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
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."
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.
On August 28, 2013, the court entered its order stating:
Subsequently, in its judgment granting the City's motion for summary judgment, the circuit court ordered costs assessed against Appellant.
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:
Id.
Since Isbell was decided, the statutory language applicable to indigent plaintiffs has been significantly amended. The relevant statutory provision, § 514.040.1,
(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 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.
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
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.
"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 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
Section 523.265 provides:
(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. 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.
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,
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."
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
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.
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.
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 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.
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.
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.
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 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.
All concur.
FootNotes
(Emphasis added).
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