Charnisky v. Chrismer

• Decision Date: 17 January 2006
• Docket Number: No. ED 85933.,ED 85933.
• Citation: 185 S.W.3d 699
• Parties: William P. CHARNISKY, Contestant/Respondent, v. Richard CHRISMER, Director of Elections St. Charles County Election Authority, Contestee/Respondent, Shane Kranzberg, Intervenor/Appellant.
• Court: Missouri Court of Appeals

185 S.W.3d 699

William P. CHARNISKY, Contestant/Respondent, v. Richard CHRISMER, Director of Elections St. Charles County Election Authority, Contestee/Respondent Shane Kranzberg, Intervenor/Appellant.

No. ED 85933.

Missouri Court of Appeals, Eastern District, Division Three.

January 17, 2006.

Motion for Rehearing and/or Transfer to Supreme Court Denied March 9, 2006.

David T. Hamilton, John A. Young, Nicholas J. Komoroski, Hazelwood & Weber LLC, St. Charles, MO, for William P. Charnisky.

Harold A. Ellis, St. Charles, MO, for Rich Chrismer.

Stephen A. Martin, Barklage, Brett, Martin, Wibbenmeyer & Hamill, P.C., St. Charles, MO, for appellant.

KATHIANNE KNAUP CRANE, Presiding Judge.

This is an appeal from a judgment in a lawsuit contesting an annexation election held pursuant to Section 71.015.3 RSMo (2000) on the City of St. Peters' proposition to annex an unincorporated area. At the time of the election, the election authority records showed one registered voter in the annexation area. The original contestant, a resident of St. Peters, filed a petition challenging that voter's residency and qualifications to vote, and sought a recount. A second contestant intervened, claiming that he was also a resident of the area to be annexed, and requested either a recount that tabulated his ballot or a new election. After a trial on both contestants' claims, the trial court agreed with the original contestant and ordered a recount in which the contested voter's ballot would not be counted. The trial court denied the second contestant's request for a new election because he had failed to show election irregularities in that his failure to vote as a resident of the annexed area was found to be caused by his failure to follow directions and not the fault of the election judges. The second contestant appeals. We affirm.

FACTUAL and PROCEDURAL BACKGROUND

In May 1998, the City of St. Peters (the City) declared its intent to annex an unincorporated area adjacent to the City known as Harvestowne. It filed a petition to annex in the Circuit Court of St. Charles County. The City filed a declaratory judgment action seeking a judgment declaring that the City met all the requirements of the law to annex the Harvestowne area, thus permitting the City to proceed with an annexation election pursuant to section 71.015. See City of St. Peters v. Winterhoff Living Trust, 77 S.W.3d 17 (Mo.App.2002) (Winterhoff I). After remand, the trial court entered a judgment permitting the City to proceed with annexation, which we affirmed. City of St. Peters v. Ronald A. Winterhoff, 117 S.W.3d 698 (Mo.App.2003) (Winterhoff II).

Thereafter, in December 2003, the City passed an ordinance and called for an election to be held on April 6, 2004, on the proposition for annexation. The City certified to the St. Charles County Election Authority (Election Authority) that there were no qualified electors in Harvestowne.¹ Accordingly, Richard Chrismer, the Director of Elections (the Director) prepared for an annexation election at which the City voters would vote on white ballots. However, three to four weeks before the election, the Director learned that there was a qualified elector in Harvestowne, Dennis Gittemeier. After confirming Mr. Gittemeier's address and registration, the Director prepared to conduct an election to allow votes to be cast from both the City and Harvestowne. The Director added page 10G to the vote recorder² for voters who lived in Harvestowne to vote on the annexation proposition. The instructions on this page instructed voters that if they were voting on the annexation, and resided within Harvestowne, they were to use a yellow ballot.

The election on the proposition for annexation was held on April 6, 2004. Mr. Gittemeier voted against the proposition for annexation on a yellow ballot. On the day of the election, intervenor, Shane Kranzberg, transferred his voter registration to an address within Harvestowne. Mr. Kranzberg used a white ballot to vote against the proposition for annexation. On April 7, 2004, the Director announced that voters from the City cast 7,983 votes in favor of the proposition and 4,086 votes against. He announced that voters from Harvestowne cast no votes in favor and one vote against. Because no votes were cast from Harvestowne in favor of the proposition, the proposition for annexation failed. Section 71.015.

On May 4, 2004, contestant, William P. Charnisky, a registered voter in the City, filed a petition to contest the election, which he subsequently amended. He alleged that Mr. Gittemeier did not live at the Harvestowne address, which was a business office, and that Mr. Gittemeier was therefore not qualified to vote. He sought a recount and other relief.

Shortly thereafter, Mr. Kranzberg obtained leave to intervene and filed an election contest petition. He alleged that he was a resident of the annexation area, was qualified to and did vote, but his vote was not counted. In Count III, he sought a declaration that he was a resident, a recount or a new election, and other relief.³

After a bench trial on Mr. Charnisky's petition and Count III of Mr. Kranzberg's petition, the court entered an Order and Judgment, which recited:

(1) Based on the preponderance of the credible evidence, the Court finds that Dennis Gittemeier was not a resident at 1208 Harvestowne Industrial Drive at the time of the election and, therefore was not qualified to vote on the ballot question regarding the annexation of property by the City of St. Peters at the election held on April 6, 2004; (2) that, as a result, the Election Authority of St. Charles County is directed to conduct a recount of the ballots, pursuant to § 115.583, RSMo.; (3) in such recount, the ballot cast by Dennis Gittemeier shall not be counted pursuant to § 115.582.2, RSMo.; and (4) the Court finds, based on the preponderance of the credible evidence that Intervenor Shane Kranzberg failed to follow the instructions clearly printed upon the vote recorder utilized by the St. Charles County Election Authority and that there are not irregularities of sufficient magnitude to cast doubt on the validity of the election held on April 6, 2004 pursuant to § 115.593, RSMo., and, therefore, Intervenor Kranzberg's request for a new election is hereby denied.⁴

Mr. Kranzberg appeals from this judgment.

DISCUSSION

I. Standing to Appeal

In his first point, Mr. Kranzberg challenges that portion of the trial court's judgment that ordered a recount without Mr. Gittemeier's ballot. He claims that the trial court could not order a recount because there was no showing of an irregularity that placed the result of the election in doubt. In his third, fourth and fifth points, he challenges the trial court's findings that Mr. Gittemeier was not a resident.

In his petition, Mr. Kranzberg's sole claim for relief was that his own vote should be counted; he did not allege any claim based on Mr. Gittemeier's residence or ballot or the power of the court to order a recount on Mr. Chernisky's claims. Further, Mr. Kranzberg affirmatively sought a recount as part of the relief in his own petition.

To bring an appeal, an appellant must have been a party to the suit and aggrieved by the judgment of the trial court. Section 512.020 RSMo (2000); Munson v. Director of Revenue, 783 S.W.2d 912, 915 (Mo. banc 1990). A party cannot assert trial court error for actions by which it was not aggrieved. Parker v. Swope, 157 S.W.3d 350, 352 (Mo.App.2005). A party is "aggrieved" when the judgment operates prejudicially and directly on his or her personal or property rights or interests and that effect is immediate and not merely a possible remote consequence. Id.; see also In re Ancillary Adversary Proceeding, 89 S.W.3d 460, 464 (Mo. banc 2002); Brentwood v. Barron Holdings Intern., 66 S.W.3d 139, 142 (Mo.App.2001).

An appellant may not challenge portions of a judgment that resolve issues solely between other parties and do not resolve the claims made by that appellant. Boatmen's Nat. Bank v. Rogers, 352 Mo. 763, 179 S.W.2d 102, 107 (1944). Mr. Charnisky and Mr. Kranzberg were each contestants in the trial court, but neither filed pleadings against each other and each filed a separate and independent claim against the Director. When Mr. Kranzberg came into the trial court as intervenor, he did not raise any issue about Mr. Gittemeier's residency or right to vote. Mr. Kranzberg is not aggrieved by that part of the judgment in favor of Mr. Charnisky ordering a recount on the basis that Mr. Gittemeier was not a resident. See Brentwood, 66 S.W.3d at 143; White v. Kuhnert, 207...