Boyer v. City of Potosi

• Court: Missouri Court of Appeals
• Citation: Boyer v. City of Potosi, 38 S.W.3d 430 (Mo. App. 2000)
• Decision Date: 13 June 2000
• Parties: (Mo.App. E.D. 2000) . John L. Boyer, Plaintiff/Appellant, v. City of Potosi, Missouri, Defendant/Respondent. Case Number: ED77094 Missouri Court of Appeals Eastern District Handdown Date: 0

38 S.W.3d 430 (Mo.App. E.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

John L. Boyer, Plaintiff/Appellant, v. City of Potosi, Missouri, Defendant/Respondent.

Case Number: ED77094

Missouri Court of Appeals Eastern District

Handdown Date: 06/13/2000

Appeal From: Circuit Court of Washington County, Hon. Raymond Weber

Counsel for Appellant: Party Acting Pro Se

Counsel for Respondent: Ryan Scott Shaughnessy

Opinion Summary: Plaintiff Boyer appeals from the trial court judgment granting the defendant city's motions to strike some allegations and to dismiss others in his petition for administrative review of his impeachment by the Board of Aldermen.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

Division Four holds: (1) The circuit court of Ste. Genevieve County had jurisdiction to hear the motions. (2) There was no reversible error in the trial court's striking certain paragraphs of Boyer's amended petition. (3) The trial court erred in dismissing Boyer's amended petition because the amended petition related back to the original petition, and Boyer was entitled to seek back pay as damages.

Opinion Author: William H. Crandall, Jr., Presiding Judge

Opinion Vote: AFFIRMED IN PART; REVERSED AND REMANDED IN PART. Hoff, J., and Crist, Sr. J., concur.

Opinion:

Plaintiff, John L. Boyer, appeals from the judgment of the trial court granting defendant's, City of Potosi's, motions to strike some allegations and to dismiss others in his petition for administrative review of his impeachment by the City of Potosi's Board of Aldermen. We affirm in part and reverse and remand in part.

FACTS

John L. Boyer (hereinafter Boyer) was elected mayor of the City of Potosi, Missouri, (hereinafter Potosi) in April 1998. At an open meeting on March 11, 1999, Potosi's Board of Aldermen (hereinafer Board) adopted articles of impeachment for the removal of Boyer from office and scheduled the impeachment hearing for March 23, 1999. Boyer was not present at the March 11 meeting.

At the March 23 impeachment hearing, counsel for Boyer appeared and requested a continuance. The Board granted a continuance until March 29. On March 29, Boyer's counsel again appeared and moved for another continuance. The motion for a continuance was denied and the impeachment hearing was held as scheduled.

At the impeachment hearing, the Board presented the testimony of several witnesses and offered into evidence 33 exhibits. Boyer neither testified at the hearing nor called any witnesses in his defense. He did, however, offer 19 exhibits, which were not provided to Potosi before, during, or after the impeachment hearing.¹ The Board found Boyer guilty of some impeachable offenses, and not guilty of others, as described in the articles of impeachment. The Board removed Boyer from office for misconduct and other good cause. On April 14, 1999, Boyer filed his petition for administrative review in the circuit court of Washington County, alleging that the impeachment was illegal because the Board's impeachment was a rush to judgment in that it was contrary to the advice of the city attorney, the Board ignored the procedures for impeachment prescribed by law, and the Board's decision was not supported by substantial evidence.

Potosi filed motions for more definite statement and to strike. On May 12, 1999, the trial court granted both motions and Boyer was given time to file his first amended petition. On June 1, 1999, Boyer filed his first amended petition. Attached thereto were numerous exhibits which were not attached to Boyer's original petition and which were not offered at the impeachment hearing.

Potosi filed its motions to strike and to dismiss. On November 9, 1999, the circuit court of Ste. Genevieve County ordered stricken paragraphs one through four of Boyer's first amended petition as well as Boyer's exhibits. The court also granted Potosi's motion to dismiss Boyer's amended petition. Boyer appeals from that judgment.

MOOTNESS

Initially, we consider Potosi's motion to dismiss the appeal on the ground that Boyer's loss of the election for mayor of Potosi during the pendency of the appeal renders the appeal moot because his term of office expired and it is impossible for him to be returned to office.

In Knapp v. Junior College Dist. of St. Louis County, Mo., 879 S.W.2d 588, 590 (Mo. App. E.D. 1994), this court addressed the mootness of an appeal in the context of a college student who was suspended from college for the remainder of the fall semester. The college argued that since the student filed her petition for review after the period of suspension had expired, any related claims were moot. Id. at 594. This court rejected the college's argument, focusing on the student's prayer which requested, inter alia, an order expunging her college record of all evidence concerning the suspension, money damages, attorneys' fees and costs, and an injunction. Id. This court found that the student's requests for relief constituted a "continuing valid justiciable controversy." Id. Further, this court stated, "Her request for an injunction reversing the suspension was moot because she sued after the suspension period expired, but reference to the suspension remains on her record." Id,

Similarly, in this action, Boyer prayed for the court to "reverse the decisions of the City of Potosi, by declaring impeachment invalid, ordering defendant to pay all costs, plaintiff's attorney costs, back pay, and such other orders and relief as the court deems proper and just." Thus, Boyer's requests for relief constituted a continuing valid justiciable controversy. Boyer had a continuing interest in having the impeachment declared invalid, whether or not he could be reinstated in office. Potosi's motion to dismiss the appeal as moot is denied.

JURISDICTION

The threshold issue is whether the trial court acted in excess of its jurisdiction by holding evidentiary hearings outside Washington County without the consent of all the parties. The presiding judge of the Washington County circuit court assigned the case to the circuit court of Ste. Genevieve County. The Ste. Genevieve County court heard the motions to dismiss and to strike and entered judgment thereon.

Rule 55.29 provides as follows:

All trials upon the merits shall be conducted in open court and so far as convenient in a regular courtroom. All other acts or proceedings may be done or conducted by a judge in chambers, without the attendance of the clerk or other court officials, and at any place either within or without the county where the action is pending, but no trial or evidentiary hearing, other than an authorized ex parte hearing, shall be conducted outside the county where the case is pending without the consent of all parties affected thereby.

Here, the motions were directed to the sufficiency of the pleadings and the subject matter jurisdiction of the trial court. The motions did not require the introduction of any evidence at the hearing. Under Rule 55.29, the Ste. Genevieve County court had the authority to hear the motions.

MOTION TO STRIKE

Boyer charges error in the trial court's striking paragraphs one through four of his amended petition and the corresponding exhibits which were attached thereto. Paragraph one of Boyer's amended petition stated that "[t]he Petition for Administrative Review filed April 14, 1999 is hereby incorporated and made part of this amended petition." Paragraphs two, three and four of Boyer's amended petition attacked the impeachment for the reasons, respectively, that the March 11, 1999 special meeting to adopt the articles of impeachment was invalid, an alderman was biased against Boyer, and the Board unlawfully retained the services of the city attorney.

We first address the court's striking paragraphs two through four of Boyer's amended petition. Potosi moved to strike those paragraphs on the basis that Boyer did not raise those allegations before the Board and his failure to exhaust his administrative remedies barred him from relitigating those issues. As a general rule, judicial review of administrative decisions is limited to matters that arose before the administrative agency and deals only with questions of law on the face of the record, and bars consideration of evidence other than that before the agency. Gore v. Wochner, 558 S.W.2d 333, 334 (Mo. App. 1977). Section 536.140.4, RSMo (1994), however, provides that a court may hear and consider evidence of alleged irregularities in the proceedings or agency unfairness not shown in the...