Foster v. Village of Brownington

• Decision Date: 21 May 2002
• Docket Number: No. WD 59311.,WD 59311.
• Citation: 76 S.W.3d 281
• Parties: William D. FOSTER and Jan Foster, Appellant Pro Se, v. VILLAGE OF BROWNINGTON, et al., Respondents.
• Court: Missouri Court of Appeals

76 S.W.3d 281

William D. FOSTER and Jan Foster, Appellant Pro Se, v. VILLAGE OF BROWNINGTON, et al., Respondents.

No. WD 59311.

Missouri Court of Appeals, Western District.

May 21, 2002.

William Foster, Kansas City, pro se.

Jan Foster, Kansas City, pro se.

Hurley D. Mahan, Clinton, for respondents.

Before JOSEPH M. ELLIS, Presiding Judge, EDWIN H. SMITH, Judge and VICTOR C. HOWARD, Judge.

JOSEPH M. ELLIS, Judge.

Prior to 1993, Appellants William D. Foster and Jan Foster purchased a piece of property in Brownington, Missouri, adjacent to 8th Street. Eighth Street was originally platted back in the 1870s, but the street had not been developed at the time Appellants purchased their property.

In 1993 or 1994, the county put up street signs in the city, including one for 8th Street. On July 11, 1995, the city board conducted a meeting, and a citizen asked the board to have gravel placed on 8th Street between Main Street and Highway BB. The board then voted to place gravel on the road, and this was accomplished the following day. This upset Appellants and caused them to make numerous complaints to the board.

On January 11, 1996, Appellants filed a petition in the Circuit Court of Henry County. That petition was subsequently amended three times. In relevant part, Appellants' fourth amended petition alleged that the land on which 8th Street rested had not been properly dedicated to Brownington in 1871 because the woman who dedicated the property had previously conveyed it and did not own the property at the time of dedication. Appellants' petition also alleged that the board had violated the Sunshine Law in conducting the July 11, 1995 meeting and at a subsequent meeting.

On March 1, 1999, Appellants' counsel filed a motion for leave to withdraw. Subsequent to the filing of this motion, Appellants proceeded pro se. On May 27, 1999, the trial court granted the attorney for Appellants leave to withdraw.

The case was tried to the court on August 16, 2000. After presenting the testimony of seven witnesses, Mrs. Foster stated, "We have no further witnesses to call, Your Honor." The court then asked, "I understand the Petitioner rests. Is that correct?" Appellants responded, "Yes, your honor."

Subsequently, Respondents moved the court for judgment at the close of plaintiffs' evidence claiming that Appellants had failed to present sufficient evidence to support their claims. After Respondents offered their argument, the following exchange occurred:

The Court: And, Mrs. Foster, I'd like to hear your response, please.

Mrs. Foster: My response is I have not even had a chance to begin arguing to present my evidence. Now we're— we're talking about the Sunshine Law here. If I may make reference to—

The Court: Wait a minute. Wait a minute. Wait a minute. You—You have to have evidence before you can argue.

Mrs. Foster: Exactly.

The Court: Okay. And you've rested. You've quit. You said I don't have any more evidence.

Mrs. Foster: No, Your Honor. I said that I had no more questions for witnesses.

The Court: I asked specifically, "Does the Petitioner rest?"

Mrs. Foster: Your Honor, I did not understand the question then.

The Court: You said, "We have no more evidence."

Mrs. Foster: No, Your Honor.

The Court: I looked up in—

Mrs. Foster: Did I—Did I say that?

The Court:—utter surprise and amazement and said, "Do I understand that the Petitioner rests?" And you said, "Yes."

Mrs. Foster: What I thought you meant was, did I have any more questions for the witnesses, because you did tell me I would have a chance to present my evidence.

The Court: That's what this case is about was presenting evidence, and you've rested. You cannot reopen your case. * * *

The Court: I'm ... willing to hear any response that you have to Mr. Mahan's motion for judgment for Defendants as to Counts I, II and IV.

Mrs. Foster: Your Honor, we object to Mr. Mahan's request. It has been stated—Mr.—Mr. Miller in his testimony stated he did not know the Sunshine Law. He stated that—that, when we asked for the minutes, they were denied us. That indicates a violation of the Sunshine Law.

Now they say that they had a meeting—they had a notice of meeting on the door. To us, that's a contrived after-the-fact notice. That is not the kind of notice that is required by the requirements of the Sunshine Law. There's a specific form that needs to be posted, a specific wording and agenda. That's not been done.

Now, like I said before, I was there that day. There was no notice posted. And that in effect would be a violation of the Sunshine Law. So to us it's a closed meeting.

Now the fact that they might have told—We—We were—We were told later by people that were there, including Mrs. Tulli, who—who testified, that somebody told her there was going to be a meeting. Well, they told a few people who were interested in four-wheelers that there would be a deputy there to discuss four-wheelers.

Now Mrs. Dean has gone. She's not here to retract my statement. But she herself called me after that meeting. And she told me how angry she was, because that was not supposed to be part of the meeting, that all they were supposed to do was discuss four-wheelers.

The Court: Anything further?

Mrs. Foster: That's it. We just would—would like you not—not to— We'd like you not to—He says I can't give any more testimony. We'd like you to overrule his recommendation to the Court.

The Court: Well, there is the thing that we have in the—in the law, and I recognize that you are not a lawyer, but when you act as one, then you must comply with the rules. And you're certainly entitled to represent yourself, but you—but if you're going to act like a lawyer, you've got to be a lawyer.

And there is a principle in law—The basic principle of the law is that the Plaintiff has the burden of proof. You—You cannot—What that means is you cannot sue someone and then require them to come in and prove that they are innocent, that they didn't do what you did.

And that's what you're asking me to do. You're asking me to say: Well, they didn't show us that there was a meeting there. Well, that's not their burden to show that there was—that there was a notice. It is your burden to show that there was no notice.

Mrs. Foster: Your Honor, we had all the evidence here. Like I said, I did not understand when you asked me that question.

The Court: Twice.

Mrs. Foster: I did not understand what that meant, Your Honor. If you had—If you had gone a little further and said you—"In other words, you have no more evidence to present," I would have said yes, I have tons of evidence to present.

The Court: Let—I will refresh— From—From my memory, you said, "We have no more evidence."

Mrs. Foster: No.

The Court: And I said, "Does that mean that you are resting?"

Mrs. Foster: But, Your Honor—Is there some way you can play that back, because I did not say that. I said we had—

The Court: Well, the Court of Appeals will have an opportunity to play it back.

Mrs. Foster: Yes.

The Court: I'm going to sustain the motion for judgment for Defendant as to Counts I, II and III(sic), for failure of the Plaintiffs to meet their burden of proof.

Mrs. Foster: Your Honor—

Mr. Mahan: Judge, it's Count IV.

The Court: Count IV. Excuse me. Yes, ma'am.

Mrs. Foster: All the other evidence that we have—Now we have read that, even though it won't be admitted, may we introduce this to be forwarded to the Court of Appeals?

The Court: Court of Appeals is going to hear what I heard. They're going to see if I made any mistakes. They're not going to—They're not going to— They're not—It's not—

Mrs. Foster: Well, I read—I read someplace in the court rules that, even if you don't admit evidence, it's got to be—it—it may be included when—for the Court of Appeals to view.

The Court: I'm—I'm not permitted to practice law. And if you have found that, then I certainly would assert that. But that's not what I believe the law to be.

Okay. We'll be adjourned.

In accordance with its ruling at trial, the trial court entered judgment in favor of Respondents on their motion for judgment at the close of Appellants' evidence. Appellants, again proceeding pro se, bring five points on appeal. These points will be addressed out of order.

We initially note that Appellants' statement of facts fails to comply with the applicable rules of appellate procedure.¹ Rule 84.04(c) requires the appellants to include in their brief a "fair and concise statement of the facts relevant to the questions presented for determination without argument." Hansen v. Missouri Real Estate Appraisers Comm'n, 875 S.W.2d 620, 621 (Mo.App. S.D.1994). Furthermore, Rule 84.04(i) requires Appellants to provide specific page references to the legal file or transcript for all statements of fact.

In their statement of facts, Appellants fail to cite to specific page references for most of their factual assertions, make numerous factual assertions which have no supporting evidence in the record, and include improper argument. These violations of Rule 84.04 constitute grounds for dismissing Appellants' appeal. In re Marriage of Gerhard, 34 S.W.3d 305, 308 (Mo. App. S.D.2001). But appeals should be decided on the merits if possible. Brown v. Hamid, 856 S.W.2d 51, 53 (Mo. banc 1993). While we certainly do not condone noncompliance with the rules, the briefs in this case do delineate the issues and present argument from which the issues can be decided. Thus, the deficiencies in Appellants' brief do not prevent review on the merits, and, therefore, we will address Appellants' arguments on appeal.

We begin with Appellants' second point on appeal. In that point, Appellants claim the trial court committed plain error and improperly acted as an advocate for Respondents when the court stated, "I probably should have allowed [Respondents' counsel] to make any objections; there are any number of other objections that could be made to the photographs." Appellants contend that ...