State ex rel. Mid-Missouri Limestone, Inc. v. County of Callaway

962 S.W.2d 438, 1998 Mo. App. LEXIS 330, 1998 WL 71740
CourtMissouri Court of Appeals
DecidedFebruary 24, 1998
DocketNo. WD 54154
StatusPublished
Cited by16 cases

This text of 962 S.W.2d 438 (State ex rel. Mid-Missouri Limestone, Inc. v. County of Callaway) 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. Mid-Missouri Limestone, Inc. v. County of Callaway, 962 S.W.2d 438, 1998 Mo. App. LEXIS 330, 1998 WL 71740 (Mo. Ct. App. 1998).

Opinion

RIEDERER, Judge.

Mid-Missouri Limestone, Inc., and Mer-tens Construction Co., Inc., appeal the dismissal of their petition for a preliminary writ of mandamus.

On April 2, 1996, Appellants filed a two-count petition. In Count I, Appellants sought a preliminary writ of mandamus, alleging that the Respondents had failed to [440]*440follow the provisions of § 50.7601 in the procurement of rock and gravel. Specifically, Appellants allege Respondents had failed to solicit or receive sealed bids for rock and gravel products, or to contract with the lowest and best bidder. Under Count II, Appellants sought damages, alleging Respondents breached a statutory duty created by § 50.760. Appellants contend that § 50.760 established a duty on the part of Respondents to undertake sealed competitive bidding for the purpose of obtaining the lowest and best bid for the procurement of necessary supplies and goods for the County’s uses. Appellants maintain that they have suffered economic damage due to Respondents’ failure to abide by § 50.760.

On May 9, 1996, Respondents filed a motion to dismiss Appellants’ petition for failure to state a claim for which relief can be granted, along with suggestions in opposition to the writ of mandamus. On February 14, 1997, Appellants filed a response to Respondents’ motion to dismiss and suggestions in opposition to writ of mandamus. On February 24, 1997, the trial court sustained Respondents’ motion to dismiss, stating without explanation: “Motion to Dismiss is sustained.” This appeal ensued.

Point I — Writ of Mandamus

When an appellate court reviews a trial court’s dismissal of a writ of mandamus, the concern is whether the trial court reached the correct result. Wheat v. Bd. of Probation & Parole, 932 S.W.2d 835, 838 (Mo.App.1996). “Therefore, we sustain the judgment of the trial court in a mandamus action unless no substantial evidence exists to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.” Wheat, 932 S.W.2d 835 at 838 (citing State ex rel. Lupo v. City of Wentzville, 886 S.W.2d 727, 730 (Mo.App.1994)).

“Where a preliminary writ is denied, the petitioner may not appeal but must file for the writ anew in the next highest court.” Id. In this case, Mid-Missouri Limestone, Inc., and Mertens Construction Co., Inc.’s remedy is a direct application for writ of mandamus to a higher court. Harkins v. Mitchell, 911 S.W.2d 689, 690 (Mo.App.1995). Appeal dismissed as to Point I.

Point II — Legal Standing

In Point II, Appellants assert that the trial court erred in sustaining Respondents’ motion to dismiss for failure to state a claim upon which relief can be granted. Appellants contend that § 50.760 established a duty on the part of Respondents to undertake sealed competitive bidding for the purpose of obtaining the lowest and best bid for the procurement of necessary supplies and goods for the County’s uses. Specifically, Appellants claim they have been damaged in the approximate amount of $50,000 due to Respondents’ breach of a statutory duty allegedly created by § 50.760.

A. Standard of Review

In reviewing a trial court’s dismissal of a petition for failure to state a claim upon which relief can be granted, all aver-ments are liberally construed and facts pleaded are accepted as true. Gipson v. Slagle, 820 S.W.2d 595, 596 (Mo.App.1991) (citing Asaro v. Cardinal Glennon Memorial Hosp., 799 S.W.2d 595, 597 (Mo. banc 1990)). These facts and their reasonable inferences are viewed in the light most favorable to plaintiffs. Id. If these facts and inferences invoke any principles of substantive law upon which relief can be granted, the decision of the trial court must be reversed. Id.

Appellants contest the trial court’s dismissal for failure to state a claim by asserting that they have standing, which is a prerequisite to stating a claim. Metcalf & Eddy Services, Inc. v. City of St. Charles, 701 S.W.2d 497, 499 (Mo.App.1985) (citing State v. Sevier, 339 Mo. 483, 98 S.W.2d 677, 679 (Mo. banc 1936)). Appellants maintain that they have standing as taxpayers and as unsuccessful bidders. We review each of these claims.

B. Taxpayer Standing

First, Appellants assert they have standing as taxpayers. “Absent fraud or other com[441]*441pelling circumstances, in order to have standing as a taxpayer, the taxpayer must be able to demonstrate that the transaction in issue effects a direct expenditure of funds generated through taxation ... or a pecuniary loss attributable to the challenged transaction.” Mid-America Georgian Gardens, Inc. v. Missouri Health Facilities Review Committee, 908 S.W.2d 715, 717-718 (Mo.App.1995) (citing Eastern Missouri Laborers Dist. Council v. St. Louis County, 781 S.W.2d 43, 47 (Mo. banc 1989)). The rule allowing taxpayers standing to sue does not have as its purpose a private redress but rather a public benefit. Id. “The private injury that invests standing to a taxpayer is not a purely personal grievance in which other taxpayers have no interests, but an injury shared by the public at large.” Id. at 718.

Appellants maintain that they have taxpayer standing because the Respondents have allegedly “ripped off’ the taxpayers of Callaway County by initially not taking statutorily-mandated competitive bids. Appellants failed to cite authority in their brief on appeal to support this assertion. “Under Rule 84.04(d), an appellant’s obligation includes citing appropriate and available precedent to support its contention.” Carlund Corp. v. Crown Center Redevelopment Corp., 910 S.W.2d 273, 278 (Mo.App.1995) (citing Thummel v. King, 570 S.W.2d 679, 687 (Mo. banc 1978)); Shiyr v. Pinckney, 896 S.W.2d 69 (Mo.App.1995). An explanation is required for the absence of citations and if no authority exists. Id. Thus, a reviewing court is justified in considering a point abandoned if there is no authority or no explanation as to why authority is not available. Carlund, 910 S.W.2d 273 at 278 (citing Ray v. Upjohn Co., 851 S.W.2d 646, 656 (Mo.App.1993)).

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Bluebook (online)
962 S.W.2d 438, 1998 Mo. App. LEXIS 330, 1998 WL 71740, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-mid-missouri-limestone-inc-v-county-of-callaway-moctapp-1998.