Claspill v. City of Springfield

• Decision Date: 17 April 1980
• Docket Number: No. 11038,11038
• Citation: 598 S.W.2d 183
• Parties: Dwight CLASPILL et al., Plaintiffs-Appellants, v. CITY OF SPRINGFIELD, Missouri, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 183

598 S.W.2d 183

Dwight CLASPILL et al., Plaintiffs-Appellants, v. CITY OF SPRINGFIELD, Missouri, Defendant-Respondent.

No. 11038.

Missouri Court of Appeals, Southern District, Division Two.

April 17, 1980.

Charles C. Shafer, Jr., Kansas City, for plaintiffs-appellants.

Winston Davis, Howard C. Wright, Jr., Springfield, for defendant-respondent.

PER CURIAM:

This is a class action declaratory suit brought by plaintiffs Dwight Claspill, J. D. Edwards and Local No. 152, International Association of Fire Fighters (union). Claspill and Edwards are officers of the union. Defendant, City of Springfield, has a constitutional charter form of government, and derives its powers from its charter. Plaintiffs' petition alleged that the city was violating the provisions of its charter by removing the fire fighting responsibilities at the Springfield Municipal Airport from the fire department and transferring such responsibilities to the city's aviation board. Plaintiffs, in their claim for relief, requested that the trial court declare "the defendant city must also comply with its charter provisions in order to have the required degree of fire fighting, emergency and other safety services at the airport being solely provided by the fire department as required by the said charter." The city's answer denied removing fire fighting responsibilities at the airport from the fire department and transferring such responsibilities to the aviation department. The answer stated that plaintiffs were required to fight all fires arising from buildings, grounds and structures on the airport premises, but that aviation fire fighting and crash rescue functions had been assigned to airport personnel, who were identified in the record as airport safety line service operators, commonly referred to as ACR (aircraft crash rescue) personnel. The ACR unit employees are hired by, and operate under the control of, the airport board. They are trained in aircraft crash rescue functions, including the extinguishing of fires in aircraft. Further answering, the city denied violating its charter, and contended that its actions in connection with assigning the job duties in question were authorized by the charter. The trial court heard evidence, and thereafter entered judgment for defendant and against plaintiffs, the pertinent part of which reads as follows: "The court adjudges and declares that the City is not in violation of the Charter by having the ACR facility under the control and supervision of the Airport Board." See Appendix for the trial court's findings of fact, conclusions of law and judgment.

This appeal followed. Plaintiffs' sole point on appeal is that the trial court erred as a matter of law in finding in paragraph 10 of its findings of fact and conclusions of law, that the city council could transfer the function of fire fighting at the airport from the fire department to the airport board, for the reason that such transfer was in violation of § 4.1 of the city charter; that it was illegal to transfer a charter assigned duty from a city officer created by charter to a "non-city officer," and that such an attempted transfer amounted to a "discontinuance" of a charter function, that was in violation of § 4.1.

In the statement of facts portion of its brief, plaintiffs assert "(f)or many years, the City's Fire Department had the sole responsibility for fire fighting at the Airport, but it has now been transferred to the Aviation Board." This assertion, upon which plaintiffs base their case, is a complete and total misstatement of fact. There was no evidence introduced at trial to justify such a statement, as fire fighting at crash scenes at the airport had always been assigned to airport personnel, and had never been assigned to the fire department.

Plaintiffs' counsel acknowledged the misstatement of fact when he argued the case on appeal, but made no attempt to correct the factual situation by a supplement to his brief. Violation of the requirement that an appellate brief contain a fair and concise statement of facts warrants dismissal of the appeal. Rule 84.04(c), Mo. Rules of Court, V.A.M.R.; Robinson v. Laclede Gas Co., 553 S.W.2d 495, 496 (Mo.App.1977). We would do so, but for the fact that there are no real facts in dispute, and what is really involved is charter interpretation.

In further examining plaintiffs' brief, we find that plaintiffs' point of error does not contain any relevant citation of authority. The citations, as expounded upon in the argument portion of the brief, mainly consists of abstract statements of law, without a showing as to how they are related to any action or ruling of the trial court in violation of Rule 84.04(d).

For example, the citations of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) and Abco Tank & Mfg. Co. v. Fed. Ins. Co., 550 S.W.2d 193 (Mo. banc 1977) merely establish the standard of review in court tried cases. That is not an issue here. Plaintiff next cites State ex rel. Skrainka Const. Co. v. Reber, 226 Mo. 229, 126 S.W. 397 (banc 1910). This case holds that the St. Louis city charter provided that the street commissioner should "authenticate" certain tax bills, and that such act could be delegated to the street commissioner's assistant, since the authentication (signing one's name) was a ministerial act. We fail to see how such legal reasoning has any application here. Pearson v. City of Washington, 439 S.W.2d 756 (Mo.1969) is cited as authority for the proposition that a city has no power, absent a charter provision authorizing such, to transfer by ordinance the duties of an officer that are assigned to him by charter or statute, to another city officer. This pronouncement is an abstract declaration of law which is condemned by Rule 84.04(d). In their brief, plaintiffs assert that Pearson is cited with approval in Matthews v. City of St. Ann, 457 S.W.2d 766, 768 (Mo.1970). Matthews was a declaratory judgment case that was dismissed by the trial court. The Supreme Court reversed and remanded, saying such questions as had been raised in Pearson had not been answered by the trial court. The holding of Matthews is not even remotely connected with the issue here. City of Wagoner v. Case, 170 Okl. 577, 41 P.2d 669 (1935) cited by plaintiffs is really authority for respondent's position rather than for plaintiffs' position. The question before the Oklahoma court was whether a transfer by the city commissioners of the duty to collect money from the commissioner of lights, water and sewage to the city clerk was a violation of the city charter. The court said it was not, as § 3 of the city charter authorized such a transfer. City of New Orleans v. Gray Line Motor Tours, Inc., 317 So.2d 214 (La.App.1975) is cited for the general proposition that city boards created by statute or charter possess only such powers as are expressly granted by law.

Absence of citation of relevant authority for alleged points of error ordinarily justifies the appellate court to consider the point as being abandoned. Earney v. Clay, 516 S.W.2d 59, 63 (Mo.App.1974). If the point of error is one for which precedent is appropriate and available, then it is the obligation of the appellant to cite it, if he expects to prevail. Thummel v. King, 570 S.W.2d 679, 687 (Mo. banc 1978).

Since plaintiffs have not cited any relevant authority for their point of claimed error, and since relevant authority was available, (see Airport Com. for City of Cedar Rapids v. Schade, 257 N.W.2d 500, 503 (Iowa 1977) and Wright v. City of Fort Worth, 497 S.W.2d 88, 90-91 (Tex.Civ.App.1973)), the point was abandoned and not preserved for review. We would be justified in dismissing the appeal for noncompliance with the rules, Rule 84.08, but, we exercise our discretion to review for plain error, to determine if the trial court's judgment resulted in manifest injustice or a miscarriage of justice under Rule 84.13(c). The trial court, in paragraphs 9 and 10 of its findings, found that the city acted reasonably in assigning the ACR function to the airport board, even though the function could have been assigned to the fire department, and found that the function had not been discontinued. These facts and conclusions are amply supported by the evidence.

Section 4.5 of the city charter establishes a fire department and § 4.6 states that, among other functions, the fire department shall protect life and property from fire. Section 15.19 establishes an airport board, whose duties include operation of all facilities owned by the city that are used for the operation and service of aircraft. This section also provides that the airport board is subject to the federal agency controlling the flight of aircraft, and gives it the power to enforce all regulations of such agency. The city is required to operate its airport in compliance with Federal Aviation Administration Regulations. 14 C.F.R. 139 (1979). Part 139 requires adequate fire fighting and rescue equipment at the airport. While the city could have assigned the functions of the aircraft crash rescue unit to the fire department, it was not required to do so. Section 4.1 of the charter provides for certain administrative departments and boards, among which are the fire department and the airport board. This section further provides "any such departments and boards may be consolidated, or the function assigned thereto may be transferred to other boards or departments, but no function or duty, the performance of which is required by this charter, shall be discontinued."

This language makes it crystal clear that the council could assign the function of extinguishing fires in aircraft to the airport board, rather than to the fire department, as long as the charter duty of protecting life and property was not discontinued. Plaintiffs argue that the fire department function of protecting life and property from fire was somehow discontinued by transferring or assigning the function of...