Leamon v. City of Independence, WD
| Decision Date | 17 November 1981 |
| Docket Number | No. WD,WD |
| Citation | 625 S.W.2d 204 |
| Parties | Ray L. LEAMON, Respondent, v. CITY OF INDEPENDENCE, Missouri; City of Independence, Missouri Police Department; Captain Donald Huntsinger, Independence Police Board of Inquiry; Captain Harold Taylor, Independence Police Board of Inquiry; Captain Robert Collins, Independence Police Board of Inquiry; Captain Shannon Craven, Independence Police Board of Inquiry; Captain Rondell Stewart, Independence Police Board of Inquiry; and George Vermillion, Independence Personnel Department, Appellants. 31946. |
| Court | Missouri Court of Appeals |
George E. Kapke, Asst. City Atty., Independence, for appellants.
S. W. Longan, III, Kansas City, for respondent.
Before CLARK, P. J., and PRITCHARD and WASSERSTROM, JJ.
Ray L. Leamon, a discharged police officer of the City of Independence, instituted a combined action in mandamus and injunction to obtain reinstatement of employment and future compliance by the city with employee merit system procedures. The city appeals from a peremptory writ in mandamus directing that Leamon be restored to his former employment with back pay and allowances and recover damages in the amount of $43,055.95 attorney fees. Reversed.
The controversy on this appeal is limited to the award of damages. Earlier in the progress of the case, reinstitution of proceedings by the city to terminate Leamon gave cause for the claim to injunctive relief but, as reflected by the content of the peremptory writ, the issue had been dropped by that time. The question of Leamon's reinstatement also is no longer in dispute. The city's brief avers and Leamon does not deny that he was re-employed and that full back pay and benefits have been provided. Despite narrowing of the issue to be considered on this appeal, however, the procedural history of the case must be recounted as a necessary prelude to discussion of the damage award.
Leamon's amended petition for injunction and mandamus, following earlier and immaterial pleadings, was filed September 11, 1979. That petition alleged Leamon had been discharged as a city police officer without notice, hearing and administrative review to which he was entitled under the Charter of the City of Independence as a merit employee. Leamon asked mandatory restoration to employment and lost benefits, an injunction against renewed summary termination and attorney fees and costs. The city filed an "answer" to Leamon's petition September 21, 1979, the tenor of which was to admit that proceedings were under way to discharge Leamon, but any impropriety, including political motivation as charged by Leamon, was denied.
On October 5, 1979, the trial court issued its alternative writ of mandamus. The command of the writ was that the city reinstate Leamon to his employment with all benefits as though suspension and termination had not occurred and that the city desist from proceeding with a hearing by the personnel board of the city as to Leamon. For reasons not apparent from this record and not explained on brief or argument, Leamon filed another amended petition for injunction and mandamus on December 21, 1979. Added factual allegations covered events in the case after October 5, 1979, and included the complaint that the city had made no return to the alternative writ issued in October, had not reinstated Leamon with back pay, but was proceeding with administrative action to terminate Leamon's employment. The prayer of the December 1979 petition was for issuance of an alternative writ in mandamus to be made peremptory "upon full hearing."
To the extent proceedings in this case may be evaluated by conventional standards, the amended petition of December 1979 seems to have played no role in defining issues or in presenting any new claim for adjudication. The next action by the court following the filing of the amended petition was an order dated April 7, 1980, which overruled the city's motion to dismiss and granted the city leave to file, within five days, its return to the alternative writ out of time. The motion to dismiss had been filed November 20, 1979, and claimed the cause moot because the city had complied with the directive of the alternative writ.
The city's return to the alternative writ was filed April 14, 1980. The return stated that the city had complied with the writ by reinstating Leamon on October 5, 1979, and that suspension and termination procedures had been reinstituted resulting in Leamon's dismissal effective December 12, 1979. Leamon filed no pleading to and did not traverse the return.
A conference among the court and counsel next followed on April 23, 1980. No evidence was offered, but reference was made to testimony adduced at a hearing conducted September 24, 1979, before the alternative writ issued. Counsel and the court appear to have assumed that the evidence from the September 24, 1979 hearing was before the court and was relevant to issues framed subsequently by the alternative writ and the return. No record of the September 1979 hearing has been provided here. Also mentioned at the April 23, 1980 conference were an affidavit by a city attorney who could not be present and a fee statement prepared by Leamon's attorney. 1 Both documents are included in the record on appeal, but neither was marked as an exhibit and neither was offered or received in evidence.
The peremptory writ from which this appeal was taken was issued May 9, 1980. The order contains a number of findings and concludes that such action which the city did take to reinstate Leamon to employment on October 5, 1979 "was only token and ineffective and did not comply with the intent and direction of the Order." The city was ordered to reinstate Leamon with full retroactive compensation and to pay Leamon damages of $43,055.95. As noted earlier, the issue of injunctive relief applicable to renewed termination proceedings had apparently been abandoned because the peremptory writ made no reference to this directive of the alternative writ.
The challenge which appellants make to the authority of the trial court to award damages first requires ascertainment of what issues were before the court and ripe for adjudication on May 9, 1980. This analysis...
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...S.W.2d 56, 59 (Mo.App. W.D.1996) (citing Smith v. Berryman, 272 Mo. 365, 199 S.W. 165, 166 (Mo. banc 1917) ); Leamon v. City of Independence, 625 S.W.2d 204, 208 (Mo.App.W.D.1981). Schriro explained that the concept of a false return comes from the common law history of the writ of mandamus......
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