Telester Ameena Powell v. The City of Kansas City, Missouri , 472 S.W.3d 219 ( 2015 )

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
TELESTER AMEENA POWELL, )
)
Appellant, )
)
v. ) WD78138
)
THE CITY OF KANSAS CITY, ) Opinion filed: October 6, 2015
MISSOURI, ET AL., )
)
Respondents. )
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI
THE HONORABLE S. MARGENE BURNETT, JUDGE
Before Division One: Cynthia L. Martin, Presiding Judge,
Joseph M. Ellis, Judge and James E. Welsh, 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 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
1
In the caption of this final petition, Appellant added Sherri McIntyre, Director of Public Works for the City,
as a party. However, McIntyre is not mentioned anywhere in the averments of the petition.
2
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).
2
For its part, the City "officially takes no position on the arguments contained in Appellants Point I" but
then asserts that any error is harmless because the City has not made any claim for costs associated with
the case and has no intention to do so. In making this latter assertion, the City fails to recognize that
court costs may be billed by the court to a plaintiff and that the legal file in this case contains an itemized
"Cost Billing Statement" sent by the circuit court's Cost Accounting Department to Appellant.
3
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 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. Biederman 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
3
The circuit court later denied Appellant's motion to proceed in forma pauperis on appeal.
4
Section 1240, RSMo 1929 provided:
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:
[I]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.
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
If 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 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; and the court may assign to such person counsel, who, as
well as other officers of the court, shall perform their duties in such suit without fee or
reward; but if judgment is entered for the plaintiff, costs shall be recovered, which shall
be collected for the use of the officers of the court.
5
All statutory references are to RSMo 2000 as updated through 2011 unless otherwise noted.
5
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 Rules 29.15 and 24.035. To the extent that Roberson
may be read to imply that the present language of § 514.040.1 is identical to § 1240,
RSMo 1929, and that the current statute does not allow for the court to assess any
costs against any plaintiff granted leave to proceed as a poor person, it should no
longer be followed. The language of the respective statutes is clearly not identical, and
the unambiguous language of § 514.040.1 grants the circuit court discretion to assess
to a poor person whatever costs the court determines that person can pay.
6
The circuit court in the case at bar entered an order finding that Appellant was
"without sufficient funds or assets with which to pay the advance deposit for costs of
this action" and granted her "leave to proceed as a poor person" and waived "the
required advanced deposit for costs." After later deciding to grant summary
judgment in favor of the City, the court assessed costs against Appellant in its judgment,
implicitly finding that she was able to pay such costs.6 The court subsequently denied
Appellant's motion to amend the judgment to remove such costs. Appellant makes no
claim on appeal that the circuit court abused its discretion in ordering her to pay those
costs,7 and having gratuitously reviewed the record, we are not left with the impression
"that the circuit court's decision was against the logic of the circumstances and so
arbitrary and unreasonable as to shock one's sense of justice."8 Sasnett v. Jons, 400
S.W.3d 429, 441 (Mo. App. W.D. 2013) (internal quotation omitted). Point denied.
Appellant's second and third points contend that the trial court erred in granting
summary judgment on each of the two counts set forth in her petition.9 "Our review of a
6
The circuit court billed Appellant for a total of $112.00 in costs related to the action below.
7
"The award of costs is a matter within the circuit court's sound discretion, and we will not disturb the
award absent a showing of an abuse of discretion." Sasnett v. Jons, 400 S.W.3d 429, 441 (Mo. App.
W.D. 2013). "To demonstrate an abuse of discretion, the appellant must show that the circuit court's
decision was against the logic of the circumstances and so arbitrary and unreasonable as to shock one's
sense of justice." Id. (internal quotation omitted).
8
We note that the trial court's order waived the "advanced deposit for costs," and said nothing about
waiving all costs associated with the action. We further observe that Appellant was awarded $55,000 in
damages in the condemnation action, that this Court handed down the opinion affirming that $55,000
damage award on October 7, 2014, and the trial court entered its judgment assessing costs of $112.00
against Appellant three days later, on October 10, 2014. Thus, while the trial court apparently believed
that Appellant was without the funds necessary to pay the advanced deposit for costs when the action
was commenced, it was clearly aware that Appellant had been awarded $55,000 in damages in the
condemnation action and that the judgment had been affirmed on appeal, at the time it entered its
judgment assessing costs. Under those circumstances, the court clearly did not abuse its discretion.
9
Both Appellant's second and third points assert multifarious claims in violation of Rule 84.04. "A single
point relied on that groups multiple, disparate claims is multifarious, does not comply with Rule 84.04, and
generally preserves nothing for appellate review." Mansfield v. Horner, 443 S.W.3d 627, 653 (Mo. App.
W.D. 2014) (internal quotation omitted). However, because we are generally able to understand the
nature of the claims presented in the point and because the City was clearly able to understand and
effectively address those claims in its responsive brief, we exercise our discretion to review Appellant's
7
grant of summary judgment is essentially de novo." Lucero v. Curators of Univ. of
Mo., 400 S.W.3d 1, 4 (Mo. App. W.D. 2013) (internal quotation omitted). "The criteria
on appeal for testing the propriety of summary judgment are no different from those
employed by the trial court to determine the propriety of sustaining the motion initially."
Frye v. Levy, 440 S.W.3d 405, 407 (Mo. banc 2014) (internal quotation omitted).
"Summary judgment is appropriate when the moving party has demonstrated, on the
basis of facts as to which there is no genuine dispute, a right to judgment as a matter of
law." Id. (internal quotation omitted). "A 'defending party' may establish a right to
summary judgment by showing (1) facts that negate any of the claimant's necessary
elements; (2) that the claimant, after an adequate period of discovery, has not been
able and will not be able to produce sufficient evidence to allow the trier of fact to find
the existence of any one of the claimant's elements; or (3) that there is no genuine
dispute as to the existence of the facts required to support the movant's properly
pleaded affirmative defense." Nail v. Husch Blackwell Sanders, LLP, 436 S.W.3d
556, 561 (Mo. banc 2014).
"The record below is reviewed in the light most favorable to the party against
whom summary judgment was entered, and that party is entitled to the benefit of all
reasonable inferences from the record." Shiddell v. Bar Plan Mut., 385 S.W.3d 478,
483 (Mo. App. W.D. 2012) (internal quotation omitted). "However, facts contained in
affidavits or otherwise in support of the party's motion are accepted as true unless
contradicted by the non-moving party's response to the summary judgment motion." Id.
(internal quotation omitted). "We may affirm the circuit court's grant of summary
claims ex gratia. See Id.; Kerns v. State, 389 S.W.3d 749, 751 n.2 (Mo. App. S.D. 2012); Medlin v.
RLC, Inc., 423 S.W.3d 276, 283 n.9 (Mo. App. S.D. 2014).
8
judgment under any theory that is supported by the record." Lucero, 400 S.W.3d at 4
(internal quotation omitted).
In her second point, Appellant claims that the trial court erred in entering
summary judgment in favor of the City on the first count of her petition. In that count,
she asserted that, pursuant to § 523.265, the City was required to respond in writing to
her proposed alternative location for condemnation and that the City violated § 610.023
of the Sunshine Law by failing to produce such a document for her inspection within
three days of her November 2, 2011 letter. On appeal, Appellant contends that
summary judgment was improperly entered because she sufficiently stated a claim for
which relief could be granted and her claim was not barred by the statute of limitations.
Section 523.265 provides:
With regard to property interests acquired by condemnation or
negotiations in lieu of the exercise thereof, within thirty days of receiving
a written notice sent under section 523.250, the landowner may propose
to the condemning authority in writing an alternative location for the
property to be condemned, which alternative location shall be on the
same parcel of the landowner's property as the property the
condemning authority seeks to condemn. The proposal shall
describe the alternative location in such detail that the alternative
location is clearly defined for the condemning authority. The
condemning authority shall consider all such alternative locations. This
section shall not apply to takings of an entire parcel of land. A
written statement by the condemning authority to the landowner that it
has considered all such alternative locations, and briefly stating why they
were rejected or accepted, is conclusive evidence that sufficient
consideration was given to the alternative locations.
(Emphasis added).
As the circuit court correctly noted, § 523.265 was not applicable to the
condemnation of Appellant's property because that statute expressly provides that it
"shall not apply to takings of an entire parcel of land." Indeed, in City of Kansas City v.
9
Powell, 451 S.W.3d 724, 737 (Mo. App. W.D. 2014), this Court noted that the City had
sought to acquire Appellant's property in its entirety and that § 523.265 was not
applicable to takings of an entire parcel of land. Moreover, contrary to the dictates of §
523.265, the alternative locations proposed by Appellant were improper because they
were not located "on the same parcel of the landowner's property." Accordingly, the
circuit court properly concluded that the City did not have an obligation under § 523.265
to consider Appellant's proposed alternative sites for the project.10
Furthermore, as to her alleged Sunshine Law violation, § 610.023 only applies to
public records in the City's possession. The undisputed facts reflect that no document
was ever created responding to Appellant's proposed alternative locations.
Even if, however, the City had considered Appellant's proposed alternative
locations and created a written record of its reasons for rejecting them, Appellant's letter
does not request the production of such a document so as to constitute a request under
the Sunshine Law. The request for documents contained in that letter stated, "During
your presentation you claimed that you adequately reviewed 25 other possible sites.
Please consider this a formal request for the engineering reports, surveys and other
documents associated with your review of these other, viable sites." Accordingly,
Appellant's request only referenced records related to the sites that had already been
considered and did not relate to the alternative locations Appellant was proposing in her
letter. Moreover, as will be discussed in greater detail infra, Appellant's suit was
10
In addition, contrary to Appellant's assertions, § 523.265 does not require the issuance of written
statements from the condemning authority. All that is required by the statute is that the condemning
authority consider the alternative locations suggested by the landowner. § 523.265. While certainly
suggestive of the value of written statements responding to landowners who have proposed alternative
sites and establishing that such written statements issued by the condemning authority are conclusive
evidence that the condemning authority sufficiently considered the proposed sites, it does not mandate
that such written statements be issued. Sufficient consideration could certainly be proven by other
means.
0
10
brought outside the one year statute of limitations set forth in § 610.027.5 for Sunshine
Law violations.
For all of the foregoing reasons, summary judgment was properly entered in
favor of the City on the first count of Appellant's petition. Point denied.
In her third point Appellant claims that the circuit court erred in entering summary
judgment on the second count of her petition which contended that the City violated §
610.023 of the Sunshine Law by failing, within three days of the receipt of her
November 2, 2011 letter, to allow her to inspect and copy the "engineering reports,
surveys and other documents" associated with the alternative locations for the project
that had been considered by the City prior to settling on the chosen location. She
contends that the circuit court erroneously concluded that her claim was barred by the
one-year statute of limitations contained in § 610.027.5.
Section 610.027.5 provides, in relevant part, that any suit for enforcement related
to a violation of the Sunshine Law "shall be brought within one year from which the
violation is ascertainable and in no event shall it be brought later than two years after
the violation."11 The undisputed facts establish that Appellant made her request in a
letter sent November 2, 2011, and that she received a return receipt informing her that it
11
The full text of Section 610.027.5 provides:
Upon a finding by a preponderance of the evidence that a public governmental body
has violated any provision of sections 610.010 to 610.026, a court shall void any action
taken in violation of sections 610.010 to 610.026, if the court finds under the facts of the
particular case that the public interest in the enforcement of the policy of sections
610.010 to 610.026 outweighs the public interest in sustaining the validity of the action
taken in the closed meeting, record or vote. Suit for enforcement shall be brought
within one year from which the violation is ascertainable and in no event shall it
be brought later than two years after the violation. This subsection shall not apply
to an action taken regarding the issuance of bonds or other evidence of indebtedness of
a public governmental body if a public hearing, election or public sale has been held
regarding the bonds or evidence of indebtedness.
(Emphasis added).
1
11
had been received by the City on November 4, 2011. Accordingly, when she had not
received any response from the City or been otherwise allowed to inspect and copy the
requested documents within three business days of the City's receipt of the letter,
Appellant could readily have ascertained the alleged violation of the Sunshine Law.
Appellant did not file her petition asserting a violation of the Sunshine Law until July 17,
2013, over a year and eight months later. On this basis, the circuit court concluded that
the undisputed facts established that the second count of Appellant's petition was
barred by the statute of limitations and that summary judgment should be entered in
favor of the City on that basis.
Appellant contends that the circuit court's application of § 610.027.5 was
erroneous in multifarious ways. First, she claims that § 610.027.5 is inapplicable
because that subsection provides that it "shall not apply to an action taken regarding the
issuance of bonds or other evidence of indebtedness of a public governmental body if a
public hearing, election or public sale has been held regarding the bonds or evidence of
indebtedness." Appellant argues that, because the East Patrol Campus project was to
be funded by a ¼ cent public safety sales tax and federal grant assistance, public
indebtedness was involved and § 610.027.5 was inapplicable to her request.
As noted by the circuit court, Appellant's document request related only to
"engineering reports, surveys and other document associated with [the City's] review of
other, viable sites" for the project. The requested documents had nothing to do with the
issuance of bonds or other indebtedness of a governmental body. The exception
contained in § 610.027.5 is clearly inapplicable to this case.
2
12
Appellant next argues that, under the language of § 610.027.5, she had two
years in which to file her action and that the circuit court erred as a matter of law in
concluding otherwise. As noted supra, the relevant language provides that any suit for
enforcement related to a violation of the Sunshine Law "shall be brought within one year
from which the violation is ascertainable and in no event shall it be brought later than
two years after the violation." Appellant argues that the plain language of this provision
and the use of the conjunctive term "and" therein granted her up to two years to file her
petition.
Appellant's reasoning in this regard is largely indiscernible.12 What is clear is that
she wholly misinterprets the plain language of the relevant statutory provision. It
unambiguously provides that an action asserting a violation of the Sunshine act must be
brought within one year of the date it becomes ascertainable and that under no
circumstances may such an action be brought more than two years after the violation
actually occurred, even if the violation never becomes ascertainable. Accordingly, it
allows for an action to be filed either one year from when the violation becomes
ascertainable or two years from the date of the violation, whichever comes first. In this
case, the one year limitations provision of § 610.027.5 clearly applied because, based
upon the undisputed facts, the violation was readily ascertainable by November 8, 2011.
Finally, Appellant contends that her filing of a Sunshine Law violation complaint
with the Missouri Attorney General on October 26, 2012, tolled the running of the statute
of limitations while her complaint was being considered by the Attorney General. She
12
The rationale appears to be based on an erroneous view that, whenever the term "and" is used, the
items on either side of the term must be mathematically of equal value.
3
13
further argues that, if the statute of limitations is not tolled under such circumstances, it
should be deemed unconstitutional.
Appellant cites no authority for these propositions, and we have found none. The
language of § 610.027.5 is clear and unequivocal that any action for a violation of the
Sunshine Law must be brought within one year from which the violation is
ascertainable. The fact that the Attorney General is also empowered to file an action
related to a violation of the Sunshine Law and that Appellant has asked him to do so
does not somehow extend the time in which one or both of them must file an action in
the circuit court. We fail to perceive how failing to toll the statute of limitations under
these circumstances could be deemed unconstitutional. Point denied.
In her final point, Appellant claims that the circuit court erred in denying her
motion for new trial based upon the erroneous conclusion that motions for new trial and
motions to amend the judgment are inappropriate where summary judgment has been
entered. In response, the City asks that Appellant's point be dismissed based upon
Appellant's failure to reference the order denying Appellant's motion for new trial in her
Notice of Appeal.
Pursuant to Rule 81.08(a), a notice of appeal must specify the judgment or order
appealed from, McCrainey v. Kansas City Mo. Sch. Dist., 337 S.W.3d 746, 751 (Mo.
App. W.D. 2011), and appellate courts are "confined to review the decision identified in
the notice of appeal." Maskill v. Cummins, 397 S.W.3d 27, 32 (Mo. App. W.D. 2013).
"[T]echnical adherence to the formal averments of a notice of appeal is not jurisdictional,
and the averments are to be liberally construed to permit appellate review so long as
the opposing party is not misled to his or her irreparable harm." McCrainey, 337
4
14
S.W.3d at 751 (internal quotation omitted). However, while "Missouri courts are lenient
with respect to a failure to specify the judgment or order appealed from if the lack of
specificity does not prejudice the other party," "that leniency has occurred primarily in
cases where the appellant sought to appeal one judgment or order." Midwest Coal,
LLC v. Cabanas, 378 S.W.3d 367, 376 (Mo. App. E.D. 2012). "Missouri courts have
not shown such leniency when the notice of appeal only listed one judgment or order,
but the points on appeal referred to more than one judgment or order." Id. (internal
quotation omitted).
In her notice of appeal, Appellant stated that she was challenging the circuit
court's entry of summary judgment, and she made no mention of the order denying her
motion for new trial. In addition, the summary judgment was the only judgment or order
attached to her notice of appeal.13 Accordingly, this Court's review is confined to that
judgment. Schrader v. QuikTrip Corp., 292 S.W.3d 453, 456 (Mo. App. E.D. 2009).
Because Appellant failed to reference the circuit court's order denying her motion for
new trial in her notice of appeal or to attach that order to her notice, her claim on appeal
related thereto is not properly preserved for appellate review and is, therefore,
dismissed. Id.
We gratuitously note that, in its order denying Appellant's motion for new trial, the
circuit court clearly misstated the law in declaring that motions for new trial and motions
to amend the judgment are improper where summary judgment has been entered.14
13
See Wills v. Whitlock, 139 S.W.3d 643, 658 (Mo. App. W.D. 2004) (holding that Rule 81.08(a) was
sufficiently complied with where, while only one of two judgments entering summary judgment against the
appellant was referred to in the notice of appeal, both judgments were attached to the notice of appeal).
14
In its order denying Appellant's motion, the circuit court stated:
[T]he Court notes that this matter was adjudicated pursuant to a Motion to Dismiss
(which this Court treated as a Motion for Summary Judgment pursuant to Rule 274.04
5
15
See Taylor v. United Parcel Serv., Inc., 854 S.W.2d 390, 392-93 (Mo. banc 1993)
(holding that the plaintiff's motion to reconsider summary judgment should be treated as
a motion for new trial and declaring that "[f]or purposes of the rules, a summary
judgment proceeding is a trial because it results in a judicial examination and
determination of the issues between the parties.") (internal quotation omitted); see also
Bailey v. Innovative Mgmt. & Inv., 890 S.W.2d 648, 649 (Mo. banc 1994) ("A motion
for reconsideration of a ruling granting summary judgment that disposed of all issues in
a case is treated as a motion for new trial for purposes of determining when the notice
of appeal must be filed under Rule 81.05(a)."); State ex rel. Boyer v. Perigo, 979
S.W.2d 953, 956 n.4 (Mo. App. S.D. 1998) ("[F]or purposes of the rules of civil
procedure, a summary judgment proceeding is a 'trial,' because it results in a judicial
examination and determination of the issues between the parties.") (internal quotation
omitted).15
However, even if this claim of error had been properly preserved for appellate
review, it would not warrant reversal of the circuit court's judgment because Appellant
cannot establish any prejudice resulting from the circuit court's refusal to entertain the
merits of her motion. See Bryan v. Peppers, 323 S.W.3d 70, 74 (Mo. App. S.D. 2010)
("We will not reverse a judgment absent a showing of prejudice."); Rule 84.13(b) ("No
appellate court shall reverse any judgment unless it finds that error was committed by
the trial court against the appellant materially affecting the merits of the action."). This
with notice to all parties on July 9, 2014). Judgment Granting Summary Judgment was
entered on October 14, 2014. Therefore, there was neither a bench nor jury trial held
and Rules 78.04 and 78.07 do not apply. As a result, Plaintiff 's Motion should be
DENIED.
15
"On appeal we treat summary judgments as the equivalent of court-tried cases and do not require that
such judgments be preserved for review in motions for new trial." Hatch v. V.P. Fair Found., Inc., 990
S.W.2d 126, 138 (Mo. App. E.D. 1999).
6
16
Court has reviewed the trial court's decision to enter summary judgment de novo and
determined that, in light of the undisputed facts, the City was entitled to judgment as a
matter of law. Accordingly, even had the trial court considered the merits of Appellant's
motion for new trial, as a matter of law, it would have been required to deny that motion.
The judgment is affirmed.16
________________________________
Joseph M. Ellis, Judge
All concur.
16
Appellant has filed a Motion for Attorney Fees and Costs on Appeal, which was taken with the case, in
which she requested an award of attorney fees and costs under provisions in § 610.027 of the Sunshine
Law that authorize an award of attorney fees and costs to a prevailing party when a public governmental
body has been proven to have knowingly or purposefully violated provisions of the Sunshine Law. As
Appellant has not prevailed at either the trial court level or on appeal, that motion is denied.
7
17