Powell v. City of Kan. City

• Decision Date: 06 October 2015
• Docket Number: WD 78138
• Citation: 472 S.W.3d 219
• Parties: Telester Ameena Powell, Appellant, v. The City of Kansas City, Missouri, et al., Respondents.
• Court: Missouri Court of Appeals

472 S.W.3d 219

Telester Ameena Powell, Appellant,
v.
The City of Kansas City, Missouri, et al., Respondents.

WD 78138

Missouri Court of Appeals, Western District.

Opinion filed: October 6, 2015

Telester Ameena Powell, Appellant Pro-se.

Chad Stewart, for Respondent.

Before Division One: Cynthia L. Martin, Presiding Judge, Joseph M. Ellis, Judge, and James E. Welsh, Judge

Joseph M. Ellis, Judge

Telester Powell appeals from a judgment entered in the Circuit Court of Jackson County granting summary judgment in favor of the City of Kansas City ("the City") in an action Appellant filed against the City for alleged Sunshine Law violations. For the following reasons, the judgment is affirmed.

On October 5, 2011, the City sent a letter to Appellant notifying her of its intent, pursuant to § 523.250, to exercise its power of eminent domain to acquire her property located at 2611 Brooklyn St. in Kansas City, Missouri in order to build an "East Patrol Campus" for the Kansas City, Missouri Police Department. The letter to Appellant was signed by Michael Patillo, a Senior Acquisition Specialist for the City's Capital Projects Department. On November 2, 2011, Appellant sent Patillo a certified letter proposing an alternative site for the project and formally requesting "the engineering reports, surveys and other documents" associated with the City's review of the viable sites for the East Patrol Campus project. The letter was received by Patillo on November 4, 2011. Neither Patillo nor the City responded to that letter.

On June 28, 2012, the City Council passed an ordinance authorizing the condemnation of Appellant's property for public use. On July 23, 2012, the City filed its petition in condemnation pursuant to § 82.240 seeking a fee simple interest in Appellant's property. After conducting a hearing, on October 2, 2012, the Circuit Court entered its order authorizing the City's condemnation of the property. A jury trial was conducted on May 28, 2013, to determine the fair market value of the property, and pursuant to the jury's verdict, the City was ordered to pay Appellant $55,000.00 for the property. The circuit court's judgment was affirmed by this

472 S.W.3d 222

court on appeal. City of Kansas City v. Powell, 451 S.W.3d 724, 745 (Mo.App.W.D. 2014).

On July 17, 2013, acting pro se, Appellant filed a "Verified Petition to Enforce Sunshine Law" against the City based upon its failure to respond to her November 2, 2011 letter requesting "engineering reports, surveys and other documents" related to the East Patrol Campus Project. Five days later, she filed her "Verified Amended Petition to Enforce Sunshine Law." The City was served on April 11, 2014, and it timely filed an Answer and a Motion to Dismiss the Amended Petition. On May 28, 2014, Appellant filed her "Verified Second Amended Petition to Enforce Sunshine Law and for Statutory Damages and Injunctive Relief."¹ On June 4, 2014, the City filed its Motion to Dismiss the Second Amended Petition based on the one-year statute of limitations set forth in § 610.027.5. Appellant responded by filing her Opposition to the Motion to Dismiss.

On July 9, 2014, the circuit court heard argument on the motion to dismiss and sua sponte decided to treat the motion to dismiss as a motion for summary judgment and granted the parties time for additional briefing and argument. On July 23, 2014, Appellant filed an Amended Reply and Opposition to the Motion to Dismiss. After hearing additional argument, on October 10, 2014, the circuit court entered its judgment granting summary judgment in favor of the City and ordering costs assessed against Appellant. Appellant's subsequent Motion for New Trial or in the Alternative to Amend Judgment was denied by the court. Appellant, again acting pro se, brings four points on appeal.

In her first point, Appellant claims that the circuit court erred as a matter of law in assessing costs against her after having granted her motion to proceed as a poor person, which had been filed along with her original petition. She argues that, once a plaintiff is granted leave to prosecute their action as a poor person, none of the costs of the action can be legally charged to them.² This Court reviews questions of law de novo. Randolph v. Missouri Hwys. & Transp. Comm'n, 224 S.W.3d 615, 617 (Mo.App.W.D. 2007).

On August 28, 2013, the court entered its order stating:

The Court, having considered the Motion and Affidavit in Support of Request to Proceed as a Poor Person, finds that Telester A. Powell is without sufficient funds or assets with which to pay the advance deposit for costs of this action and, therefore, is granted leave to proceed as a poor person and the required advanced deposit for costs is waived.

Subsequently, in its judgment granting the City's motion for summary judgment, the circuit court ordered costs assessed against Appellant.³ Appellant argues that, having found her to be a poor person and granted her leave to proceed as a poor

472 S.W.3d 223

person, the circuit court could not later order her to pay any costs associated with the action.

In support of her argument that the court, having previously found her to be a poor person, erred as a matter of law in ordering her to pay costs, Appellant relies on Isbell v. B i ederman Furniture Company, 115 S.W.2d 46 (Mo.App.E.D. 1938). In Isbell, after having granted the plaintiff permission to prosecute her suit as a poor person, the court granted the defendant's motion to dismiss the petition for failure to state a cause of action and ordered that "defendant have and recover of the plaintiff the costs of this suit, and have therefor execution." Id. at 48. On appeal, the plaintiff challenged the propriety of the award of costs. Id. at 51. In addressing that point, the Isbell court simply stated:

The second assignment of error, which challenges the correctness of the trial court's action in adjudicating the costs against plaintiff, and authorizing the issuance of an execution against her, is well taken. The plaintiff was granted permission by the trial court to prosecute her suit as a poor person in accord with the provisions of section 1240, R.S.Mo. 1929, Mo.St.Ann. § 1240, p. 1467. Said section, after reciting such action of the court, reads as follows: "thereupon such poor person shall have all necessary process and proceedings as in other cases, without fees, tax or charge."⁴

It follows, therefore, that the judgment of the trial court ... in taxing costs and authorizing execution therefor against plaintiff, should be, and is, reversed.

Id.

Since Isbell was decided, the statutory language applicable to indigent plaintiffs has been significantly amended. The relevant statutory provision, § 514.040.1,⁵ the successor statute to § 1240, RSMo 1929, now provides, in relevant part:

[l]f any court shall, before or after the commencement of any suit pending before it, be satisfied that the plaintiff is a poor person, and unable to prosecute his or her suit, and pay all or any portion of the costs and expenses thereof, such court may, in its discretion, permit him or her to commence and prosecute his or her action as a poor person, and thereupon such poor person shall have all necessary process and proceedings as in other cases, without fees, tax or charge as the court determines the person cannot pay [.]

(emphasis added). Based upon the statutory changes, the circuit court is now vested significant discretion to order a plaintiff found to be a poor person to pay any portion of the costs and expenses it finds the plaintiff is able to pay. The statute no longer makes it an all or nothing proposition. Accordingly, Isbell has no application to the case at bar.

472 S.W.3d 224

We recognize that in Roberson v. State, 140 S.W.3d 634, 638–39 (Mo.App.W.D. 2004), this Court appears to have reached a contrary conclusion regarding the changes to the statutory language and the continued applicability of Isbell. In Roberson, this Court noted that "[s]ection 514.040.1 provides that when the plaintiff in a civil case is permitted to sue as a poor person, ‘such poor person shall have all necessary process and proceedings as in other cases, without fees, tax or charge as the court determines the person cannot pay.’ " Id. at 638. The Court then noted that in Isbell "[i]dentical language in one of the predecessor versions of this statute, section 1240, RSMo 1929, [was] interpreted as prohibiting the recovery of costs against a plaintiff who was permitted to proceed as an indigent" and that "[b]ecause the language of section 1240, RSMo 1929, provided, like the current section 514.040.2 [sic], that ‘such poor person shall have all necessary process and proceedings as in other cases, without fees, tax or charge,’ the [Isbell ] court reversed the assessment of costs against the appellant." Id. at 638–39. This Court held that "section 514.040, read in its entirety and with Rule 29.15, provides that an indigent Rule 29.15 movant is not only not required to pay a cost deposit, but is also not required to pay costs at any other stage of the proceedings." Id. at 639.

We believe the application of Roberson was meant to be limited to indigent post-conviction relief movants under...