City of Velda City v. Williams, ED 81509.

• Citation: 98 S.W.3d 880
• Decision Date: 04 March 2003
• Docket Number: No. ED 81509.,ED 81509.
• Parties: CITY OF VELDA CITY, Missouri, Plaintiff/Respondent, v. Lottie Mae WILLIAMS, Defendant/Appellant.
• Court: Court of Appeal of Missouri (US)

98 S.W.3d 880

CITY OF VELDA CITY, Missouri, Plaintiff/Respondent, v. Lottie Mae WILLIAMS, Defendant/Appellant.

No. ED 81509.

Missouri Court of Appeals, Eastern District, Division Four.

March 4, 2003.

Ryan S. Shaughnessy, St. Louis, MO, for appellant.

J. Patrick Chassaing, Paul E. Martin, Clayton, Mo, for respondent.

WILLIAM H. CRANDALL, JR., Presiding Judge.

Defendant, Lottie Mae Williams, appeals from the trial court's grant of summary judgment in favor of plaintiff, Velda City, Missouri, on an action to recover monies received by defendant pursuant to an ordinance increasing her salary, which ordinance was enacted while she was serving as mayor. We affirm.

On April 6, 1993, Williams was elected to a four-year term as mayor of Velda City, Missouri (City). At that time, although the mayor received no salary, City did provide an annual $9,000.00 expense account. In May 1995, City passed Ordinance No. 473¹ (ordinance), which increased the annual compensation for the mayor to $20,000.00. Two members of the Board of Alderman (Board) voted in favor of the ordinance and two members voted against it. Williams broke the tie by voting in favor of the ordinance.

Beginning on June 22, 1996, Williams received the additional monies under the ordinance. Williams's term expired on April 10, 1997. On September 8, 1998 City brought this action against her to recover the $18,866.00 she received pursuant to the ordinance. City argued that the ordinance was void because it violated Article VII, section 13 of the Missouri Constitution, which stated that "[t]he compensation of state, county and municipal officers shall not be increased during the term of office; nor shall the term of any officer be extended."

Williams filed an answer containing five affirmative defenses to City's cause of action: (1) the Board had a right to set the salary for an elected official where no salary had been set before; (2) Williams accepted the salary in good faith based on the recommendation of the city attorney; (3) City was collaterally estopped from disputing the validity of the salary ordinance; (4) Williams had a right to receive an increased salary when new duties were imposed; and (5) the claim was barred by the applicable statute of limitations. During a deposition on January 21, 1999, Williams invoked her constitutional right and privilege against self-incrimination under the Fifth Amendment of the United States Constitution.

Williams moved for summary judgment. The trial court denied her motion and entered an order, sua sponte, striking her affirmative defenses because of her reliance upon the Fifth Amendment. On November 3, 1999, City moved for summary judgment. Williams responded, alleging that there remained disputed issues of material fact. City moved to strike the reply because it essentially reiterated Williams's previously stricken affirmative defenses. The trial court granted City's motion, struck several paragraphs from Williams's reply, and then granted City's motion for summary judgment. Williams appealed. This court reversed the judgment of the trial court; reinstated Williams's affirmative defenses; and remanded the cause for further proceedings. Velda City v. Williams, 41 S.W.3d 915 (Mo.App. E.D. 2001).

On remand, City filed a second motion for summary judgment, challenging Williams's affirmative defenses. The trial court granted City's motion in part, finding that there were no genuine issues of material fact on four of the five affirmative defenses and that City was entitled to judgment as a matter of law on those defenses. But, the trial court found that there was a genuine issue of material fact on the issue of Williams's fourth affirmative defense about whether Williams performed additional duties in return for the increased salary, and denied City's motion regarding that defense.

City then filed its third motion for summary judgment, claiming that under section 79.120 RSMo 2000, Williams lacked the authority to break the tied vote on the ordinance and the ordinance was therefore void. The trial court granted summary judgment in favor of City. Williams appeals.

When considering an appeal from the grant of summary judgment, we view the record in the light most favorable to the party against whom judgment was entered. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion. Id. "The burden on a summary judgment movant is to show a right to judgment flowing from facts about which there is no genuine dispute. Summary judgment tests simply for the existence, not the extent, of these genuine disputes." Id. at 378. Because the propriety of summary judgment is purely an issue of law, our review is de novo. Id. at 376.

In her first point, Williams contends that the trial court erred in granting summary judgment in City's favor because City's action, filed in September 1998, was barred by the three-year statute of limitations set forth in section 516.130 RSMo 2000. Williams argues that the cause of action accrued on the date of the ordinance's enactment on May 10, 1995, more than three years before the filing of the present action. City counters that the cause of action was filed within the applicable three-year statutory period because the cause of action did not accrue until July 22, 1996, when Williams first received the additional money under the ordinance.

Section 516.130 provides that [a]n action against a[n] ... officer, upon liability incurred by the doing of an act in his official capacity and in virtue of his office, or by the omission of an official duty" shall be brought within three years. Section 516.100 RSMo 2000 provides that a civil action can only be commenced within the periods prescribed, after the cause of action has accrued. The cause of action is deemed to accrue not "when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment." Section 516.100.

Here, the cause of action against Williams is...