Colombo v. Buford
| Citation | 935 S.W.2d 690 |
| Decision Date | 22 October 1996 |
| Docket Number | No. WD,WD |
| Parties | 115 Ed. Law Rep. 160 Kathleen COLOMBO, et al., Appellants, Willie J. Hutson, Plaintiff, Missouri Press Association, Amicus Curiae, v. Michael BUFORD, et al., Respondents. |
| Court | Missouri Court of Appeals |
Theresa Shean Hall, Kansas City, for Appellants.
Allan V. Hallquist, Kansas City, for Respondents.
Before EDWIN H. SMITH, P.J., and BRECKENRIDGE and ELLIS, JJ.
This is an appeal from an order in a judge-tried case sustaining respondents' "motion for directed verdict" at the close of appellants' evidence on appellants' petition alleging violations of the Sunshine Law, §§ 610.010--610.026. 1 Appellants raise four points on appeal; three points dealing with the granting of respondents' motion for directed verdict at the close of appellants' evidence, and one point concerning a denial of appellants' motion to amend their pleadings.
Before we begin our discussion of this case, we feel compelled to admonish counsel for respondents. Rule 84.04(f) requires the respondent's brief to either adopt the appellant's statement of facts or concisely correct any misstatements. The purpose of this rule is to assist the court in determining what factual issues are really in dispute. The respondents' Brief in this case contained a twenty-five page Statement of Facts giving a complete recount of the events which transpired. Ignoring Rule 84.04(f) seems to be in fashion, but we now take the opportunity to put all counsel for respondents on notice that compliance with this rule is required. Proper compliance with the rules on briefing works to the advantage of the parties and the speed with which the wheels of justice can spin.
Appellants Kathleen Colombo and Sharon Kinton are former members of the Center School District Board of Education. Appellant Dr. John Strosnider is a current member of the Center School Board. Appellant Jan Raccuglia is a resident of the Center School District. Respondents, Michael Buford, Mary Ellen Young, Norman Caron, Alan Stempleman, Eugene Banaka and Charles Holton are current members of the Center School Board. Respondents Banaka and Holton were elected to succeed appellants Colombo and Kinton who did not run for another term on the board. Banaka and Holton were not on the board when the alleged violations occurred.
Appellants filed suit against respondents alleging numerous violations of Missouri's Sunshine Law. At the time, there existed a 4-3 ideological split in the school board, with the appellants being the minority group and the respondents being the majority group. The rough details of each of the alleged violations which are the subject of this appeal are set forth infra.
At the July 18, 1994, board meeting, the board voted to send a packet of materials to middle school parents using registered mail "where the board was assured that parents would not have to go to the post office to retrieve such mail." When it was discovered that registered mail could involve parents having to pick up the materials at the post office, board president Buford directed the board secretary to poll the board members by phone to determine how to send the mailing. After polling the members, it was decided that registered mail would be used.
On May 20, 1995, six defendant board members met at the home of a school district patron, Steve Oesch, along with other patrons, for a social gathering. At the gathering, the board members discussed general educational philosophy and the formation of a small support group of parents.
On February 21, 1995, respondent Buford, met over lunch with Dr. Feltner, the superintendent, to warn him of his impending release from his duties. At this meeting, Buford commented that Feltner did not have the necessary votes on the school board to continue, though no vote had yet been taken. The next day, a board meeting was scheduled and the respondents voted to relieve Dr. Feltner of his duties. At the meeting, Buford presented a prepared letter advising Dr. Feltner of his dismissal. Appellants allege that respondents met prior to the board meeting to discuss a motion to not extend the contract of Dr. Feltner.
On November 28, 1994, respondents Buford, Young, and Caron traveled to Belton High School to meet with the principal there to discuss block scheduling at that school for possible implementation in the Center School District. That night at a board meeting, the three voted against block scheduling without comment. Two days later, three of the respondents met with the high school staff without notice to the public to explain their reasons for voting against the block schedule.
The primary thrust of all of the alleged violations is that the respondents met with each other in groups of two or three and discussed school board matters prior to the meetings of the entire school board. Appellants further charge that through these closed meetings, respondents were permitted to solidify votes and ensure they had a majority before introducing motions in an open school board meeting; i.e., that portions of the meeting were "scripted."
I. and II.
In Point I, appellants assert that the trial court erred in requiring them to demonstrate a "violation" of the Sunshine Law in order to prevail on respondents' motion for directed verdict at trial. Appellants claim that the trial court erroneously declared or applied § 610.027.2 in that, in order to shift the burden of persuasion to respondents, this statute only required appellants to demonstrate that respondents held a closed meeting, record or vote, not that they violated the Sunshine Law. The claim in Point II is essentially the same as in Point I. In Point II, appellants assert that it was error for the trial court to sustain respondents' motion for directed verdict in that they had met their burden of persuasion by substantial and uncontroverted evidence and that the burden of persuasion should have been shifted by the trial court to respondents to show no violation of the Sunshine Law. Because these two points interdepend, one logically cannot be decided without deciding the other.
Neither party requested findings of fact or conclusions of law. However, the trial court gratuitously made certain oral findings of fact and conclusions of law on the record. Such gratuitous findings may be considered in determining whether the trial court erroneously applied or declared the law. In Interest of L.W.F., 818 S.W.2d 727, 733 (Mo.App.1991); Graves v. Stewart, 642 S.W.2d 649, 651 (Mo. banc 1982). Therefore, we will review these findings and conclusions along with the rest of the record to determine whether the trial court erroneously applied or declared the law and in doing so reached an incorrect result.
Initially, we must address appellants' claim that our review should be one to determine whether they made a submissible case so as to survive respondents' motion for directed verdict. In making that determination we must be guided by § 610.027.2. Section 610.027.2 provides in pertinent part Once a party seeking judicial enforcement of §§ 610.010 to 610.026 demonstrates to the court that the body in question is subject to the requirements of §§ 610.010 to 610.026 and has held a closed meeting, record, or vote, the burden of persuasion shall be on the body and its members to demonstrate compliance with the requirements of §§ 610.010 to 610.026.
Under this statute, the plaintiffs bear the burden of persuasion until they are able to meet two requirements: 1) the body represented by the defendants is subject to the Sunshine Law; and 2) the body has held a closed meeting, record, or vote. Id.; Kansas City Star Co. v. Fulson, 859 S.W.2d 934, 942 (Mo.App.1993). Respondents admit that the Center School board is a public governmental body subject to the Sunshine Law. Thus, before the burden of persuasion should have been shifted to respondents at trial, appellants were required to show that a closed meeting of the Center School Board took place. The issue then for us to decide is whether the appellants met their burden of persuasion under the statute and should have survived respondents' motion for directed verdict.
On this issue, appellants contend that our review is one for a submissible case. We disagree. In a judge-tried case, where a party against whom a motion for directed verdict has the burden of persuasion, the motion is treated as a motion to dismiss and submits on the merits the issues on which appellants have the burden of persuasion, requiring the trial court to determine credibility of the witnesses and to weigh the evidence, so that the appeal from the ruling on the motion is from a final determination of the issues in question and is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). City of Hamilton v. Public Water Supply Dist. # 2, 849 S.W.2d 96 (Mo.App.1993); Pasta House Co. v. Williams, 833 S.W.2d 460, 461 (Mo.App.1992); Wyrozynski v. Nichols, 752 S.W.2d 433 (Mo.App.1988). Thus, we will affirm the trial court's grant of respondents' motion for directed verdict at the close of appellants' evidence, unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy, 536 S.W.2d at 32. The evidence and reasonable inferences therefrom are to be viewed in the light most favorable to the judgment with all contrary evidence to be disregarded. Kansas City Star Co., 859 S.W.2d at 938. We give due regard to the trial court's determination as to the credibility of a witness. Central States Christian Endeavors Ass'n v. Nelson, 898 S.W.2d 547, 548 (Mo. banc 1995). When sitting as the trier...
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