State ex rel. Edel v. City of Springfield

935 S.W.2d 339, 1996 Mo. App. LEXIS 1803, 1996 WL 636093
CourtMissouri Court of Appeals
DecidedOctober 28, 1996
DocketNo. 20823
StatusPublished
Cited by3 cases

This text of 935 S.W.2d 339 (State ex rel. Edel v. City of Springfield) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Edel v. City of Springfield, 935 S.W.2d 339, 1996 Mo. App. LEXIS 1803, 1996 WL 636093 (Mo. Ct. App. 1996).

Opinion

CROW, Presiding Judge.

Appellant, Glenstone I, L.P., a Texas limited partnership, brings this appeal from an order denying its application to intervene in a suit by Charles B. Edel and Suzanne Edel (“Edels”) against the City of Springfield (“City”). Appellant maintains Rule 52.12(a) grants it the right to intervene.

Rule 52.12 has remained unchanged since January 1, 1994. Paragraph “(a)” thereof reads:

“Upon timely application anyone shall be permitted to intervene in an action: (1) ... (2) when the applicant claims an interest relating to the property or transaction that is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”

In State ex rel. Reser v. Martin, 576 S.W.2d 289, 291 (Mo. banc 1978), the Supreme Court of Missouri held there is “a right of appeal from denial of [an] application to intervene of right under Rule 52.12(a).”1 That holding confers appealability on the order appealed from here.

The record on appeal consists of only a legal file. Nothing in it shows the trial court heard evidence regarding Appellant’s application to intervene. Consequently, our account of the facts is confined to those established by the pleadings.

On the date Appellant brought this appeal, Edels’ suit against City was pending on Edels’ two-count first amended petition and City’s answer.

Edels’ Count I seeks judicial review under § 536.150, RSMo 1994, of the adoption of Council Bill No. 95-6 by City’s city council. Count I avers Bill 95-6 vacated a segment of Mobile Avenue that provides “vehicle access” to a tract of land owned by Edels and occupied by two “business tenants.” According to Count I, City’s action was “unreasonable, arbitrary, capricious and involved an abuse of [City’s] discretion.” Count I prays the trial court to order City “to set aside the vacation of Mobile Avenue.”

Edels’ Count II makes the same attack on Bill 95-6 and prays for a declaratory judg[341]*341ment proclaiming the bill “invalid, unlawful and void” and directing City “to set aside the vacation of Mobile Avenue.”

Attached to Edels’ petition and incorporated therein by reference are thirteen documents. They reveal the origin of the suit.

Appellant is developing land adjacent to Edels’ tract. The development includes a Wal-Mart store. Independence Street, which runs generally west to east, provides access to the development. Glenstone Avenue,2 a major thoroughfare which runs northwest to southeast, lies east of Appellant’s development and Edels’ tract. Mobile lies parallel to, and immediately west of, Glen-stone. The east boundary of Edels’ tract abuts Mobile.

To carry the anticipated traffic to the development, an intersection with signals was designed where Independence meets Glen-stone. Because of the proximity of Mobile to Glenstone, the staff of City’s planning and development department recommended Mobile “be vacated and moved farther west.”

The averments in Edels’ petition include, inter alia: (1) at a hearing December 8, 1994, by City’s planning and zoning commission, a member of City’s staff stated City had an agreement with the State of Missouri which required vacation of Mobile; (2) the commission nonetheless denied a motion to vacate Mobile; (3) about December 20, 1994, the “developer” commenced vacation of Mobile by proceeding with construction of the Independence/Glenstone intersection, thereby disrupting customer access to Edels’ tract; (4) on January 9, 1995, the issue of vacating Mobile was presented to the city council by Bill 95-6; (5) on that occasion, a speaker said vacation was sought because of an October 20, 1980, contract between City and the Missouri Highway and Transportation Commission; (6) following the council session, Edels obtained a copy of the 1980 contract; (7) the contract requires relocation of the Independence/Mobile intersection to the west, but makes no mention of vacating Mobile; (8) at a second hearing January 23, 1995, the city council adopted Bill 95-6; (9) thereafter, access to Mobile was “cut off’ and the only access to Edels’ tract is “via a private road ... and a gravel driveway located at the rear or west end of [Edels’] property.”

City’s answer to Edels’ petition denies a City staffer told the planning and zoning commission that Mobile needed to be vacated. Instead, pleads the City, the staffer used the word “relocated.” City’s answer also avers, inter alia, that Edels have no standing to challenge Bill 95-6, that the controversy is moot in that Mobile has “been physically removed,” that City has the absolute right under § 82.190, RSMo 1994, to vacate a street, and that Edels are barred by laches in that they did not seek “to stay the effectiveness” of Bill 95-6.

In an amended motion to intervene which incorporates the allegations of an earlier motion to intervene, Appellant pleads, inter alia: (1) one of the conditions imposed by City on Appellant in the development of Appellant’s property was to apply for vacation of Mobile; (2) City made that requirement in furtherance of public health, safety and welfare, and “to prevent traffic congestion by eliminating [the] intersection [of Mobile] with Independence Street that would be too close to the intersection of Independence with Glenstone”; (3) if Edels succeed in their suit and the vacation of Mobile is “reversed,” the unsafe Independence/Mobile intersection “will be reestablished, to the detriment of [Appellant’s] development”; (4) the Independence/Glenstone intersection “is under the jurisdiction of the Missouri State Highway Department,” which entered into a contract with City wherein City agreed to move the Mobile/Independence intersection; (5) permitting an intersection at Independence and Glenstone was conditioned upon moving the Mobile/Independence intersection; (6) if the vacation of Mobile is reversed, the “Missouri Highway Department” may claim City breached its agreement and order the Independence/Glenstone intersection closed, which would have “devastating effects” on Appellant and its tenant, Wal-Mart.

Consequently, pleads Appellant’s motion, the “economic consequences” of a judgment [342]*342for Edels will fall on Appellant, not City, hence Appellant and City “do not have an identity of interest, and [Appellant’s] interest is not adequately represented by the City.”

On January 26, 1996, the trial court denied Appellant’s amended motion to intervene. This appeal followed.

The only clue to the trial court’s reason for its ruling is a recital in its order that the court “determines no new issues presented.”

McDaniel v. Park Place Care Center, Inc., 861 S.W.2d 179, 180 (Mo.App.W.D.1993), holds the standard of appellate review of an order denying an application to intervene under Rule 52.12(a) is the standard set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

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Cite This Page — Counsel Stack

Bluebook (online)
935 S.W.2d 339, 1996 Mo. App. LEXIS 1803, 1996 WL 636093, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-edel-v-city-of-springfield-moctapp-1996.