Calzone v. Maries Cnty. Comm'n

• Decision Date: 25 July 2022
• Docket Number: SD 37343
• Citation: 648 S.W.3d 140
• Parties: Ron CALZONE and Anne Calzone, Appellants, v. MARIES COUNTY COMMISSION, et al., Respondents.
• Court: Missouri Court of Appeals

648 S.W.3d 140

Ron CALZONE and Anne Calzone, Appellants,

v.MARIES COUNTY COMMISSION, et al., Respondents.

No. SD 37343

Missouri Court of Appeals, Southern District, Division One.

Filed: July 25, 2022

ATTORNEY FOR APPELLANT – David E. Roland, Mexico, MO.

ATTORNEY FOR RESPONDENT – Richard A. Skouby, St. James, MO.

MARY W. SHEFFIELD, J.

Appellants Ron and Anne Calzone (the "Calzones") appeal the trial court's judgment finding in favor of Respondents, the Maries County Commission and its members, Vic Stratman, Ed Fagre, and Doug Drewel, (collectively, the "Commission") on the Calzones’ claims alleging the Commission violated Missouri's Sunshine Law, sections 610.010 through 610.035,¹ by: (1) not allowing members of the public to attend or observe public meetings between April 7, 2020 and April 20, 2020 (Count 2, the "No Reasonable Access Count"); and (2) failing to post notice of or a tentative agenda for any meetings held between April 7, 2020 and April 20, 2020 (Count 3, the "No Reasonable Notice Count").² In point 1, the Calzones argue the trial court erred in finding in favor of the Commission on Count 2, the No Reasonable Access Count, "because the judgment misapplied section 610.020.2, RSMo., in that this statute requires public governmental bodies to hold public meetings at places that are reasonably accessible to the public." In point 2, the Calzones argue the trial court erred in finding in favor of the Commission on Count 3, the No Reasonable Notice Count, because the trial court "misapplied section 610.020.1, RSMo., in that prior to the [Calzones] filing their lawsuit the Commission did not publicly post a notice identifying the mode by which the meeting would be conducted nor did it notify the public how to access the Commission's public meetings." Finding merit in point 2, we reverse the trial court's judgment in favor of the Commission on Count 3, the No Reasonable Notice Count, and remand for further determination of whether the public interest in the enforcement of the policy of Missouri's Sunshine Law outweighs the public interest in sustaining the validity of the actions taken in the closed meetings pursuant to section 610.027.5. In all other respects, the trial court's judgment is affirmed.

Facts and Procedural Background

In response to the COVID-19 pandemic, the Commission entered an order (the "Commission's Emergency Order") on April 6, 2020, declaring a state of emergency and ordering all individuals residing in the county to abide by a stay-at-home order issued by Governor Parson on April 3, 2020.³ Following the entry of the Commission's Emergency Order, the Commission met in person on April 9, April 13, April 16, and April 20, 2020 at the Maries County courthouse but prohibited members of the public from attending those sessions in person. In lieu of in-person attendance, the Commission created a phone line for the public to access the meetings but failed to post any notice in a place visible to the public of the meeting dates, times, place, the tentative agenda, nor did they post the phone number that gave access to the meetings.

On April 20, 2020, the Calzones sued the Commission in a five-count petition, alleging various violations of Missouri's Sunshine Law, including Count 2, the No Reasonable Access Count and Count 3, the No Reasonable Notice Count.⁴ The Calzones filed a motion for summary judgment on all counts of their amended petition. The Commission admitted that before the Calzones filed their suit, it did not post a notice or a tentative agenda for its meetings in an area reasonably accessible to the general public. In its Order on Motion for Summary Judgment, the trial court found, relevant to this appeal, the following facts.

Before the Commission's meeting on April 6, the Commission decided to close the courthouse to the public. The notice posted on the exterior doors to the courthouse stated the courthouse was closed to the public and listed phone numbers for the various offices as well as the Presiding Commissioner's cell phone number. Nothing on the notice mentioned Commission meetings, the availability of a phone line to listen to the meetings or a phone number to call in order to participate in meetings. There was no notice to the general public of a call-in phone number to access the Commission meetings before the Calzones’ lawsuit was filed. From March 25, 2020 through April 20, 2020, the Commission did not post notice of its public meetings in an area reasonably accessible to the general public.

The trial court granted the Calzones’ motion for summary judgment on Counts 1 and 5, holding that the Commission violated the Sunshine Law by excluding the Calzones from the April 6, 2020 meeting without providing any alternative means for attending the meeting, and by failing to publish the Commission's Emergency Order. The Calzones dismissed Count 4, and the trial court denied the Calzones’ motion for summary judgment on Count 2, the No Reasonable Access Count, and Count 3, the No Reasonable Notice Count, on the grounds that the summary judgment record did not demonstrate "that any such meeting[s] occurred."⁵ Following the Order on Motion for Summary Judgment, the parties submitted a joint stipulation of facts and the trial court heard arguments. The parties stipulated to the following:

1. The Maries County Commission met in official meetings in the weeks between April 6, 2020 and the filing of the instant lawsuit.

2. The Maries County Commission convened on April 6, 2020, April 9, 2020, April 13, 2020, April 16, 2020, April 20, 2020, April 23, 2020, April 27, 2020, and April 30, 2020.^[6]

3. The pages of JS Exhibit 1 (attached) are the minutes from the Commission meetings between April 6 and April 30, 2020, inclusive.

4. Between at least April 9, 2020 and April 30, 2020, inclusive, the Commission did not allow in-person attendance of citizens at its meetings, but did make available phone lines and phone numbers for them to listen in remotely.

No other evidence was presented.⁷ The trial court then entered a judgment, incorporating by reference its findings of fact and conclusions of law contained in its Order on Motion for Summary Judgment and the stipulation of facts submitted by the parties. The judgment found in favor of the Commission on Count 2, the No Reasonable Access Count, and Count 3, the No Reasonable Notice Count, of the Calzones’ amended petition. The Calzones appeal from that judgment in two points.

Discussion

Point 1 (No Reasonable Access)

In point 1, the Calzones argue:

The trial court erred in granting judgment to the Commission regarding Count II because the judgment misapplied section 610.020.2, RSMo., in that this statute requires public governmental bodies to hold public meetings at places that are reasonably accessible to the public.

Rule 84.04(d) requires an appellant to: "(A) [i]dentify the trial court ruling or action that the appellant challenges; (B) [s]tate concisely the legal reasons for the appellant's claim of reversible error; and (C) [e]xplain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error. "⁸ Rule 84.04(d)(1) (emphasis added). Rule 84.04's briefing requirements are mandatory, and the failure to substantially comply with Rule 84.04 preserves nothing for review. Simanis v. Simanis , 597 S.W.3d 735, 740 (Mo. App. S.D. 2020). "This [R]ule [84.04(d)] is not a judicial word game or a matter of hypertechnicality, rather it serves to notify the opposing party of the precise matters under contention and inform our Court of the issues presented for review." Carmen v. Olsen , 611 S.W.3d 368, 371 (Mo. App. E.D. 2020). Appellants have no excuse for failing to submit adequate points relied on given that a template is specifically provided for in Rule 84.04(d)(1).⁹ Steiner v. Rolfes , 602 S.W.3d 313, 315 (Mo. App. S.D. 2020).

While the Calzones’ point 1 identifies the challenged trial court action and states the legal reasons for the claim of error, there is no explanation of how, in the context of this case, the meetings held by the Commission were "not at places reasonably accessible to the public." We may exercise discretion to review a non-compliant appeal where the argument in the point relied on is readily ascertainable. Michaud Mitigation, Inc. v. Beckett , 635 S.W.3d 867, 870 (Mo. App. E.D. 2021).

Here, we cannot readily ascertain the argument raised by Calzones’ point relied on without resorting to the argument portion of their brief. In the argument portion of their brief, the Calzones state that section 610.020.2 requires the Commission to hold its public meetings in a place the public can attend in person, such as the lawn of the courthouse, unless for good cause such a place or time is impossible or impractical. From the Calzones’ point alone, it is impossible to discern that their argument is actually what the Commission did or failed to do to violate the statute. "An insufficient point relied on that cannot be understood without resorting to the record or argument portion of the brief preserves nothing for appellate review." Id. (quoting Unifund CCR Partners v. Myers , 563 S.W.3d 740, 742 (Mo. App. E.D. 2018) (emphasis added). "[E]ach time we review a noncompliant brief ex gratia, we send an implicit message that substandard briefing is acceptable. It is not." Id. (quoting Scott v. King , 510 S.W.3d 887, 892 (Mo. App. E.D. 2017) ). We will not countenance the Calzones’ briefing deficiencies by reviewing their claim. Point 1 preserves nothing for review and is dismissed.

Point 2 (No Reasonable Notice)

In point 2, the Calzones argue the trial court erred in ruling in favor of the Commission on Count 3, the No Reasonable Notice Count, of the Calzones’ amended petition because the trial court "misapplied section 610.020.1, RSMo., in that prior to the [Calzones] filing their lawsuit the Commission did not publicly post a notice identifying the mode by which the meeting would be conducted nor did...