Glasnapp v. State Banking Bd.

• Decision Date: 27 December 1976
• Docket Number: No. KCD,KCD
• Citation: 545 S.W.2d 382
• Parties: Raymond E. GLASNAPP et al., Appellants, v. STATE BANKING BOARD et al., Respondents. 27806.
• Court: Missouri Court of Appeals

Page 382

545 S.W.2d 382

Raymond E. GLASNAPP et al., Appellants, v. STATE BANKING BOARD et al., Respondents.

No. KCD 27806.

Missouri Court of Appeals, Kansas City District.

Dec. 27, 1976.

Jeremian D. Finnegan, Lem T. Jones, Jr., Jones & Schaumburg, Kansas City, for appellants.

Irven L. Friedhoff, Tony K. Vollers, Jefferson City, for respondent State Banking Bd.

Rodger J. Walsh, Robert C. Barry, Kansas City, for respondent Grandview Bank and Trust Co.

Robert W. Spangler, Harrisonville, for respondents E. P. Schug, Cass County Bank, J. Weldon Jackson and Citizens Bank of Belton.

Jack C. Terry, James L. Swarts, Independence, for respondents Bank of Belton and Frank Blair, Jr., Pres.

Before DIXON, P.J., PRITCHARD, C.J., and WASSERSTROM, J.

WASSERSTROM, Judge.

Appellants applied to the Commissioner of Finance for a charter for a bank to be opened in Raymore, Missouri. The Commissioner denied the application, from which action appellants appealed to the State Banking Board. After a contested hearing, the Board issued its order affirming the Commissioner, from which appellants sought judicial review in the Circuit Court of Jackson County under Sections 361.095(4) and 536.100. (All statutory references are to RSMo 1969.) The Circuit Court affirmed the order of denial, from which ruling appellants take the present appeal. We affirm.

The town of Raymore in which the proposed bank was to be located lies in northern Cass County, south of Kansas City. According to the 1970 census, Raymore counted a population of only 587. In 1972, the town increased its physical size from 306 acres to 8505 acres by annexation, the purpose being to forestall expansion into that area by Kansas City. Partly as a result of that annexation and partly as a result of general population growth in Cass County, the population of incorporated Raymore increased by 1973 to a figure variously estimated to be between 1,600 and 2,500.

The town has approximately 50 business establishments, mostly small service operations. There is however no central business district and there are no national merchandisers, no clothing store, no drug store, no motor car dealer and no high school.

A large percentage of the incorporated town, as well as most of the immediately surrounding trade area, consists of undeveloped agricultural land. The area is frequently described in the evidence as a bedroom community for Kansas City and this characteristic has brought some home building. At the time of the hearing before the Commissioner and that before the Board, building activity had slowed down because of general business conditions. Home building in Raymore is also handicapped by very limited sewer system and water supply.

Raymore finds itself ringed on all sides by a number of much more developed communities, offering among other business facilities a total of nine existing banks within a 12 mile radius of the location of the proposed Raymore bank. Two of those banks are located in Belton, 4 1/2 miles to the west; one is located in Peculiar, 5 1/2 miles to the south; one is located in Grandview, 8 miles to the northwest; 3 are located in Lee's Summit, 8 1/2 miles to the northeast; one is located in Hickman Mills, 9 miles to the northwest; and one is located in Pleasant Hill, 11.7 miles to the east.

Of appellants' points on appeal, their Point No. I reads: 'The purpose of the State Banking Board in considering applications for new bank charters is not to prevent new banks from entering the field, but rather to insure the existence of a healthy banking system.' This abstract statement flatly violates Rule 84.04(d) and presents nothing for review. Strake v. R. J. Reynolds Tobacco Co., 539 S.W.2d 715 (Mo.App.1976); Stokes v. Kelly, 537 S.W.2d 562 (Mo.App.1976); Dors v. Wulff, 522 S.W.2d 325 (Mo.App.1975).

The other points made by appellants, in summarized form, are that the trial court erred in affirming the decision of the Board because: 1) the Board failed to make findings; 2) the Board applied legally impermissible standards; 3) the Board's findings are not supported by the evidence; and 4) the Board failed to consider benefits which would accrue from increase in banking competition. Each of those points will be discussed in order, after disposition has first been made of points raised by two of the respondents.

I.

Grandview Bank and Trust Co., which intervened before the Board in opposition to the application and which now has appeared and filed brief as respondent in this court, challenges the jurisdiction of the circuit court of the petition to review and of this court on appeal, taking the position that the incorporators of the proposed bank are not proper parties and that the petition for review to the circuit court and the appeal to this court should have been taken by the proposed bank. Proceeding on this premise, Grandview further denies that venue lies in Jackson County. In support, Grandview cites Central Bank of Clayton v. State Banking Board of Missouri, 509 S.W.2d 175, l.c. 181 (Mo.App.1974) in which it was held that the bank, rather than its incorporators, was the aggrieved party, the real party in interest and the one entitled to bring the appeal.

Central Bank of Clayton is not in point. There, the Commissioner issued a charter for the proposed bank and it was only upon appeal to the State Banking Board that the Board revoked the charter. The Central Bank of Clayton opinion holds only that, '(t)he Board does not have the authority, in revoking the proposed bank's charter, to extinguish the bank's legal capacity to appeal the Board's decision.'

In contrast to the situation in Central Bank of Clayton, here the Commissioner did not issue a charter and the proposed Bank of Raymore never came into existence. Under the express provisions of § 362.040, the ones entitled and authorized to appeal from that denial by the Commissioner were the incorporators. By logical extension, when the Board affirmed the Commissioner's denial, the incorporators were the parties aggrieved entitled to file a petition for judicial review and to pursue an appeal from the decision adverse to them by the circuit court. One of those incorporators resides in Jackson County, which confers venue in the trial court.

II.

Bank of Belton, which also intervened before the Board in opposition to the application and appears in this court as a respondent, has moved to dismiss this appeal on the ground that appellants' brief fails to contain a fair and concise statement of facts and fails to contain a proper statement of points relied upon, all in violation of Rule 84.04. This motion is well taken insofar as it relates to appellants' point relied upon No. I, and as already noted in this opinion, that point will not be considered. In other respects, however, appellants' brief is not so violative of the Rule as to call for the drastic action sought. The motion to dismiss is therefore denied.

III.

Appellants attack the sufficiency of the Board's findings, relying heavily on Century State Bank v. State Banking Board of Missouri, 523 S.W.2d 856 (Mo.App.1975) in which this court reversed and remanded an order of the State Banking Board because of the Board's failure to make proper findings of fact. In Century State Bank, the findings consisted essentially of conclusory facts in the form of the statutory language. Such meager content as appeared in those findings other than the statutory conclusion tended to indicate that the Board had reached its determination on an improper basis. The Century State Bank opinion points out that § 536.090 requires that the findings of fact 'shall include a concise statement of the findings on which the agency bases its order' and emphasized the duty of the agency 'to make a determination as to what part of the evidence it will believe and find to be true and what part it will reject.'

The findings here do meet the standards of adequacy prescribed in Century State Bank. Section 362.030 requires among other criteria for the issuance of a new bank charter, a determination 'if the convenience and needs of the community to be served justify and warrant the opening of the bank or trust company therein, and if the probable volume of business in such locality is sufficient to insure and maintain the solvency of the new bank.' Section 362.040 repeats the same requirement. The Board determined that the quoted requirement was not met in this case, and paragraphs 5 and 7 of its order contain specific findings to that effect in the statutory language.

However, the Board did not stop with the statement of those conclusory statements of ultimate fact. The two parts of the criterion in question are closely interrelated (as will be more fully described under Point IV A of this opinion) and the requirement as a whole focuses on the question of the financial prospects of the new bank for survival and profitability. The parties and the Commissioner's staff all agreed that the answer to that question depended upon inquiry into the following subsidiary issues: 1) what was the appropriate trade area (known in banking parlance as 'the primary service area') from which the new bank could be expected to draw the bulk of its business; and 2) the probable volume of deposits which could reasonably be expected by the new bank from that area. The parties submitted voluminous testimony, maps and statistical material all directed toward these subsidiary issues.

Responding to the issues so formulated, the Board proceeded to make direct subsidiary findings of fact on those matters. By paragraph 6(c) of its findings the Board made its choice between the conflicting evidence as to what constituted the appropriate primary service area. Then the balance of paragraph 6 addressed the question of the amount of potential deposits and found in understandable factual terms why the Board deemed the prospects insufficient for profitable operation by the proposed bank. ¹

The findings of ...