EMERALD POINTE, LLC. v. TANEY COUNTY PLANNING COMMISSION, TANEY COUNTY BOARD OF ADJUSTMENT

In Division

EMERALD POINTE, LLC., )

)

Appellant, )

)

vs. ) No. SD37630

)

TANEY COUNTY PLANNING ) FILED: February 3, 2023

COMMISSION, TANEY COUNTY BOARD )

OF ADJUSTMENT, )

)

Respondent. )

APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY

Honorable Laura Johnson, Judge

DISMISSED.

This is the third appeal 1 by Emerald Pointe, LLC (“Emerald Pointe”) arising from its

petition for writ of certiorari under section 64.870.2 2 against the Taney County Planning

Commission (the “Commission”) and the Taney County Board of Adjustment (the “Board”).

Following the previous two appeals and remands, Emerald Pointe filed, and the circuit court

denied, a motion to file an amended petition under Rule 55.33(a) 3 (the “Motion to Amend”). In

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The previous two appeals were Emerald Pointe, LLC v. Taney County Planning Commission, 578 S.W.3d 390

(Mo.App. 2019) (“Emerald Pointe 1”), and Emerald Pointe, LLC v. Taney County Planning Commission, 621

S.W.3d 188 (Mo.App. 2021) (“Emerald Pointe 2”).

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All Missouri statutory references are to RSMo 2016.

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All rule references are to Missouri Court Rules (2022).

its sole point relied on, Emerald Pointe contends that the circuit court erred in denying the

Motion to Amend. However, we lack jurisdiction and must dismiss this appeal.

Factual and Procedural Background

Emerald Pointe is the developer of Emerald Pointe subdivision (the “subdivision”)

located in Taney County. On September 21, 2016, during the course of work on the subdivision,

the Commission entered a stop work order (the “Stop Work Order”) against Emerald Pointe.

Emerald Pointe appealed the Stop Work Order to the Board, but that appeal was denied.

Emerald Pointe filed a verified petition against the Commission and the Board in circuit

court alleging that the Commission’s Stop Work Order and the Board’s denial of Emerald

Pointe’s appeal were illegal on various grounds. The circuit court dismissed Emerald Pointe’s

petition on the basis that it failed to state a claim under section 64.870.2. Emerald Pointe

appealed and, in Emerald Pointe 1, this Court stated the statute requires that a petition seeking

judicial review of a decision of a board of adjustment must “(1) be verified, (2) state that the

decision is illegal in whole or part, (3) specify the grounds of the illegality, and (4) ask for relief

therefrom.” 578 S.W.3d at 394. We concluded that Emerald Pointe’s petition satisfied all of

these requirements, reversed the dismissal and remanded the case back to the circuit court for

further proceedings. Id. at 394-98.

On remand, the circuit court held an evidentiary hearing and issued a judgment affirming

the Board’s decision. Emerald Pointe appealed that judgment in Emerald Pointe 2. Ultimately,

we reversed the circuit court’s judgment with directions “that the cause be remanded back to the

Board with directions that the Board grant Emerald Pointe’s appeal of the Commission’s Stop

Work Order.”

On May 20, 2021, the circuit court issued a written “Judgment Following Mandate From

Missouri Court of Appeals Southern District” (the “2021 Judgment”) that stated, in pertinent

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part, as follows:

NOW, therefore, the Court DECLARES, FINDS and ORDERS that

Judgment in favor of [Emerald Pointe] on its Writ of Certiorari be granted for the

reasons stated in the Opinion and Mandate of the Southern District Court of

Appeals.

FURTHER, the Court DECLARES, FINDS and ORDERS the Stop Work

Order dated September 21, 2016 to be illegal and unauthorized by law for the

reasons stated in the Opinion and Mandate of the Court of Appeals.

FURTHER, the Court DECLARES, FINDS and ORDERS that this matter

be remanded back to the [Board].

FURTHER, the Court DECLARES, FINDS, ORDERS and DIRECTS that

the [Board] grant [Emerald Pointe]’s appeal of the Stop Work Order dated

September 21, 2016 issued by the [Commission].

Several months later, on January 28, 2022, Emerald Pointe filed the Motion to Amend.

Emerald Pointe sought to add Taney County, Missouri, as a party in the litigation and add a

count alleging due process violations under the Fourteenth Amendment to the United States

Constitution and title 42 United States Code, section 1983. Emerald Pointe asserted the

following bases for these amendments:

(1) it has only been recently in 2021 that the Stop Work Order was found to be

illegal and unauthorized by law thereby giving [Emerald Pointe] the right to seek

delay damages; (2) [the 2021 Judgment] is not a final judgment under Missouri

Rule 74.01 because it did not resolve [Emerald Pointe]’s claim for attorney fee

damages as asserted in Count IV of the original Petition alleging violation of due

process rights[]; (3) [Emerald Pointe] has been suffering ongoing and continuing

damages to its property and to its rights through the present date due to the

issuance of the illegal Stop Work Order; and (4) additional facts and information

have been discovered to support the adding of Taney County as a party and the

additional claims in the First Amended Petition.

On May 23, 2022, the circuit court entered a written Order (the “2022 Order”), in which

it held that “[b]ecause the Court’s [2021 Judgment] was a final judgment in the case, this Court

no longer has jurisdiction over the case, and [Emerald Pointe]’s Motion [to Amend] is denied.”

On July 1, 2022, Emerald Pointe filed the instant appeal.

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Appellate Jurisdiction

“[A]n appellate court has a duty to sua sponte determine if it has authority to entertain an

appeal.” Hall v. Wal-Mart Stores, Inc., 287 S.W.3d 714, 715 (Mo.App. 2009). “The right to

appeal is purely statutory and, where a statute does not give a right to appeal, no right exists.”

First Nat’l Bank of Dieterich v. Pointe Royale Prop. Owners’ Ass’n, Inc., 515 S.W.3d 219, 221

(Mo. banc 2017) (internal quotation marks omitted).

“[A] judgment is a legally enforceable judicial order that fully resolves at least one claim

in a lawsuit and establishes all the rights and liabilities of the parties with respect to that claim.”

State ex rel. Henderson v. Asel, 566 S.W.3d 596, 598 (Mo. banc 2019). “As used in this

definition, the word ‘claim’ means ‘(1) a short and plain statement of the facts showing the

pleader is entitled to relief and (2) a demand for judgment for the relief to which the pleader

claims to be entitled.’” Wilson v. City of St. Louis, 600 S.W.3d 763, 768 n.6 (Mo. banc 2020)

(quoting Rule 55.05). “Even if multiple forms of relief are sought with respect to one set of

facts, it is still one claim, and an order resolving some prayers for relief and not others does not

fully resolve that claim and is not a judgment as defined in [Asel, 566 S.W.3d at 598].” Id. “If a

judgment resolves all claims by and against all parties, or it resolves the last such claim and some

(but not all) claims have been resolved previously,[] it is commonly referred to as a ‘final

judgment.’” Asel, 566 S.W.3d at 598.

In its jurisdictional statement, Emerald Pointe asserts that “[the 2022 Order] is a final,

appealable judgment because the [c]ircuit [c]ourt held it lacked jurisdiction and therefore denied

Emerald Pointe’s Motion for Leave to Amend its Petition due to [the 2021 Judgment].” The

circuit court, however, did not denominate the 2022 Order as a “judgment” or “decree.” See

Rule 74.01(a). The failure to denominate the 2022 Order as a “judgment” or “decree” presents

one barrier to it being a “final judgment” under section 512.020(5). See Meadowfresh Solutions

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USA, LLC, v. Maple Grove Farms, LLC, 578 S.W.3d 758, 762 (Mo. banc 2019) (affirming “the

requirement of Rule 74.01(a) in which actual judgments . . . and ‘final judgments’ . . . must be

denominated as such so an appeal may be taken”).

Presumably, the circuit court did not denominate the 2022 Order as a “judgment” or

“decree” in light of its conclusion that the 2021 Judgment is a final judgment. To be a final

judgment, the 2021 Judgment would have had to resolve all of or the last of the unresolved

claims in Emerald Pointe’s petition. See Asel, 566 S.W.3d at 598. If there were no remaining

claims, the 2022 Order could not be a final judgment, regardless of how it is denominated.

The only other way this Court could have jurisdiction is if the 2022 Order was a “special

order after final judgment” under section 512.020(5). If this is the case, the denomination

requirements of Rule 74.01(a) would not apply. See Meadowfresh, 578 S.W.3d at 762 (holding

that an appealable “order” is not a judgment and need not be denominated as such). A “special

order” within the meaning of section 512.020(5) refers to “orders in special proceedings

attacking or aiding the enforcement of the judgment after it has become final in the action in

which it was rendered.” State ex rel. Westmoreland v. O’Bannon, 87 S.W.3d 31, 34 (Mo.App.

2002) (internal quotation marks omitted). “The phrase contemplates that a judgment has become

final and that one of the parties is attempting to enforce the judgment or to attack the

enforcement of the judgment.” Id. (internal quotation marks omitted).

Emerald Pointe, however, denies that the 2021 Judgment is a final judgment. Thus, the

Motion to Amend was, ostensibly, neither an attempt by Emerald Pointe to enforce the 2021

Judgment, nor an attempt to attack it. Yet, in attempting to add an additional claim and party

into the litigation, Emerald Pointe seeks, inevitably, to modify or add to the existing judgment.

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Because this issue is intertwined with the merits of the appeal, we must turn to and

discuss Emerald Pointe’s sole point relied on, which asserts that “[t]he [c]ircuit [c]ourt erred as a

matter of law in finding it lacked jurisdiction and thereby denying [the Motion to Amend]

because the [2021 Judgment] was not a final judgment under Missouri Rule 74.01(b) and the

[c]ircuit [c]ourt retained jurisdiction. . . .”

Applicable Principles of Review

“Except as authorized by law, a circuit court loses jurisdiction over a case when a

judgment becomes final.” State ex rel. AJKJ, Inc. v. Hellmann, 574 S.W.3d 239, 242 (Mo.

banc 2019). “Following divestiture, any attempt by the trial court to continue to exhibit authority

over the case, whether by amending the judgment or entering subsequent judgments, is void.”

Id. (internal quotation marks omitted). However, “[c]ourts have inherent power to enforce their

own judgments and should see to it that such judgments are enforced when they are called upon

to do so.” Lake Thunderbird Property Owners Ass’n, Inc. v. Lake Thunderbird, Inc., 680

S.W.2d 761, 763 (Mo.App. 1984). “Questions of circuit court jurisdiction are solely issues of

law and are reviewed de novo.” Laughlin v. Abney, 254 S.W.3d 255, 256 (Mo.App. 2008).

Discussion

Rule 74.01(b) provides that, in the absence of an express determination that there is no

just reason for delay, any order or other form of decision “that adjudicates fewer than all the

claims . . . shall not terminate the action as to any of the claims . . . and the order or other form of

decision is subject to revision at any time before the entry of judgment adjudicating all the claims

. . . .”

Here, the crux of Emerald Pointe’s argument is that its petition contains a due process

claim, that the 2021 Judgment did not resolve this claim, and, therefore, the 2021 Judgment has

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not terminated the underlying action. 4 The procedural background of this case, notably Emerald

Pointe 2, is dispositive.

“‘The doctrine of the law of the case provides that a previous holding in a case constitutes

the law of the case and precludes relitigation of the issue on remand and subsequent appeal.’”

Smith v. Brown & Williamson Tobacco Corp., 410 S.W.3d 623, 632 (Mo. banc 2013) (quoting

Walton v. City of Berkeley, 223 S.W.3d 126, 128-29 (Mo. banc 2007)). “The doctrine insures

uniformity of decisions, protects the parties’ expectations, and promotes judicial economy.” Id.

(internal quotation marks omitted). “Generally the decision of a court is the law of the case for

all points presented and decided, as well as for matters that arose prior to the first adjudication

and might have been raised but were not.” Walton, 223 S.W.3d at 129; see also Soderholm v.

Nauman, 466 S.W.3d 610, 618 (Mo.App. 2015) (stating that “[t]his rule applies to matters

decided by the appellate court’s opinion, either directly or by implication” (internal quotation

marks omitted)). “[T]he doctrine of the law of the case governs successive appeals involving

substantially the same issues and facts, and applies appellate decisions to later proceedings in

that case.” Am. Standard Ins. Co. v. Stinson, 404 S.W.3d 303, 314 (Mo.App. 2012).

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Additionally, Emerald Pointe’s due process argument encompasses an argument that the circuit court did not

resolve Emerald Pointe’s prayer for attorney fees under section 536.087.1. To be awarded attorney’s fees, a party

must plead a basis for an award of fees, in addition to simply including a request for attorney’s fees in its prayer for

relief.” Ruby v. Troupe, 580 S.W.3d 112, 115 (Mo.App. 2019). The statute cited by Emerald Pointe provides that

“[a] party who prevails in an agency proceeding or civil action arising therefrom, brought by or against the state,

shall be awarded those reasonable fees and expenses incurred by that party in the civil action or agency

proceeding . . . ” unless the court or agency finds that certain exceptions are met. Section 536.087.1. However, the

statutory procedure requires that “[a] party seeking an award of fees and other expenses shall, within thirty days of a

final disposition in an agency proceeding or final judgment in a civil action, submit to the court, agency or

commission which rendered the final disposition or judgment an application . . . .” Section 536.087.3 (emphasis

added); cf. State ex rel. Hilburn v. Staeden, 62 S.W.3d 58, 61 n.1 (Mo. banc 2001) (holding that “the pendency of

the application for attorneys[’] fees [under section 536.087] does not prevent entry of a final judgment” (emphasis

added)), disagreed with on other grounds by Jefferson County 9-1-1 Dispatch v. Plaggenberg, 645 S.W.3d 473,

477 n.4 (Mo. banc 2022); section 536.087.4 (permitting appeal from a judgment despite there being a pending

application for attorney fees). Thus, an unresolved prayer for attorney fees under section 536.087 does not prevent

entry of a final judgment. Emerald Pointe nevertheless maintains, however, that its due process claim is unresolved

and its prayer for attorney fees is linked to that claim.

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Following our remand in Emerald Pointe 1, the circuit court held an evidentiary hearing

and, thereafter, issued a judgment denying Emerald Pointe’s petition in its entirety, including any

alleged due process claim. In Emerald Pointe 2, Emerald Pointe appealed from that judgment,

the finality of which is undisputed, and could have raised the denial of any due process claim as

an issue to be determined on appeal. However, neither of the two points on appeal contained any

such argument. See 621 S.W.3d at 190. “‘According to the law of the case doctrine, failure to

raise points in a prior appeal means that a court later hearing the case need not consider them.’”

State v. Johnson, 22 S.W.3d 183, 188-89 (Mo. banc 2000) (quoting United States v. Kress, 58

F3d 370, 373 (8th Cir. 1995)). Emerald Pointe offers no reason why it should be excused from its

failure to raise, in Emerald Pointe 2, the due process issue that it now contends has yet to be

resolved.

Additionally, in the Emerald Pointe 2 opinion, this Court declined to address other issues

(that were raised in that appeal), which were not essential to our final disposition. 621 S.W.3d at

190. “‘Issues that are not essential to a disposition of the case should not be addressed.’”

O’Hare v. Permenter, 113 S.W.3d 287, 289 n.2 (Mo.App. 2003) (quoting State v. Kinkead, 983

S.W.2d 518, 520 (Mo. banc 1998)). Our reversal of the circuit court’s judgment ultimately

hinged on the claim that the Stop Work Order’s requirements were not authorized by law, and

we remanded the case back to the Board with directions to grant Emerald Pointe’s appeal of the

Stop Work Order. Id. at 191, 196. Thus, the 2021 Judgment is “final” in that it resolved, by

virtue of the application of the law of the case doctrine, the only claim remaining in the case.

See Asel, 566 S.W.3d at 598. As such, this Court does not have jurisdiction to hear the appeal

and it must be dismissed.

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Assuming, without deciding, the 2022 Order qualifies as a “special order after final

judgment” under section 512.020(5), a timely notice of appeal was required. See Berger v.

Cameron Mut. Ins. Co., 173 S.W.3d 639, 640 (Mo. banc 2005) (“Timely filing of a notice of

appeal is jurisdictional.”). As relevant here, a notice of appeal “shall be filed not later than ten

days after the judgment, decree, or order appealed from becomes final.” Rule 81.04(a). “It is the

content, substance, and effect of the order that determines the finality and appealability.” Basta

v. Kansas City Power & Light Co., 410 S.W.3d 743, 747 (Mo.App. 2013) (quoting Gibson v.

Brewer, 952 W.W. 2d 239, 244 (Mo. banc 1997)). Therefore, if the 2022 Order qualified as a

special order after final judgment, it would have become final immediately upon entry based

upon its content, substance, and effect. Emerald Pointe’s appeal was filed thirty-nine days after

the issuance of the 2022 Order, and therefore, is untimely necessitating a dismissal. In either

instance, this Court does not have appellate jurisdiction over Emerald Pointe’s appeal.

Decision

Emerald Pointe’s appeal is dismissed.

BECKY J. W. BORTHWICK, J. – OPINION AUTHOR

JEFFREY W. BATES, J. – CONCURS

JENNIFER R GROWCOCK, J. – CONCURS

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