City of O'Fallon v. Bethman

• Decision Date: 13 June 1978
• Docket Number: No. 38819,38819
• Citation: 569 S.W.2d 295
• Parties: CITY OF O'FALLON, Missouri, a Municipal Corporation, Plaintiff-Appellant, v. Leonard BETHMAN et al., Defendants-Respondents. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 295

569 S.W.2d 295

CITY OF O'FALLON, Missouri, a Municipal Corporation, Plaintiff-Appellant, v. Leonard BETHMAN et al., Defendants-Respondents.

No. 38819.

Missouri Court of Appeals, St. Louis District, Division Four.

June 13, 1978.

Motion for Rehearing and/or Transfer Denied July 14, 1978.

Application to Transfer Denied Sept. 12, 1978.

Robert M. Wohler, St. Charles, Louis S. Czech, Clayton, for plaintiff-appellant.

Robert V. Niedner, Niedner, Niedner, Ahleim & Bodeux, St. Charles, Fordyce & Mayne, Leo V. Garvin, Jr., Clayton, for defendants-respondents.

DOWD, Presiding Judge.

Annexation case. O'Fallon, a city with a population in 1976 of 8,200 and 2,739 acres of land, seeks to annex a contiguous unincorporated area of 1,673 acres with a small population. ¹ There was no dispute that O'Fallon had a strong fiscal base with a large budgetary surplus for calendar year 1976. The city appeals a judgment of the circuit court of St. Charles County holding that it failed to demonstrate the reasonableness of its annexation plan and dismissing its petition.

O'Fallon is a city of the fourth class centrally located in St. Charles County. It has a uniform southern boundary formed by interstate highway 70 which is joined to the north by what may be termed two irregular "northwestern" and "northeastern" boundaries. The proposed area of annexation is contiguous to the northeastern boundary. The area's predominant boundary is formed by state highway 79 which intersects with O'Fallon's city limits to the southeast and with state highway M to the northwest. Highway M runs north and south through the center of O'Fallon and intersects with highway 79 about three-quarters of a mile north of the city limits. Twenty-five acres in the area is city-owned property lying directly north of the intersection of highways M and 79.

Following our review of the lengthy trial record, accumulated over four days of testimony before the court, we feel the evidence made the issue of the annexation plan's reasonableness a "fairly debatable" one. We thus reverse the trial court's judgment and hold that O'Fallon did sustain its burden of proof on the reasonableness issue.

Section 79.020, RSMo empowers the mayor and board of aldermen of a fourth class city, with the consent of the voters of that city, to extend the city limits over adjacent territory "in such manner as in their judgment and discretion may redound to the benefit of the city . . . ." Section 71.015, RSMo (Sawyers Act) is procedural in nature and applies to all cities. It provides that whenever the governing body of a city chooses to exercise its power to annex adjacent unincorporated territory and has adopted a resolution to that effect, ² the city shall, before seeking the consent of the voters in a municipal election, obtain a declaratory judgment authorizing it to proceed with the annexation. Under § 71.015 the city's petition must state facts showing (1) the area to be annexed, (2) that such annexation is "reasonable and necessary to the proper development of said city" ³ and (3) the ability of the city to furnish its normal municipal services to the unincorporated area within a reasonable time after the effective date of annexation. Unlike pre-Sawyers Act cases the municipality seeking to annex now carries the burden of establishing reasonableness as well as the other required elements of § 71.015. Young v. Mayor, Council & Citizens, 531 S.W.2d 732, 737 (Mo. banc 1976); City of Mexico v. Hodges, 482 S.W.2d 545, 547 (Mo.App.1972).

Several threshold issues are presented before we reach the issue of the reasonableness of the annexation. The Sawyers Act directs that the city maintain the action as a class action against the inhabitants of the unincorporated area under the provisions of § 507.070, RSMo. That section requires that the class be such that its members will fairly insure adequate representation. Rule 52.08 requires that the claims or defenses of the representative parties be typical of those of the class and that the representatives will fairly and adequately protect the interests of the class. These requirements are mandatory and not merely technical or directory. City of Aurora v. Coleman, 490 S.W.2d 668, 670 (Mo.App.1973); City of Salisbury v. Nagel, 420 S.W.2d 37, 47 (Mo.App.1967).

Respondent contends that the city's designation of the representative parties against whom suit was brought violated the statute, emphasizing that only three of thirty farm tract owners were named as members of the class a nonresident owner of a 5-acre tract (Peuser), an owner of a 5-acre tract from whom O'Fallon had previously purchased property (Bethman) and a retired farmer living on a 90-acre tract who represented a small fraction of the total agricultural acreage in the area (Mispagel). We rule this point against respondents.

The adequacy of a representative class must be determined under the factual circumstances of each case. City of St. Ann v. Buschard, 299 S.W.2d 546, 554 (Mo.App.1957). Many factors may be considered in making such a determination. The primary consideration, however, is that all diversified class interests and points of view be represented and that those parties that are named represent a truly adverse interest so that issues are actually litigated without collusion. The rights of absent class members must be protected. City of Aurora v. Coleman, 490 S.W.2d 668, 670 (Mo.App.1973); City of St. Charles v. Schroeder, 474 S.W.2d 55, 60 (Mo.App.1971); Milton Const. & Supply Co. v. Metropolitan St. Louis Sewer District, 308 S.W.2d 769, 772 (Mo.App.1958). In City of St. Charles the rejection of a class was due in part to the absence of an agricultural representative.

Under the facts of this case and applicable law the city's selection of the named defendants to represent the inhabitants of the area was sufficient to satisfy the statutory requirements. The city had earlier purchased land from defendant Bethman for a sewage lift station and he had indicated he would oppose any attempt at annexation. Defendant Mispagel owned a 90-acre tract immediately west of Monsanto's property on which crops were raised by a tenant and beef cattle by Mr. Mispagel himself. He had indicated hostility at a proposal by O'Fallon to obtain a second sewer easement over his property. Mrs. Mispagel owned a one-fourth interest in an 82-acre tract located on the opposite corner of the proposed area which was put to agricultural use. The two industrial tract owners (Monsanto Chemical Company and Sucat, Inc.), the owner of the school site (Fort Zumwalt School District), and the owner of the church site (Hope Bible Church) were designated as defendants.

Although representatives of the school and church testified in favor of annexation they were the sole representatives of their respective interests. While Monsanto announced at the beginning of the trial that it did not oppose annexation the other industrial tract owner was named and did present evidence in opposition to annexation. The fact that some named defendants do not oppose or may in fact support annexation does not require a holding that other named defendants cannot adequately represent the interests of all the inhabitants. City of Des Peres v. Stapleton, 524 S.W.2d 203, 206 (Mo.App.1975). The fact that defendants' counsel demonstrated competence and a willingness to challenge every element of the city's case and did in fact prevail in the circuit court precludes the possibility of collusion having taken place in this lawsuit.

Respondents further contend the trial court's decision may be supported by the failure of the city's petition to describe the area sought to be annexed. Section 71.015 provides that the petition shall state facts showing the area to be annexed. It does not indicate how those facts should be stated. The purpose of this provision is that property owners and others with an interest in the action receive notice and be able to determine the land proposed to be annexed and that the court know the area on which it must decide the issues of reasonableness and ability to provide municipal services. Young v. Mayor, Council & Citizens, 531 S.W.2d 732, 737 (Mo. banc 1976); City of Cape Girardeau v. Armstrong, 417 S.W.2d 661, 674 (Mo.App.1967); Waller v. City of Macon, 277 S.W.2d 886, 890 (Mo.App.1955).

The city's petition does describe the area sought to be annexed with the use of degrees, arc lengths, "centerline stations" and references to deeds located in the county recorder's office. It is conceded that it would require professional training and much effort to fully understand and verify all parts of the description which covers eleven pages of the trial record. We note, however, that the technical description is supplemented throughout by reference to many of the owners of the property being described and to standard points of reference. O'Fallon provided a detailed map of the area at trial divided into individually-owned parcels of land that was prepared by an engineering firm based upon the legal description contained in the city's petition. The exhibit demonstrated that the proposed area was essentially enclosed within such well recognized boundaries as two state highways and the present O'Fallon city limits. Another exhibit contained numbered references to the owners of the properties depicted on the map. The majority of property owners not named as defendants demonstrated they did have knowledge of the affected area by intervening in the cause. ⁴ This point must also be ruled against respondents.

Respondents also allege that appellant's brief failed to comply with Rule 84.04(c) and (d) because it did not fairly state the facts of the case and because the points relied on constituted mere abstract statements of law. A motion to dismiss appellant's appeal was filed. On September 12, 1977, this court ordered appellant's brief stricken, denied the motion to dismiss, and ordered appellant to resubmit in...