Ruth Campbell, et al., Plaintiffs/Appellants, vs. County Commission of Franklin County, Defendant/Respondent, and Union Electric Company, d/b/a Ameren Missouri, Intervenor-Defendant/Respondent.

1

RUTH CAMPBELL, ET AL., ) No. ED99622 ) Plaintiffs/Appellants, ) Appeal from the Circuit Court of ) Franklin County vs. ) ) Honorable Robert D. Schollmeyer COUNTY COMMISSION OF FRANKLIN ) COUNTY, ) ) Defendant/Respondent, ) Filed: July 22, 2014 ) AND ) ) UNION ELECTRIC COMPANY, D/B/A ) AMEREN MISSOURI, ) ) Intervenor-Defendant/Respondent. )

I. INTRODUCTION Plaintiffs Ruth Campbell, Nancy Campbell, Edwin Elzemeyer, Jr., Euline Elzemeyer, Richard Stettes, Lorainne Stettes, Kara Carter, Jennifer Carter Norris, Katherine Carter Thomas, Susan Yarbrough, John Yarbrough, and the Labadie Environmental Organization (collectively "Labadie Neighbors") appeal the judgment of the Circuit Court of Franklin County on their petition for a writ of certiorari in favor of defendant County Commission of Franklin County ("Commission") and Union Electric Company, d/b/a Ameren Missouri ("Ameren"). Labadie Neighbors allege two points of

2 error. First, they argue that the trial court erred by dismissing their Count I claim challenging the legality of Commission's decision to adopt amendments to the Franklin County Unified Land Use Regulations allowing coal-ash landfills, because Commission failed to conduct valid public hearings as required by law. 1 We agree. We reverse the trial court's dismissal of Count I. In Count II, Labadie Neighbors argue that the trial court erred by upholding Commission's decision to adopt the amendments, because the amendments fail to support the health, safety, and general welfare of Franklin County's citizens. Because the trial court must first resolve Count I before resolving Count II, we reverse the trial court's decision on Count II. We would remand this case to the trial court for further proceedings consistent with this opinion. However, because of the general interest of the question posed by this case, we transfer to the Supreme Court pursuant to Rule 83.02. II. BACKGROUND The Labadie Neighbors are eleven individuals who live or own property in the immediate vicinity of Ameren's Labadie power plant in Franklin County, Missouri, and the Labadie Environmental Organization, a citizens' group opposed to Ameren's plan to build a coal-ash landfill in the Missouri River floodplain. Respondent Commission is the governing body of Franklin County. 2 Respondent Ameren is a utility company headquartered in the City of St Louis, Missouri, that owns and operates four coal-fired

1 Labadie Neighbors challenge the validity of two public hearings Franklin County held on the subject of the zoning amendments: one before the Planning and Zoning Commission, and another before the County Commission. We refer to this claim as "Count I." 2 The Commission is a three member group of elected officials charged with administering the government of Franklin County, including oversight of county planning and zoning. See generally §§ 49.010-49.020, R.S.Mo. (2000) (establishing county commissions); see also, e.g., §§ 64.850, 64.860, R.S.Mo. (2000) (establishing planning and zoning powers of county commission in counties organized under alternative county planning and zoning statutes).

3 power plants in the St. Louis metropolitan area, including the Labadie plant in Franklin County. Labadie Neighbors filed in the Circuit Court of Franklin County a petition for writ of certiorari pursuant to section 64.870.2, R.S.Mo. (2000), challenging Commission's amendment of the Franklin County Unified Land Use Regulations to permit the construction of coal-ash landfills "contiguous to the boundary of the property upon which a public utility power plant is situated." 3 See generally Franklin Cnty., Mo., Unified Land Use Reg. Art. 10, § 238 (adopted Oct. 25, 2011). Count I alleged that Commission's adoption of the amendments was illegal, because Commission failed to conduct valid public hearings. Count II alleged that Commission's decision to adopt the amendments was illegal, because the amendments do not promote the health, safety, and general welfare of the citizens of Franklin County. 4 In particular, Labadie Neighbors allege the following facts pertinent to Count I:

1. In 2009, Ameren Missouri announced to the public its proposal to

build a coal-ash landfill on the land it had recently acquired nearby the Labadie plant.

1. In July 2009, Ameren Missouri met with Franklin County Planning

and Zoning representatives to discuss Ameren's proposal to build a coal- ash landfill near the Labadie plant.

1. On November 16, 2009, Ameren Missouri held a public information

session in Labadie to discuss its proposal to build a coal-ash landfill near the Labadie plant. . . .

1. The Franklin County Commission held a public hearing on December

14, 2010, and February 8, 2011, regarding the proposed landfill zoning amendments. . . .

3 Ameren's Labadie power plant is the sole public utility power plant in Franklin County. 4 According to the Franklin County Unified Land Use Regulations Article 14, section 321, any amendment to the regulations "must promote the health, safety, morals, comfort and general welfare of Franklin County by conserving and protecting property and building values, by securing the most economical use of the land and facilitating the adequate provision of public improvements in accordance with the master plan adopted by Franklin County." Additionally, any exercise of police power by Franklin County in zoning and planning must "promote the order, health, safety, morals, and general welfare of society." Ryder v. St. Charles Cnty., 552 S.W.2d 705, 707 (Mo. banc 1977).

4

1. The proposed landfill zoning amendments that were the subject of the

hearings . . . required that any coal-ash landfill in Franklin County be (1) located within 1,000 feet of an existing utility power generation plant and (2) under common ownership with the adjacent power plant.

1. Ameren Missouri's Labadie power plant is the only public utility

power generation plant in Franklin County.

1. The land owned by Ameren Missouri [is] contiguous to the Labadie

power plant [and] is in the 100-year floodplain of the Missouri River and most of it is in the floodway.

1. At the public hearing before the Planning and Zoning Commission, the

Chairman announced that speakers could not discuss Ameren Missouri or its proposed site for a coal-ash landfill near the Labadie power plant. The Chairman stated: "We are not here to discuss any particular project."

1. At the public hearing before the Franklin County Commission, the

Presiding Commissioner stated that speakers could not discuss Ameren Missouri or its proposed site for a coal-ash landfill near the Labadie power plant. The Presiding Commissioner stated: "[I]f we start going off referring to Ameren and the proposal . . . there is no proposal. There hasn't been anything filed so that's going to be a separate issue. . . . If we go off on a tangent about Ameren or about fly ash and all that, I don't want to do that, but I will interrupt you."

1. [T]he Presiding Commissioner and the County Counselor interrupted

speakers when they attempted to discuss Ameren Missouri's proposed Labadie landfill site . . . .

1. Because the landfill zoning amendments made coal-ash landfills a

permitted use, the Franklin County zoning regulations offer no [subsequent] opportunity for a public hearing on Ameren Missouri's proposed coal-ash landfill in the Missouri River floodplain and floodway.

1. The Franklin County Commission acted illegally and unreasonably by

adopting the landfill zoning amendments on October 25, 2011, without holding a valid public hearing as required by section 64.875 and Article 14, section 321 of the Unified Land Use Regulations of Franklin County.

After the Petition was filed, the trial court issued a writ of certiorari to Commission, directing it to provide the trial court a "certified copy of the full, true, and complete record pertaining" to the decision of Commission. Ameren filed a motion to intervene, on the ground that Labadie Neighbors' challenge to the amendments was a challenge to "Ameren Missouri's right to create, operate, and maintain a utility waste landfill" on its property adjacent to the Labadie power plant. The trial court granted Ameren's motion to intervene.

5 After Commission certified the record of its proceedings to the trial court, Commission and Ameren filed nearly identical motions for judgment on the pleadings pursuant to Rule 55.27(b), or in the alternative, to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 55.27(a)(6). They argued Labadie Neighbors' petition failed to state a claim for relief, because: [T]he admissions contained in [Labadie Neighbors' petition] demonstrate that [Labadie Neighbors] and their designated consultants were heard and their testimony and evidence considered and discussed by both the Franklin County Planning & Zoning Commission and the Franklin County Commission prior to the Frank County Commission's enactment of . . . the "Landfill Zoning Amendments." 5

Additionally, Ameren filed a motion to appoint a referee to take additional evidence in the case. 6

The trial court conducted a hearing on Commission's and Ameren's motions to dismiss. At the request of the trial court, Commission and Ameren filed separate memoranda in support and Labadie Neighbors filed a memorandum in opposition. Thereafter, without explanation, the trial court granted the motions to dismiss Count I. 7

Following a hearing on the merits, the trial court entered final judgment in favor of Ameren and Commission on Labadie Neighbors' Count II claim that the zoning amendments do not promote the health, safety, and general welfare of Franklin County. This appeal follows.

5 In regard to both counts, Ameren also argued that the case was moot, because before the amendments were approved Franklin County zoning regulations already permitted the construction of a coal-ash landfill adjacent to Ameren's Labadie power plant. Neither party addresses this argument on appeal. Therefore, we do not address this argument. 6 The trial court denied Ameren's motion to appoint a referee. However, the appellate record contains no additional information on this matter beyond that contained in the trial court docket entries. 7 Generally, "[w]hen a trial court does not set out the reasons for dismissal in its judgment, we presume that it dismissed the petition for one of the reasons asserted in the motion to dismiss." Lemay Fire Prot. Dist. V. St. Louis Cnty., 340 S.W.3d 292, 294 (Mo. App. E.D. 2011).

6 III. STANDARD OF REVIEW In Missouri "[t]the writ of certiorari or review maintains its common law function," except as modified by statute. 8 State ex rel. Sw. Bell Tel. v. Brown, 795 S.W.2d 385, 388 (Mo. banc 1990). The function "of the common-law writ of certiorari . . . [is to review] all questions of jurisdiction, power, and authority of the inferior tribunal . . . and all questions of irregularity in the proceedings." Id. at 387-88 (quoting 14 Am. Jur. 2d Certiorari § 2 (1964)). Here, section 64.870.2 has "enlarge[d] the scope of the remedy of certiorari and the grounds on which it will lie," Gash v. Lafayette Cnty, 245 S.W.3d 229, 234 (Mo. banc 2008) (quoting 14 C.J.S. Certiorari § 4 (2006)), to encompass legislative zoning decisions, id. at 233-34. 9

Unchanged, however, is the rule that "[o]nly questions of law are at issue in an action for a common law writ of certiorari." State ex rel. Pub. Counsel v. Pub. Serv.

8 We note that the Missouri Rules of Civil Procedure may not be used to challenge the issuance of the common law writ of certiorari. Ameren and Commission both cite Rule 55.27(a)(6) of the Missouri Rules of Civil Procedure as the proper mechanism for dismissing Labadie Neighbors' Count I, yet they cite no authority for doing so. The writ of certiorari maintains its common law function, because only where both common law and statute are silent may the rules of civil procedure be employed. See Sw. Bell Tel., 795 S.W.2d at 388, 389. Under the common law, issuance of a writ of certiorari must be challenged by filing a motion to quash, sometimes referred to as "motion to dismiss," or "motion to recall the writ." See State ex rel. Powell v. Shocklee, 141 S.W. 614, 616 (Mo. 1911); see generally 14 C.J.S. Certiorari § 69-85 (2014) (discussing motion to quash or dismiss writ of certiorari). As this common-law procedure is well established, it is neither necessary nor appropriate to resort to the rules of civil procedure. See S.W. Bell Tel., 795 S.W.2d at 388-89. For purposes of this appeal, therefore, we consider Ameren's and Commission's motions to dismiss Count I as common-law motions to quash the writ. See Modern Fin. Co., 426 S.W.2d at 741 (treating defective motion attacking issuance of writ as motion to quash); see also 14 Am. Jur. 2d Certiorari § 86 (2014) (listing failure of the petition to state a claim for which relief by certiorari may be granted as reason for granting motion to quash). 9 Certiorari at common law "generally only lies to review the proceedings of bodies and officers of a judicial or quasi-judicial character." Id. at 233. In addition, the common-law writ is "confined to the record returned from the tribunal below," Gash, 245 S.W.3d at 234 n.10, and "[t]he reviewing court generally does not have the power to render a substitute judgment." 14 C.J.S. Certiorari § 111 (2013). However, section 64.870.2 alters these two latter rules by providing that the trial court "may appoint a referee to take additional evidence in the case" and "amend a county commission's zoning and rezoning ordinances." Gash, 245 S.W.3d at 234 n.10. And section 64.870.2 provides the exclusive procedure for challenging zoning decisions of counties organized under the alternative county planning and zoning statutes, such as Franklin County. See Gash, 245 S.W.3d at 232-34; see also Franklin Cnty., Mo., Unified Land Use Reg. Art. 1, § 2 (2011); §§ 64.800-64.905, R.S.Mo. (2000) (alternative county planning and zoning statutes).

7 Comm'n, 210 S.W.3d 344, 351 (Mo. App. W.D. 2006). "Because questions of fact are not at issue . . . the reviewing court . . . considers only questions of law that appear on the face of the record." Id. at 351-52. Likewise, "[a] motion to dismiss or quash the writ for . . . right to relief prayed by the petition . . . confess[es] all facts well pleaded, but search[es] the whole record and attack[s] the first fatal [error in a matter of law]". State ex rel. Berra v. Sestric, 159 S.W.2d 786, 787 (Mo. 1942); State ex rel. Modern Fin. Co. v. Bledsoe, 426 S.W.2d 737, 740 (Mo. App. 1968). "A court should construe the petition liberally and consider [quashal] only if it is quite clear that no relief can be had under any legal theory." 10 14 C.J.S. Certiorari § 83 (2014). IV. DISCUSSION A. Count I: Public Hearings Claim In their first point, Labadie Neighbors argue that the trial court erred by quashing or dismissing their Count I claim that the Commission's decision to adopt the zoning amendments was illegal due to its failure to conduct valid public hearings as required by law. Specifically, they contend that they properly stated a cause of action, because their petition alleges that Commission denied members of the public the opportunity to directly address Ameren's proposal for a new coal-ash landfill, despite the fact that the zoning amendments were designed solely to authorize that landfill. In response, Ameren and Commission contend that Labadie Neighbors' own petition alleged that they had a

10 In light of our ruling on Count I and for the reasons discussed below, we reach the issue of the standard of review only for Ameren's and Commission's motions to quash. We do not reach the standard of review on Count II, nor the standard of review for section 64.870.2 claims that have been resolved on the merits by the trial court.

8 full and fair opportunity to be heard, and failed to allege what specific arguments and evidence they were prevented from presenting. 11

We begin our analysis by recognizing that Commission must hold a public hearing before adopting a zoning amendment. "A county receives its authority to enact zoning regulations from the State of Missouri through enabling statutes. If a county fails to comply with the enabling statute, its zoning action is void and unenforceable." State ex rel. Helujon, Ltd. v. Jefferson Cnty., 964 S.W.2d 531, 538 (Mo. App. E.D. 1998) (citations omitted). Likewise, local requirements and procedures for amending zoning regulations must be followed. Id. Both Missouri state statute and Franklin County land- use regulations require a public hearing to be held before Commission may adopt amendments to its zoning regulations. See § 64.875, RSMo (2000); Franklin Cnty., Mo., Unified Land Use Reg. art. 14, § 323 (2011). Accordingly, "[t]he requirement[] of . . . [a] hearing [is] mandatory for validity of an amending ordinance, and ordinances passed in contravention thereof are void." State ex rel. Freeze v. City of Cape Girardeau, 523 S.W.2d.123 at 126 (Mo. App. E.D. 1975) (citation omitted). Missouri courts have yet to define the exact contours of a valid public hearing for purposes of adopting a zoning amendment. For guidance in resolving this issue, we will examine: (1) the plain meaning of the word "hearing" as defined by the dictionary, and

11 Ameren and Commission make two additional arguments. First, they argue that the record on appeal shows that Labadie Neighbors had ample opportunity to present their arguments and evidence to Commission. However, we will not disregard the well-pleaded facts in Labadie Neighbors' petition and review the record independently of the petition to determine the fairness of the public hearings. Second, Ameren and Commission argue that Labadie Neighbors waived their claim that they were unable to present evidence at the hearings, because they objected to appointing a referee to take additional evidence in the circuit court. We fail to see how presenting additional evidence in a certiorari proceeding conducted after Commission made its decision bears on the question of whether Labadie Neighbors had a fair opportunity to present such evidence in a public hearing conducted before Commission made its decision. Presumably, Labadie Neighbors complain that they were unable to present evidence at the hearings, because they believe that said evidence might have affected Commission's decision to adopt the amendments in the first place.

9 (2) how the rationale behind the requirement of fair notice of a public zoning hearing is equally applicable to how the hearing itself should be conducted. We will then apply the facts of the instant case to determine whether Labadie Neighbors state a proper cause of action for challenging the validity of a public zoning hearing mandated by the legislature. First, we look to the plain meaning of the word "hearing" in the pertinent zoning statutes and regulations. See § 64.875, RSMo (2000); Franklin Cnty., Mo., Unified Land Use Reg. art. 14, § 323. "[T]he primary rule of statutory interpretation is to give effect to legislative intent as reflected in the plain language of the statute." Gash, 245 S.W.3d at 232 (quoting State ex rel. Burns v. Whittington, 219 S.W.3d 224, 225 (Mo. banc 2007)). "[T]o discern the intent of the General Assembly, the Court looks to statutory definitions or, if none are provided, the text's 'plain and ordinary meaning,' which may be derived from a dictionary." Id. (quoting Burns, 219 S.W.3d at 225). "Thus, '[t]he construction of statutes is not to be hyper-technical, but instead is to be reasonable and logical and to give meaning to the statutes.'" Id. (quoting Donaldson v. Crawford, 230 S.W.3d 340, 342 (Mo. banc 2007)). Merriam-Webster defines the term "hearing" as "a session . . . in which testimony is taken from witnesses," an "opportunity to be heard, to present one's side of a case, or to be generally known or appreciated," and "a listening to arguments." Merriam- Webster's Collegiate Dictionary 574 (11th ed. 2012). We believe, therefore, that by requiring a "hearing" before Commission may amend its zoning ordinances, the Legislature intended for members of the public to be able "to present [their] side of [the] case," and for Commission to "listen to [those] arguments."

10 Second, we believe that the rationale behind requiring fair notice of a public zoning hearing is equally applicable to how the hearing itself should be conducted. This Court has held a that fairness is required in giving notice that a public hearing will take place: "notice should fairly be given the meaning it would reflect upon the mind of the ordinary layman, and not as it would be construed by one familiar with the technicalities solely applicable to the laws and rules of the zoning commission." Freeze, 523 S.W.2d at 126 (quoting Palmer v. Mann, 201 N.Y.S. 525, 528 (N.Y. App. Div. 1923), aff'd, 237 N.Y. 616 (N.Y. 1924)). It is only reasonable to conclude that fairness is similarly required in the hearing itself. See, e.g., Yost v. Fulton Cnty., 348 S.E.2d 638, 640 (Ga. 1986) ("Proper notice and a proper hearing are mutually dependent. The opportunity to be heard cannot benefit a party who lacks knowledge of the opportunity. Likewise, notice of a hearing is worthless to the party who, after responding to the notice, is denied the opportunity to speak."); see also Smith v. Skagit Cnty., 453 P.2d 832, 846 (Wash. 1969) ("It is axiomatic that whenever the law requires a hearing of any sort as a condition precedent to the power to proceed, it means a fair hearing."). Thus, citizens at a public hearing should be able to speak on the subject of a zoning amendment as "it would reflect upon the mind of an ordinary layman," and the public's right to speak at a hearing should not be suppressed due to "technicalities solely applicable to the laws and rules of the zoning commission." 12 See Freeze, 523 S.W.2d at 126 (quoting Palmer, 201 N.Y.S. at

12 Though amending a zoning ordinance is legislative in nature, Gash, 245 S.W.3d at 233, we note that Missouri law is clear on the requirement for fairness in the context of an administrative hearing: An administrative proceeding will not be considered a 'fair-hearing' if it lacks the rudimentary elements of 'fair play' . . . . It cannot be said that there has been a 'fair hearing' if practices are indulged in or the hearing is conducted in a manner leading to the conclusion that a denial of justice may have resulted. Greater Garden Ave. Area Ass'n v. City of Webster Groves, 655 S.W.2d 760, 764 (Mo. App. E.D. 1983) (quoting Jones v. State Dep't Pub. Health & Welfare, 354 S.W.2d 37, 39–40 (Mo. App. 1962)); see also Op. Mo. Att'y Gen. No. 256 (Dec. 21, 1965) ("Fair play dictates that the hearing be conducted in an orderly

11 528); see also, e.g., Smith, 453 P.2d at 847 (test for the validity of public hearing is "whether a fair-minded person in attendance . . . [could] say that everyone had been heard who . . . should have been heard and that the legislative body . . . gave reasonable faith and credit to all matters presented, according to the weight and force that [they] were in reason entitled to receive."). With these guidelines in mind, we now turn to the facts of the instant case. Labadie Neighbors' petition alleges that Commission's zoning amendments authorize the presence of coal-ash landfills next to and under common ownership with an existing power plant, without mentioning Ameren by name. Second, it alleges that Ameren's Labadie plant is the only power plant in Franklin County, and that Ameren publicly proposes to build a new coal-ash landfill on their property adjacent to the plant. Third, the petition alleges that during the hearings on the zoning amendments, Commission announced that the public could not speak regarding Ameren's landfill proposal. For example, the petition states that during the hearing on December 14, 2010, the presiding commissioner stated: [I]f we start going off referring to Ameren and the proposal . . . there is no proposal. There hasn't been anything filed yet, so that's going to be a totally separate issue . . . . If we go off on a tangent about Ameren or about fly ash and all that, I don't want to do that, but I will interrupt you.

Finally, the petition alleges that Commission followed through with its threats to cut off discussion, preventing members of the public from voicing their concerns about the proposed landfill. Accepting all well-pleaded facts as true, Berra, 159 S.W.2d at 787, and "constru[ing] the petition liberally," 14 C.J.S. Certiorari § 83, we believe that the import

manner, and that the county court provide reasonable opportunity for proponents and/or opponents of the . . . ordinance to be heard.").

12 of these allegations is plain. Commission adopted the challenged zoning amendments for the specific purpose of allowing Ameren to locate a new coal-ash landfill on its property adjacent to its Labadie power plant. 13 In fact, Commission's published notice of the hearings stated that the subject matter of the hearings would be "utility and non-utility waste landfills and the definitions and locations thereof." 14 (emphasis added). Nevertheless, Commission used a technicality—that the zoning amendments did not mention Ameren by name—to prevent the public from discussing Ameren's proposed landfill at the hearings. 15 This action denied the citizens of Franklin County a fair "opportunity to be heard, to present [their] side of [the] case, [and] to be generally known or appreciated." Merriam-Webster, supra at 574. This action also prevented the citizens of Franklin County from discussing the real subject of the amendments as "it would reflect upon the mind of an ordinary lay[person]," due to "technicalities solely applicable to the laws and rules of the zoning commission." Freeze, 523 S.W.2d at 126 (quoting Palmer, 201 N.Y.S. at 528). In light of the liberal reading we must give these allegations, 14 C.J.S. Certiorari § 83, we believe that Labadie Neighbors' petition properly states a claim that Commission acted unfairly. 16

13 Even Ameren admitted as much in their motion to intervene in this case, stating that Labadie Neighbors' petition "seeks to challenge the validity of the Amendment Ordinance and Ameren Missouri's right to create, operate, and maintain a [utility waste landfill]." 14 Labadie Neighbors' petition alleges that the only location in Franklin County where the zoning amendments authorize a new landfill is Ameren's proposed site adjacent to its Labadie plant. We believe it only reasonable for informed citizens in such circumstances to expect to be heard on the specific issue of Ameren's proposal to locate a coal-ash landfill in the Missouri River floodplain. 15 We note also that Commission and Ameren do not argue that Labadie Neighbors was able to discuss Ameren's proposed coal-ash landfill in particular. Rather, they assert that Commission's decision that "it would not devote time to a conjectural Ameren proposal was reasonable and fair." 16 Because Judge Gaertner, Jr. concurs in result only, we refer to his opinion as "the dissent".The

particular aspects of a legislative body's hearing," and as potentially violative of the doctrine of separation of powers. However, the Missouri legislature and the Franklin County Commission enacted the public hearing requirements in the first place. Labadie Neighbors merely asked that we interpret and apply these laws, which is the quintessential duty of this Court. See State ex rel. Praxair,

13 Even so, Commission and Ameren argue that Labadie Neighbors' petition was deficient for failure to allege specifically what evidence they were prevented from submitting at the hearings. We disagree. We believe Labadie Neighbors' petition alleges a great deal of information that Commission barred it from discussing at the hearings. First, the petition alleges that Commission prevented landowners from discussing the harm they believe they will suffer if Ameren is permitted to go forward with its proposed landfill. Namely, the landowners believe that the landfill would threaten[] to contaminate their groundwater wells, contaminate their land, pollute the air they breathe, increase truck traffic near their homes and business, increase flood damage to their properties, adversely affect their views of the floodplain, impair their use and enjoyment of their properties, and reduce the value of their properties and businesses.

Further, the petition alleges that Commission prevented the public from discussing the specific site where Ameren proposes to build its new landfill. For instance, the petition alleges: The land surrounding the Labadie plant is within the 100-year floodplain of the Missouri River and most of it is within the regulatory floodway delineated by the Federal Emergency Management Agency . . . . The land . . . is [also] in an earthquake hazard zone. According to the Missouri Department of Natural Resources . . . the land is at risk of liquefaction during an earthquake, which could cause the landfill to collapse.

Finally, Labadie Neighbors allege that they were prevented from discussing the history of the existent coal-ash landfills at Ameren's Labadie plant. For example, the petition alleges: [Ameren's] 1970 ash pond has been leaking since at least 1992, when Ameren Missouri reported two leaks totaling approximately 50,000 gallons per day to the [Missouri Department of Natural Resources]. . . . [and] [n]either Ameren Missouri nor any government agency has [tested

Inc. v. Mo. Pub. Serv. Comm'n, 344 S.W.3d 178, 190 (Mo. banc 2011) ("Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us." (quoting Rule 2.01 Preamble to Missouri Code of Judicial Conduct)).

14 for or] cleaned up any groundwater contamination caused by leakage from the 1970 ash pond.

All of this information is specific to Ameren. We must take as true the allegation in the petition that Labadie Neighbors were prevented from discussing Ameren's proposed coal-ash landfill in the Missouri River floodplain. See Berra, 159 S.W.2d at 787. A liberal reading of the petition, 14 C.J.S. Certiorari § 83, therefore, presumes that Labadie Neighbors were unable to present this specific information. In sum, we believe that a public hearing, like notice thereof, "is an indispensable step in the process by which 'parties in interest' may profoundly affect the legislative course of [an] ordinance . . . . [by] permit[ting] interested citizens an opportunity to furnish the municipality relevant information to prevent improvident changes." Freeze, 523 S.W.2d at 125. Labadie Neighbors' petition alleges that Commission denied them a fair chance to speak on the issue they reasonably understood to be the hearings' subject matter: Ameren's proposed coal-ash landfill and the ramifications of locating it in the Missouri River flood plain. Such action would have effectively barred Labadie Neighbors from addressing the reason that they oppose the zoning amendments in the first place. We believe these allegations are more than adequate to withstand the liberal reading afforded to a plaintiff's petition on a motion to quash. See 14 C.J.S. Certiorari § 83 ("A court should construe the petition liberally and consider [quashal] only if it is quite clear that no relief can be had under any legal theory."). Thus, we hold that Labadie Neighbors' petition is sufficient to withstand Ameren's and Commission's motion to quash. We reverse the trial court's judgment of dismissal on Count I.

15 B. We Would Remand Count I The dissent agrees that the trial court erred in dismissing Count I. But instead of remanding to the trial court, the dissent erroneously concludes that we should reach the merits of Labadie Neighbors' Count I public hearing claim. This conclusion rests upon several mistaken contentions regarding our standard of review. Specifically, the dissent is mistaken regarding: (1) the proposition that this Court must disregard the actions of the trial court and render a de novo judgment; (2) the applicability of Rule 84.14; and (3) a party's inability to file—and a court's inability to grant—a motion to quash or dismiss after the return of the lower tribunal's record to the reviewing court. Most importantly, however, we begin with the dissent's disregard of section 64.870.2, which is instructive of the scope of review here. Gash, 245 S.W.3d at 232-34.

1. Section 64.870.2

Section 64.870.2 provides that in an appeal from a zoning decision, the circuit court "shall allow a writ of certiorari . . . of the action taken and data and records acted upon" and "may reverse or affirm or may modify the decision brought up for review." Id. Thereafter, a "party to the cause may prosecute an appeal to the appellate court . . . in the same manner . . . provided by law for appeals from other judgments of the circuit court in civil cases." Id. (emphasis added). Thus, the plain language of the statute dictates that we review the trial court's dismissal of Count I in the same manner as we would any other dismissal or quashal in a certiorari action. See Gash, 245 S.W.3d at 232 ("[T]the primary rule of statutory interpretation is to give effect to legislative intent as reflected in the plain language of the statute." (quoting Burns, 219 S.W.3d at 225)).

16 Missouri precedent—law which this Court must follow—is replete with examples of appellate courts reviewing the propriety of a circuit court's judgment granting a motion to quash a writ of certiorari. See, e.g., Berra, 159 S.W.2d 786, 786-87 (Mo. 1942) (reviewing grant of motion to quash). 17 Moreover, Missouri appellate courts have reviewed the judgment of the circuit court granting a motion to quash a writ of certiorari issued pursuant to section 64.870.2. State ex rel. Koeing v. Franklin Cnty. Bd. of Zoning Adjustment, 809 S.W.2d 874, 875 (Mo. App. E.D. 1991) (reviewing grant of motion to dismiss section 64.870 certiorari claim); see also Life Med. Sys., Inc. v. Franklin Cnty. Comm'n, 810 S.W.2d 554, (Mo. App. E.D. 1991) (reviewing dismissal of misnamed section 64.870.2 certiorari claim). We see no reason why this Court should review the trial court's judgment dismissing Labadie Neighbors' section 64.870.2 writ of certiorari in a different manner than that established by the foregoing case law. 18

17 See also State ex. Rel. Callahan v. Hess, 153 S.W.2d 713, 714 (Mo. 1941) (same); State ex rel. Conway v. Hiller, 180 S.W. 538, 538 (Mo. 1915) (same); Waller v. Everett, 52 Mo. 57, 58 (Mo. 1873) (same); State ex rel Auto Fin. Co v. Collins, 482 S.W.2d 529 (Mo. App. 1972) (same); State ex rel. Pruitt- Igoe Dist. Cmty. v. Burks, 482 S.W.2d 75, 76 (Mo. App. 1972) (same); State ex rel. Croy v. City of Raytown, 289 S.W.2d 153, 155 (Mo. App. 1956) (same); Vill. of Grandview v. McElroy, 9 S.W.2d 829, 830 (Mo. App. 1928); Sch. Dist. No. 2 v. Pace, 87 S.W. 580, 581 (Mo. App. 1905) (same). 18 Though not strictly related to why the dissent's standard of review on Point I is in error, we note that the dissent also erroneously contends regarding Point II that there is "little" difference between the "fairly debatable" standard of review for legislative decisions and the "competent and substantial evidence" standard for quasi-judicial and administrative decisions. See generally Michael T. White, Curious County Zoning Law Gets Curiouser, 64 J. Mo. B. 300, 302-04 (Nov.-Dec. 2008) (noting that "competent and substantial evidence" standard generally used for review by writ of certiorari); id. at 301-302 (noting that adopting zoning ordinance is legislative act; more deferential "fairly debatable" standard is generally used to review legislative acts). At least one major difference lies in the way each standard regards the evidence relied on by the legislative, quasi-judicial, or administrative body in making its decision. Compare, e.g., Henry v. Mo. Dep't of Mental Health, 351 S.W.3d 707, 712 (Mo. App. W.D. 2011) (explaining that in review of administrative decisions, court looks to record as a whole and defers to administrative body regarding weight of evidence and credibility of witnesses), with Land Clearance for Redevelopment Auth. St. Louis v. Inserra, 284 S.W.3d 641, 645-46 (Mo. App. E.D. 2009) (explaining that in review of legislative decisions, court is not confined to record or even concerned with what evidence legislative body actually considered; instead court is concerned only with end result, i.e., whether the legislative action is reasonable and fairly debatable). We do not, however, reach the issue of which standard would apply to Labadie Neighbors Count II challenge to the merits of Commission's decision to adopt the zoning ordinance.

17

1. We Should Not Disregard the Trial Court's Actions

The dissent insists that we must disregard the trial court's proceedings, and make a de novo determination on Labadie Neighbors' claims. The dissent opines that "the outcome of the case at the circuit court level generally has no bearing on our review . . . . [and] the adequacy of the petition, as well as the circuit's determination of its adequacy, have no practical effect on our review." These contentions are mistaken for three reasons. First, this Court's jurisdiction does not permit us to adjudicate Labadie Neighbors' claims anew, as if they were filed in this Court in the first instance. Rather, it is the circuit court that has "original jurisdiction over all cases and matters, civil and criminal." Mo. Const. art. V, § 14(a). Article V, section 3 of the Missouri Constitution provides that "[t]he court of appeals exercises [only] general appellate jurisdiction over appeals from circuit court judgments." 19 Goins v. Goins, 406 S.W.3d 886, 889 (Mo. banc 2013) (citing Mo. Const. art. V, § 3). Thus, "an appellate court sits as a court of review. Its function is not to hear evidence and, based thereon, to make an original determination." 20 Thummel v. King, 570 S.W.2d 679, 686 (Mo. banc 1978); Caldwell v. Farmers' & Merchs.' Bank, 71 S.W. 1093, 1095 (Mo. App. STL. 1903) ("This is a court of appellate, and not of original, jurisdiction, except in certain specified cases. It is likewise a court of review, and not of trial, and deals with the record of the proceedings

19 We note that the court of appeals does have jurisdiction to determine original remedial writs. Mo. Const. art. V, § 4.1. However, section 64.870.2 specifies that a petitioner is required to file a writ of certiorari with the trial court. Accord Rule 84.22 ("No original remedial writ shall be issued by an appellate court in any case wherein adequate relief can be afforded by an appeal or by application for such writ to a lower court . . . ."). 20 Related to this Court's function as a court of review, Missouri courts recognize that "there can be no review of a matter which has not been presented to or expressly decided by the trial court." In re Adoption of C.M.B.R., 332 S.W.3d 793, 814 (Mo. banc 2011) (quoting Robbins v. Robbins, 328 S.W.2d 552, 555 (Mo. 1959)); § 512.160.1, R.S.Mo. (2000) ("[N]no allegations of error shall be considered in any civil appeal except such as have been presented to or expressly decided by the trial court."). Here, as we have explained, the trial court never reached beyond the merits of Labadie Neighbors Count I.

18 in the lower [tribunal]."). Thus, a de novo review of the Commission's actions before the trial court has passed on the merits of Labadie Neighbors' Count I would exceed this Court's jurisdiction. Second, ignoring the trial court's disposition would render section 64.870.2's statutory review process meaningless. See Am. Nat'l Prop. & Cas. Co. v. Ensz & Jester, P.C., 358 S.W.3d 75, 85 (Mo. App. W.D. 2011) ("[W]e will avoid a construction that renders statutory language meaningless."). Section 64.870.2 provides for a two level review process, whereby a litigant first challenges the Commission's decision in the trial court, and second may prosecute an appeal of the trial court's ruling in the appellate court. Were an appeal after a trial court's dismissal to render the trial court's decision of "no general bearing" or "no practical effect," we fail to see why the legislature would have required a litigant to file in the trial court in the first place. Trial court review would be relegated to a mere formality to which a litigant would have to pay lip service before she could appeal and obtain an actual, substantive disposition of her claim. "Statutes should be construed in such a way as to avoid unreasonable, oppressive, or absurd results." Mo. ex rel. Bouchard v. Grady, 86 S.W.3d 121, 123 (Mo. App. E.D. 2002) (quoting Lincoln Cnty. Stone Co. v. Koenig, 21 S.W.3d 142, 146 (Mo. App. E.D. 2000)). Moreover, the intent of Rule 64.870.2 is to provide a litigant with a unique opportunity for review at the trial court level. 21 Again, "the primary rule of statutory interpretation is to give effect to legislative intent as reflected in the plain language of the statute." Gash, 245 S.W.3d at 232 (quoting Burns, 219 S.W.3d at 225). Section 64.870.2 provides that the circuit court may "take additional evidence in the case" and "may

21 We observe that the litigant must have the "opportunity" for a full trial court review, because the challenge must obviously be sufficient to survive a motion to dismiss or quash before a review on the merits is appropriate.

19 reverse or affirm or may modify the decision brought up for review." (emphasis added). These provisions give the trial court much broader powers than is traditionally afforded by the writ of certiorari, Gash, 245 S.W.3d at 234 n.10, and much broader powers than this Court may exercise on appeal, see § 64.870.2 (specifying that appeal is prosecuted "in the same manner . . . provided by law for appeals from other judgments of the circuit court in civil cases"). Specifically, on appeal, this Court may only reverse or affirm the action of the board of adjustment or of the county commission. See Hernreich v. Quinn, 168 S.W.2d 1054, 1059 (Mo. banc 1943) (explaining writ of certiorari ordinarily "brings up only the record; . . . does not authorize an inquiry into the merits; and can relieve only by [reversal] . . . in whole or part, without the substitution of a new judgment or order). Consequently, when the trial court grants a motion to dismiss for failure to state a claim without looking beyond the petition, it necessarily sends the claim to this Court before the trial court has "take[n] additional evidence in the case" or considered "modify[ing] the decision brought up for review." § 64.870.2. If this Court were then to move directly to the merits of the commission's decision—without first examining whether the trial court's dismissal was in error—we would permanently foreclose the litigant's opportunity to present "additional evidence" or have the trial court "modify" the challenged decision. See § 64.870.2. Instead, we could review the litigant's claim only on the record, and only to reverse or affirm. See Hernreich, 168 S.W.2d at 1059. We do not believe the legislature intended that section 64.870.2's review process be short-circuited to such an extent. See State ex rel. Bouchard v. Grady, 86 S.W.3d at 123 ("The legislature is not presumed to have intended a meaningless act.").

20 Third, the dissent misconstrues the meaning of the rule that this Court reviews the decision of the Commission, and not that of the trial court. Cf., e.g., Dotson v. Cnty. Comm'n, 941 S.W.2d 589, 592 (Mo. App. W.D. 1997). It does not require this Court to disregard the ramifications of a trial court's dismissal. Rather, this rule applies only to a final judgment on the merits of a county zoning decision—here, on the issue of whether the Commission's decision to adopt the coal-ash landfill ordinance is fairly debatable (or supported by competent and substantial evidence). 22 It is based on the principle that a court will "not substitute [its] discretion for that of a legislative body," Great Rivers Habitat Alliance v. City of St. Peters, 246 S.W.3d 556, 562 (Mo. App. E.D. 2008), and will "refuse[] to second-guess local government legislative factual determinations," id. (quoting Spradlin v. City of Fulton, 924 S.W.2d 259, 263 (Mo. banc 1996)); cf. Coffer v. Wasson-Hunt, 281 S.W.3d 308, 310 (Mo. banc 2009) ("If the evidence permits either of two opposing findings, deference is afforded to the administrative decision."). Accordingly, this Court does not look to any findings of fact the trial court may have made, but instead looks to the facts and circumstances as they appeared before the Commission at the time. See Land Clearance for Redev. Auth. v. Inserra, 284 S.W.3d 641, 646 (Mo. App. E.D. 2009). Then, based on that established factual record, this Court determines de novo whether the disputed zoning decision is fairly debatable. See Great Rivers Habitat Alliance, 246 S.W.3d at 562. Thus, this rule does not require that we ignore the actions of the trial court and conduct a de novo review in every instance. See id. (reviewing trial court's grant of summary judgment).

22 Again, we do not reach the issue of which standard applies to Labadie Neighbors' Count II.

21

1. Rule 84.14

The dissent erroneously contends that Rule 84.14 provides authority for this Court to "give such judgment as the [trial] court ought to [have] giv[en]" on Count I. However, "[u]nder our procedure . . . the writ of certiorari is the same as at common law, and [Missouri] courts may properly adopt the usages and principles applicable to . . . the writ as the same may have been developed under the common-law system, consistent . . . with . . . existing statutes." State ex rel. Jacobs v. Trimble, 274 S.W. 1075, 1077 (Mo. 1925). While we may fall back upon the rules of civil procedure for guidance where the common law and statute are silent, it is neither necessary nor appropriate to do so where common-law procedure is well established. See S.W. Bell Tel., 795 S.W.2d at 388-89. As we have explained, the common law procedure of reviewing the propriety of the trial court's dismissal of a writ of certiorari is well-established in Missouri. Thus, Rule 84.04 provides no authority for this Court to render a substitute judgment in place of a proper disposition in the trial court.

1. Motion to Quash Writ of Certiorari Filed after the Return

The dissent also erroneously contends that we should reach the merits of this case, because Ameren's and Commission's motions to dismiss were filed after the return of the record on appeal. 23 The dissent claims that once the return of the lower tribunal's record has been made, a court should decline to quash the petition for failure to state a claim, and instead review the record directly.

23 "A return is a formal transcript of the record, or so much of it as required by a writ of certiorari, and a statement, where proper or necessary, of relevant matters not appearing in the record." 14 C.J.S. Certiorari § 61 (2014). " The court, board, or tribunal to which the writ is directed, in obedience to the command of the writ, transmits the return to the court issuing the writ." Id.

22 From the outset, we note that the cases cited by the dissent do not support its contention regarding the preclusive effect of the return. The dissent first cites State ex rel. Davidson v. Caldwell, 276 S.W. 631, 634 (Mo. 1925), where the Court concluded that the respondent waived its defense that the writ had been improperly "issued by the clerk rather than the court," because the challenge "was not insisted upon before or raised by the pleadings or argument of counsel during the trial of the case in the circuit court." Id. The Court did not conclude that a motion to quash after the return is untimely. The dissent's reliance on Davidson rests on its misreading of the following sentence: "As indicative of the waiver of the respondents upon the overruling of their demurrer in the circuit court . . . they filed their return, which constituted a general appearance to the action on the merits, and waived any defects in the issuance of the writ." Id. (emphasis added). A "demurrer" is an antiquated term for a motion to dismiss. Wenzel v. Wenzel, 283 S.W.2d 882, 888 (Mo. App. STL. 1955). Thus, the trial court had already overruled the respondent's motion to dismiss at the time of the return. Further, the Court was merely noting that a party's appearance in court after its motion to dismiss has been denied—here, in order to make the return—is a good indication that a party has waived its objection to improper service of process. See, e.g., State ex rel. Sperandio v. Clymer, 581 S.W.2d 377, 384 (Mo. banc 1979) ("The general principle is that if a party takes any action which recognizes that the cause is in court and assumes an attitude that the jurisdiction of the court has been acquired, he is bound thereby and the action amounts to a general appearance."). Similarly unsupportive of the dissent's argument are State ex rel. Modern Finance Co. v. Bledsoe, 426 S.W.2d 737, 740 (Mo. App. STL. 1968), and State ex rel. McClain v.

23 Burney, 26 S.W.2d 814, 815 (Mo. App. K.C. 1930). In Modern Finance, 426 S.W.2d at 740, the court simply stated that "[i]n the absence of a motion to quash the writ . . . one looks only to the record to determine whether petitioner is entitled to the relief asked; there is then no occasion to refer to the allegations of the petition." (emphasis added). And in McClain, 26 S.W.2d at 815, a per curiam order, the court merely noted that the trial court treated a motion to dismiss as a pleading on the merits, because "the parties . . . treated [the motion] as a pleading raising an issue upon the merits of the case." (emphasis added). More to the point, the Missouri Supreme Court en banc specifically repudiated the notion that a motion to quash cannot be filed after the return in State ex rel. Powell v. Shocklee, 141 S.W. 614, 616 (Mo. banc 1911). The Powell Court observed: [I]t is stated as the law that, after the writ is issued and the record of the inferior court has been certified in response thereto, the discretionary stage as to the issuance of the writ has passed, and it is then the duty of the court to hear and determine the cause on its merits, but, as we understand [it] . . . that doctrine was not concurred in by a majority of the members of the court, and therefore the case need not be regarded as a precedent upon that point.

Powell, 141 S.W. at 616. Regarding the respondent's motion for judgment on the pleadings, which was filed after the return and treated as a demurrer, cf. Wenzel, 283 S.W.2d at 888 (noting "demurrer" replaced by "motion to dismiss" in modern practice), the Powell Court concluded: As the application for a writ of certiorari is made ex parte, and may be granted by one member of the court, no good reason is perceived why the question as to whether the writ was improvidently granted may not be inquired into when the respondents are brought into court and for the first time have an opportunity to raise that issue, as is the recognized practice in the case of other original proceedings. The weight of authority favors the right of respondents to attack by proper motion the regularity of the issuance of the writ.

24

Id.; see also State ex rel. Lunsford v. Landon, 265 S.W. 529, 530, 532 (Mo. banc 1924) (granting motion to quash writ as improvidently granted where motion was filed after return); State ex rel. New Amsterdam Cas. Co. v. Richardson, 61 S.W.2d 409 (Mo. App. K.C. 1933) (affirming trial court's grant of motion to quash filed after return); 14 C.J.S. Certiorari § 69 (2014) ("After the return of the writ, the proper practice is to move to quash or dismiss the writ."); 14 Am. Jur. 2d Certiorari § 85 (2014) ("It has also been held that a motion to supersede the writ is made before the return while a motion to quash is made only after the return."). Thus, the dissent's reliance on the notion that a court should reach the merits once the return is filed is misplaced. In sum, the dissent is mistaken in its contention that we should disregard the well- pleaded facts in Labadie Neighbors' petition on the Count I public hearing claim, and review the record independently of the petition to determine the fairness of the public hearings. Rather, as with any other dismissal, we must review Labadie Neighbors' Count I by taking all well-pleaded facts as true and searching for errors of law. See State ex rel. Berra v. Sestric, 159 S.W.2d 786, 186 (Mo. 1942). Therefore, we decline to review Count I on the merits, and would remand this claim to the trial court for review consistent with section 64.870.2. C. Count II: Merits of the Zoning Amendments Lastly, because the trial court erred by dismissing Labadie Neighbors' Count I public hearings claim, we reverse the trial court's judgment upholding on the merits Commission's decision to adopt the landfill zoning amendments. "The requirement[] of [a] [valid] hearing [is] mandatory for validity of an amending ordinance, and ordinances passed in contravention thereof are void." Freeze, 523 S.W.2d at 126 (citation omitted).

25 Until such time as Count I is resolved on its merits by the trial court, a final judgment upholding Commission's decision to adopt the amendments is premature. V. CONCLUSION For the foregoing reasons, we reverse the trial court's quashal of Labadie Neighbors' Count I claim that Commission failed to conduct valid public hearings. We reverse as premature the trial court's judgment on Count II affirming the Commission's decision to adopt the zoning amendments. We would remand this matter to the trial court for further proceedings consistent with this opinion. 24 However, because of the general interest of the question posed by this case, we transfer to the Supreme Court pursuant to Rule 83.02.

______________________________ Lisa S. Van Amburg, Presiding Judge

Patricia L. Cohen, J. concurring in a separate opinion and Gary M. Gaertner, Jr., J., concurring in result in a separate opinion.

24 For the trial court on remand, we note that Count I is a matter the trial court must review de novo. As we have explained, Commission is not legally authorized to adopt the zoning amendments without first conducting valid public hearings. See Freeze, 523 S.W.2d at 126. Though the findings and conclusions that Commission made in support of its decision to adopt the zoning amendments are "deserving of deference, a review of the legal authorization to make such a decision is a purely legal question." State ex rel. Jackson v. City of Joplin, 300 S.W.3d 531, 536 n.2 (Mo. App. S.D. 2009). "Where the issue presents a question of law, it is a matter for the independent judgment of the reviewing court, and the legality of the [Commission's] decision will be reviewed de novo." Id. at 536.

RUTH CAMPBELL, et al., ) No. ED99622 ) Plaintiffs/Appellants, ) ) vs. ) ) COUNTY COMMISSION OF FRANKLIN ) Appeal from the Circuit Court of COUNTY, ) Franklin County ) Defendant/Respondent, ) ) AND ) ) Honorable Robert D. Schollmeyer UNION ELECTRIC COMPANY, D/B/A ) AMEREN MISSOURI, ) ) Intervenor-Defendant/Respondent. ) Filed: July 22, 2014

I write to provide my perspective on the standard of review with respect to the trial court's judgment as to Count I. As an initial matter, I observe that both the majority and the

However, the majority and the dissent disagree on the proper standard of review to employ to reach that conclusion. Determining the appropriate standard of review is critical because it controls not only the analysis of the trial court's ruling but also the proper disposition of the

2

appeal. In particular, the dissent's failure to utilize the correct standard of review with respect to Count I leads it to improperly undertake a resolution of the merits of Count I. 1

This court has clearly and concisely articulated the standard of review when considering whether a trial court erred in dismissing a claim for failure to state a claim: "Our review of a dismissal for failure to state a claim is de novo." Chochorowski v. Home Depot U.S.A., Inc., 295 S.W.3d 194, 197 (Mo.App.E.D. 2012). "When we consider whether a petition fails to state a claim upon which relief can be granted, we accept all properly pleaded facts, giving the pleadings their broadest intendment, and we construe all factual allegations favorably to the pleader." Id.; see also State ex rel. Helojon, Ltd. v. Jefferson County, 964 S.W.2d 531, 537 (Mo.App.E.D. 1998) ("In reviewing a trial court's grant of a motion to dismiss, this Court allows the pleadings their broadest intendments, treats all allegations as true, and construes the allegations in a manner favorable to the plaintiff."). More pertinently here, it is not the function of the court of appeals "on review of a judgment of dismissal for failure to state a claim, to determine whether an appellant is entitled to relief on the merits." Chochorowski, 295 S.W. 3d at 197. Accordingly, once the court determines that the trial court erred in dismissing the claim, the appropriate disposition is generally remand. There is no basis in this record for this court to depart from the standard of review articulated above and resolve the merits of Count I. To do so undermines the long-standing principle that an appellate court is a court of review. Our court's function is not to "hear evidence and, based thereon, to make an original determination." Thummel v. King, 570 S.W.2d 679, 687 (Mo. banc 1978). Although the trial court might have opted to convert the hearing on

1 The dissent recognizes that the trial court dismissed Count I for failure to state a claim – i.e. prior to the resolution of any substantive factual or legal issues raised in Count I – but nevertheless opts to review Count I as if the trial court adjudicated a substantive issue as in Count II.

3

the motion to dismiss to a hearing on summary judgment, it apparently chose not to do so. As Ameren acknowledges in its brief, "the Circuit Court took no new evidence on the allegations of the petition." Ameren also admits in its brief that although the trial court had the writ record available, it "did not look" at it. Likewise, on appeal, neither party has suggested that the trial court's order was anything other than a dismissal for failure to state a claim. As we recently explained: The trial court was free to make a more expansive determination, but doing so necessitated converting the motion to dismiss into one for summary judgment. In that case, the court should have notified the parties, giving them time to prepare and present relevant evidence; or it must have been clear the parties waived such notice and consented to the conversion. (citation omitted). Neither occurred here, and neither party has at any time suggested that this should be viewed as anything other than a dismissal.

State ex rel. Am. Eagle Waste Indus. v. St. Louis County, 272 S.W.3d 336, 341 (Mo.App.E.D. 2008). As we emphasized in American Eagle Waste, a summary resolution of a case, as the

present relevant evidence. Alternatively, the record must demonstrate the parties consented to summary resolution. None of the criteria for summary resolution are met here. 2

A helpful case on the question of whether it is appropriate for our court to resolve the merits of a claim where the issue before the court is the propriety of a dismissal for failure to

2 Ameren suggests that Plaintiffs argued that with respect to Count I "this Court may review the record of the public hearings to determine if they were conducted fairly, even if the circuit court did not look to the County Writ Record." However, this is a mischaracterization of plaintiffs' position. The quote Ameren uses to support this statement establishes that plaintiffs were referring to Count II, not Count I. Plaintiffs very clearly are seeking an opportunity to "demonstrate on the merits that the 'hearing' in this case was invalid." In their reply brief, plaintiffs point out that Ameren "invites this court to review the entire record in ruling on the circuit court's dismissal with Count I....[but] cites no legal authority for this request." Clearly, plaintiffs are neither consenting to nor seeking a decision on the merits in this court and Ameren has identified no case law supporting such a determination.

4

state a claim is State ex rel. Schaefer v. Cleveland, 847 S.W.2d 867 (Mo.App.E.D. 1982). In Schaefer, the trial court dismissed the relator's petition for failure to state a cause of action. Id. at 869. At issue in Schaefer was the court's jurisdiction. Id. at 869-870. Because respondents answered the petition for alternative writ and filed motions directed to the sufficiency of the allegations to state a cause of action and the trial court thereafter ruled on the sufficiency of the allegations, the court's order to dismiss was final and appealable. Id. at 870. The court then turned to the merits of the appeal. In considering the merits of the appeal, the court stated the following: "We, of course, make no determination of the truth of the facts alleged. As previously indicated, we are bound by the facts alleged in relator's petition." Id. at 870. After concluding that relator's petition stated a cause of action, the court remanded the case to the trial court. Id. at 873. To justify the propriety of an appellate resolution of issues that were neither considered at the Commission level nor in the circuit court, the dissent cites two cases, Fairview Enters., Inc., v. City of Kansas City, 62 S.W.3d 71 (Mo.App.W.D. 2001) and Bird v. Mo. Bd. Of Architects, Prof'l Eng'rs, Prof'l Land Surveyors & Landscape Architects, 289 S.W.3d 516 (Mo. banc 2008), authorizing de novo review on appeal of a determination rendered by a governmental body. These cases are clearly distinguishable and provide no basis for appellate resolution of the merits of Count I. In Fairview, the plaintiffs sought declaratory relief with respect to an ordinance passed by the Kansas City City Council, following hearings on the proposed ordinance. The validity of the hearings before the city council were not at issue. The circuit court held two days of hearings prior to declaring the ordinances null and void. On appeal, the court of appeals reviewed de novo the plaintiffs' challenge to the validity of the zoning legislation. The

5

difference between Fairview and this case is evident: Count I is not a challenge to the substance of the ordinance. That challenge occurs in Count II. The Bird decision is likewise unpersuasive as an authority for initial appellate resolution of the merits of Count I. The dissent cites a passage from Bird, ostensibly supporting a resolution of the merits rather than a remand, but omits important language. The omitted language describes the substance of a reviewable agency decision, namely "findings and conclusions, and the board's discipline." Bird, 259 S.W.3d at 516. Here, there is no comparable decision to review. The Commission did not consider the issues raised in Count I. Nor did the circuit court. The dissent's disposition on the merits of Count I is, in essence, an exercise of original jurisdiction rather than appellate jurisdiction. In 1903, the Supreme Court considered and rejected such an improper exercise of appellate review in State ex rel. Scott v. Smith, 75 S.W. 586 (Mo. 1903). Scott arose out of a disbarment proceeding. Mr. Scott appeared for trial in the circuit court and filed an application for a change of venue. The circuit court denied the motion, heard evidence and rendered a judgment of disbarment. Mr. Scott appealed the matter to the court of appeals, which decided that the circuit court erred in refusing the application to change venue. However, rather than remand the case to the circuit court, the court of appeals proceeded to resolve the matter. Mr. Scott filed a writ of certiorari, which the Supreme Court granted, challenging the authority of the court of appeals to enter a judgment of disbarment. The respondents, the judges of the court of appeals, contended they had the right to review the facts and enter such "judgment as the trial court should have entered." 3 The Supreme Court held that "the first and only jurisdiction the appellate court acquired was an appellate jurisdiction and it

3 Rule 84.14 employs nearly identical language in delineating the scope of an appellate disposition.

6

was not required to exercise any other." Id. at 590. Rejecting the respondents' contention that they had the authority to render a judgment on the merits, the Supreme Court concluded that the court of appeals did not "undertake to modify, correct or in any way change the judgment of the trial court...it tried the case anew and entered its own independent judgment...." Id. In words equally applicable here, the Supreme Court held that the court of appeals "exceeded its legitimate powers": This proceeding was instituted in pursuance of the statute; in that respect, it is purely statutory. Relator during the progress of the trial, preserved his exceptions, as he was fully authorized to do under the statute. He had the right to have an impartial tribunal try his case. His affidavit for a change of venue, whether true or false in point of fact, must be taken as true, and the Court of Appeals correctly held that it was error to refuse his application to change the venue, and the court should have reversed and remanded the cause with directions to the trial court, to send said cause to another division of the Jackson Circuit Court for trial.

Id.

I appreciate the dissent's concern about judicial economy. However, considerations of judicial economy are not a sufficient basis to remove this particular case from resolution by the trial court. In addition, it is premature and speculative to conclude that the parties will adduce no additional evidence as to Count I once this court resolves the issue of the sufficiency of the pleadings. Certainly unlike common law writ procedure, Section 64.870 permits the trial court on remand to appoint "a referee to take additional evidence in the case." 4

To justify an appellate resolution of the merits on the grounds of judicial economy, the

4 The dissent contends that plaintiffs had the opportunity to supplement the record and declined to do so. However, according to plaintiffs, their opposition was unrelated to the motion to dismiss Count I. They opposed Ameren's referee motion because it allegedly "improperly sought to supplement the County's record regarding the merits of the zoning decision," i.e. Count II.

7

the lack of a basis for this court to resolve the merits of Count I. In Nicolai, the plaintiff appealed, among other things, a trial court dismissal of his declaratory judgment action for failure to state a claim. Id. at 424. The defendant admitted that the dismissal was error. Id. at 424-25. In deciding to resolve the merits, the Supreme Court noted that: (1) the plaintiff "does not contend that he has been denied the opportunity to argue his position on the merits[,]"; and (2) "[t]he parties join in asking this Court to render a final determination on the issues presented in the pleadings." Id. at 426. Neither of these factors are present here. I would further note that Nicolai and Magenheim v. Bd. of Educ. of the Sch. Dist. of Riverview Gardens, 347 S.W.2d 409 (Mo.App. 1961), also cited by the dissent in support of appellate resolution of the merits, are declaratory judgment actions. The Gash decision makes clear that where Section 64.870.2 governs, it "precludes the use of declaratory judgment." 245 SW.3d at 234, n. 10. In any event, even assuming the relevancy of precedent developed with respect to declaratory judgment actions, the Supreme Court has held as follows: [ I]t is not the function of the trial court or this court on appeal from a judgment of dismissal to make an analysis of the law under which the rights are claimed or to construe the statutes in question or to determine on the merits whether [appellant] is entitled to declaratory relief.

City of Creve Coeur v. Creve Coeur Fire Prot. Dist., 355 S.W.2d 857, 859-60 (Mo. 1962). Therefore, it is not appropriate for a trial court, much less this court, to use a ruling on a motion to dismiss "as a vehicle to enter judgment on the merits." City of Hannibal v. Marion County, 745 S.W.2d 842, 846 (Mo.App.E.D. 1988). Once a motion to dismiss is overruled, a party is "entitled to win or lose after a submission on the merits." Id. Accordingly, the proper disposition of this appeal is a remand "with directions to the parties to properly submit the issue for adjudication...either by a motion for summary judgment or by an evidentiary hearing." Id.

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Conclusion There is quite a significant degree of uncomfortable irony in disposing of a claim challenging the fairness of a hearing before a fact-finding tribunal by dispensing with a hearing on the merits of the challenge. Beyond that, however, the principle at risk in the dissent is of more general importance. We should be very wary of unduly expanding our role as primarily a court of review.

Patricia L. Cohen, Judge