State ex rel. Freeway Media, L.L.C. v. City of Kansas City

14 S.W.3d 169, 2000 Mo. App. LEXIS 170, 2000 WL 104017
CourtMissouri Court of Appeals
DecidedFebruary 1, 2000
DocketNo. WD 56945
StatusPublished
Cited by19 cases

This text of 14 S.W.3d 169 (State ex rel. Freeway Media, L.L.C. v. City of Kansas City) 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. Freeway Media, L.L.C. v. City of Kansas City, 14 S.W.3d 169, 2000 Mo. App. LEXIS 170, 2000 WL 104017 (Mo. Ct. App. 2000).

Opinion

EDWIN H. SMITH, Judge.

Richard H. Usher, in his capacity as Division Manager of Permits in the Codes Administration Department for the City of Kansas City, Missouri, and the City of Kansas City, Missouri, appeal from the trial court’s default judgment for the respondent, Freeway Media, L.L.C., as to its action for declaratory judgment and writ of mandamus with respect to the denial of their applications for two permits for outdoor advertising signs on Bruce R. Watkins Drive in Kansas City, Jackson County, Missouri.

The appellants assert three points on appeal. In Point I, the appellants claim, “The trial court erred by asserting jurisdiction when venue was not proper in Clay County because the trial court lacked jurisdiction over this case in that the proper venue for this action is Jackson County and not Clay County.” In Point II, they claim, “The trial court erred by entering a judgment on the merits without notice or hearing because the appellants were entitled under due process to notice and a hearing prior to the entry of judgment in that no notice or hearing were given to appellants.” In Point III, the appellants claim, “The trial court erred by entering a default judgment because the appellants filed their answer prior to the entry of the judgment and they were not in default for failure to answer as appellants filed their answer prior to the entry of the judgment.”

We reverse and remand to the circuit court for dismissal for lack of jurisdiction.

Facts

Given our disposition of the appeal on procedural grounds, a truncated version of the facts will suffice.

The respondent is a Missouri limited liability company comprised of Robert Mo-deer and Phillip Snowden. Sometime in early 1998, it filed three applications with the Missouri Department of Transportation (MoDOT) for state permits to erect outdoor advertising signs at three locations adjacent to Route 71, between 16th and 18th Streets, along Troost and Campbell, located in Kansas City, Jackson County, Missouri, known as Bruce R. Watkins Drive (the freeway), which was under construction by the state. For purposes of issuing outdoor advertising permits, it is classified in the state highway system as a freeway primary highway. The three locations, for which the respondent sought permits, were at 1066 E. 16th Street, 1700 Campbell, and 1712 Troost. The state permits were denied because MoDOT determined that by state law it could not [171]*171issue permits for the freeway until it was complete and open for traffic. The respondent appealed, and on April 20, 1998, MoDOT ruled that it was without jurisdiction to issue the permits requested, until the freeway was complete and open for traffic.

On April 20, 1998, the respondent proceeded to apply for the necessary city permits for the erection of the signs in question. On May 20, 1998, the respondent was notified by Usher that the city could not issue the requested permits until the necessary state permits were issued. In addition, he advised that the city “cannot hold applications in line pending issuance of the State permit.” This was in response to an inquiry by the respondent concerning the priority to be given to the issuance of permits with respect to applications already on file with the city. In this respect, prior to the time the respondent had filed its city applications, two competing applicants had filed applications for city permits with respect to locations at 918 E. 18th Street and 1810 Troost, which were within 800 feet of the 16th Street and Troost locations of the respondent, which violated the city’s spacing requirement for signs. These competing applications were initially denied on the same basis as the respondent’s.

On May 27, 1998, unlike the competing applicants, the respondent appealed the decision of the city not to issue permits, until the state permits were issued, to the Building and Fire Codes Board of Appeals (the board), as required by city ordinance. A hearing before the board was set for June 23, 1998. Prior to the hearing, city permits were issued on June 19 and 22, 1998, to the competing applicants for the locations at 918 E. 18th Street and 1810 Troost. According to the appellants, it was determined that their initial assessment, that city permits could not be issued until the state permits were issued, was incorrect. By allowing the competing permits, the permits requested by the respondent for the 16th Street and Troost locations could not be issued, unless variances were granted with respect to the city’s code requirement that signs be erected no closer than 800 feet.

On July 24, 1998, after the hearing on June 23, the respondent was notified that the board had granted its appeal requesting the issuance of the three permits, but conditioned the issuance of the permits for the 16th Street and Troost locations on the respondent’s receiving variances from the Kansas City Board of Zoning Adjustment (the BZA) as to the code requirement that signs be at least 800 feet apart. The respondent did not appeal the decision of the board conditioning the issuance of permits for these two locations on the receipt of the necessary variances from the BZA. On August 11, 1998, the BZA denied the requested variances. The respondent did not appeal this decision.

On August 14,1998, the respondent filed a petition in the Circuit Court of Clay County seeking a writ of mandamus against Usher, requiring him to issue sign permits for the locations on 16th Street and Troost. The respondent alleged that, under the city’s ordinances and building and permit requirements, upon receipt of the respondent’s complete and lawful permit applications, it was required by law to issue the permits requested by the respondent, which it did not do. That same day, the court issued a preliminary writ in mandamus ordering Usher to issue the permits.

On September 2, 1998, Usher filed a motion to vacate or dissolve the preliminary writ and to dismiss respondent’s petition for lack of jurisdiction due to improper venue, contending that venue was proper in Jackson County. The following day, the trial court heard evidence by the respondent on its petition for a permanent writ. Usher did not appear, and the trial court issued a permanent writ ordering him to issue the permits. On September 4, 1998, after learning of the trial court’s action, Usher filed a motion to vacate and set aside the permanent writ for lack of [172]*172notice. On September 21, 1998, a hearing was held on Usher’s motions to dissolve the writ and to dismiss for lack of jurisdiction. The trial court granted the motion to dissolve the writ, but took under advisement the motion to dismiss.

On September 28, 1998, ostensibly to correct the venue issue raised by Usher, the respondent filed a motion for leave to file its attached amended petition, adding the City of Kansas City as a party defendant. On November 9, 1998, over Usher’s objection, the court granted the respondent leave to file its first amended petition. In its first amended petition, the respondent sought in Count I a declaratory judgment against the city, declaring that the city’s “failure to issue the permits [ ][was] in violation of the ordinances and administrative procedures of the City of Kansas City Missouri.” In Count II, it sought a ■writ of mandamus against Usher, requiring him “to issue permits for [the respondent] at 1700 Campbell and 1712 Troost.”

On November 30, 1998, the appellants filed a motion to dismiss the respondent’s amended petition for lack of jurisdiction. A hearing was held on the motion on January 6, 1999, after which the trial court overruled the motion.

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Bluebook (online)
14 S.W.3d 169, 2000 Mo. App. LEXIS 170, 2000 WL 104017, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-freeway-media-llc-v-city-of-kansas-city-moctapp-2000.