*1 GOERLITZ, Appellant, Kate MARYVILLE, Missouri,
CITY OF Corporation, Municipal
Respondent.
No. SC Missouri,
Supreme Court Banc.
En 11, 2011.
Jan. *2 petition Nodaway
Goeriitz filed a in the circuit court that the County alleging in its negligent *3 range gun that the was a range nui- sance. asked court to award Goeriitz damages injunction prohib- and to enter an iting City gun from a operating range City timely on The filed a answer the petition. Goerlitz’s motion sustained, of venue and the change was subsequently case was transferred to the County circuit Gentry court.
The filed a City summary motion for judgment in which it claimed that the un- facts controverted established Goeriitz precluded recovering against was City and also asserted affirmative defenses 537.294, provisions based on of Supp.2009, prohibiting RSMo certain law- gun ranges suits on against based sovereign immunity. and also timely response. Goeriitz filed a The cir- cuit summary judgment court entered in City favor of Goeriitz. Drake, Stephens, L. & Jerold Drake Larison, City, Grant for Goeriitz. Standard of Review Cannezzaro, Nielson, Bradley Nikki The trial its court makes deci Franke, PC, Schultz & Mullen Kansas summary sion to based grant judgment City. City, for the submitted, the pleadings, record law; therefore, this need not Court defer FISCHER, M. Judge.
ZEL to the trial court’s determination and re appeals Gentry Kate Goeriitz from the summary views of grant judgment de County entry summary circuit court’s novo. Corp. ITT Commercial Fin. judgment City Maryville favor of the Corp., Mid-America Marine Supply in her action for and injunctive 1993); Rule stemming City’s relief 74.04. reviewing grant decision her home. gun near The trial summary judgment, applies this Court correctly summary judg- court entered same criteria as the trial court in deter City. ment for the Affirmed.
mining
summary judgment
whether
Facts
proper.
Summary judgment
Id.
proper
moving party
if the
establishes that
lives in
Goeriitz
a home located in an
there
is no
issue as to the materi
unincorporated portion Nodaway
Coun-
al
that the
entitled
facts and
movant is
ty.
The
operates
owns and
judgment as a matter of law.
Id. The
adjacent piece
on an
of property.
facts
City’s property
located
contained
affidavits
otherwise
within the
Township.
in support
party’s
accepted
boundaries
Polk
of a
motion are
omitted).
“as true unless contradicted
quotations
non- nal
and citations
See
moving party’s response
summary
Fin.,
also ITT Commercial
854 S.W.2d at
However,
judgment
Only genuine
motion.” Id.
376.
appellate
dis
court review-
putes
preclude
ing
as to material facts
the ruling
sum
of a circuit court is bound to
mary judgment.
Id. at
A
consider the
material
forms of the
sup-
affidavits
porting
opposing summary
fact in the context of
summary judgment
judgment
74.04(e),
accord with
right
is one from which the
Rule
judgment
which re-
quires the affidavits to
person-
flows. Id.
be made on
knowledge
al
and set forth facts that would
A defending party, such as the
*4
be admissible in evidence. Additionally,
City, may
right
establish a
to summary
the affidavit “shall show affirmatively that
(1)
judgment by demonstrating:
facts ne
the affiant
competent
is
testify
any
gating
one of the elements of the non-
74.04(e).
matters stated therein.” Rule
(2)
claim;
non-movant,
movant’s
“that the
its motion
summary
for
judg
In
after an adequate period
discovery,
has
ment,
City
argued that Goerlitz’s
not been able and will not be able to
by §
claims were barred
537.294 and
produce sufficient evidence to allow the
sovereign immunity
provided
for in
trier of fact to
any
find
existence of
537.600,
§
If,
RSMo Supp.2009.1
as a
one” of the elements of the non-movant’s
law,
matter of
judgment
circuit court’s
(3)
claim; or
“that
there is no
is
any theory,
sustainable on
it should be
dispute as to the existence of the facts
affirmed on appeal.
ITT Commercial
necessary to support
properly
movant’s
Fin.,
fidavits or otherwise in support of the that “when legislature amends the sub party’s motion accepted are as true un- stantive law on which an less contradicted non-moving par- based, injunction may be enforced ty’s response to the summary judgment insofar as it changed conforms to the law.” motion. Club, Inc., Landolt v. Shooting Glendale Title, Inc., Hammack v. 101, Land 284 18 S.W.3d There (Mo.App.2000). Coffelt (inter- fore, 177-78 (Mo.App.2009) § 537.294 as amended in 2009 applies grant 1. Because the necessary circuit court’s of sum- not for this Court to address wheth- mary judgment is affirmed on based the rec- sovereign immunity applies. er 537.294, application ord below and it is damages injunctions merely version of bar current it is most because com- provides: interpretation it or sound.” This In “noise subsection the statute. language ignores plain pletely of fire- users and authorized All owners statute, which, in to noise addition any shall be immune ranges arm from a cause of resulting emission sound arising out of liability civil criminal or nuisance, private specifi- action based sound emis- of noise or consequence aas cally states: any use of resulting from the sion users of state to firearm Owners court in this Any subject ranges shall not firearm fire- the use or of such subject to action in tort or any civil awarded ranges any arm public private any court, action by a or assessed imposed in this state and no court owner or jury, against any in this state operation of such enjoin the use or shall of such firearm for nuisance user of noise or ranges on the basis are void. null and resulting from the use emission sound addition, inter- Section 537.294.2. *5 Any actions any such firearm § completely pretation of 537.294 would enjoin the by in to a court this state makes the fact that the statute also ignore such firearm or use injunction tres- any and void based on null ranges any damages awarded and trespass cause of action pass, court, by by a imposed or assessed showing requires just more than always any owner jury, this in state by and sound. See of interference noise ranges for nui- of such firearm or user Co., 801 Gary Naugle Hansen Const. null and void. are sance 1990) (“A added). goes 537.294.4 (Emphasis Section with the physical is a direct interference any “Notwithstanding on to state: another.”) property (emphasis person in contrary, nothing of law to the provision added) omitted). (internal citation limit civil to this section shall construed support, a alleges, but fails to Goerlitz damage arising liability compensatory ricocheting proper- on her claim of bullets human, another physical injury to fact, her own ty. affidavit indicates prop- injury personal to physical tangible found on only bullets she retrieved were fixtures or struc- erty, physical injury to by City. owned gun real placed property.” tures on for an argues request Goerlitz that her injunctive re Goerlitz’s claim for (1) supported by her sworn noise emis contains about lief averments ricochet that she heard bullets statement sions, and from bullets danger (2) her her sworn state- property, onto airspace property. of her invading they people ment that other told her that any argument acknowledges Goerlitz air, through bullets ricocheting heard spe general nuisance is based on noise (3) of other and the unsworn statements by cifically and barred unequivocally claiming that bullets ri- people they heard argues, § 537.294.2. Goerlitz her Goerlitz cocheting issue material fact exists that a 74.04(e) to her affidavit. Rule attached ricocheting are and as to whether bullets affi- requires: “Supporting opposing and her that such a flying over personal shall be made on knowl- davits by the stat for relief is not barred claim forth facts as would be edge, shall set ute. evidence, and shall show af- admissible to firmatively competent inter that the affiant is urges Goerlitz to this Court testify § to the matters stated therein.” the current version of 537.294 pret leaves Clearly, the statement “oth nuisance as the sole legal theory ricocheting through heard bullets claimed Goerlitz support ers her request for an personal knowledge injunction. air” is not based on would not be evidence. admissible noted, previously As 537.294 as clear is the that not one of Just fact any divests any court in this state of au purported statements at these witness thority to enter an or award is sworn. For tached Goerlitz’s affidavit damages against the owner of a reason, these statements do not add this upon based allegations nuisance or tres any admissible evidence and cannot be pass. expressly The statute declares that ruling considered on the Court’s “[a]ny ... a court summary judgment. motion for Ad City’s use or operation of such firearm ranges ditionally, affidavit Goerlitz’s own fails to any imposed awarded or aby any affirmative foundation that provide any court ... against owner or user of personal knowledge of a single she for nuisance or tres causing physical injury to her or bullet her pass are null and void.” Section 537.294.2. Because of this lack of eviden- There is ambiguity no the statutory tiary support, her claims are unable to language. “If legislature the intent of the City’s for summary survive motion unambiguous, is clear giving judgment. language used in plain the statute its legal supports ordinary
No an in theory meaning, then we are bound under junction petition these facts. intent and cannot resort to any statu *6 separate tory to seek relief on four purports interpreting construction in the stat Sales, injunction. counts. Count one seeks an ute.” Scott v. Springs Blue Ford Inc., 145, alleges two Count nuisance. Counts three 215 S.W.3d 166 (Mo.App.2006) (internal However, omitted). four allege negligence. quotations and an and citations Further, injunction is a not a remedy and cause of action; therefore, it must be based on statutory The rules of interpretation recognized pleaded legal theory. some and are not be applied haphaz- intended to Country
Farm Bureau Town and Ins. Co. ardly indiscriminately or to achieve a 348, Angoff, v. S.W.2d 354 Missouri 909 of (Mo. Instead, desired result. canons of 1995) (“An injunction banc is an ex statutory interpretation are consider- traordinary remedy and harsh should ations made in a effort to deter- employed not be where there is an ade legislature mine what intended. law.”). quate remedy at This primary statutory Court’s rule of give interpretation legisla- is to effect to petition purport does not trespass.2 tive intent as in the plain reflected lan- allege a cause of A action guage of the statute at issue. support injunc claim cannot an negligence necessary neg Imports, tion because a element of a Parktown Inc. v. Audi Amer- of ica, Inc., claim an ligence damage is 278 S.W.3d 672 2009). prohibit damage. seeks to future That “[Tjrespass necessary entry upon plead did all is unauthorized elements of a cause of done, by person object land of another” or an trespass, action for which she has not actions, person's “regardless a result of a specifically prohibits the statute set out above the amount of or the of force used amount of injunction against gun an of a Cole, damage Rychnovsky done.” trespass injury based on unless there is (Mo.App.2003). Goerlitz’s person to a trespass. in But even if claim sounds Goerlitz STITH, written, Judge, Goer- DENVIR currently is LAURA § 587.294
As concurring in litz, this state for result. any other citizen of matter, protection virtually has no in so the principal I concur much of from, against, the owners nor remedies as holds that Kate Goerlitz is opinion ranges in state unless users of this for tres- suing barred actually or her until she clearly or nuisance. 537.294 pass Section a bullet or suffers otherwise struck all in prohibits trespass This not make physical injury. did Court applies here. law, enforce the obligated but disagree, I that section 537.294 legislature.3 duly enacted law as necessarily injunctive relief bars all Therefore, this Court defer to the must I ranges. believe that it statute, of the the time- plain language prohibit injunctive relief does not where principle powers of of separation honored is not purpose to bar recognition decisions policy trespass or the principal nuisance. As are within presented such as this ease notes, relief is opinion injunctive only a Goer- providence legislature.4 remedy: plead one also must a tort cause support a that she has litz fails to claim action, nuisance, than injured proper- or that her physically been may remedied ty ricochet- physical injury by has suffered Here, however, sought. relief Ms. Goerlitz therefore, is, Her ing bullets. claim nuisance, pleaded barred the statute.5 clearly claims the statute bars. Accord- I concur ingly, result.
Conclusion Ms. Goerlitz in a home lives located judgment light foregoing, unincorporated Nodaway portion by the circuit court is affirmed. entered County. The city Maryville owns and adjacent operates a firearm on an *7 C.J., TEITELMAN, PRICE, piece of that is located outside RUSSELL, WOLFF, and city by but is it. The owned number BRECKENRIDGE, JJ„ concur. people using range progressively of STITH, J., in separate According concurs in result has increased. to Ms. Goerlitz’s affidavit, opinion opposition filed. filed below in to sum- analysis equally apply ownership. parties would to ed with This Brown The have not Club, addressed, Court, Creek Rod & 298 S.W.3d v. Cedar Gun nor does this whether this (Mo.App.2009), to which was remanded taking statute of one of constitutes those proceed- circuit court to "conduct rights compensa- to so as entitle the owner to ings necessary to determine whether to I, pursuant tion to article section of permanent what extent the shall Missouri Constitution. remain in effect.” Id. at 19. provide 5.While it will comfort to scant Goer- regarding parties present arguments 4. The no litz, light unsupported complaint of her I, infringes § article sec- whether 537.294 ricocheting here that bullets are onto her (relating tion of the Missouri Constitution certainly City it behoove would remedy open afforded to courts "certain improvements shooting range, to make injury”) every judicial func- invades the necessary, to that neither if ensure she nor implicate pow- separation tion so as to of II, anyone certainly else is The harmed. has provisions of article 1 or article ers V, section Further, placed potentially danger- prop- on notice of a section 1. an owner of real been erty rights § a number of are associat- condition. ous See 537.600. mary judgment, initially 537.294,1 the firearm which had legislative broadened Nodaway County used sheriffs protection of such ranges so as to bar suits department practice. for target In recent against them for nuisance or trespass and years, employees department of cor- so as to prohibit injunctive relief based on rections treatment center personnel those claims. campus safety at Northwest Missouri As amended in 2008 and currently in State University permitted also have been effect, section 537.294.2states: use the firearm All owners and authorized users of fire- 13, 2007, On November Ms. Goerlitz arm ranges shall be immune from any a petition filed in the circuit court. The criminal and civil liability arising out of petition generally averred that the firearm or as a consequence noise or sound subjected Ms. Goerlitz to “loud resulting emission from the any use of noise emissions that peace disturb the such firearm range. Owners and users [Ms. and others.” It further Goerlitz] al- of such firearm ranges shall not be sub- leged that range subjected Ms. Goer- ject to any civil action in tort or subject litz and “danger others to from bullets any action for public or private nui- space invade the air Goer- [Ms. sance or trespass and no court in this Finally, litz] others.” the petition al- enjoin state shall operation use or leged pollution because the pick failure to ranges on the basis up expended cartridges near the water noise or sound resulting emission surrounding range “[p]oisons the envi- any the use of such firearm range. Any ronment depositing large quantities of a court in this state to lead on land.” use or of such firearm petition sought damages for nui- any damages awarded or sance and negligence as well as imposed court, by a or assessed aby relief, alleging irreparable harm by sub- jury, in against any this state owner or to,
jecting Ms. Goerlitz among other user of such firearm ranges for nuisance things, “danger from bullets which invade are null and void. space the air of [Ms. Goerlitz] and others.” added). (emphasis 537.294.2 In response city’s motion for sum- evident, As is pur- amended statute mary judgment, Ms. Goerlitz filed an affi- ports grant to firearm ranges sweeping davit that similarly stated that “stray bul- protections from suits over noise or sound lets either direct fire or escape ricochet *8 emissions. Owners of such ranges giv- are from Defendant’s Firearms Range unto en statutory immunity from civil or crimi- property. Affiant’s Affiant states that the nal liability emission, for noise or sound (9 last time she a heard bullet was ... ” they and civilly cannot be sued for such days ago).... in trespass, emissions or any oth- Ms. Goerlitz argued that these pre- facts Further, er tort. may courts not summary cluded judgment because “bul- emission, such noise or sound they and if being lets fired from the range, by firearm do, any such is null and void. ricochet, either direct fire or come onto or city over The dwelling principal opinion argue, Plaintiffs and occupied [sic ] property.” The trial court that the disagreed, en- amended statute goes tering summary judgment city They for the un- even further. believe the statute der newly the amended version of section affirmatively prohibits a court enjoin- from statutory 1. All Supp. references are to RSMo 2009 unless otherwise indicated. Summit, 278 the Lee’s allowing users of city from
ing 2009) (“In determining the intent city’s from firearms range discharge to statutory the words language, meaning of others under property onto the property ... to arrive ac- must be considered context such shots any circumstances. Unless meaning scope at or true injure persons proper- tually physically words”). city to range, the is free ty off the firearm it wishes. property its
use The bars first sentence subsection from the emanating for or sound goes not that the statute suit noise agree I would that terms, says its The second sentence By section 537.294 so far. subject in nui- owners not be to suit of firearms shall protecting operators at aimed for emanations trespass noise sance or such liability neighbors to for ranges sound, noise sound and that an comple- are a natural or not issue. such noise sound shall ranges. ment sentence, while injunctions repeating The final not sought cannot be Damages necessarily sound” phrase again, noise. “noise or prevent be issued to cannot previously referenced suit refers back to only prohibits But the statute over sound; here, barred dam- previously emission of noise and any in- ages injunctive says relief and yet proved, is that allegation, to be junctive given If relief shall null and void. emitting bullets. the statute be only could render null city suggests, read as a court The statute mean to were issued in helpless stop person injunctions from and void that were would be injunctions of emana- firing from the at violation of its bar purposely shots tions of and sound.3 range; person outside the such a noise people others, endanger and un- repeatedly could Where claims other than hit,2 a actually til someone court could statute, brought, there- nuisance are conduct, if enjoin the even that conduct not Here, fore, does not bar relief. tort other than independent constituted argu- alleged Ms. facts that Goerlitz trespass. nuisance or ably negli- constitute intentional or may statutory gent of emotional distress language must be read infliction battery merely trespass than language materia with the surround rather pari nuisance, city alleges she ing it. S. Metro. Fire Prot. Dist. v. "[Njotwithstand- for noise or emissions 2. Section 537.294.4 states: could sue sound ing any provision contrary, cannot, of law to trespass, opinion says, but one nothing in this section shall construed requires physical interfer- because damage liability compensatory limit civil ence so must be with the statute arising injury physical to another hu- something in- referring else. But that is man, tangible physical injury personal may phys- correct. Noise or sound emissions physical injury property, or to fixtures or ically they lead to interfere with if placed property.” structures course, on real Of Clay v. Missouri vibrations on permits the fact recov- that the statute *9 617, Comm’n, Transp. Highway & 951 S.W.2d persons ery injuries to (vibrations blasting (Mo.App.1997) property injured by emanations from land). neighboring constituted sound, vi- in the form —whether interference, Moreover, intangible brations, noises, or bullets otherwise —does emissions, may radioactive caused not address can issue whether trespass. Maryland Heights Leas- constitute safety prohibit dangers public that con- Mallinckrodt, Inc., ing, 706 S.W.2d v. Inc. stitute torts. (Mo.App.1985). principal argues opinion 3. The read- ing of the statute could be correct if one range to permits users of the knowingly a manner that causes bullets
shoot in causing her her to
ricochet over her safety causing her seri-
fear for injury. factual Despite
ous risk these as- Ms. Goerlitz has
allegations, only claims for nuisance tres-
serted Injunctive relief based on
pass. Accordingly, I
and nuisance is barred. affirming the judgment.
concur JOHNSON, Appellant,
Ernest Missouri, Respondent.
STATE
No. SC 90582. Missouri,
Supreme Court of
En Banc.
March 29, 2011.
Rehearing Denied March