is no dispute that he brings this action individually

in his personal capacity as a taxpayer.

        “A party must have standing to bring an action in a Missouri court.” Lebeau v.

Commissioners of Franklin County, Missouri, 422 S.W.3d 284, 288 (Mo. banc 2014); see

Manzara, 343 S.W.3d at 659 (“[s]tanding is an antecedent to the right to relief”). “If a party

is without standing to bring a particular claim, a court shall dismiss the claim because the

court lacks the authority to decide the merits of the claim.” Weber, 342 S.W.3d at 323.

Simply put, standing means that the party seeking relief must have some stake in the

litigation. Lebeau, 422 S.W.3d at 288; Ste. Genevieve Sch. Dist. R-II v. Bd. of Aldermen of


                                                4
the City Ste. Genevieve, 66 S.W.3d 6, 10 (Mo. banc 2002). In the context of a declaratory

judgment action, the plaintiff must have a legally protectable interest at stake in the outcome

of the litigation. Lebeau, 422 S.W.3d at 288.

        Taxpayers have a legally protectable interest in the proper use and expenditure of tax

dollars. Id.; see, e.g., Eastern Missouri Laborers District Council v. St. Louis County, v.

Gene McNary, 781 S.W.2d 43, 47 (Mo. banc 1989) (“if the expenditure is not contemplated

by the enabling legislation, it is illegal and should be enjoined”). Absent fraud or other

compelling circumstances, to have standing as a taxpayer, the taxpayer must establish that

one of three conditions exists:

        (1) a direct expenditure of funds generated through taxation;

        (2) an increase levy in taxes; or

        (3) a pecuniary loss attributable to the challenged transaction of a
        municipality.

Manzara, 343 S.W.3d at 659; Eastern Missouri Laborers, 781 S.W.2d at 47.

        Dunn’s first point argues that he established taxpayer standing because the petition

alleged that “Defendants are spending and continue to spend taxpayer funds in violation of

the uses allowed by the Enabling Ordinance and Dunn has taxpayer standing to bring an

action challenging the legality of the expenditure of county revenues.” We disagree that

Dunn established taxpayer standing under Count I.

        Both counts allege violations of the Enabling Ordinance, which was created pursuant

to § 67.582 governing the generation and use of LEST funds. That statute provides, in

relevant part, that the only body authorized to make appropriations of LEST funds is the

Commission:

        [A]ll expenditures of funds arising from the county law enforcement sales tax
        trust fund shall be by an appropriation act to be enacted by the governing
        body of each such county. Expenditures may be made from the fund for any



                                                5
       law enforcement functions authorized in the ordinance or order adopted by
       the governing body submitting the law enforcement tax to the voters.

§ 67.582.5. Revenue received by a county from the tax “may also be utilized for capital

improvement projects for law enforcement facilities[.]” § 67.582.3; see also § 49.310.1 (the

Commission shall erect and maintain a sufficient jail).      Similarly, as the Commission

appropriates LEST funds, the Commission also appropriates the budget of the sheriff’s

department, as well as all county offices. See § 50.610 (stating that the “commission may

revise, alter, increase or decrease the items contained in the budget and may eliminate any

item or add new items”); see generally §§ 50.525-.745 (County Budget Law).

       The thrust of Count I is that the Commissioners violated the Enabling Ordinance by

changing the make-up of the panel.3 As is made clear by the Enabling Ordinance and Dunn’s

pleadings, however, the panel only had the authority under the ordinance to review grant

applications. Dunn does not allege that the panel had the authority to appropriate any of the

LEST funds. The panel’s only role was to make recommendations, which were not binding

on the Commission.

       Thus, with respect to taxpayer standing under Count I, Dunn failed to establish the

first condition: a direct expenditure of funds generated through taxation. See Manzara, 343

S.W.3d at 659.    The panel simply had no authority to spend any tax-generated revenues.

The panel only had the authority to review grant applications. As a matter of law, Dunn

could not establish a direct expenditure of tax money by the panel. Further, because the

panel had no authority to cause the expenditure of tax, Dunn could not suffer an increased



       3
          Dunn cites no relevant precedent to support his argument that the Commission
lacked the authority to amend the Enabling Ordinance so as to change the make-up of the
panel. His reliance on the language of the ballot question itself is misplaced because the
question was broad in scope and did not address the panel issue at all. The language of
the ballot question did not impose any limitations on changing the membership of the
panel.

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levy in taxes or pecuniary loss attributable to the change in membership to the panel.4

Consequently, Dunn lacked taxpayer standing under Count I. The trial court did not err in

dismissing Count I on that ground. Therefore, with respect to Count I, Pont I is denied.5

         Point II contends the trial court erred in dismissing Count I for failure to state a

cause of action upon which relief can be granted. We do not reach this point because, as

established in the previous point, Dunn lacked standing to bring Count I. See Manzara,

343 S.W.3d at 659 (“[s]tanding is an antecedent to the right to relief”). Point II is therefore

denied as moot.

                   Point III – Failure to State a Cause of Action under Count II

         Point III contends the trial court erred in dismissing Count II for failure to state a

cause of action upon which relief can be granted.        We review a trial court’s grant of a

motion to dismiss de novo. Stephens v. Dunn, 453 S.W.3d 241, 248 (Mo. App. 2014).

“A motion to dismiss for failure to state a cause of action is solely a test of the adequacy

of the plaintiff’s petition.” Nazeri v. Mo. Valley College, 860 S.W.2d 303, 306 (Mo. banc

1993).       Accordingly, we review the petition 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.



         4
          Dunn admits in his brief that a taxpayer does not have a basis to object to the
individual appointments to the panel.
         5
             We agree that Dunn established taxpayer standing under Count II. In the
second amended petition, Dunn alleged that he was a resident and taxpayer of Jasper
County. He further alleged that appropriation of any part of the sheriff’s portion of the
LEST funds by the Commission for any purpose other than for services of the sheriff’s
department, as designated in the sheriff’s budget, “is an illegal use of a tax imposed upon
the taxpayers” of the county. Unlike Count I, Count II alleged an unlawful, “direct
expenditure of funds generated through taxation.” Manzara, 343 S.W.3d at 659; see Lebeau,
422 S.W.3d at 287 (allegation of “unlawful expenditure of funds generated through taxation”
sufficient); see, e.g., Armstrong v. Adair County, 990 S.W.2d 64, 65 (Mo. App. 1999)
(allowing taxpayers to challenge county commission’s use of LEST funds to erect a new
jail rather than expand existing one).

                                                7
Id. In so doing, we assume that all of the plaintiff’s averments are true, and liberally

grant the plaintiff all reasonable inferences therefrom. Id.; see Weber, 342 S.W.3d at 321.

        Count II alleged that Defendants violated the Enabling Ordinance by using LEST

funds for improvements to the county jail, inmate healthcare and housing. The following

additional facts are relevant to this argument.

        Count II sought a judgment declaring that Defendants had “no right to withhold

funds from the LEST fund for purposes other than those included in the annual budget of

the Jasper County Sheriff for operations of said department” and that “no part of the

LEST funds can be used for purposes other than operations of the Jasper County Sheriff’s

Department and Jasper County Prosecuting Attorney’s Office.” In support of this

argument, Dunn alleged the following: (1) Defendants withheld funds from the sheriff’s

portion of the LEST funds and from the sheriff’s budget for inmate healthcare, housing and

improvements to the county jail6; (2) the responsibility for the expense of maintaining the jail

is upon the Commission, pursuant to § 49.310, not the sheriff; (3) Defendants take the

position that they are entitled to allocate LEST funds for use to maintain the jail and other

law enforcement purposes “as they deem fit” without a budget request for use of said funds

by the sheriff; (4) Dunn takes the position that the LEST funds are to be used exclusively

for the purposes designated by the sheriff in his or her budget; (5) a justiciable

controversy exists between Dunn and Defendants with respect to “the authority to control

and allocate the LEST funds”; and (6) appropriations of any part of the sheriff’s portion

of the LEST funds by the Commission for purposes other than services of the sheriff’s

department “is an illegal use” of the LEST imposed upon county taxpayers.


        6
            Dunn alleged that the Commissioners withheld $54,000 from the sheriff’s
portion of the LEST funds for inmates’ healthcare and $152,003.17 from the sheriff’s
budget for improvements to the jail, inmate housing and other law enforcement issues.

                                                  8
       To support this argument, Dunn relies on Armstrong v. Adair County, 990

S.W.2d 64 (Mo. App. 1999), which held that the county’s proposed use of LEST funds to

build a new detention center was not within the scope of an enabling ordinance which

only authorized an expansion of the existing detention center. Id. at 67-68. In White v.

Cole County, 426 S.W.3d 27 (Mo. App. 2014), the western district of this Court

distinguished Armstrong for reasons that are apropos here.          As the White court

explained:

       While the issue White raises is what “law enforcement operating
       expenses” means as used on the ballot and by the County Commission in
       its resolution, the situation here is not the same as in Armstrong. In
       Armstrong, we held that the “plain and ordinary meaning of ‘expansion’
       does not connote enlarging a jail by building a new one on a different site
       which is bigger.” Id. at 66. Moreover, the phrase “expand the detention
       center” excluded the “erection of a new jail.” Id. at 67. Because the
       Commission used language that explicitly excluded that for which it later
       sought to use funds, it was improper. Id. Here the phrase “law
       enforcement operating expenses” is inclusive of many things. Thus, we
       do not find the facts and issue in Armstrong to be on point in the instant
       case. “Law enforcement operating expenses” ... is broad by design.

White, 426 S.W.3d at 33.      We reach the same conclusion here.         The phrase “law

enforcement services” in this case is “broad by design” and “inclusive of many things.”

Id. Certainly, the phrase does not specifically exclude any of the challenged uses (e.g.,

inmate healthcare, housing and improvements to the county jail) about which Dunn

complains.

       We conclude, as did the trial court, that Count II failed to state a cause of action

upon which relief could be granted for two reasons. First, Dunn’s premise that the LEST

funds are to be used exclusively for purposes designated by the sheriff in his or her

budget is simply wrong. The authority to control and allocate LEST funds, as well as the

rest of the sheriff’s budget, belongs to the Commission.        See §§ 67.582.5, 50.610.



                                            9
Second, § 67.582.3, which specifically allows for use of LEST funds for “capital

improvement projects for law enforcement facilities,” must be read harmoniously with

§ 49.310, requiring the Commission to maintain the jail, and § 221.020, requiring the

sheriff to “have the custody, rule, keeping and charge of the jail within his county, and of

all the prisoners in such jail ….”      Therefore, Defendants’ use of LEST funds for

improvements to the county jail, inmate healthcare and housing was within the broad

scope of the stated purpose of the Enabling Ordinance “of providing law enforcement

services.” See White, 426 S.W.3d at 33. Accordingly, Count II failed to state a cause of

action upon which relief could be granted.       The trial court did not err in dismissing

Count II on that ground. Point III is denied.



JEFFREY W. BATES, J. – OPINION AUTHOR

DON E. BURRELL, J. – CONCUR

WILLIAM W. FRANCIS, JR., C.J./P.J. – CONCUR




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