In the Missouri Court of Appeals
Western District
JONATHAN GERKE, et al., )
Appellants, )
v. ) WD78991
)
CITY OF KANSAS CITY, MISSOURI, et )
al., ) FILED: June 14, 2016
Respondents. )
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY
THE HONORABLE ROGER M. PROKES, JUDGE
BEFORE DIVISION ONE: LISA WHITE HARDWICK, PRESIDING JUDGE,
CYNTHIA L. MARTIN AND GARY D. WITT, JUDGES
Jonathan Gerke, Jarid Ward, Julie Kenny, and Kimberly Guardado
("Appellants") appeal the judgment dismissing their class action petition against the
City of Kansas City, the City of Grandview, the City of Lee's Summit, the City of
Raytown, the City of Independence, the City of Grain Valley, the City of Buckner,
the City of Blue Springs, the City of Greenwood, the City of Lone Jack, the City of
Lake Lotawana, the City of Oak Grove, and the City of Lake Tapawingo ("the
Cities"). Appellants contend their petition stated claims for declaratory judgment,
unjust enrichment, and money had and received based upon their having paid an
illegal warrant fee and/or a failure to appear fee to the Cities and, furthermore, that
the claims were not barred by the affirmative defenses of estoppel and waiver. For
reasons explained herein, we affirm.
FACTUAL AND PROCEDURAL HISTORY
On appeal from a dismissal for failure to state a claim, we assume the facts
alleged in the petition to be true. Whispering Oaks Residential Facility, LLC v. Mo.
Dep't of Nat. Res., 456 S.W.3d 46, 49 (Mo. App. 2015). In their petition,
Appellants alleged that the Cities were municipal corporations that assessed and
collected a warrant fee or failure to appear fee for an individual's failure to appear
on his or her municipal court date. The amount of this fee varied between the
Cities and ranged from $25 up to $149.50. Appellants alleged that each of them
paid such a fee. The petition did not specify to which of the thirteen Cities the
four Appellants paid a fee.
Appellants asserted that they were bringing the action on behalf of
themselves and a class of all other similarly-situated individuals who were within
the following definition of the class:
All Missouri residents, currently residing in the Missouri counties of
Jackson, Johnson, Cass, Clay, or Platte, who, while not charged with
and convicted of a municipal violation, the penalty for which was the
assessment of a "warrant fee" and/or "failure to appear fee," paid a
"warrant fee" and/or a "failure to appear fee" to a Municipal
Defendant during the period from January 1, 2005 to the date the
Court certifies this Class Action under Supreme Court Rule 52.08.
Excluded from the Class is the judge to whom this case is assigned,
the putative class attorneys, the Municipal Defendants' elected
officials and representatives, all those who validly and timely opt-out
of the certified class, and all those persons who have lawsuits pending
2
against, or who have settled their claims against the Municipal
Defendants for the same or similar claims as set forth herein.
Appellants contended that the fees assessed when they and the putative
class members did not appear for their municipal court dates were not authorized
by any Missouri statute and constituted a surcharge "in violation of Section
488.005, RSMo, et seq."1 Section 488.005 provides, in pertinent part, that "no
clerk of any court shall collect any surcharge authorized by or pursuant to any
ordinance, order or resolution . . . unless such ordinance, order or resolution is
authorized by statute." Appellants alleged that no statute authorized the collection
of the fees.
Appellants further alleged that the Cities failed to disclose to them and the
putative class members that the fees were not authorized under Missouri law.
Appellants asserted that the unauthorized fees were not designed to promote the
health, safety, peace, comfort, or general welfare of the public but that the Cities
collected them "in the guise of an ordinance enacted under the police power" solely
as a means to generate revenue and to benefit the Cities in their corporate
capacity. Alternatively, Appellants alleged that, even if the fees were authorized,
the Cities violated Appellants' and the putative class members' due process rights
by collecting them because the Cities did not charge and convict Appellants and
the putative class members with a municipal violation whose penalty was the
assessment of a warrant fee or failure to appear fee.
1
All statutory references are to the Revised Statutes of Missouri 2000, as updated by the 2013
Cumulative Supplement.
3
Appellants sought relief under several theories. In Count I, they asked for a
judgment declaring (1) whether the assessment and/or collection of the
unauthorized fees was in violation of Missouri law; (2) whether the Cities had the
authority to assess and collect the unauthorized fees; and (3) whether Appellants
and the putative class members were entitled to recover the unauthorized fees that
they paid. In Counts II and III, Appellants sought repayment of the unauthorized
fees under theories of unjust enrichment and money had and received.2
In response, the Cities filed a joint motion to dismiss the petition on the basis
that Appellants' petition failed to state a claim upon which relief could be granted.
The Cities also filed a joint, unopposed motion to stay briefing and consideration of
Appellants' motion for class certification. The court found that Appellants' petition
failed to state a claim and dismissed the petition with prejudice. Appellants appeal.
STANDARD OF REVIEW
We review the grant of a motion to dismiss de novo and will affirm the
dismissal on any meritorious ground stated in the motion. Vogt v. Emmons, 158
S.W.3d 243, 247 (Mo. App. 2005). In reviewing the petition to determine if it
states a claim, we accept the allegations in the petition as true and grant the
plaintiffs all reasonable inferences from those allegations. Campbell v. Cty.
Comm'n of Franklin Cty., 453 S.W.3d 762, 767 (Mo. banc 2015). We do not
weigh the factual allegations to determine their credibility or persuasiveness.
Bromwell v. Nixon, 361 S.W.3d 393, 398 (Mo. banc 2012). Rather, we review
2
Appellants voluntarily dismissed Count IV of their petition, in which they sought an accounting.
4
the petition "'to determine if the facts alleged meet the elements of a recognized
cause of action, or of a cause that might be adopted in that case.'" Id. (citation
omitted).
Because Missouri is a fact-pleading state, the "petition must contain a short
and plain statement of the facts showing that the pleader is entitled to relief."
Gardner v. Bank of Am., N.A., 466 S.W.3d 642, 646 (Mo. App. 2015) (citing Rule
55.05). "'Although the petition need not plead evidentiary or operative facts
showing an entitlement to the relief sought, it must plead ultimate facts
demonstrating such an entitlement.'" Id. (citation omitted). A petition that asserts
only conclusions is insufficient, and we must disregard any conclusions that are not
supported by facts. Id. If the petition does not contain ultimate facts or
allegations from which to infer those facts, we will find that the motion to dismiss
for failure to state a claim was properly granted. Id.
ANALYSIS
Declaratory Judgment
In Point I, Appellants contend the court erred in finding that they failed to
state a claim for declaratory judgment. To state a claim for declaratory relief, the
petition must set forth facts demonstrating:
"(1) a justiciable controversy that presents a real, substantial,
presently-existing controversy admitting of specific relief, as
distinguished from an advisory decree upon a purely hypothetical
situation; (2) a plaintiff with a legally protectable interest at stake,
consisting of a pecuniary or personal interest directly at issue and
subject to immediate or prospective consequential relief; (3) a
5
controversy ripe for judicial determination; and (4) an inadequate
remedy at law."
Tupper v. City of St. Louis, 468 S.W.3d 360, 368 (Mo. banc 2015) (citation
omitted).
Although Appellants assert in their point relied on that they sufficiently pled
each of these elements in their petition, their argument under this point addresses
only the fourth element -- an inadequate remedy at law. Specifically, they argue
that that the Cities failed to demonstrate that an adequate legal remedy presently
existed in light of Appellants' allegations in their petition that they already paid the
fees. In response, the Cities argue in their brief that Appellants had an adequate
legal remedy.
Both parties' arguments overlook the procedural posture of this case.3 This
is an appeal from a dismissal for failure to state a claim. "'[A] motion to dismiss
for failure to state a cause of action is solely a test of the adequacy of the
plaintiff's petition.'" City of Lake St. Louis v. City of O'Fallon, 324 S.W.3d 756,
759 (Mo. banc 2010) (citation omitted). At this point in the proceedings, neither
the circuit court nor this court is to determine on the merits whether the plaintiff is
entitled to relief. Ralph v. St. Anthony's Med. Ctr., 470 S.W.3d 783, 785 (Mo.
App. 2015). Indeed, "[t]he question is not whether the petition's stated theory
3
Additionally, we note that, contrary to Appellants' argument, it was their burden to allege the non-
existence of an adequate legal remedy -- not the Cities' burden to demonstrate the existence of an
adequate legal remedy. We acknowledge Appellants' argument that it is difficult to allege facts to
essentially "prove a negative"; however, the complete dearth of any attempt to address this
essential element is fatal to this pleading.
6
demonstrates an entitlement to the declaratory relief sought, 'but rather it is
whether under the averments of the petition[,] plaintiff is entitled to a declaration
of rights at all.'" Sandy v. Schriro, 39 S.W.3d 853, 857 (Mo. App. 2001) (citation
omitted). Thus, our concern is not whether Appellants have an adequate legal
remedy, as that goes to the merits of their declaratory judgment claim. Rather, our
concern is whether Appellants alleged sufficient facts in their petition to
demonstrate that they lacked an adequate legal remedy. 4
Reviewing Appellants' petition, we find no facts alleging the lack of an
adequate legal remedy. During oral argument on appeal, Appellant’s counsel
acknowledged that the petition did not address this essential element. Notably, in
their brief on appeal, Appellants argue that they had no adequate legal remedy to
contest the allegation that they failed to appear because they were never charged
with or convicted of failing to appear, and they had no legal remedy to contest the
fee because no corresponding charge was ever brought nor a conviction obtained.
They also make allegations in their brief indicating that a trial de novo, if possible,
would not have been an adequate legal remedy. However, Appellants did not
include any of these allegations in their petition. By failing to allege facts indicating
the lack of an adequate legal remedy, Appellants failed to plead all of the facts
necessary to demonstrate their right to declaratory relief. The dismissal of Count I
was therefore proper. Point I is denied.
4
Consequently, Appellants' reliance on Tupper, 468 S.W.3d 360, which they claim to be
"dispositive" on the adequacy of their legal remedy, is misplaced, as it was an appeal from a
declaratory judgment and not an appeal from the dismissal of a declaratory judgment claim.
7
Unjust Enrichment and Money Had and Received
In Points II and III, Appellants contend the court erred in finding that they
failed to state claims for unjust enrichment and money had and received. To state
a claim for unjust enrichment, the petition must set forth facts demonstrating:
"'(1) that the defendant was enriched by the receipt of a benefit; (2) that the
enrichment was at the expense of the plaintiff; (3) that it would be unjust to allow
the defendant to retain the benefit.'" Damon v. City of Kansas City, 419 S.W.3d
162, 192 (Mo. App. 2013) (citation omitted). Similarly, to state a claim for money
had and received, the petition must set forth facts demonstrating: "(1) the
defendant received or obtained possession of the plaintiff's money; (2) the
defendant thereby appreciated a benefit; and (3) the defendant's acceptance and
retention of the money was unjust." Pitman v. City of Columbia, 309 S.W.3d 395,
402 (Mo. App. 2010).
In their petition, Appellants alleged that each of them conferred a benefit
upon the Cities by paying a purportedly unauthorized fee; that the unauthorized
fees were assessed and collected unlawfully; that the Cities knew or had reason to
know that the fees were unauthorized and unlawful; and that it would be unjust to
allow the Cities to retain the unauthorized fees. Appellants did not allege,
however, to which one of the thirteen Cities each of the four of them paid an
unauthorized fee and which of the thirteen Cities was enriched by or appreciated
the benefit of the payment of those four unauthorized fees.
8
In their reply brief, Appellants argue that, if the Cities wanted Appellants to
identify the municipalities to whom they each paid a fee, the Cities should have
moved for a more definite statement under Rule 55.27(d). We disagree. "'While
Missouri is a fact-pleading state, . . . a motion for a more definite statement
inherently concedes a cause of action and a motion to dismiss is a more
appropriate vehicle in contesting the sufficiency of a petition.'" Int'l Div., Inc. v.
DeWitt & Assocs., Inc., 425 S.W.3d 225, 232 n.10 (Mo. App. 2014) (citation
omitted). The identity of the Cities that received and appreciated a benefit at
Appellants' expense and the identity of the Cities that unjustly retained such
benefits were ultimate facts necessary to support essential elements of both the
unjust enrichment claim and the claim for money had and received. In their motion
to dismiss, the Cities were contesting the sufficiency of Appellants' petition to
state claims of unjust enrichment and money had and received and not simply the
definiteness or particularity with which Appellants pled those claims. Id. at 232.
Thus, Rule 55.27(d) was not applicable.
Appellants also argue in their reply brief that they were not required to
specify to which of the Cities each of them paid a fee because it was sufficient for
them to simply allege that fees paid by members of the putative class were
collected and retained by one or more of the Cities. They cite Mitchell v.
Residential Funding Corp., 334 S.W.3d 477 (Mo. App. 2010), in support of this
claim. In Mitchell, the named plaintiffs filed a class action suit against the current
holder of their loan and other assignees of the loan originator. Id. at 488. On
9
appeal, the defendants challenged the named plaintiffs' standing to assert claims
on behalf of the class against other assignees of the loan originator who had never
held the named plaintiffs' loan. Id.
In finding that the named plaintiffs had standing to assert claims against
other assignees, this court found that class certification was antecedent to the
standing issue, and that, once a class is properly certified, standing must be
assessed "'with reference to the class as a whole, not simply with reference to the
individual named plaintiffs.'" Id. at 490 (citation omitted). Appellants seize upon
this language from Mitchell to argue that, because the class in this case has yet to
be certified, their allegations that they and the putative class paid a fee to one or
more of the Cities and that one or more of the Cities retained those fees was
sufficient to survive a motion to dismiss.
The distinction between this case and Mitchell, however, is that in Mitchell,
the injuries of the named plaintiffs and the class were traceable to a single loan
originator. Indeed, this court even noted that, "[k]ey to our finding is that this suit
relied on common, essential factual and legal determinations as to the loan
originator MCR, its lending practices in Missouri, and the liability of its assignees."
Id. The court in Mitchell found that this was "not a case of the named
representatives seeking to 'piggyback' on the injuries of the class," as "[t]he named
plaintiffs must be able to assert an injury in fact in the suit against the originator."
Id. In our case, no common link between the Cities appears from the petition, and
Appellants have not asserted a traceable injury in fact against any specific City.
10
Appellants have not met the threshold requirement of stating a claim to even reach
the issue of class certification. Because Appellants did not sufficiently plead their
claims for unjust enrichment and money had and received, the court properly
dismissed these claims. Points II and III are denied.5
CONCLUSION
The judgment is affirmed.
____________________________________
LISA WHITE HARDWICK, JUDGE
ALL CONCUR.
5
Because we find that the court properly dismissed Appellants' claims for declaratory judgment,
unjust enrichment, and money had and received, we need not address Appellants' claims in Points
IV and V that the court erred in dismissing those claims on the bases of the affirmative defenses of
waiver and estoppel.
11