Boyer v. City of Potosi

• Decision Date: 04 June 2002
• Docket Number: No. ED 79546.,ED 79546.
• Citation: 77 S.W.3d 62
• Parties: John L. BOYER, Appellant, v. CITY OF POTOSI, Missouri, Respondent.
• Court: Missouri Court of Appeals

77 S.W.3d 62

John L. BOYER, Appellant, v. CITY OF POTOSI, Missouri, Respondent.

No. ED 79546.

Missouri Court of Appeals, Eastern District, Division Three.

June 4, 2002.

John L. Boyer, Potosi, MO, for appellant.

Ryan S. Shaughnessy, St. Louis, MO, for respondent.

CLIFFORD H. AHRENS, Presiding Judge.

John L. Boyer ("Boyer"), former mayor of the City of Potosi, Missouri ("City"), appeals from a judgment of the Circuit Court of Washington County, Missouri affirming an administrative decision of the Board of Aldermen ("Board") of City impeaching and removing him from office.¹ The Board convicted Boyer on five of the Articles of Impeachment ("impeachment articles"), finding that he had improperly removed Donald Cooksey ("Cooksey") from his position as chief of police of City in violation of Sec. 79.240 RSMo 1994², certified and permitted false claims for wages against City, made a false report of misconduct by Cooksey to the Board, and disclosed confidential medical records to the general public.³ We affirm in part and reverse in part.

At an open meeting on March 11, 1999, the Board adopted impeachment articles for the removal of Boyer as mayor, and scheduled the impeachment hearing for March 23, 1999. The impeachment articles charged Boyer with having committed a variety of acts of misconduct and malfeasance while acting as mayor. Boyer was not present at the open meeting of March 11, 1999. William P. Cronan, counsel for Boyer, appeared at the March 23, 1999 hearing and requested a continuance, which the Board granted, continuing the case until March 29, 1999.

The Board's attorney presented the testimony of several witnesses at the impeachment hearing, and offered into evidence thirty-five exhibits. Boyer's attorney did not call any witnesses, but did offer seventeen exhibits into evidence.⁴ Boyer's counsel apparently withdrew these exhibits from the administrative record at the conclusion of the impeachment hearing.⁵ The Board found Boyer guilty of some impeachable offenses, not guilty of others, and removed Boyer from office for misconduct and "other good cause."

On April 19, 1999, Boyer's lawyer filed a petition for administrative review of the impeachment hearing in the Circuit Court of Washington County. The petition alleged that the impeachment was illegal because the Board's impeachment was a rush to judgment in that it was against the advice of the city attorney, that the Board ignored the procedures for impeachment prescribed by statute, and that the decision of the Board was not supported by substantial evidence.

City filed motions for a more definite statement and to strike on April 22, 1999. The trial court sustained the motion to strike after a hearing on May 12, 1999 at which Boyer failed to appear either in person or by counsel.

Boyer entered his appearance, pro se, and filed an amended petition with various exhibits on June 1, 1999, and on June 18, he filed a request for the transmittal of the administrative record ("record") of the impeachment hearing.⁶ City filed motions to strike and to dismiss Boyer's amended petition on August 5.

Boyer filed exhibits to be included in the record on September 29, 1999, which the trial court admitted into the record. The record was filed with the trial court on October 12.⁷ The trial court held a hearing on City's motions to strike and to dismiss on November 9, and sustained both motions, ordering that paragraphs one to four of Boyer's amended petition be struck, as well as the exhibits attached to the amended petition, and dismissing the case.⁸ Boyer appealed from this judgment.

This court in Boyer v. City of Potosi, 38 S.W.3d 430 (Mo.App.2000) affirmed the trial court's striking of paragraphs 2 through 4 of the amended petition and of the exhibits attached thereto, but reversed the striking of paragraph 1 and the dismissal of Boyer's amended petition, and remanded the case back to the circuit court for further proceedings.

On April 18, 2001, the case was heard on remand by the Honorable Raymond Weber of the Circuit Court of Washington County. The trial court found that the findings of fact and conclusions of law of the Board as to impeachment articles 1, 6, 7, 10, and 11 were supported by competent and substantial evidence. The court also determined that based upon the evidence, the Board's decision to impeach and remove Boyer as mayor for cause was supported by competent and substantial evidence, and the court affirmed the impeachment and removal of Boyer. Boyer appeals from that judgment to this court pro se.

In his first point on appeal, Boyer asserts that the trial court erred by failing to consider his charge that City denied him due process by failing "to preserve and submit all evidence presented, accepted and reviewed" at the impeachment hearing for the record submitted to the trial court, and that the trial court therefore erred in striking exhibits submitted by Boyer to the trial court.

We do not need to decide this issue because it has not been properly preserved for appellate review. The record on appeal, which consists of the legal file and a partial transcript of the trial on remand, shows that this specific alleged error was not brought to the trial court's attention. Nothing in Boyer's amended petition or in City's answer refers to this issue, and neither Boyer nor City filed a motion regarding it. There is no evidence in the record of any objection or motion made by Boyer or any ruling by the trial court on this issue. The partial transcript requested by Boyer contains only a reference by City's attorney, Ryan Shaughnessy, "to his [Boyer's] allegation that the record was not preserved[.]" It is impossible to tell from the record provided to this court what, if anything, Boyer had objected to or requested from the trial court. "Even in a court-tried case, where a post-trial motion is not necessary to preserve an otherwise properly raised issue for an appellate review, the appellant must make some effort to bring the alleged error to the trial court's attention." (emphasis added). McMahan v. Missouri Dept. of Social Services, Div. of Child Support Enforcement, 980 S.W.2d 120, 126 (Mo.App. 1998).

Rule 81.12(a) requires that the record on appeal "shall contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented....." Further, Boyer did not file for review by this court the exhibits which he claims were struck by the trial court, and which he claims City failed to preserve in the record. The appellant must prepare a legal file and order a transcript such that the record contains all the evidence necessary for the determination of the questions presented to the appellate court. Environmental Quality Research, Inc. v. Mercantile Trust Nat. Ass'n, 854 S.W.2d 500, 501 (Mo.App.1993). Boyer did not prepare a record that meets the requirements of Rule 81.12(a).

We consider, ex gratia, Boyer's first point. Boyer had the opportunity to supplement the record provided to the trial court pursuant to section 536.130.4. The legal file shows he did file exhibits with the trial court on September 29, 1999, which were made a part of the record by the trial court. Nothing in the record before this court indicates that the trial court struck any of these exhibits. The trial court's order and judgment of November 9, 1999, struck only the exhibits attached to Boyer's amended petition, not the exhibits filed on September 29. City's alleged denial of due process by failing to preserve and submit the record was rendered moot by Boyer's filing of exhibits which the trial court made a part of the record on September 29, 1999.

Boyer also alleges in his first point on appeal that because the trial court failed to consider his charge that City denied him due process regarding the preservation of the record that the trial court therefore erred in striking exhibits submitted by Boyer to the trial court. Assuming that Boyer was referring to the exhibits attached to his amended petition, which the trial court struck in its order of November 9, 1999, this issue was addressed in Boyer v. City of Potosi, 38 S.W.3d at 434, in which this court affirmed the trial court's actions in striking paragraphs 2 through 4 of Boyer's amended petition and the exhibits attached thereto. Point denied.

We turn now to Boyer's remaining claims of error by the Board. When reviewing an administrative action, this court examines the decision of the administrative agency, and not the judgment of the circuit court. State ex rel. Sanders v. Martin, 945 S.W.2d 641, 642 (Mo.App.1997). Judicial review of the decisions of an administrative agency is governed by sections 536.100 to 536.140. We will uphold the decision of an agency unless it is in violation of the constitution; in excess of its authority; unsupported by competent and substantial evidence on the whole record; unauthorized by law; made upon unlawful procedure or without a fair trial; arbitrary, capricious or unreasonable; or involved an abuse of discretion. Section 536.140.2.

Boyer's remaining points II through VII fail to identify the administrative rulings being challenged, in violation of Rule 84.04(d)(2). Allegations of error not briefed or not properly briefed shall not be considered in any civil appeal. Rule 84.13(a). Pro se appellants have to meet the same briefing requirements as attorneys, and must comply with the Missouri Supreme Court Rules, including Rule 84. Collins v. Ruffus, 63 S.W.3d 303 (Mo. App.2001). We will, to the extent possible, review Boyer's claims ex gratia.

In his second point on appeal, Boyer contends that City erred on all counts of impeachment articles by accepting "oral hearsay evidence that was objected to and did not accept the best evidence of the record that was produced at the hearing."

Because Boyer failed to comply with the briefing rules, it is not clear what Boyer claims to be the Board's error in his second point. At the...