Foster v. Village of Brownington, WD 62666.

Citation140 S.W.3d 603
Decision Date06 April 2004
Docket NumberNo. WD 62666.,WD 62666.
PartiesWilliam D. FOSTER and Jan Foster, Appellants, pro se, v. VILLAGE OF BROWNINGTON, Missouri and Aldermen Kenneth Miller, Barry Denison, Roscoe Walter, Jan W. Vanderpool, and Hattie Bea Dean, Respondents.
CourtCourt of Appeal of Missouri (US)

Appeal from the Circuit Court, Henry County, Gerald D. McBeth, J William and Jan Foster, Kansas City, pro se.

Hurley D. Mahan, Clinton, respondents.

Before RONALD R. HOLLIGER, P.J., ROBERT G. ULRICH and JAMES M. SMART, JR., JJ.

ROBERT G. ULRICH, Judge.

Appellants, William D. and Jan Foster, appeal the trial court's February 21, 2002, judgment denying their prayer seeking the trial court's declaration that action taken at a July 11, 1995, "Town Board" meeting of the village of Brownington to apply gravel to 8th Street, to which appellants' property is contiguous, was void because of the Town Board's failure to comply with Missouri's "Sunshine Statute," Chapter 610 RSMo, which requires prior notice of the meeting.1 The gravel was applied the day following the Town Board meeting. The judgment is affirmed in part and is reversed in part.

Plaintiff/Appellants' petition asserted three claims that proceeded to trial before the court without a jury. They claimed that the July 11, 1995, meeting of the Town Board was void for its failure to comply with section 610.020 RSMo; they sought determination of their legal interest to the property on which gravel was spread as a result of the Town Board's decision at the July 11, 1995, Board meeting; and they sought assessment of a penalty against the defendants as authorized by section 610.027 for their failure to comply with the notice provisions of section 610.020 regarding an alleged "roadside" meeting of the Town Board in March of 1997. The evidence at trial included the testimony of Plaintiff/Appellant, Jan Foster, who testified that the village put gravel on her property in 1995 when it graveled 8th Street, which was contiguous to the Fosters' property. The minutes of the Town Board meeting of July 11, 1995, reflecting that the Town Board had voted to gravel 8th Street were introduced. Ms. Foster testified that she went to the town hall about five p.m. the evening of July 11, 1995, and did not see a notice that the Town Board would meet that evening. Ms. Foster also testified that in March of 1997, she observed three of the four town aldermen (the Chairman of the Board, called "Mayor" by members of the community, being the fifth member of the Board, was not present) standing together on 8th Street in proximity to where the gravel had been spread on July 12, 1995, discussing something, and she took a picture of the men that was introduced into evidence. Her claim was that this gathering constituted a Town Board meeting and that, in contravention of the Sunshine Statute, no prior notice of the meeting had been given.

The evidence included several stipulations, including that the Fosters own Block 6 in the Wells Addition of the Town of Brownington, which includes lots 1 through 12 of the addition. The Fosters purchased additional property from the railroad that is contiguous to the original Foster property. The Mayor and several other persons who were on the Town Board on July 11, 1995, and in March 1997, testified. Their collective testimony was that the Town Board met every second Tuesday of every month, and that it met the evening of July 11, 1995, and voted to gravel 8th Street between BB Highway and Main Street by a vote of three in favor and one opposed. All five members of the Town Board were present the evening of July 11, 1995, as were about eighty-seven other town residents. The practice of the Town Board was to place a notice of an anticipated meeting on the front door of the community building where the Town Board met, and the Mayor testified that the notice of the July 11, 1995, meeting was posted twenty-four hours before the meeting. The Town Board attempted to gravel the roads of the town every other year; but because the town did not have sufficient funds to gravel all the roads within the town, the roads about which complaints were received were graveled when the community could afford it. Another member of the Board testified that a practice was for two or three members of the Board to traverse the town to view the streets to determine which needed gravel. Ms. Foster observed a gathering of four men on the Town Board in March 1997, and she took a picture of three of the men. The testimony of one of the men in the picture was that the men were discussing a garage recently erected by one of them.

Standard of Review

In a judge-tried proceeding, appellate review is under Rule 84.13(d). The trial court's judgment will be reversed only if no substantial evidence supports the judgment, if the decision is against the weight of the evidence, or if the judgment erroneously declares or misapplies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). When determining whether the evidence is sufficient to support the judgment, appellate courts review the evidence and all reasonable inferences from such evidence in the light most favorable to the trial court's judgment and disregard all contrary evidence. T.B.G. v. C.A.G., 772 S.W.2d 653, 654 (Mo. banc 1989). On appellate review of a case tried without a jury, due regard shall be given to the opportunity of the trial court to have judged the credibility of witnesses. Rule 84.13(d)(2). The trial court is vested with the discretion to believe or disbelieve all, part, or none of any witness' testimony. T.B.G., 772 S.W.2d at 654.

Rule 84.04

Rule 84.04, Supreme Court Rules, declares the contents of the briefs filed in Missouri's appellate courts. The rule requires that a brief filed in support of an appeal contain "points relied on." Rule 84.04(a)(4) and (d). The rule states that where the court reviews the decision of a trial court, each point asserted shall

(A) identify the trial court ruling or action that the appellant challenges;

(B) state concisely the legal reasons for the appellant's claim of reversible error; and

(C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.

The point shall be in substantially the following form: "The trial court erred in [identify the challenged ruling or action], because [state the legal reasons for the claim of reversible error], in that [explain why the legal reasons, in the context of the case, support the claim of reversible error]."

Rule 84.04(d)(1). "Thus, the rule requires that each point relied on: (1) identify the trial court's ruling or action that the appellant is challenging on appeal; (2) state the legal reasons for the appellant's claim of reversible error; and (3) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error." Wilson v. Carnahan, 25 S.W.3d 664, 666 (Mo.App. W.D.2000) (quoting Hall v. Mo. Bd. of Prob. & Parole, 10 S.W.3d 540, 543 (Mo.App. W.D.1999)). "The function of this rule is to give notice to the opposing party of the precise matters which must be contended with and to inform the court of the issues presented for review." Id. (quoting Hall, 10 S.W.3d at 543). "A point relied on written contrary to the mandatory requirements of Rule 84.04(d), which cannot be comprehended without resorting to other portions of the brief, preserves nothing for appellate review." State v. Dodd, 10 S.W.3d 546, 556 (Mo.App. W.D.1999). The Fosters appeal pro se, but they are still held to the same standard as an attorney and, therefore, must comply with the requirements of Rule 84.04. Woodson v. City of Independence, 124 S.W.3d 20, 24 (Mo.App. W.D. 2004). "Substantial compliance with Rule 84.04 is mandatory." Id. "Requiring compliance with Rule 84.04 ensures that the appellate court does not act as an advocate for the party by speculating on facts and arguments that were not asserted." Id.

Appellate courts are not obligated to review an appeal on the merits when the brief violates the requirements of Rule 84.04 and may dismiss the appeal. Id. 124 S.W.3d at 24-25. Liberal application of the procedural rules is promoted, however, to promote justice and minimize the number of cases disposed of on technical grounds. Id. (quoting Geiersbach v. Blue Cross/Blue Shield of Kansas City, 58 S.W.3d 636, 639 (Mo.App. W.D.2001)). Reviewing authority has discretion to review an appeal on the merits even when various parts of the brief do not comply with Rule 84.04. Id.

Appellants assert five points in their brief. Although the points on appeal do not comply with Rule 84.04, where a point presented can be reasonably understood, it is addressed.

Point One

Appellants assert the following as point one:

The court erred when it granted judgment to the defendant in plaintiff's (sic) count one (1) because its judgment was against the weight of the evidence, in that the court failed to give adequate weight to the rules set forth in Missouri statute § 610.020(1) & (2), pertaining to notice requirements of the Missouri Sunshine Law. In addition, defendants produced no substantial evidence [including defendant's (sic) testimony] contrary to the evidence produced by plaintiff, [i.e. plaintiff's (sic) exhibit # 24, [defendant's (sic) board minutes of August 8, 1995] to support the court's judgment.

Appellants quote as a part of point one a portion of section 610.020, which requires twenty-four hours notice of the time, date and place of each meeting of public bodies. They also quote and emphasize that portion of Murphy v. Carron that requires affirmation of the trial court's judgment "unless there is no substantial evidence to support it, it is against the weight of the evidence ..."

The essence of Appellants' claim as point one, as can...

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