Schnurbusch v. W. Plains Reg'l Animal Shelter

• Decision Date: 07 February 2019
• Docket Number: No. SD 35385,SD 35385
• Citation: 571 S.W.3d 191
• Parties: Willard SCHNURBUSCH and Carol Schnurbusch, Plaintiffs-appellants, v. WEST PLAINS REGIONAL ANIMAL SHELTER, Defendant-Respondent.
• Court: Missouri Court of Appeals

571 S.W.3d 191

Willard SCHNURBUSCH and Carol Schnurbusch, Plaintiffs-appellants,

v.WEST PLAINS REGIONAL ANIMAL SHELTER, Defendant-Respondent.

No. SD 35385

Missouri Court of Appeals, Southern District, Division One.

Filed February 7, 2019

Motion for Rehearing and/or Transfer to Supreme Court Denied March 1, 2019

Application for Transfer Denied April 30, 2019

Appellants appear pro se.

Attorney for Respondent: Chrys Fisher of West Plains, Missouri.

GARY W. LYNCH, J.

Willard Schnurbusch and Carol Schnurbusch ("the Schnurbusches") appeal pro se¹ from the trial court’s summary judgment in favor of West Plains Regional Animal Shelter ("the Shelter"). They raise eleven points on appeal, which either fail to present a cognizable basis upon which to reverse the trial court’s judgment or fail to demonstrate reversible error. Because the trial court’s judgment is presumed correct and the Schnurbusches failed in their burden to demonstrate otherwise, see Ford Motor Credit Co. LLC v. Harris , 386 S.W.3d 864, 866 (Mo. App. 2012), we affirm.²

Background ³

In 2006, the Schnurbusches and Schnurbusch Land Services, Inc., filed a four-count petition against the City of West Plains ("the City") and the Shelter in Case No. 09PU-CV00849. Count I of the petition alleged that the Shelter was violating the City’s zoning laws, and that the City was failing to enforce the zoning laws against the Shelter; Count II alleged that the Shelter was causing a nuisance to the Schnurbusches; Count III requested the court declare the validity of "amended zoning ordinance No. 4080"; and Count IV alleged that the City failed to enforce its municipal code and ordinances against the Shelter, and requested punitive damages. Counts II and IV were dismissed by the trial court. Following trial on Counts I and III, the trial court entered its judgment in favor of the City and the Shelter on both counts.

The Schnurbusches appealed the trial court’s judgment, and this court affirmed the judgment by a memorandum decision. See Schnurbusch v. City of West Plains, Missouri , SD31107 (Mo. App. Jan. 23, 2012) ("Schnurbusch I ").

On January 17, 2012, the Schnurbusches filed a pro se four-count petition against the Shelter in Case No. 12AL-CC00006. The petition contained similar allegations to those in Schnurbusch I .

In their responsive pleadings, the Shelter counterclaimed against the Schnurbusches, accusing them of, inter alia , malicious prosecution for the filing and prosecution of Schnurbusch I (Count I) and for the filing and pursuit of the instant action (Count II). The Shelter also filed a motion to dismiss the Schnurbusches' petition, arguing that the petition "fail[ed] to state a claim in that said suit violates the doctrine of res judicata, the rule against splitting causes of action[,] and collateral estoppel[.]" The trial court granted the motion to dismiss, and the case then proceeded on the Shelter’s counterclaims. Ultimately, the trial court granted summary judgment in favor of the Shelter on Counts I and II, assessing damages of $45,112.50 and $15,268.75, respectively.

The Schnurbusches appealed. In Schnurbusch v. West Plains Reg'l Animal Shelter , 507 S.W.3d 675 (Mo. App. 2017) (" Schnurbusch II "), this court concluded that, because of its reliance on extrinsic materials, the Shelter’s motion to dismiss should have been converted into a motion for summary judgment. Because the procedural strictures of Rule 74.04 had not been followed, we reversed and remanded the trial court’s judgment dismissing the Schnurbusches' petition. The trial court’s judgment was affirmed in all other respects.

On remand, both the Shelter and the Schnurbusches moved for summary judgment and filed statements of uncontroverted material facts. In its memorandum of law in support of its motion, the Shelter argued that there is no genuine dispute of material fact that the Schnurbusches' claims in this case are the same as those in Schnurbusch I and that, as matter of law, the petition is barred by res judicata. The trial court agreed, granting the Shelter’s motion for summary judgment, denying the Schnurbusches' motion for summary judgment, and entering judgment accordingly. The Schnurbusches timely appeal.

Discussion

Applicable Principles of Review Regarding Rule 84.04 Violations

The Schnurbusches' points relied on violate Rule 84.04 in multiple respects. We identify some of the more egregious violations on a point-by-point basis. To avoid any unnecessary repetition, infra , we list at the outset of this discussion some relevant tenets regarding Rule 84.04’s briefing requirements.

As the Eastern District of our court has observed,

Rule 84.04 provides the requirements for appellate briefs.... Compliance with the briefing requirements of Rule 84.04 is mandatory, and a brief that fails to comply with Rule 84.04 preserves nothing for appellate review. Compliance with the rule is required in order that the appellant may give notice to the party opponent of the precise matters which must be contended with and answered. Compliance is also mandatory so that unnecessary burdens are not imposed on the appellate court and to ensure that appellate courts do not become advocates for the appellant by speculating facts and arguments that have not been made.

Osthus v. Countrylane Woods II Homeowners Ass'n , 389 S.W.3d 712, 714–15 (Mo. App. 2012) (internal citations and quotation marks omitted). "It is not the function of the appellate court to serve as advocate for any party to an appeal." Thummel v. King , 570 S.W.2d 679, 686 (Mo. banc 1978). "As such, we have no duty to search the transcript or record to discover the facts which substantiate a point on appeal." Wilson v. Carnahan , 25 S.W.3d 664, 667 (Mo. App. 2000). "That is the duty of the parties, not the function of an appellate court." Nell v. Fern–Thatcher Co. , 952 S.W.2d 749, 755 (Mo. App. 1997).

Points One and Two

Both the Schnurbusches' first and second points challenge the authority of individuals who acted on behalf of the Shelter during the course of the underlying legal proceedings. In numerical order, those two points contend as follows:

THE TRIAL COURT ERRED BY NOT REQUIRING WEST PLAINS REGIONAL ANIMAL SHELTER TO PROVIDE DOCUMENTATION IN CASE NO. 12AL-CC00006 THAT AUTHORIZED GEORGE CHRYSLER FISHER, JR. TO PRESENT AND/OR FILE DOCUMENTS AND/OR APPEAR AT HEARINGS ON BEHALF OF WEST PLAINS REGIONAL ANIMAL SHELTER FROM FEBRUARY 23, 2012 TO AUGUST 8, 2017, BECAUSE WEST PLAINS REGIONAL ANIMAL SHELTER IS A NOT FOR PROFIT CORPORATION, REQUIRED BY MISSOURI STATUTES 355.116 355.118 355.376 355.431 TO HAVE BYLAWS AND PER THE BYLAWS ESTABLISHED FOR THE ENTITY, NO INDIVIDUAL IS ALLOWED TO ACT ON BEHALF OF THE ENTITY WITHOUT APPROVAL OF THE DIRECTORS OF WEST PLAINS REGIONAL ANIMAL SHELTER AND NO SUCH APPROVAL HAS BEEN PRESENTED DURING THE ENTIRE TIME OF CASE NO. 12A-CC00006, FILED ON JANUARY 17, 2012, WAS BEING PROCESSED, THAT GEORGE CHRYSLER FISHER WAS OFFICIALLY AUTHORIZED BY DIRECTORS OF WEST PLAINS REGIONAL ANIMAL SHELTER TO ACT AS REPRESENTATIVE OF THE ENTITY TO MAKE ANY RESPONSIVE PLEADING. THEREFORE LACKING A PROPERLY SUBMITTED RESPONSIVE PLEADING, THE TRIAL COURT LACKED PERSONAL JURISDICTION OVER WEST PLAINS REGIONAL ANIMAL SHELTER TO GRANT ANYTHING, AT ANY TIME, TO WEST PLAINS REGIONAL ANIMAL SHELTER.

* * *

THE TRIAL COURT ERRED BY NOT REQUIRING WEST PLAINS REGIONAL ANIMAL SHELTER TO PROVIDE DOCUMENTATION FROM DIRECTORS DURING CASE NO. 12AL-CC00006 TO AUTHORIZE DENNIS HAMMEN TO SIGN, OR PREPARE, OR FILE DOCUMENTS ON BEHALF OF WEST PLAINS REGIONAL ANIMAL SHELTER FROM FEBRUARY 24, 2012 TO NOVEMBER 2, 2015. LACKING ANY DOCUMENTATION THAT DENNIS HAMMEN WAS APPROVED, OR AUTHORIZED BY OFFICERS AND DIRECTORS OF WEST PLAINS REGIONAL ANIMAL SHELTER IN ANY METHOD, TO ACT AS REPRESENTATIVE OF THE ENTITY IN ANY DOCUMENT SIGNED BY DENNIS HAMMEN IN ANY NAMED CAPACITY, IT MUST BE DETERMINED THAT WEST PLAINS REGIONAL ANIMAL SHELTER LACKED STANDING TO PRESENT ANY DOCUMENTS IN CASE NO. 12AL-CC00006.

Both of these points fail because they are barred by the law-of-the-case doctrine.

As explained by our supreme court,

The doctrine of law of the case provides that a previous holding in a case constitutes the law of the case and preludes relitigation of the issue on remand and subsequent appeal. State v. Graham , 13 S.W.3d 290, 293 (Mo. banc 2000) ; Rodriguez v. Suzuki Motor Corp. , 996 S.W.2d 47, 61 (Mo. banc 1999). The doctrine governs successive adjudications involving the same issues and facts. Shahan v. Shahan , 988 S.W.2d 529, 533 (Mo. banc 1999). Generally, the decision of a court is the law of the case for all points presented and decided, as well as for matters that arose prior to the first adjudication and might have been raised but were not. Graham , 13 S.W.3d at 293 ; Shahan , 988 S.W.2d at 533.

Walton v. City of Berkeley , 223 S.W.3d 126, 128–29 (Mo. banc 2007).⁴

Here, points 1 and 2 reference George Chrysler Fisher and Dennis Hammen, respectively, and challenge their involvement in this case going as far back as the filing of the Shelter’s pleadings in 2012. The Shelter argues that the law-of-the-case doctrine applies to both of these claims because they were raised before and ultimately denied by this court in Schnurbusch II . We need not address, however, whether these claims were raised in Schnurbusch II . Even if we assume without deciding that these claims were not raised in Schnurbusch II , the complained-of conduct was occurring before that appeal and, hence, the claims could have been raised in that appeal. In either event, the law-of-the-case doctrine precludes the Schnurbusches from asserting these issues in this appeal. See id. For these reasons, the Schnurbusches' first and second points are denied.⁵

Points Three, Four, Five, Six, and Seven

Standard of Review and Applicable Legal Principles Related to Summary Judgment

Our review of a trial court’s grant of summary judgment is essentially de novo , and we view the record in the light most...