Jefferson County 9-1-1 Dispatch v. Joseph G. Plaggenberg, Acting Director of the Missouri Department of Revenue
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Opinion
SUPREME COURT OF MISSOURI en banc
JEFFERSON COUNTY 9-1-1 DISPATCH, ) Opinion issued April 26, 2022 ) Respondent, ) ) v. ) No. SC98904 ) JOSEPH G. PLAGGENBERG, ACTING ) DIRECTOR OF THE MISSOURI ) DEPARTMENT OF REVENUE, ) ) Appellant. )
APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY The Honorable Patricia S. Joyce, Judge
Respondent, Jefferson County 9-1-1 Dispatch (the “Dispatch”), filed an action
seeking a declaratory judgment, a writ of mandamus, and injunctive relief preventing
Appellant, the Director of the Department of Revenue (“DOR”), from enforcing section
190.327.5. 1 The Dispatch argued it was entitled to such relief because section 190.327.5
violates three different provisions of the Missouri Constitution but only sought – and the
circuit court only granted – summary judgment on one of those claims. The other two
claims were not denied or dismissed. They remain pending. DOR appeals.
1 All statutory references are to RSMo Supp. 2019 except for references to section 512.020, which are to RSMo 2016. The circuit court’s judgment is not a “final judgment” for purposes of section
512.020(5). It is not a “final judgment” in the sense that it does not dispose of all (or at
least the last) claims in the lawsuit, and it was not eligible to be certified as “final” under
Rule 74.01(b) because it did not resolve all of the claims by or against at least one of the
parties, nor did it resolve one or more claims that are sufficiently distinct from those that
remain pending. Wilson v. City of St. Louis, 600 S.W.3d 763, 765 (Mo. banc 2020).
Finally, even if the judgment were eligible to be certified under Rule 74.01(b), neither
party sought such certification and the circuit court did not certify the judgment or make
the requisite finding “that there is no just cause for delay.” Rule 74.01(b). Accordingly,
this Court must dismiss DOR’s appeal for want of jurisdiction.
Background
In April 2009, Jefferson County voters voted to replace an existing emergency
telephone tax with a sales tax of one-half of one percent for 10 years for the purpose of
providing emergency services, including central dispatching for fire protection, law
enforcement, and ambulance services. Ten years later, the voters approved continuing
the one-half of one percent sales tax for emergency services.
On July 19, 2019, the Governor signed Senate Bill No. 291 (“SB 291”) into law.
SB 291 amended section 190.327 by adding a new subsection. This new subsection
reads:
An emergency services board originally organized under section 190.325 operating within a county with a charter form of government and with more than two hundred thousand but fewer than three hundred fifty thousand inhabitants shall not have a sales tax for emergency services or for providing central dispatching for emergency services greater than one-
2 quarter of one percent. If on July 9, 2019, such tax is greater than one- quarter of one percent, the board shall lower the tax rate.
§ 190.327.5.
On August 1, 2019, DOR notified the Dispatch of its intent to decrease the
existing one-half of one percent sales tax to one-fourth of one percent beginning
October 1, 2019. In response, the Dispatch filed the present action. The Dispatch
arranged its petition in four “counts.” The first sought a declaratory judgment that
section 190.327.5 is unconstitutional because it violates either article III, section 40 or
article III, section 42 of the Missouri Constitution pertaining to local or special laws. The
second sought a declaration that section 190.327.5 is unconstitutional because it violates
article I, section 13, which prohibits laws retrospective in operation. In Count III, the
Dispatch requested a writ of mandamus compelling DOR not to follow the
unconstitutional statute and, instead, to continue to collect the one-half of one percent
emergency services sales tax and pay it to the Dispatch. In Count IV, the Dispatch
requested a preliminary and permanent injunction compelling DOR to continue to collect
the one-half of one percent emergency services sales tax and pay it to the Dispatch for the
same reason.
On July 31, 2020, the Dispatch moved for summary judgment only with respect to
its claim that section 190.327.5 violated article III, section 42, which imposes unique
notice and publication requirements prior to the legislature passing any local or special
law that is not otherwise prohibited by article III, section 40. DOR responded and filed a
cross-motion for summary judgment. On November 30, 2020, the circuit court overruled
3 DOR’s motion, sustained the Dispatch’s motion, and entered judgment for the Dispatch
on its claim pertaining to article III, section 42. This judgment did not resolve the
Dispatch’s other claims, nor did the Dispatch dismiss them. They remain pending.
Analysis
Before addressing the merits of this appeal, “this Court has a duty to determine
whether it has jurisdiction.” Wilson, 600 S.W.3d at 765. “The right to appeal is purely
statutory, and where a statute does not give a right to appeal, no right exists.” Id. at 767
(quotation marks omitted). The only statute even potentially applicable to this case is
section 512.020(5), which provides that a “final judgment” is appealable. The judgment
in this case is not a “final judgment” for purposes of this statute.
A judgment is a “final judgment” for purposes of section 512.020(5) if it disposes
of all claims (or the last pending claim) in a lawsuit. Wilson, 600 S.W.3d at 771. A
judgment that is not a “final judgment” in this traditional sense can still be a “final
judgment” for purposes of section 512.020(5) if it is eligible to be – and actually is –
certified as such by the circuit court under Rule 74.01(b). Id. Neither party contends this
judgment was (or even could have been) certified as a “final judgment” under Rule
74.01(b), and rightly so. This judgment was not eligible to be certified under Rule
74.01(b) and the circuit court did not certify it or make the predicate finding that there
was no just reason for delay. Accordingly, the analysis in this case turns entirely on
whether the judgment disposes of all claims by and against all parties in this suit. Plainly,
it does not.
4 The circuit court’s order in this case is a judgment because it met the form
requirements in Rule 74.01(a) and it fully resolves the Dispatch’s claim that section
190.327.5 violates article III, section 42 of the Missouri Constitution. 2 But it is not a
“final judgment” for purposes of section 512.020(5) because that is the only one of the
Dispatch’s three claims that it resolves. The Dispatch’s claim that section 190.327.5
violates the complete prohibition for certain types of local or special laws found in article
III, section 40, as well as its claim that this statute violates the prohibition against laws
that are retrospective in their operation found in article I, section 13, remained (and still
remain) pending.
“[I]n determining whether an action presents more than one claim for relief, the
focus is on the number of legal rights asserted in the action.” Comm. for Educ. Equal. v.
State, 878 S.W.2d 446, 451 (Mo. banc 1994) (“CEE”). If a petition “seeks to enforce
only one legal right, it states a single claim, regardless of the fact that it seeks multiple
remedies.” Id.
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SUPREME COURT OF MISSOURI en banc
JEFFERSON COUNTY 9-1-1 DISPATCH, ) Opinion issued April 26, 2022 ) Respondent, ) ) v. ) No. SC98904 ) JOSEPH G. PLAGGENBERG, ACTING ) DIRECTOR OF THE MISSOURI ) DEPARTMENT OF REVENUE, ) ) Appellant. )
APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY The Honorable Patricia S. Joyce, Judge
Respondent, Jefferson County 9-1-1 Dispatch (the “Dispatch”), filed an action
seeking a declaratory judgment, a writ of mandamus, and injunctive relief preventing
Appellant, the Director of the Department of Revenue (“DOR”), from enforcing section
190.327.5. 1 The Dispatch argued it was entitled to such relief because section 190.327.5
violates three different provisions of the Missouri Constitution but only sought – and the
circuit court only granted – summary judgment on one of those claims. The other two
claims were not denied or dismissed. They remain pending. DOR appeals.
1 All statutory references are to RSMo Supp. 2019 except for references to section 512.020, which are to RSMo 2016. The circuit court’s judgment is not a “final judgment” for purposes of section
512.020(5). It is not a “final judgment” in the sense that it does not dispose of all (or at
least the last) claims in the lawsuit, and it was not eligible to be certified as “final” under
Rule 74.01(b) because it did not resolve all of the claims by or against at least one of the
parties, nor did it resolve one or more claims that are sufficiently distinct from those that
remain pending. Wilson v. City of St. Louis, 600 S.W.3d 763, 765 (Mo. banc 2020).
Finally, even if the judgment were eligible to be certified under Rule 74.01(b), neither
party sought such certification and the circuit court did not certify the judgment or make
the requisite finding “that there is no just cause for delay.” Rule 74.01(b). Accordingly,
this Court must dismiss DOR’s appeal for want of jurisdiction.
Background
In April 2009, Jefferson County voters voted to replace an existing emergency
telephone tax with a sales tax of one-half of one percent for 10 years for the purpose of
providing emergency services, including central dispatching for fire protection, law
enforcement, and ambulance services. Ten years later, the voters approved continuing
the one-half of one percent sales tax for emergency services.
On July 19, 2019, the Governor signed Senate Bill No. 291 (“SB 291”) into law.
SB 291 amended section 190.327 by adding a new subsection. This new subsection
reads:
An emergency services board originally organized under section 190.325 operating within a county with a charter form of government and with more than two hundred thousand but fewer than three hundred fifty thousand inhabitants shall not have a sales tax for emergency services or for providing central dispatching for emergency services greater than one-
2 quarter of one percent. If on July 9, 2019, such tax is greater than one- quarter of one percent, the board shall lower the tax rate.
§ 190.327.5.
On August 1, 2019, DOR notified the Dispatch of its intent to decrease the
existing one-half of one percent sales tax to one-fourth of one percent beginning
October 1, 2019. In response, the Dispatch filed the present action. The Dispatch
arranged its petition in four “counts.” The first sought a declaratory judgment that
section 190.327.5 is unconstitutional because it violates either article III, section 40 or
article III, section 42 of the Missouri Constitution pertaining to local or special laws. The
second sought a declaration that section 190.327.5 is unconstitutional because it violates
article I, section 13, which prohibits laws retrospective in operation. In Count III, the
Dispatch requested a writ of mandamus compelling DOR not to follow the
unconstitutional statute and, instead, to continue to collect the one-half of one percent
emergency services sales tax and pay it to the Dispatch. In Count IV, the Dispatch
requested a preliminary and permanent injunction compelling DOR to continue to collect
the one-half of one percent emergency services sales tax and pay it to the Dispatch for the
same reason.
On July 31, 2020, the Dispatch moved for summary judgment only with respect to
its claim that section 190.327.5 violated article III, section 42, which imposes unique
notice and publication requirements prior to the legislature passing any local or special
law that is not otherwise prohibited by article III, section 40. DOR responded and filed a
cross-motion for summary judgment. On November 30, 2020, the circuit court overruled
3 DOR’s motion, sustained the Dispatch’s motion, and entered judgment for the Dispatch
on its claim pertaining to article III, section 42. This judgment did not resolve the
Dispatch’s other claims, nor did the Dispatch dismiss them. They remain pending.
Analysis
Before addressing the merits of this appeal, “this Court has a duty to determine
whether it has jurisdiction.” Wilson, 600 S.W.3d at 765. “The right to appeal is purely
statutory, and where a statute does not give a right to appeal, no right exists.” Id. at 767
(quotation marks omitted). The only statute even potentially applicable to this case is
section 512.020(5), which provides that a “final judgment” is appealable. The judgment
in this case is not a “final judgment” for purposes of this statute.
A judgment is a “final judgment” for purposes of section 512.020(5) if it disposes
of all claims (or the last pending claim) in a lawsuit. Wilson, 600 S.W.3d at 771. A
judgment that is not a “final judgment” in this traditional sense can still be a “final
judgment” for purposes of section 512.020(5) if it is eligible to be – and actually is –
certified as such by the circuit court under Rule 74.01(b). Id. Neither party contends this
judgment was (or even could have been) certified as a “final judgment” under Rule
74.01(b), and rightly so. This judgment was not eligible to be certified under Rule
74.01(b) and the circuit court did not certify it or make the predicate finding that there
was no just reason for delay. Accordingly, the analysis in this case turns entirely on
whether the judgment disposes of all claims by and against all parties in this suit. Plainly,
it does not.
4 The circuit court’s order in this case is a judgment because it met the form
requirements in Rule 74.01(a) and it fully resolves the Dispatch’s claim that section
190.327.5 violates article III, section 42 of the Missouri Constitution. 2 But it is not a
“final judgment” for purposes of section 512.020(5) because that is the only one of the
Dispatch’s three claims that it resolves. The Dispatch’s claim that section 190.327.5
violates the complete prohibition for certain types of local or special laws found in article
III, section 40, as well as its claim that this statute violates the prohibition against laws
that are retrospective in their operation found in article I, section 13, remained (and still
remain) pending.
“[I]n determining whether an action presents more than one claim for relief, the
focus is on the number of legal rights asserted in the action.” Comm. for Educ. Equal. v.
State, 878 S.W.2d 446, 451 (Mo. banc 1994) (“CEE”). If a petition “seeks to enforce
only one legal right, it states a single claim, regardless of the fact that it seeks multiple
remedies.” Id. Here, the Dispatch’s petition sought to enforce at least three legal rights:
(a) the constitutional prohibition against certain local or special laws under article III,
section 40; (b) the constitutional requirement that local or special laws that are not
prohibited outright by article III, section 40 nevertheless cannot be passed without prior
notice by publication as set forth in article III, section 42; and (c) the constitutional
2 The substantive definition of judgment is “a legally enforceable judicial order that fully resolves at least one claim in a lawsuit and establishes all the rights and liabilities of the parties with respect to that claim.” State ex rel. Henderson v. Asel, 566 S.W.3d 596, 598 (Mo. banc 2019). As a matter of form, such an order must be in writing, signed by the judge, and denominated a “judgment” or “decree” to be considered a judgment. Rule 74.01(a).
5 prohibition against the enactment of statutes that are retrospective in their operation
found in article I, section 13. The Dispatch’s prayers for declaratory judgment,
mandamus, and/or an injunction are merely the remedies the Dispatch seeks should it
prevail in its efforts to enforce one or more of these three legal rights.
The parties argue that, because the Dispatch sought the same remedies for each of
these three plainly different claims, a judgment granting that relief with respect to one
claim necessarily disposes of all the other claims and, therefore, is a “final judgment” for
purposes of section 512.020(5). Such reasoning might have led the Dispatch to dismiss
its remaining claims or to ask the circuit court to deny them on the ground that they were
moot. But the Dispatch was under no obligation to do either and plainly did not do so.
The parties point to language in the judgment stating it was “a final judgment that
resolves all issues as to all parties.” But this does not make it so. The Dispatch’s motion
did not seek judgment on all of its claims, and nothing in the judgment suggests the
circuit court intended to resolve the remaining claims on their merits or deny them as
moot in light of the resolution of the Dispatch’s claim under article III, section 42.
Instead, the Dispatch’s remaining unresolved claims are just that: unresolved and still
pending in the circuit court. The parties conceded at oral argument that, if this Court
were to determine the circuit court erred with respect to the Dispatch’s claim under article
III, section 42, they would return to the circuit court to take up the Dispatch’s remaining
claims. Presumably, once another of those claims is resolved, the aggrieved party would
appeal, and so on and so on virtually assuring multiple, seriatim appeals. This is the very
antithesis of the “final judgment” that is appealable under section 512.020(5).
6 The parties cite Ndegwa v. KSSO, LLC, 371 S.W.3d 798, 801 (Mo. banc 2012), 3
for the proposition that any judgment is appealable under section 512.020(5) as a “final
judgment” if it resolves “all issues in a case, leaving nothing for future determination.”
Where the parties fail, however, is in explaining how a judgment sustaining the
Dispatch’s motion for summary judgment that was based on only one of the Dispatch’s
three claims resolves “all issues” in the case and leaves “nothing” to be determined in the
future. Plainly, it does not resolve whether section 190.327.5 violated the prohibition
against certain types of local and special laws found in article III, section 40. Nor does it
resolve whether this statute violates the prohibition against laws retrospective in their
application found in article I, section 13. The Dispatch’s petition unmistakably asserts
these claims and, just as plainly, neither claim is referenced – let alone resolved – in the
circuit court’s judgment. 4
3 The parties also cite to CEE, arguing the flaw in that case, i.e., that the order resolved only some of the remedies sought with respect to a claim but failed to resolve the request for other remedies on the same claim, is not present here because the circuit court’s judgment addressed all of the remedies the Dispatch sought with respect to its claim under article III, section 42 and left nothing for the Dispatch to gain as a practical matter by pursuing its remaining claims. That the Dispatch may have lost its motivation to pursue its remaining claims does not mean that those claims were resolved by the circuit court’s judgment or that they are not still pending – unresolved – in the circuit court. 4 In Boley v. Knowles, 905 S.W.2d 86, 88 (Mo. banc 1995) (footnote omitted), this Court stated, “if the order disposed of one ‘claim for relief,’ the order is a final judgment and this Court has jurisdiction.” Bolely refers only to judgments certified as “final” under Rule 74.01(b) and, in that context, it is a correct statement. Unfortunately, this context was lost when, in State ex rel. Hilburn v. Staeden, 62 S.W.3d 58, 61 (Mo. banc 2001), this quotation was used to support the suggestion that “the fact that the [circuit] court has determined that all relief requested can be granted on the basis of one of those [two] grounds for relief is sufficient to dispose of both counts for purposes of a final judgment.” Neither party cites Hilburn nor this odd statement as support for their position. This was
7 In the end, the parties’ arguments have the air of pleas to equity or judicial
economy. The Court understands the parties believe it would be easier and more efficient
to allow the circuit court to address the Dispatch’s petition one claim at a time, with this
Court reviewing the resolution of each claim one by one. But this Court does not decide
what can and cannot be appealed. The legislature does, and, in this case, the Court is
bound by the language of section 512.020(5) and the interpretation already given to the
phrase “final judgment” found in that statute. This judgment does not comply; therefore,
DOR has no right to appeal it, and this Court has no jurisdiction to hear such an appeal.
Conclusion
For the reasons set forth above, this appeal is dismissed.
___________________________ Paul C. Wilson, Chief Justice
Russell, Powell, Fischer and Ransom, JJ., concur; Breckenridge, J., dissents in separate opinion filed; Draper, J., concurs in opinion of Breckenridge, J.
proper because the holding of Hilburn was that there was no appealable judgment and, therefore, the statement is dicta. Nevertheless, it also is plainly incorrect as explained herein and should not be followed or relied upon in the future.
8 SUPREME COURT OF MISSOURI en banc JEFFERSON COUNTY 9-1-1 DISPATCH, ) ) Respondent, ) ) v. ) No. SC98904 ) JOSEPH G. PLAGGENBERG, ACTING ) DIRECTOR OF THE MISSOURI ) DEPARTMENT OF REVENUE, ) ) Appellant. )
DISSENTING OPINION
I respectfully dissent. Applying this Court’s controlling precedent, the circuit
court’s judgment is final because it disposed of all issues and left nothing for future
determination when it granted all the relief requested in Jefferson County 9-1-1 Dispatch’s
petition. Even though the circuit court’s judgment did not expressly rule on all counts, its
ruling on count I necessarily disposed of all issues. The circuit court recognized this and
expressly stated the judgment resolved all issues as to all parties. This Court has often held
a circuit court judgment that grants all the relief sought in a petition effectively disposes of
any remaining alternative theories of recovery and is final for appeal. Accordingly, the
circuit court’s judgment should be held to be a final, appealable judgment so the Court has
jurisdiction over the appeal under section 512.020(5), RSMo 2016, and should decide the appeal on its merits. The principal opinion’s finding that there is not a final judgment and
its remand for the circuit court to enter an amended judgment expressly dismissing the
other claims as moot will unnecessarily cause the parties and their attorneys to expend time,
effort, and resources and will waste judicial resources.
On appeal, the director of the department of revenue claims the circuit court erred
in declaring section 190.327.5 – which capped at one-quarter of one percent the sales tax
the Dispatch could levy to provide central dispatching for emergency services –
constitutionally invalid and ordering injunctive relief because section 190.327.5 is not a
special law in that it is supported by a rational basis. The director is incorrect. Section
190.327.5 is a special law because no rational basis supports the classification of
emergency services boards in section 190.327.5 to exclude those not within charter
counties having between 200,000 and 350,000 inhabitants. Because section 190.327.5 is a
special law, it was required to comply with the notice and publication requirements of
article III, section 42 of the Missouri Constitution before it was enacted. No notice of the
law was published in Jefferson County, nor was notice recited in the act, so section
190.327.5 is constitutionally invalid. I would hold the circuit court’s judgment is final and
should be affirmed.
The Dispatch is an emergency services board originally organized under section
190.325, RSMo, to provide central dispatching of emergency services to approximately
220,000 residential and commercial inhabitants within a defined area of Jefferson County.
The Dispatch was originally funded by an emergency telephone tax but, in 2009, voters
2 within the Dispatch’s service area voted to replace the emergency telephone tax with an
emergency services sales tax of one-half of one percent for 10 years, as authorized by
section 190.335, RSMo Supp. 2008. In April 2019, the residents voted to rescind the sunset
provision and continue the emergency services sales tax at one-half of one percent. Soon
afterward, in July 2019, the legislature amended section 190.327 to add subsection 5, which
An emergency services board originally organized under section 190.325 operating within a county with a charter form of government and with more than two hundred thousand but fewer than three hundred fifty thousand inhabitants shall not have a sales tax for emergency services or for providing central dispatching for emergency services greater than one-quarter of one percent. If on July 9, 2019, such tax is greater than one-quarter of one percent, the board shall lower the tax rate.
Section 190.327.5. 1 The Dispatch is the only emergency services board originally
organized under section 190.325 within a charter county that has between 200,000 and
350,000 inhabitants. In August 2019, citing the enactment of section 190.327.5, the
director notified the Dispatch of his intent to decrease the existing one-half of one percent
emergency services sales tax to one-fourth of one percent.
The Dispatch filed a petition seeking a judgment declaring section 190.327.5
constitutionally invalid so the director would be required to continue to collect the full one-
half percent emergency services sales tax and to pay the revenues to the Dispatch. That
claim was set forth in four counts, which were pleaded as follows:
1 All statutory citations to section 190.327.5 are to RSMo Supp. 2019, unless otherwise specified.
3 1) Count I sought a judgment declaring section 190.327.5 violates article III,
section 40 of the Missouri Constitution, which prohibits the passage of certain local
and special laws and article III, section 42 of the Missouri Constitution, which
prohibits the passage of local or special laws without meeting the notice and
publication requirements set forth therein and ordering the director to continue to
collect the full tax and to pay the revenues to the Dispatch;
2) Count II incorporated all prior paragraphs of the petition and sought a
judgment declaring section 190.327.5 violates article I, section 13 of the Missouri
Constitution, which prohibits retrospective laws, and ordering the director to
continue to collect the full tax and to pay the revenues to the Dispatch;
3) Count III incorporated all prior allegations and sought a writ of mandamus
compelling the director to continue to collect the full tax and to pay the revenues to
the Dispatch; and
4) Count IV incorporated all prior paragraphs of the petition and sought an
injunction to compel the director to continue to collect the full tax and to pay the
revenues to the Dispatch.
The Dispatch filed a motion for summary judgment on the theory pleaded in count I that
section 190.327.5 is a special law that violated article III, section 42 of the Missouri
Constitution because it was enacted without notice and publication. The director filed a
cross-motion for summary judgment on the same count, contending section 190.327.5 is
not a special law. Thereafter, the circuit court sustained the Dispatch’s motion, overruled
the director’s cross-motion, and entered a judgment granting the following relief:
4 The Director of Revenue shall continue collecting the full one-half percent (1/2%) emergency services tax on sales within Jefferson County 9-1-1’s boundaries and to pay such tax revenues to Jefferson County 9-1-1. . . . This is a final judgment that resolves all issues as to all parties.
The director appealed, invoking this Court’s jurisdiction under article V, section 3 of the
Missouri Constitution.
A. Final Judgment
This Court has a duty to examine its jurisdiction sua sponte. Meadowfresh Sols.
USA, LLC v. Maple Grave Farms, LLC, 578 S.W.3d 758, 760 (Mo. banc 2019). 2 “The
right to appeal is purely statutory and, where a statute does not give a right to appeal, no
right exists.” First Nat’l Bank of Dieterich v. Pointe Royale Prop. Owners’ Ass’n, Inc.,
515 S.W.3d 219, 221 (Mo. banc 2017) (quoting Buemi v. Kerckhoff, 359 S.W.3d 16, 20
(Mo. banc 2011)). The statute governing the right of appeal in this case is section
512.020(5), RSMo 2016, which provides that an aggrieved party in any civil cause may
take an appeal from any final judgment in the case.
For an order to qualify as a judgment, it must comply with the requirements of form
set out in Rule 74.01(a). It must be in writing, denominated “judgment,” and signed by the
judge. Rule 74.01(a); Butala v. Curators of Univ. of Mo., 620 S.W.3d 89, 93 (Mo. banc
2021). The circuit court’s judgment meets these form requirements.
Substantively, there are two ways in which a judgment can be final. First, a
judgment is final if it “resolves all issues in a case, leaving nothing for future
2 The Dispatch did not challenge this Court’s jurisdiction over the appeal but, following inquiry into the matter at oral argument, the parties filed supplemental briefing on the issue.
5 determination.” First Nat’l Bank of Dieterich, 515 S.W.3d at 221 (internal quotation marks
omitted). A judgment may also be final if it disposes of a judicial unit – i.e., it has fully
resolved a claim as against at least one party – and has been certified for appeal under Rule
74.01(b). Comm. for Educ. Equal. v. State, 878 S.W.2d 446, 450 (Mo. banc 1994). The
circuit court did not even purport to certify the judgment for appeal under Rule 74.01(b),
so such certification is not at issue in this case. Consequently, the question is whether the
circuit court’s judgment resolved all issues in the case and left nothing for future
determination.
The Dispatch’s motion for summary judgment claimed section 190.327.5 is a
special law and it failed to comply with the notice and publication requirements of article
III, section 42. Accordingly, it can be presumed that, in sustaining the Dispatch’s motion,
the circuit court determined section 190.327.5 was, indeed, a special law that failed to
comply with article III, section 42’s notice and publication requirements. 3 Further, the
circuit court ordered the director to “continue collecting the full one-half percent (1/2%)
emergency services tax on sales within [the Dispatch’s] boundaries and to pay such tax
revenues to [the Dispatch].” The circuit court’s judgment, therefore, granted the Dispatch
all the relief it requested – section 190.327.5 was held constitutionally invalid and the
director was ordered to collect the full one-half of one percent emergency services sales
tax approved by the voters and to pay the revenues to the Dispatch.
3 When a circuit court does not state the basis for its decision to sustain a motion for summary judgment, the “court is presumed to base its decision on the grounds specified in the motion.” Grisamore v. State Farm Mut. Auto. Ins. Co., 306 S.W.3d 570, 573 (Mo. App. 2010).
6 Once the circuit court entered its judgment on count I declaring the statute
constitutionally invalid and upholding the Dispatch’s legal right to receipt of the one-half
of one percent sales tax, there was nothing left for future determination. Although the
circuit court did not expressly dispose of the Dispatch’s other legal theories pleaded in
support of the same relief, adjudication of the Dispatch’s alternative theories would have
no further effect on the controversy and, consequently, no further relief could be granted.
See Drury v. City of Cape Girardeau, 66 S.W.3d 733, 735 & n.2 (Mo. banc 2002). “A
cause of action is moot when the question presented for decision seeks a judgment upon
some matter which, if the judgment was rendered, would not have any practical effect upon
any then existing controversy.” Cent. Trust & Inv. Co. v. Signalpoint Asset Mgmt., LLC,
422 S.W.3d 312, 324 (Mo. banc 2014) (alteration and internal quotation marks omitted);
see also Preisler v. Doherty, 265 S.W.2d 404, 407 (Mo. banc 1954) (holding a “question”
is moot when a decision would not have any practical effect on an existing controversy).
The circuit court’s determination that the statute is constitutionally invalid under article III,
section 42 makes it unnecessary for the circuit court to decide whether the statute is also
invalid under other provisions of the Missouri Constitution. Its decision on count I
rendered the remaining counts moot.
It does not matter that, as the principal opinion notes, the Dispatch sought summary
judgment only in relation to its challenge to section 190.327.5’s validity under article III,
section 42 of the Missouri Constitution and not on its other theories. In Skatoff v. Alfend,
411 S.W.2d 169, 171 (Mo. 1966), the plaintiff filed suit seeking to set aside the transfer of
real estate to two individual defendants. Because the properties had been damaged by fire,
7 the plaintiff also named as defendants the insurance companies that insured the subject
property and sought to have them pay the amount of their liability into the court registry.
Id. at 172. The individual defendants filed a motion to dismiss the plaintiff’s petition,
which the circuit court sustained. Id. In its judgment sustaining the motion, however, the
circuit court did not expressly dismiss the plaintiff’s petition as to the insurance companies.
Id. at 173. Nonetheless, this Court held the circuit court’s judgment “in effect operated as
a dismissal of the claim against the insurance companies” and was final because the relief
sought against the insurance companies was “merely ancillary to that sought in connection
with the allegedly fraudulent transfer of the insured property.” Id. In so holding, the Court
stated: “If the finding and judgment on the other issues in the case necessarily excludes
and effectively disposes of the issue which is not specifically adjudged, then the judgment
is final and appealable.” Id. (alteration and internal quotation marks omitted). Skatoff
demonstrates a circuit court’s judgment expressly disposing of an issue raised in a
dispositive motion may also dispose of issues not raised in the motion when the court’s
finding and judgment necessarily disposes of those unraised issues.
Consistent with Skatoff, this Court’s precedent recognizes a circuit court is not
required to rule expressly on alternative grounds for relief when its ruling on one ground
has granted all relief requested. See Bone, 404 S.W.3d at 888 n.5 (“While the trial court
did not make findings or conclusions on these arguments, this Court has subject matter
jurisdiction because all requested relief was granted and the trial court’s judgment was final
for purposes of appeal.”); Wells Fargo Bank, N.A., 392 S.W.3d at 452 (finding, although
“nothing in the circuit court’s May 2012 judgment explicitly resolved” the defendants’
8 affirmative defenses and counterclaims, it was “clear that both parties and the court
proceeded throughout the trial de novo as though” they were resolved, so the judgment
implicitly disposed of the issues); Drury, 66 S.W.3d at 735 n.2 (“When a trial court fully
grants the relief requested in a claim, that claim is fully disposed of for final judgment
purposes, regardless of whether the court rules on all alternative arguments supporting that
relief.”); State ex rel. Hilburn v. Staeden, 62 S.W.3d 58, 61 (Mo. banc 2001); Skatoff,
411 S.W.2d at 173. 4
Rather than following this precedent, the principal opinion focuses on the
proposition’s recitation in Hilburn. In that case, the circuit court granted summary
judgment on one of 14 different grounds for relief raised in count I of the petition.
62 S.W.3d at 59-60. On appeal, the respondent argued the order could not be a final
judgment because it “disposed of only one or two of the ‘claims’ set out in count I” and
failed to grant or deny the prayer for a permanent injunction. Id. at 60. The Court held the
order was not final because it was not denominated a judgment. Id. at 61. Nonetheless,
the Court went on to opine nothing prevented the court from issuing the judgment on the
grounds stated because all the relief prayed for would be granted and “the injunctive relief
prayed for in count II, if not superfluous and moot, would necessarily follow.” Id. The
4 Among the court of appeals cases also applying this principle are: Jefferson v. American Finance Group, Inc., 163 S.W.3d 485, 487 n.2 (Mo. App. 2005); Causey v. Medical Life Insurance Co., 21 S.W.3d 24, 25 n.2 (Mo. App. 2000); Clayton Brokerage Co. of St. Louis, Inc. v. Raleigh, 679 S.W.2d 376, 378 (Mo App. 1984); and McDonough v. Liberty Mutual Insurance Co., 921 S.W.2d 90, 95 (Mo App. 1996), overruled on other grounds by Farmland Industries, Inc. v. Republic Insurance Co., 941 S.W.2d 505, 509 (Mo. banc 1997).
9 Court then addressed the parties’ confusion “that no final judgment can be entered without
a resolution of all the other ‘claims’ presented in count I,” stating:
Although there are indeed several alternative claims or grounds for relief in count I that have not been addressed, the fact that the court has determined that all relief requested can be granted on the basis of one of those grounds for relief is sufficient to dispose of both counts for purposes of a final judgment.
Id.
Rather than acknowledging and following this precedent, the principal opinion
dismisses this as an “odd statement” in dictum. Although the principal opinion is correct
the statement in Hilburn is dictum, the principle in Hilburn is consistent with this Court’s
precedent and should not be ignored. 5 The circuit court’s judgment granted all relief
requested, and the other theories of recovery in the Dispatch’s petition are, therefore, moot.
The circuit court’s judgment disposed of all issues and left nothing for future
determination. Indeed, the circuit court and the parties understood the judgment resolved
all issues. Both parties filed briefing in this Court concluding the same, and the circuit
court’s judgment expressly states: “This is a final judgment that resolves all issues as to
all parties.”
5 If the Court intends to overrule its long-established precedent, it should undertake to do so directly and openly. Doing otherwise sows confusion and violates this Court’s presumption against sub silentio abrogation of its precedent. State v. Honeycutt, 421 S.W.3d 410, 422 (Mo. banc 2013). Because the principal opinion characterizes the statement in Hilburn as “odd” dictum, its overruling of that statement may not be recognized as overruling the multiple cases from this Court and the court of appeals, cited above, holding that a circuit court is not required to rule expressly on alternative grounds for relief when its ruling on one ground has granted all relief requested.
10 The principal opinion’s refusal to allow the implicit disposition of alternative
theories results in an entirely unnecessary remand. Under the principal opinion’s decision,
the case will be remanded to the circuit court for the circuit court to add a sentence to its
judgment expressly doing what it – and the parties – understood the circuit court had
already done implicitly, i.e., dismissing the Dispatch’s remaining theories as moot. The
director will then have to initiate a second appeal, and the parties will go through the costly
process of doing all of this over again when nothing substantive has changed.
Clearly, allowing the circuit court to dispose of alternative theories by necessary
implication from its dispositive ruling on one of several alternative grounds does not create
a risk of piecemeal appeals. The prospect of piecemeal appeals has nothing to do with the
implicit or explicit disposition of alternative grounds. Rather, the risk of multiple appeals
arises when a party pleads alternative theories of recovery. Whether alternative theories
are resolved expressly or by necessary implication when the circuit court grants all relief
on a different theory, the counts rendered moot by the circuit court’s judgment would no
longer be moot after a reversal on appeal. Robertson v. Police & Firemen’s Pension Plan
of City of Joplin, 442 S.W.3d 60, 71 n.12 (Mo. App. 2014). Permitting implicit disposition
of alternative theories does not present any greater risk of inefficiency or multiple appeals
than not. To the contrary, refusing to allow implicit disposition of alternative theories
practically guarantees the case will be heard in this Court at least twice at great cost to the
parties and judicial economy.
Having granted the Dispatch all the relief it requested and rendered moot the
Dispatch’s other legal theories, the judgment resolved all issues in the case, either expressly
11 or implicitly, and left nothing for future determination. Because it resolved all issues in
the case, the judgment is final for purposes of section 512.020(5), RSMo 2016. Gibson v.
Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997).
B. One Claim
Rather than applying controlling law to find the judgment is final because it
disposed of all issues, the principal opinion gratuitously undertakes to consider whether
the judgment was a final judgment that could be certified under Rule 74.01(b). A judgment
that does not dispose of all issues may nevertheless be final and certified for appeal under
Rule 74.01(b) if it either: (1) disposes of all claims by or against at least one party, or
(2) disposes of a distinct judicial unit. Wilson v. City of St. Louis, 600 S.W.3d 763,
769-70 (Mo. banc 2020) (citing Gibson, 952 S.W.2d at 244-45).
Here, it can easily be determined from the face of the judgment that the circuit court
did not certify the judgment for appeal under Rule 74.01(b). The principal opinion
recognizes this fact, stating: “The circuit court did not certify it or make the predicate
finding that justice required such certification.” Having determined the circuit court did
not certify the judgment for appeal under Rule 74.01(b), there is no reason for the principal
opinion to go any further. Nevertheless, the principal opinion expressly opines about
whether the judgment could be certified for appeal under Rule 74.01(b): “This judgment
was not eligible to be certified under Rule 74.01(b).” No determination about eligibility is
required; the principal opinion’s analysis can end with its determination that the circuit
court did not certify the judgment for appeal under Rule 74.01(b).
12 This is important because, in a seemingly innocuous discussion, the principal
opinion changes established law when it gratuitously opines about the number of claims
presented in the petition:
The circuit court’s order in this case is a judgment because it met the form requirements in Rule 74.01(a) and it fully resolves the Dispatch’s claim that section 190.327.5 violates article III, section 42, of the Missouri Constitution.2
[Footnote 2 states: The substantive definition of judgment is “a legally enforceable judicial order that fully resolves at least one claim in a lawsuit and establishes all the rights and liabilities of the parties with respect to that claim.” State ex rel. Henderson v. Asel, 566 S.W.3d 596, 598 (Mo. banc 2019). As a matter of form, such an order must be in writing, signed by the judge, and denominated a “judgment” or “decree” to be considered a judgment. Rule 74.01(a).]
But it is not a “final judgment” for purposes of section 512.020(5) because that is the only one of the Dispatch’s three claims that it resolves. The Dispatch’s claim that section 190.327.5 violates the complete prohibition for certain types of local or special laws found in article III, section 40, as well as its claim that this statute violates the prohibition against laws that are retrospective in their operation found in article I, section 13, remained (and still remain) pending.
“[I]n determining whether an action presents more than one claim for relief, the focus is on the number of legal rights asserted in the action.” Comm. for Educ. Equal. v. State, 878 S.W.2d 446, 451 (Mo. banc 1994) (“CEE”). If a petition “seeks to enforce only one legal right, it states a single claim, regardless of the fact that it seeks multiple remedies.” Id. Here, the Dispatch’s petition sought to enforce at least three legal rights: (a) the constitutional prohibition against certain local or special laws under article III, section 40; (b) the constitutional requirement that local or special laws that are not prohibited outright by article III, section 40 nevertheless cannot be passed without prior notice by publication as set forth in article III, section 42; and (c) the constitutional prohibition against the enactment of statutes that are retrospective in their operation found in article I, section 13. The Dispatch’s prayers for declaratory judgment, mandamus, and/or an injunction are merely the remedies the Dispatch seeks should it prevail in its efforts to enforce one or more of these three legal rights.
13 Superficially, the principal opinion’s discussion of the number of claims in the
petition may appear innocuous, but it has far-reaching ramifications. In these paragraphs,
the principal opinion utilizes a general definition of “claim,” when “claim” is a legal term
of art referring to the judicial unit for appeal. Nowhere in the discussion does the principal
opinion acknowledge its deviation from the Court’s settled precedents, provide analysis to
support such deviation, or consider the impact of its mistaken usage of “claim.” Further,
its unacknowledged deviation from controlling law and mistaken usage of a general or lay
meaning of “claim” is at odds with other legal doctrines that have historically utilized the
same definition used in the final judgment analysis.
The word “claim” has two meanings. The principal opinion uses its lay meaning:
“what is otherwise called a cause of action or theory of recovery.” Butala, 620 S.W.3d at
93 n.4. This is its most general meaning and is broad enough to refer to any legal issue
presented for determination, including “some of several issues arising out of the same
transaction or occurrence,” legal issues, remedies, or legal theories. See Gibson,
952 S.W.2d at 244; Comm. for Educ. Equal., 878 S.W.2d at 450-51. As a legal term of art,
however, “claim” refers to “the bundle of legal theories or causes of action that may be
asserted as against one party arising from a particular set of facts,” Butala, 620 S.W.3d at
93 n.4, i.e., a judicial unit, Gibson, 952 S.W.2d at 244.
Under controlling law, “claim” as a legal term of art is the appropriate definition to
use when determining whether a judgment is final for purposes of appeal. Gibson,
952 S.W.2d at 244; Comm. for Educ. Equal., 878 S.W.2d at 451. In Gibson, the Court
held, “The required ‘judicial unit for appeal’ has a settled meaning: ‘the final judgment on
14 a claim . . . .’” Id. at 244 (emphasis added) (quoting State ex rel. State Highway. Comm’n
v. Smith, 303 S.W.2d 120, 123 (Mo. 1957)). “Rule 74.01(b) permits a trial court to
designate as final a judgment as to one or more claims but fewer than all claims. Thus, the
minimum unit of disposition is at least one claim.” Comm. for Educ. Equal., 878 S.W.2d
at 450 (emphasis added) (internal quotation marks omitted). Said another way, Rule
74.01(b) “conditioned the exercise of discretion by the trial court on the existence of a
judgment that disposed of at least one claim as to one party.” Id. at 451 (emphasis added).
Committee for Educational Equality undertook a lengthy analysis to establish the
meaning of “claim” as a legal term of art. The Court held:
If a complaint seeks to enforce only one legal right, it states a single claim, regardless of the fact that it seeks multiple remedies. A further refinement of what is meant by “one claim” is that a claim is the aggregate of operative facts which give rise to a right enforceable in the courts. Worded somewhat differently, claims are considered separate if they require proof of different facts and the application of distinguishable law, subject to the limitation that severing the claims does not run afoul of the doctrine forbidding the splitting of a cause of action.
Id. (emphasis added) (citations and internal quotation marks omitted). It is easy to
understand how a cursory reading of Committee for Educational Equality could lead to the
mistake manifested in the principal opinion’s determination that the Dispatch’s petition
asserts three claims. After all, for the Dispatch to prevail under its theories that section
190.327.5 violates article III, section 40; article III, section 42; or article I, section 13, each
theory would require subtly different evidentiary facts and the application of different law. 6
6 Contributing even more to the confusion surrounding the meaning of “one claim” is the fact this Court has used both meanings of “claim” in a single decision determining whether
15 But “separate legal theories are not to be considered as separate claims, even if the several
legal theories depend on different shadings of the facts, or would emphasize different
elements of the facts, or would call for different measures of liability or different kinds of
relief.” King Gen. Contractors, Inc. v. Reorganized Church of Jesus Christ of Latter Day
Saints, 821 S.W.2d 495, 501 (Mo. banc 1991). As subsequent decisions make clear, one
claim encompasses the enforcement of all legal rights arising from the same transaction or
occurrence. Gibson, 952 S.W.2d at 244.
Claims cannot be considered separate if doing so would split a cause of action. 7
Comm. for Educ. Equal., 878 S.W.2d at 451. This Court has stated the doctrine prohibiting
splitting a cause of action as follows:
A cause of action which is single may not be split and filed or tried piecemeal, the penalty for which is that an adjudication on the merits in the first suit is a bar to a second suit. In general, the test for determining whether a cause of action is single and cannot be split is: 1) whether separate actions brought arise out of the same act, contract or transaction; 2) or whether the parties, subject matter and evidence necessary to sustain the claim are the same in both actions. The word “transaction” has a broad meaning. It has been
there was a final judgment. In Gibson, after deciding the circuit court’s order dismissing fewer than all counts against one of the defendants was not a final judgment because the counts were “differing legal theories or issues presented for recovery on the same claim,” 952 S.W.2d at 244 (emphasis added), the Court then referred to the various counts against the defendant as “the claims” against him, id. at 245 (emphasis added). 7 “Cause of action” has general and technical meanings that mirror the different meanings of “claim.” In its general meaning, “cause of action” merely refers to a theory of recovery. Cause of Action, BLACK’S LAW DICTIONARY (11th ed. 2019); cf. Butala, 620 S.W.3d at 93 n.4. As a term of art, however, it refers to “[a] group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.” Cause of Action, BLACK’S LAW DICTIONARY (11th ed. 2019); accord Chesterfield Vill., Inc. v. City of Chesterfield, 64 S.W.3d 315, 318 (Mo. banc 2002). As terms of art, “cause of action” and “claim” are “nearly the same.” Chesterfield Vill., 64 S.W.3d at 318. “No practical difference is seen between the new ‘claim for relief’ and the old ‘cause of action.’” Gerber v. Schutte Inv. Co., 194 S.W.2d 25, 28 (Mo. 1946).
16 defined as the aggregate of all the circumstances which constitute the foundation for a claim. It also includes all of the facts and circumstances out of which an injury arose.
King Gen. Contractors, 821 S.W.2d at 501. The principal opinion’s definition of “one
claim” would run afoul of the doctrine forbidding splitting a claim because the
constitutional violations the Dispatch asserts in counts I and II all arise from the same set
of facts.
That constitutional violations arising from the same set of facts are not separate
claims but rather aspects of one claim is clearly demonstrated in Chesterfield Village, Inc.
v. City of Chesterfield, 64 S.W.3d 315, 321 (Mo. banc 2002). There, the plaintiff prevailed
in an action against the defendant on the theory that the defendant violated the Fifth and
Fourteenth Amendments to the United States Constitution and article I, section 10 of the
Missouri Constitution. Id. at 317. Nonetheless, the plaintiff filed a second lawsuit seeking
damages asserting violations of, among other things, article I, sections 26 and 28 of the
Missouri Constitution, which had not been raised in the first action. Id. This Court held
both actions were based on the actions of the city in its 1994 zoning decision, id. at 320,
and:
Any claim for damages that Chesterfield Village attempts to assert in this second action is part of the claim in the previous action against the city of Chesterfield for refusing to rezone the tract. The factual basis for asserting constitutional violations is the same in both actions. A somewhat altered legal theory, or even a new legal theory, does not support a new claim based on the same operative facts as the first claim. Chesterfield Village cannot split its claim.
17 Id. at 321 (emphasis added). Merely asserting the violations of different constitutional
provisions, therefore, does not create separate claims even when the different provisions
would require different evidentiary details.
Committee for Educational Equality’s holding that a “claim” encompasses all the
rights and remedies arising out of a single transaction or occurrence was made even clearer
in Gibson. There, the plaintiffs sued a priest and a Catholic diocese, “alleging nine counts:
battery, negligent hiring/ordination/retention, negligent failure to supervise, negligent
infliction of emotional distress, intentional infliction of emotional distress, breach of
fiduciary duty, conspiracy, agency liability, and independent negligence of the Diocese.”
952 S.W.2d at 243-44. The circuit court issued two judgments it determined were final
and appealable; one dismissed all counts against the Diocese, and the other dismissed all
counts against the priest except battery, negligent infliction of emotional distress, and
intentional infliction of emotional distress. Id. at 244. The question before the Court was
whether the judgment against the priest was final when it dismissed the counts alleging
“negligent hiring/ordination/retention,” negligent failure to supervise, breach of fiduciary
duty, conspiracy, and agency liability but left unresolved the counts alleging battery,
negligent infliction of emotional distress, and intentional infliction of emotional distress.
Id. In resolving that issue, the Court reiterated that a claim is defined in relation to the
transaction or occurrence at issue, stating:
Although a circuit court may designate its judgment final as to particular claims, this designation is effective only when the order disposes of a distinct “judicial unit.” The required judicial unit for an appeal has a settled meaning: the final judgment on a claim, and not a ruling on some of several issues arising out of the same transaction or occurrence which does not dispose of
18 the claim. An order dismissing some of several alternative counts, each stating only one legal theory to recover damages for the same wrong, is not considered an appealable judgment while the other counts remain pending because the counts are concerned with a single fact situation. It is differing, separate, distinct transactions or occurrences that permit a separately appealable judgment, not differing legal theories or issues presented for recovery on the same claim.
Id. (emphasis added) (citations and internal quotation marks omitted). The Court then
dismissed the appeal against the priest because the remaining counts “clearly ar[o]se from
the same set of facts, and the same transactions and occurrences, as the counts supposedly
appealed” and, therefore, the judgment was not a final judgment on a claim, i.e., it did not
dispose of a distinct judicial unit. Id.
In Gibson, as in prior cases, “claim” was used as a legal term of art meaning “distinct
judicial unit,” not “theory of recovery.” That is clear from the Gibson court’s application
of the principles it articulated. In holding that the circuit court’s order – which dismissed
fewer than all causes of action against the priest arising from one set of facts – had not
disposed of a distinct judicial unit, the Court in Gibson was holding the circuit court had
not resolved a single “claim” as against the priest.
The Court’s analyses in Chesterfield Village and Gibson make unavoidably clear
that counts asserting different theories of recovery – including the violations of different
constitutional provisions – are only aspects of one claim when the theories arise out of the
same transaction or occurrence. Accordingly, whether an action presents multiple claims,
as that word is used in the context of final judgments, or only a single claim is not
determined simply by asking whether the counts relate to different constitutional provisions
or require proof of different evidentiary facts. Rather, consistent with the prohibition
19 against splitting a cause of action, “[i]t is ‘differing,’ ‘separate,’ ‘distinct’ transactions or
occurrences” that divide theories and the assertions of multiple legal rights into separate
claims. Id.
The Dispatch sets forth one claim in its four-count petition – that section 190.327.5
is constitutionally invalid so the director should be ordered to continue to collect and pay
over to the Dispatch the full one-half percent emergency services sales tax. Each count in
the petition is based on the same factual allegations. No count required the application of
different operative facts, and all counts sought the same relief. Therefore, the petition set
forth only one claim. What the principal opinion calls different “claims” are merely what
the Court in Gibson called “differing legal theories or issues presented for recovery on the
same claim.” Id.
Acquiescing in the principal opinion’s failure to use “claim” as a legal term of art
has significant ramifications for other areas of law. It is evident from the role the doctrine
against splitting a cause of action plays in determining when a petition presents a single
claim or separate claims that the final-judgment analysis shares its common transaction-
or-occurrence-based meaning of “claim.” So applying the general, informal meaning of
“claim” in determining whether the Dispatch’s petition presents one or multiple claims will
have an impact on what “claim” means in the doctrine prohibiting splitting a cause of
action.
Res judicata also shares a transaction-or-occurrence-based concept of claim.
Chesterfield Vill., 64 S.W.3d at 318. Res judicata precludes relitigation of
a “claim” formerly made, and “claim” is defined for purposes of res judicata as “[t]he
20 aggregate of operative facts giving rise to a right enforceable by a court.” Id. (alteration in
original). When a judgment is rendered in the plaintiff’s favor, the judgment extinguishes
the plaintiff’s claim, which includes “all rights of the plaintiff to remedies against the
defendant with respect to all or any party of the transaction, or series of connected
transactions, out of which the action arose.” King Gen. Contractors, Inc., 821 S.W.2d at
502 (quoting the Restatement (Second) of Judgments § 24 (1982)). Similarly, “[a] valid
and final personal judgment rendered in favor of the defendant bars another action by the
plaintiff on the same claim.” Restatement (Second) of Judgments § 19 (1982) (emphasis
added).
This is not to say, however, that the principal opinion’s use of the general meaning
of “claim” has no appeal. The general meaning aligns with common informal usage, as
the word is often used to refer to mere theories of recovery. Nonetheless, given the serious
risk of disturbing other doctrines that have historically shared a common definition of
“claim” with that used to decide whether a judgment is final, the Court should decide
whether to use the general meaning of “claim” in determining whether there is a final
judgment only after fully weighing its benefits against its detriments. This is not the proper
case, where it is unnecessary to resolution of the issues and has not been briefed or argued.
And should the Court so decide, it should openly acknowledge it is adopting a definition
of “claim” at odds with the definition employed in Committee for Educational Equality
and Gibson.
To summarize, in the context of final judgments, “claim” is a legal term of art that
means “the bundle of legal theories or causes of action that may be asserted as against one
21 party arising from a particular set of facts.” Butala, 620 S.W.3d at 93 n.4. It encompasses
all the rights and remedies arising from the aggregate of operative facts from which the
action arises. See Comm. for Educ. Equal., 878 S.W.2d at 451. That meaning of “claim”
is shared by other foundational aspects of the law regarding the preclusive effect of
judgments, see, e.g., King Gen. Contractors, Inc., 821 S.W.2d at 502, and should be
preserved to continue the settled application of those doctrines. The principal opinion’s
application/substitution of the general meaning of “claim” – cause of action or theory of
recovery – in place of its meaning as a term of art – judicial unit of rights and remedies
arising from same transaction or occurrence – fails to follow the Court’s precedent and will
have unwanted effects in other areas of law.
Whether there is a final judgment in this case, however, can be determined solely
by deciding whether the judgment disposed of all issues and left nothing for future
determination. The principal opinion concludes the judgment did not dispose of all issues
and was not certified under Rule 74.01(b). As a result, even if accepting the principal
opinion’s conclusions, it is unnecessary to analyze the number of claims set forth in the
petition or to analyze whether the judgment could have been certified under Rule 74.01(b).
But for the principal opinion’s unnecessary analysis of the number of claims presented in
the Dispatch’s petition, there would be no reason for the Court to decide in this case
whether to follow its precedent and use the meaning of “claim” as a legal term of art to be
synonymous with judicial unit or to depart from precedent and use the general meaning of
“claim.”
22 Rather than engaging in unnecessary analyses about the number of claims presented
in the petition and whether the judgment was eligible for certification under Rule 74.01(b),
the Court should adhere to its precedent. The judgment resolved all issues, either expressly
or implicitly, and left nothing for future determination. Therefore, the judgment is a final
judgment over which this Court has jurisdiction.
C. Section 190.327.5 Constitutionally Invalid
Having determined the director appeals from a final judgment, the Court should
decide the case on its merits. The director claims the circuit court erred in granting
summary judgment in the Dispatch’s favor of because section 190.327.5 is not a special
law. In defense of the judgment, the Dispatch claims there is no rational basis for the
classifications in section 190.327.5, so it is a special law that was required, but failed, to
meet the notice and publication requirements of article III, section 42
“A circuit court’s grant of summary judgment is subject to de novo review on
appeal.” Holmes v. Steelman, 624 S.W.3d 144, 148 (Mo. banc 2021). “The criteria on
appeal for testing the propriety of summary judgment are no different from those that
should be employed by the trial court to determine the propriety of sustaining the motion
initially.” Am. Fed’n of Teachers v. Ledbetter, 387 S.W.3d 360, 362 (Mo. banc 2012). As
the movant for summary judgment, the Dispatch bore the burden of demonstrating the
material facts are not in genuine dispute and it was entitled to judgment as a matter of law.
City of Aurora v. Spectra Commc’ns Grp., LLC, 592 S.W.3d 764, 781 (Mo. banc 2019).
Further, as the party challenging the constitutional validity of section 190.327.5, the
23 Dispatch bore the burden of overcoming the presumption of constitutional validity to which
every statute is entitled. Id. at 780.
Article III, section 42 provides:
No local or special law shall be passed unless a notice, setting forth the intention to apply therefor and the substance of the contemplated law, shall have been published in the locality where the matter or thing to be affected is situated at least thirty days prior to the introduction of the bill into the general assembly and in the manner provided by law. Proof of publication shall be filed with the general assembly before the act shall be passed and the notice shall be recited in the act.
By its plain language, article III, section 42 applies only to local or special laws. Therefore,
for the Dispatch to show it was entitled to judgment as a matter of law, it first had to show
section 190.327.5 is a special law.
A law is special if it applies only to a class of persons or places and the classification
is not supported by a rational basis. City of Aurora, 592 S.W.2d at 778. Said another way,
“if the line drawn by the legislature is supported by a rational basis, the law is not local or
special.” Id. at 780. “Under rational basis review, this Court will uphold a statute if it finds
a reasonably conceivable state of facts that provide a rational basis for the classifications.”
Id. at 781. Finally, identifying a rational basis for the classification “is an objective inquiry
that does not require unearthing the legislature’s subjective intent in making the
classification.” Id.
Section 190.327.5 provides:
An emergency services board originally organized under section 190.325 operating within a county with a charter form of government and with more than two hundred thousand but fewer than three hundred fifty thousand inhabitants shall not have a sales tax for emergency services or for providing central dispatching for emergency services greater than one-quarter of one
24 percent. If on July 9, 2019, such tax is greater than one-quarter of one percent, the board shall lower the tax rate.
Accordingly, section 190.327.5 applies only to a class of emergency services boards that:
(1) were originally organized under section 190.325; (2) are within a county with a charter
form of government; and (3) are within a county with more than 200,000 but fewer than
350,000 inhabitants. The Dispatch is the only emergency services board that meets the
statute’s requirements; all other emergency services boards are excluded from the statute’s
effect.
The Dispatch claims there is no rational basis for section 190.327.5 to apply only to
a class of emergency services boards defined by such criteria as county population and
form of government. It also claims the General Assembly had no rational basis for
“overriding a decision that the voters made to tax themselves for emergency services that
they desire.” (Emphasis omitted). In response, the director argues “the General Assembly
has a legitimate interest in overseeing the use of the taxing power it grants to the entities it
creates,” and a rational basis “to dial back the [Dispatch]’s taxing authority” because the
Dispatch amassed substantial assets and was on track to pay off its long-term debt around
the time the half-cent tax was set to reduce to a quarter cent. The director claims section
190.327.5 serves to curb the Dispatch’s alleged economic waste and inefficiency, which is
demonstrated by the fact other emergency services boards field calls for emergency
services at a much lower cost than the Dispatch.
Although both parties focus portions of their arguments on the reasonable basis, or
lack thereof, for a law limiting an emergency services board’s taxing authority, i.e., the
25 statute’s legitimate purpose, the relevant question is whether the classification is supported
by a rational basis. City of Aurora, 592 S.W.3d at 781. In School District of Riverview
Gardens v. St. Louis County, 816 S.W.2d 219, 220 (Mo. banc 1991), this Court considered
a statute requiring most of the state’s political subdivisions to revise their tax levies
immediately after a reassessment to produce the same amount of tax revenue produced in
the previous year. In every political subdivision except “those the greater part of which is
located in first class charter counties adjoining any city not within a county or any city not
within a county,” the governing body of a political subdivision could adjust the levy to
account for inflation without voter approval. Id. at 220. The powers of political
subdivisions in St. Louis County and the city of St. Louis to adjust for inflation were more
limited. Id.
The Court found the classification was not rationally related to a legitimate
legislative purpose. Rather, the Court found it was based on “a unique, constitutionally-
sanctioned form of government recognized for the City of St. Louis . . . or mere geographic
proximity to the City of St. Louis.” Id. at 222 (emphasis added). As a result, the Court
held, “while geographic considerations might justify a statutory classification under some
circumstances, e.g., flood control, this classification bears no rational relationship to
procedures for tax levy adjustments following reassessment.” Id.
Similarly, in City of Chesterfield v. State, 590 S.W.3d 840, 845 (Mo. banc 2019),
this Court rejected a special-laws challenge to two countywide sales tax laws. The first
law provided that a first-class county with a charter form of government and a population
of 900,000 or more – i.e., St. Louis County – could adopt a countywide sales tax by passing
26 an ordinance. Id. at 842. The second law classified cities in St. Louis County into two
groups and set forth a procedure for distributing the countywide sales tax between the
groups. Id. at 842-43. In finding the law’s classifications were supported by a rational
basis, the Court noted the class’s unique characteristics and held the classifications
“reasonably serve[d] the state’s legitimate interest in providing stable revenue sources for
[certain] cities and discouraging opportunistic annexations.” Id. at 845.
Like the classifications in City of Chesterfield and School District of Riverview
Gardens, section 190.327.5’s population-based considerations might justify a statutory
classification under some circumstances, but excluding emergency services boards within
counties that do not have between 200,000 and 350,000 inhabitants bears no rational
relationship to the state’s interest in eliminating government waste and inefficiency. The
director claims emergency services boards in other counties may fall within the ambit of
section 190.327.5 in the future if their county populations change or their counties choose
to adopt charters. The fact class members change based on county population or form of
government, but not based on the fiscal responsibility or health of the emergency services
boards, shows the classification is not rationally related to the state’s interest in
incentivizing fiscal responsibility.
I am unable to conceive of any set of facts under which defining the class of
emergency services boards affected by section 190.327.5 to include only those boards
within charter counties with between 200,000 and 350,000 inhabitants and to exclude all
others would reasonably serve the state’s legitimate interest in reducing government waste
and inefficiency and incentivizing fiscal responsibility. Cf. City of Chesterfield,
27 590 S.W.3d at 845 (finding a law was not a special law because it drew classifications that
reasonably served a legitimate state interest). Consequently, I would find section
190.327.5 is a special law and, for that reason, it had to comply with the notice and
publication requirements in article III, section 42 before it was passed.
Among other things, article III, section 42 requires notice of a special law to be
“published in the locality where the matter or thing to be affected is situated at least thirty
days prior to the introduction of the bill into the general assembly” and requires the notice
to be “recited in the act.” In the Dispatch’s statement of uncontroverted material facts filed
in support of its motion for summary judgment, the Dispatch stated: “Notice was not
published in Jefferson County at least 30 days prior to the introduction of Senate Bill 291
[, which enacted section 190.327.5,] into the General Assembly.” It further stated:
“Neither proof of publication nor notice is recited within Senate Bill 291.” 8
After the Dispatch filed its statement of uncontroverted material facts, the director
was required to file a response either admitting or denying the Dispatch’s statements of
material fact. Rule 74.04(c)(2); Green v. Fotoohighiam, 606 S.W.3d 113, 117 (Mo. banc
2020). A failure to respond in compliance with Rule 74.04(c)(2) “with respect to any
numbered paragraph in movant’s statement is an admission of the truth of that numbered
paragraph.” Rule 74.04(c)(2); Green, 606 S.W.3d at 117. The director did not file a
8 The director does not dispute the Dispatch stated each material fact “with specific references to the pleadings, discovery, exhibits or affidavits that demonstrate the lack of a genuine issue as to such facts.” Rule 74.04(c)(1).
28 response admitting or denying any of the Dispatch’s numbered paragraphs, including those
relating to notice and publication, so the director admitted the truth of those paragraphs.
Accordingly, notice was neither published in Jefferson County nor recited in Senate
Bill No. 291 in accordance with article III, section 42. The circuit court, therefore, was
correct to find the Dispatch was entitled, as a matter of law, to a judgment declaring section
190.327.5 constitutionally invalid and granting appropriate injunctive relief. The circuit
court’s judgment should be affirmed.
Ultimately, the controlling decisions of this Court compel a holding that the circuit
court’s judgment disposed of all issues and left nothing for future determination, so it is a
final judgment for purposes of appeal under section 512.020(5), RSMo 2016, and the Court
should decide the appeal on its merits. The population-based classification established in
section 190.327.5 is not supported by a rational basis, so it is a special law that had to meet
the notice and publication requirements of article III, section 42 before it was enacted. The
senate bill that enacted section 190.327.5 did not comply with the notice and publication
requirements of article III, section 42. Therefore, section 190.327.5 is constitutionally
invalid. For these reasons, I would affirm the circuit court’s judgment.
___________________________________ PATRICIA BRECKENRIDGE, JUDGE
Related
Cite This Page — Counsel Stack
Jefferson County 9-1-1 Dispatch v. Joseph G. Plaggenberg, Acting Director of the Missouri Department of Revenue, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jefferson-county-9-1-1-dispatch-v-joseph-g-plaggenberg-acting-director-mo-2022.