Sisco v. James, 17447

• Decision Date: 17 December 1991
• Docket Number: No. 17447,17447
• Citation: 820 S.W.2d 348
• Parties: Ray SISCO, Appellant, v. Bill JAMES and Bob Kielhofner, Clerk of the County Commission of Scott County, Respondents.
• Court: Missouri Court of Appeals

Page 348

820 S.W.2d 348

Ray SISCO, Appellant, v. Bill JAMES and Bob Kielhofner, Clerk of the County Commission of Scott County, Respondents.

No. 17447.

Missouri Court of Appeals,

Southern District,

Division One.

Dec. 17, 1991.

Jim S. Green, Sikeston, for appellant.

Daniel S. Norton, Norton and Norton, Sikeston, for respondent James.

David A. Dolan, Pros. Atty., Scott County, Benton, for respondent Kielhofner.

CROW, Judge.

Bill James was declared the winner over Ray Sisco in the April 3, 1990, election for Mayor of the City of Miner, 147 votes to 142.

Sisco ¹ filed a petition to contest the election. ² At the start of trial, James moved to dismiss the suit because the petition failed to state a cause of action. During the second day of trial, the trial court granted the motion. Sisco appeals.

The portion of Sisco's petition germane to this appeal reads:

"5. [Sisco] further states that the twenty-one (21) voters at the Miner Nursing Home were not properly registered as required by Chapter 115 R.S.Mo.

6. That at least eleven (11) of the said Absentee Ballots were not properly obtained by the voters as required by Chapter 115, R.S.Mo.

7. That the said twenty-one (21) Absentee Ballots were not distributed to the said voters in accord with Chapter 115, R.S.Mo.

8. That at least one (1) voter has said the ballot does not reflect the choice of the voter.

9. That at least one (1) Absentee Ballot was not voted by the voter designated on the ballot.

10. That at least five (5) voters of Absentee Ballots were not physically able to vote.

11. That at least eleven (11) of the said Absentee Ballots were not voted in accordance with the procedures provided by Chapter 115, R.S.Mo.

12. That the said Absentee Ballots were illegal, and therefore should not be counted.

....

14. That because the facts and circumstances set forth herein, all Absentee Ballots cast for Bill James ... are illegal votes ... and ... Contestant, Ray Sisco, is therefore entitled to have the Court declare that the election of the Contestee, Bill James, be set aside and that the ... Contestant, Ray Sisco, be declared the winner of said election, having received the majority of legal votes cast in the said election for Mayor of the City of Miner."

The first of Sisco's two points relied on reads:

"The [trial] court erred in ruling that the petition was insufficient in its allegation of facts as to the irregularities in the process used in the absentee balloting except for 2 instances plead."

In the argument portion of his brief, Sisco states the trial court found paragraphs 8 and 9 sufficient. Whether the record confirms that is debatable. ³ However, that is immaterial inasmuch as paragraphs 8 and 9 concern only two votes in the aggregate, not enough to change the outcome.

Section 115.577, RSMo 1986, pertains to the election contest here. It reads, in pertinent part:

"... The petition shall set forth the points on which the contestant wishes to contest the election and the facts he will prove in support of such points...."

The sufficiency of a contestant's allegations in an election contest was considered early in this century in Hale v. Stimson, 198 Mo. 134, 95 S.W. 885 (banc 1906). ⁴ In that era, the pleading that commenced an election contest was denominated a "notice." The applicable statute--s 7029, RSMo 1899--provided that "the notice shall specify the grounds upon which the contestant intends to rely." 95 S.W. at 887. One of the allegations in the contestant's pleading was that "there were many other illegal and fraudulent votes cast for [contestee] at said election, the name or names of such voters, and the precinct or precincts wherein they voted not being known to [contestant] at this time." Another averment stated "there were many other legal and valid votes cast for [contestant] at said election that were not counted for [contestant], but their names not being known by [contestant], [he] cannot now specifically notify [contestee], of their names or the precinct in which they voted." 95 S.W. at 886. The Supreme Court of Missouri held those allegations stated no "grounds" of action and gave no jurisdiction for a recount. 95 S.W. at 889.

Hale was cited with approval in Armantrout v. Bohon, 349 Mo. 667, 162 S.W.2d 867 (1942), which explained:

"Since the notice in an election contest takes the place of a petition in an ordinary suit it 'must be judged by the rules pertaining to the sufficiency of a petition' and therefore must contain a statement of facts, not mere conclusions, which give rise to his right of contest or action and these grounds or facts must show the violation of some mandatory provision of the statute law relating to elections or such other conduct as usually invalidates an election. If the notice of contest does not contain such averments it is subject to being dismissed on demurrer." 162 S.W.2d at 869-70.

In Green v. Owen, 225 Mo.App. 746, 38 S.W.2d 496 (1931), the contestant's pleading alleged he received more legal and valid votes than the contestee, that legal votes cast for contestant were counted for contestee, that legal and regular votes for contestant were not counted for him, that legal and regular ballots for contestant were wrongfully rejected, and that irregular and illegal votes were counted for contestee. The appellate court held such allegations were not statements of fact, but mere legal conclusions. 38 S.W.2d at 496. The opinion added:

"It has been said 'a legal conclusion of the above character tenders no issue of fact, and may be attacked collaterally at any stage of the proceeding, without resorting to a motion to make it more definite and certain.' " 38 S.W.2d at 496 (citation omitted).

Applying Hale, Armantrout and Green, we hold Sisco's petition fails to plead sufficient facts to state a cause of action for an election contest. Paragraph 5 states no facts demonstrating 21 voters were not properly registered. Paragraph 6 states no facts demonstrating 11 absentee ballots were not properly obtained. Paragraph 7 states no facts demonstrating 21 absentee ballots were not properly distributed. Paragraph 8 states only that one voter said the ballot did not reflect his choice; it does not allege the ballot in fact did not reflect his choice. Paragraph 10 states at least five voters of absentee ballots were not physically able to vote; however, § 115.291.1, RSMo 1986, specifically authorizes a person physically incapable of voting his ballot to be assisted by a person of his choice. No facts are alleged demonstrating a violation of that section. Paragraph 11 states no facts demonstrating 11 absentee ballots were illegally voted.

The only allegation arguably pleading facts demonstrating an improper vote is paragraph 9, which avers one absentee ballot was not voted by the voter designated on the ballot. Whether that allegation satisfies § 115.577 (quoted earlier in pertinent part) need not be decided, as the allegation concerns only one vote. Assuming it was cast for James, deducting it from his total would still leave him the winner.

Marre v. Reed, 775 S.W.2d 951 (Mo. banc 1989), the only case cited by Sisco, does not aid him. There the petition averred, among other things, that at least 14 people who were not qualified to vote in the subject election were registered and allowed to vote. Following an evidentiary hearing, the trial court found irregularities of sufficient magnitude to cast doubt on the validity of the election and ordered a new one. The trial court further stated the irregularities consisted solely of votes cast by persons who were not qualified to vote, and listed the names of 11 such persons. The issue on appeal was whether voter qualifications may be challenged in an action under § 115.553.1, RSMo 1986. The sufficiency of the petition to plead a cause of action was unchallenged, hence the opinion set forth only a segment of one sentence from the petition. Nothing in Marre suggests the Supreme Court of Missouri intended to retreat from the pleading requirements of Hale and Armantrout.

A defense of failure to state a claim upon which relief can be granted may be made at the trial on the merits. Rule 55.27(g)(2). ⁵ Such defense is never waived. Hohenstreet v. Sterling National Land Co., 706 S.W.2d 80, 84-85 (Mo.App.1986); Healy v. City of Brentwood, 649 S.W.2d 916, 920 (Mo.App.1983).

However, Rule 67.06 reads:

"On sustaining a motion to dismiss a claim, ... the court shall freely grant leave to amend and shall specify the time within which the amendment shall be made or amended pleading filed. If the amended pleading is not filed within the time allowed, final judgment of dismissal with prejudice shall be entered on motion except in cases of excusable neglect; in which cases amendment shall be made promptly by the party in default."

Here, Sisco never requested leave to amend his petition. ⁶

In Conroy v. Solon Gershman, Inc., 767 S.W.2d 381, 383 (Mo.App.1989), the Eastern District of this Court held no trial judge is required sua sponte to grant leave to amend a deficient pleading (citing Greening v. Klamen, 719 S.W.2d 904, 906 (Mo.App.1986)). The Eastern District explained in Conroy: "Where a plaintiff fails to seek leave to amend a deficient pleading, the court may assume that he 'has made the strongest presentation of his case which the facts permit and was...