City of Des Peres v. Stapleton, s. 35668

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: DOWD; WEIER, P.J., and RENDLEN
• Citation: 524 S.W.2d 203
• Parties: CITY OF DES PERES, Missouri, Plaintiff-Respondent, v. Richard M. STAPLETON et al., Defendants, and Larry E. White et al., Intervenors-Defendants-Appellants. CITY OF DES PERES, Missouri, Plaintiff-Respondent, v. Robert STEINMEYER et al., Defendants. . Louis District, Division One
• Docket Number: 35669,Nos. 35668,s. 35668
• Decision Date: 27 May 1975

Page 203

524 S.W.2d 203 CITY OF DES PERES, Missouri, Plaintiff-Respondent,
v.
Richard M. STAPLETON et al., Defendants, and Larry E. White
et al., Intervenors-Defendants-Appellants.
CITY OF DES PERES, Missouri, Plaintiff-Respondent,
v.
Robert STEINMEYER et al., Defendants. Nos. 35668, 35669. Missouri Court of Appeals, St. Louis District, Division One. May 27, 1975.

Page 204

McDonald, Wright & Bryan, Clayton, Shulamith Simon, St. Louis, Merle L. Silverstein, Clayton, for intervenors-defendants-appellants.

Sullivan & Evans, St. Louis, for plaintiff-respondent.

DOWD, Judge.

Appeal from a judgment in favor of the City of Des Peres in a declaratory judgment action to annex to the City of Des Peres certain unincorporated lands in St. Louis County. Appellants were intervenors in the suit below.

On February 22, 1971, the City of Des Peres passed two ordinances calling for the annexation of two abutting tracts of land and called for an election to be held to seek voter approval of the proposed annexations. The election was held on April 6, 1971, and the annexations passed by a majority of the

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votes in both the City and the unincorporated areas. Pursuant to § 71.015 RSMo 1969, V. A.M.S., ¹ the city filed petitions for declaratory judgment, praying that the court authorize the annexation of the two areas. Various parties were permitted to intervene as defendants in both suits, including St. Louis County. The suits were tried together by order of the trial court. Judgment was entered in favor of both annexations. Only the intervenors in one of the annexation suits (Number 35,668) have taken an appeal. Accordingly, there is no appeal from the annexation of the land involved in appeal number 35,669, and as to that tract of land, the judgment stands as entered.

The City of Des Peres is a Fourth Class City located in St. Louis County, Missouri. It is bordered on the north by the cities of Town and Country and Crystal Lake, on the east by Kirkwood and Frontenac, on the west by Town and Country and a small section of unincorporated land, and on the south by Kirkwood and unincorporated land that includes the two tracts proposed for annexation. The proposed area of annexation is rectangular in shape. Its boundaries are the City of Kirkwood on the east, the Missouri Pacific Railroad right-of-way on the south, Des Peres road on the west and the City of Des Peres on the north. The second tract of land was roughly of the same size and lay directly to the west of the subject tract. Approximately 5333 people live in Des Peres; 180 people lived in the proposed annexation at the time of the filing of this suit. The result of the election in the City of Des Peres was 805 in favor of the annexation, 314 against. In the area to be annexed, the vote was 73 in favor, 15 against.

On July 5, 1973, the trial court entered its decree finding that:

'1. That the Defendants herein were fairly chosen and did adequately and fairly represent the entire class of persons to be bound by this judgment.

2. That the annexation of the areas, as described in Plaintiff's Petitions, are reasonable and necessary for the proper development of the City of Des Peres.

3. That the City of Des Peres will be able to furnish the normal municipal services of said City to the areas to be annexed within a reasonable time after said annexations are to be effective.'

Appellants seek to overturn the order of the trial court for basically two reasons. First, the city did not establish a valid class action; and secondly, the city failed to demonstrate the reasonableness and necessity of the annexation.

Appellants' first point on appeal is that the city did not meet its burden in establishing a valid class action. They base this contention on their assertion that the named defendants were not fairly chosen and did not adequately represent the whole class.

We note that § 71.015 RSMo 1969, V.A.M.S. provides that the vehicle for authorizing annexations shall be a declaratory judgment action against the inhabitants of the area and shall be brought as a class action under § 507.070 RSMo 1969, V.A.M.S. That section provides for class actions when the persons constituting the class are very

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numerous; in such a case, one or more of the members of the class as will fairly insure adequate representation of all may be sued. We further note that the Supreme Court Rule in effect at the time this suit was filed was 52.09(a), V.A.M.R., which provided that the defendants be 'fairly chosen' and 'adequately and fairly represent the whole class' and that the 'plaintiff shall be required to prove such allegations . . .' These provisions are mandatory. City of Aurora v. Coleman, 490 S.W.2d 668, 670 (Mo.App.1973). Their purpose is to insure adequacy of representation for those defendants not named and to prevent collusion. Sheets v. Thomann, 336 S.W.2d 701, 709 (Mo.App.1960).

Appellants cite us to three annexation cases where the class of defendants was held to be improper. In City of St. Charles v. Schroeder, 474 S.W.2d 55 (Mo.App.1971), an area with 4000 inhabitants was being annexed. The defendants were selected from a narrow geographic area. One entire area of land which was annexed was unrepresented, as were many of the subdivisions of the area. The defendants were selected at random from a list of residents that did not fairly represent the whole class of inhabitants of the area. The evidence showed much opposition to the annexation and none of the opponents were represented. There was a wide variety of land uses and some of the owners of this land were not represented. In City of Aurora v. Coleman, 490 S.W.2d 668 (Mo.App.1973), no defendants were called to testify, no evidence was presented which would show the defendants were representative of the class, and there was no showing of the manner in which the defendants were selected. ²

Here, testimony regarding the manner in which the named defendants were chosen was given by Mrs. Griggs, the Mayor of Des Peres. She testified that the defendants were chosen with the assistance of one Clark Parks, ³ and attention was given to choosing people involved in community betterment, people from different areas of the proposed annexation and people owning different amounts of land. Of the six defendants chosen as representatives of the class, three defendants were trustees of subdivisions. Of the 180 inhabitants of the area only 15 voted against the annexation. There was no evidence of a vocal opposition as in the St. Charles case. Nothing in the record points to any collusion in selecting these defendants nor to any purposeful omissions of any defendant or group of defendants. The statutory purpose has been satisfied here. Sheets v. Thomann, supra.

The thrust of appellants' argument is that four of the named defendants belonged to an association called the Seven Hills Citizens for Community Betterment, and it was this group which first initiated the annexation in 1967, and again later in 1970. Appellants' point is that since four of the defendants belonged to a group that was encouraging the annexation that these four defendants were not 'fairly chosen' as the rule requires.

The evidence showed that the Seven Hills group was a voluntary association consisting of citizens of the area who were concerned with community betterment in the Kirkwood, Des Peres and annexation areas. The association was not affiliated with Des Peres in any way. The fact that some of the defendants selected were...