State ex rel. Conway v. Villa
| Decision Date | 05 January 1993 |
| Docket Number | No. 62436,62436 |
| Citation | 847 S.W.2d 881 |
| Parties | STATE of Missouri, ex rel., Stephen CONWAY, Geraldine Osborn, Bertha Mitchell, Sharon Tyus, Irving Clay, Claude Taylor and Robert Ruggeri, Plaintiffs/Relators-Appellants, v. Thomas VILLA, Vincent Schoemehl and the City of St. Louis, Defendants/Respondents-Respondents. |
| Court | Missouri Court of Appeals |
C. John Pleban, Lynette M. Petruska, Greenburg, Pleban & Fleming, St. Louis, for plaintiffs/relators-appellants.
Edward James Hanlon, Government Counsel, St. Louis, for defendants/respondents-respondents.
This appeal arises out of a challenge by several St. Louis aldermen to the adoption of the 1992-93 budget for the City of St. Louis (City). The aldermen brought an action in the trial court alleging that Board Bill No. 1, the budget ordinance, had not been properly submitted and recommended to the Board of Aldermen on or before May 2, 1992, and therefore no valid budget ordinance had been enacted by the Board of Aldermen. The trial court granted the motion for summary judgment filed by defendants, the City and two of its officials, and denied a writ of mandamus. The plaintiff aldermen 1 appeal from this judgment. We affirm.
Plaintiffs initiated this action on June 30, 1992, the day before the start of the City's fiscal year. On July 8, 1992 plaintiffs Stephen Conway, Geraldine Osborn, Bertha Mitchell, Sharon Tyus, Irving Clay, Claude Taylor and Robert Ruggeri, all members of the St. Louis Board of Aldermen, filed an amended petition in three counts against defendants Thomas A. Villa, President of the Board of Aldermen; Vincent C. Schoemehl, Jr., Mayor; and the City. In Count I the plaintiffs alleged that the City's Board of Estimate and Apportionment (Board of E & A), consisting of the Mayor, Comptroller, and President of the Board of Aldermen, did not submit and recommend a proposed budget ordinance to the Board of Aldermen at its May 1, 1992 meeting. Plaintiffs alleged that the proposed budget ordinance was not recommended by the Board of E & A until defendant Villa introduced it as Board Bill No. 1 at the Board of Aldermen's May 8, 1992 meeting. Plaintiffs also alleged the Board of E & A's proposed budget ordinance failed to include $5.1 million in receipts estimated by the City's License Collector.
Plaintiffs further alleged that during the Board of Aldermen's June 26, 1992 meeting, Villa engaged in certain actions that prevented the Board of Aldermen from voting on a budget. They alleged that Villa relinquished the chair to Alderwoman JoAnn Wayne so that he could take the floor for the perfection of Committee Substitute Board Bill No. 1. While the bill was on the floor, plaintiff Osborn moved to present a floor substitute for Board Bill No. 1. After the Board of Aldermen discussed Osborn's floor substitute, the chair recognized Osborn to close the discussion, whereupon Osborn asked for a roll call vote on the floor substitute. However, before allowing a roll call vote on Osborn's floor substitute, the chair recognized Villa and permitted him to defer Board Bill No. 1 to the Perfection-Informal Calendar. Osborn then appealed the chair's recognition of Villa and the Board of Aldermen's failure to vote on her floor substitute. The chair did not rule on Osborn's appeal and instead deferred to Villa, who resumed the chair from Wayne. Villa then rejected Osborn's appeal. Osborn again appealed to the chair, but Villa refused to allow a second on her appeal.
In Count I plaintiffs sought to enjoin defendants from enacting a City budget for 1992-1993 without the Board of Aldermen's approval or from treating Board Bill No. 1 as approved by the Board of Aldermen. In Count II plaintiffs sought a writ of mandamus compelling Villa to call the Board of Aldermen into session to vote on Osborn's floor substitute for Board Bill No. 1 and on her appeal of the chair's decision to recognize Villa. In Count III plaintiffs sought a declaration that Board Bill No. 1 could not be considered approved by the Board of Aldermen by virtue of the Board of Aldermen's failure to finally act upon it by July 1, 1992 because it was not timely submitted and recommended by the Board of E & A. Plaintiffs also sought a declaration that any budget ordinance must be approved by a majority of the Board of Aldermen.
Defendants filed their motion for summary judgment on July 2, 1992, supported by two affidavits, one by Mary Ann Machowski, Secretary to the Board of E & A, and the other by Frank Jackson, the City's Deputy Budget Director, attesting that the proposed budget was approved by the Board of E & A on April 29, 1992 and was personally delivered to the Clerk of the Board of Aldermen on May 1, 1992.
Defendants' motion for summary judgment was originally scheduled to be heard on July 8, 1992. The hearing was continued from that date to July 16, 1992, upon the request of plaintiffs' counsel, so that plaintiffs could file counter affidavits and interview potential witnesses. On July 14, 1992 plaintiffs served notice to take two depositions on the afternoon of July 15, 1992. Plaintiffs also filed a motion to disqualify all judges of the 22nd Judicial Circuit.
On July 15, 1992 plaintiffs filed three affidavits in opposition to defendants' motion for summary judgment, one by Lynette Petruska, counsel for plaintiffs, one by Andy Herzig, whose occupation or position is not disclosed, and one by Stephen Conway, one of the plaintiffs. On July 16, 1992 plaintiffs filed a motion to continue the summary judgment hearing, contending that they needed additional time to conduct discovery. The Honorable A.J. Seier of the 32nd Judicial Circuit, who had been appointed to hear the case upon the disqualification of all judges of the 22nd Judicial Circuit, denied the continuance and heard the motion for summary judgment.
On July 17, 1992 Judge Seier granted defendants' motion for summary judgment on Counts I and III. In an extensive memorandum and order, he found that the Board of E & A timely submitted and recommended Board Bill No. 1 to the Board of Aldermen. He ruled that pursuant to Article XVI, § 3 of the City Charter, Board Bill No. 1 was deemed approved by virtue of the Board of Aldermen's failure to finally act upon it by July 1, 1992. He further ruled that plaintiffs did not state a viable claim based on Villa's alleged procedural irregularities and rules violations because such violations cannot invalidate a budget already deemed approved. He also denied plaintiffs' request for a preliminary writ of mandamus.
Plaintiffs appeal from this judgment, asserting the trial court erred in denying their motion for a continuance, in granting the motion for summary judgment, and in failing to issue a writ of mandamus.
Defendants have filed a motion to strike plaintiffs' brief or to dismiss the appeal for failure to comply with the briefing requirements of Rule 84.04. Defendants' motion is well-taken. The statement of facts is argumentative, contains assertions of fact not supported by the record, and contains assertions of fact which are not referenced to the legal file or transcript. However, we will decline to impose sanctions in this case because the issues raised are important to the City and its residents. State v. Miller, 815 S.W.2d 28, 31 (Mo.App.1991).
For their first point plaintiffs contend that the trial court abused its discretion in denying their motion to continue the July 16 summary judgment hearing. Plaintiffs had moved for a denial of summary judgment or, in the alternative, for a continuance to complete discovery in order to refute the allegations contained in the motion for summary judgment. In support of their motion for a continuance, plaintiffs filed an affidavit of their attorney, Ms. Petruska. 2 Most of that affidavit related her July 9, 1992 telephone conversation with Bruce Nangle, Parliamentarian of the Board of Aldermen, concerning "rumors" he had heard about the filing of Board Bill No. 1, information relating to the introduction date (not submission date) of Board Bill No. 1, persons who had not delivered a budget bill to the Board of Aldermen, and Villa's actions at the June 26 Board of Aldermen meeting. Her affidavit stated that Mr. Nangle would provide his information under oath if subpoenaed for deposition. The Petruska affidavit also related what had transpired at the July 15 depositions, namely, that one witness could not say with certainty whether Board Bill No. 1 had been timely filed or not, and another witness, a city employee, had made copies of Board Bill No. 1 on April 28 and May 8, 1992. Ms. Petruska's affidavit concluded with the following averment:
17. Based upon the foregoing information, it is necessary for plaintiffs to conduct further discovery to determine when, in fact, Board Bill No. 1 was filed with the Board of Aldermen. Plaintiffs are unable to obtain this discovery prior to the Court's hearing on the motion for summary judgment scheduled for July 16, 1992, at 2:00 p.m.
Rule 74.04(f) governs the continuance of summary judgment motion hearings to allow additional discovery. It provides:
(f) When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
The trial court has discretion to grant or refuse a party's motion to continue a summary judgment hearing. Ronollo v. Jacobs, 775 S.W.2d 121, 126 (Mo. banc 1989). Ms. Petruska's affidavit in support of the motion to continue did not specify what additional evidence supporting the existence of a...
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...correct as a matter of law. We will affirm if the judgment is sustainable as a matter of law under any theory. State ex rel. Conway v. Villa, 847 S.W.2d 881, 886 (Mo.App.1993) (citations omitted). A genuine issue of fact exists where the record contains competent evidence that two plausible......
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