Missouri Court of Appeals Eastern District

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Missouri Court of Appeals Eastern District
Employment law
MHRA; dismissal of petition

ED91202 Bobbie Morris, Appellant, v. Karl Bissinger Inc., Respondent
Handdown Date: 11/25/3008
Appeal From: St. Louis City Circuit Court, Judge David L. Dowd
Opinion Author: Judge Patricia L. Cohen
Opinion Vote: Judges Odenwald and Norton concur

Introduction
Bobbie Morris appeals the judgment of the Circuit Court of the City of St. Louis dismissing her action under the Missouri Human Rights Act on the grounds that her petition was not timely filed. We reverse and remand.

Background
On July 9, 2007, Ms. Morris filed a complaint with the Missouri Commission on Human Rights (“MCHR”) alleging that Karl Bissinger Inc., her former employer, had discriminated and retaliated against her in violation of the Missouri Human Rights Act. Subsequently, the MCHR issued Ms. Morris a right-to-sue letter dated Oct. 1, 2007. Pursuant to MO. REV. STAT. § 213.111.1 (2000), the letter notified Ms. Morris that “any action brought in court under this section shall be filed within 90 days from the date” of the letter.
Ms. Morris filed suit against Bissinger on Monday, Dec. 31, 2007, 91 days from the date of the right-to-sue letter. Bissinger filed a motion to dismiss, alleging that Ms. Morris failed to file her petition within 90 days as required by Section 213.111.1. The trial court granted the motion to dismiss on the grounds that Ms. Morris’ petition was untimely. Ms. Morris appeals.

Standard of review
We review a grant of a motion to dismiss de novo. D.A.N. Joint Venture v. Clark, 218 S.W.3d 455, 457 (Mo.App.W.D. 2006). In our review, we test the adequacy of the plaintiff’s petition and assume all of plaintiff’s averments are true. Nazeri v. Mo. Valley Coll., 860 S.W.2d 303, 306 (Mo. banc 1993). For questions of law, we apply our own independent judgment and give no deference to the trial court’s determination. Langdon v. United Restaurants, Inc., 105 S.W.3d 882, 886 (Mo.App.W.D. 2003).

Discussion
Ms. Morris argues that the trial erred in finding that her petition was not timely filed within the 90-day limitation period provided by Section 213.111.1. Specifically, Ms. Morris contends that the trial court failed to apply either Rule 44.01(a) or MO. REV. STAT. § 1.040 when computing the time to file her claim.
First, Ms. Morris claims that when computing the time to file an action under the Missouri Human Rights Act, the trial court must apply Rule 44.01(a). The Missouri Human Rights Act provides that “the [MCHR] shall issue to the person claiming to be aggrieved a letter indicating his or her right to bring a civil action within 90 days of such notice against the respondent named in the complaint.” MO. REV. STAT. § 213.111.1 (emphasis added). Rule 44.01(a) states in part:
In computing any period of time prescribed . . . by any applicable statute . . . [t]he last day of the period so computed is to be included, unless it is a Saturday, Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday nor a legal holiday.
Missouri Supreme Rule 44.01(a).
In this case, the 90th day following the date of issuance of the right-to-sue notice was Dec. 30, 2007, a Sunday. Therefore, pursuant to Rule 44.01(a), Dec. 30 is not included in computing the time for Ms. Morris to file her claim, and she timely filed her petition on Monday, Dec. 31, 2007.
In arguing that Rule 44.01(a) is inapplicable, Bissinger principally relies on
Hammond v. Municipal Correction Institute, 117 S.W.3d 130 (Mo.App.W.D. 2003). In
Hammond, the court determined that Rule 44.01(e), which adds three days to any prescribed period of time for which a party is required to act upon receiving notice by mail, did not apply to a right-to-sue notice. Id. at 139. In support of its determination, the court reasoned that: (1) the Missouri Rules of Civil Procedure only apply to civil actions “pending” in a trial or appellate court, and (2) Rule 44.01 is not applicable to right-to-sue notices because the Missouri Rules of Civil Procedure do not apply to proceedings in administrative agencies. Id.(FN1) Even assuming arguendo, that Hammond properly analyzed the application of Rule 44.01(e), our Supreme Court has long-held that “the applicable provisions of Rule 44.01(a) should be construed as applying to statutory limitation periods within which suits must be filed, as well as to procedures occurring after suit is filed.” Bowling v. Webb Gas Co., Inc. of Lebanon, 505 S.W.2d 39, 42 (Mo. 1974).(FN2) In words equally applicable here, the Supreme Court articulated its rationale:
Our construction of the rule will result in a uniform procedure for computation of time and tend to accomplish the general purpose for Sundays and holidays, i.e., the general suspension of work and labor. *** We think it should also be noted that a construction contrary to the one we have reached would, for all practical purposes, result in reducing the statutory limitation period.
Id.
In contrast to Hammond and consistent with Bowling, the U.S. District Court for the Eastern District of Missouri, addressed the issue before us in Waldermeyer v. ITT Consumer Financial Corp, 767 F.Supp. 989, 991-92 (E.D. Mo. 1991). In Waldermeyer, the defendant argued, as here, that Rule 44.01(a) did not apply to civil actions filed under the Missouri Human Rights Act. Id. at 992. Analyzing Missouri law, the district court held otherwise, concluding that both Rule 44.01(a) as well as Section 1.040 govern the computation of time with respect to civil actions alleging violations of the Missouri Human Rights Act. Id. Although we agree with Bissinger that federal law is persuasive rather than binding, we conclude that Waldermeyer, which expressly decided the issue before us, tracked applicable Missouri law and reached the proper result. Accordingly, we hold that the trial court erred by failing to apply Rule 44.01(a) when it computed the timeliness of Ms. Morris’s civil action.
Second, Ms. Morris contends that the trial court improperly failed to consider Section 1.040 when computing timeliness. Although our conclusion with respect to Rule 44.01(a) resolves the issue on appeal, we further conclude that the same result is achieved by applying Section 1.040 which provides that “[t]he time within which an act is to be done shall be computed by excluding the first day and including the last. If the last day is Sunday it shall be excluded.”
Bissinger contends that the application of Section 1.040 contravenes the Missouri Human Rights Act’s declaration that “the provisions of this chapter shall be construed to accomplish the purposes thereof and any law inconsistent with any provision of this chapter shall not apply.” MO. REV. STAT. § 213.101. Section 1.040, however, is not inconsistent with Section 213.111.1. Rather, it provides guidance for computing the statutory period for filing an action. Moreover, courts have routinely construed Section 1.040 in a practical manner and have held that “this statute is intended to furnish a general rule, plain and comprehensible, of the computation of the time mentioned in all statutes.” Bank of Holden v. Bank of Warrensburg, 15 S.W.3d 758, 760 (Mo.App.W.D. 2000) (quoting St. Louis v. Bambrick, 41 Mo.App. 648 (1890)) (emphasis in the original). Guided by this principle, we find that Section 1.040, which generally applies to all Missouri statutes, also applies to Section 213.111.1. See Bank of Holden, 15 S.W.3d at 760-61 (applying Section 1.040 to the provisions of the Uniform Commercial Code, RSMo. Ch. 400).
In light of the foregoing, we conclude that the trial court erred by failing to apply Rule 44.01(a) and Section 1.040 when computing the time to file an action under Section 213.111.1 and improperly dismissed Ms. Morris’ petition as untimely.

Conclusion
The judgment of the trial court is reversed and the cause is remanded for further proceedings consistent with this opinion.

Footnotes:
1. It should be noted that the case the Hammond court cited for this proposition, AT&T Info. Sys., Inc. v. Wallemann, 827 S.W.2d 217, 221 (Mo.App.W.D. 1992), concerned application of the Missouri Rules of Civil Procedure to a Chapter 536 contested case before the MCHR. By contrast, the instant case is a civil action filed in circuit court alleging violations of the Missouri Human Rights Act rather than an administrative proceeding before the MCHR. Indeed, upon the issuance of the right-to-sue notice, the “commission shall terminate all proceedings relating to the [administrative] complaint.” MO. REV. STAT. § 213.111.1. The only other decision the Hammond court cited in support of this point was State ex rel. Dir. of Rev., State of Mo. v. Rauch, 971 S.W.2d 350, 351-53 (Mo.App.E.D. 1998). Rauch involved the timeliness of a petition for review of an administrative decision (license revocation) not timeliness of a civil action. Id.
2. See also Putnam v. Stix, Baer & Fuller, 795 S.W.2d 620, 621 (Mo.App.E.D. 1990) (applying Rule 41.01(a) to Workers’ Compensation statute of limitations); Westerhold v. Mullenix Corp., 777 S.W.2d 257, 266 (Mo.App.E.D. 1989) (applying Rule 44.01(a) to a mechanics lien statute of limitations).

Real property
Annexations; constitutionality

ED90538 Darryl and Donna Curtis, et al., Respondents, v. City of Hillsboro, Appellant
Handdown Date: 11/25/2008
Appeal From: Jefferson County Circuit Court, Judge Robert G. Wilkins
Opinion Author: Judge Robert G. Dowd Jr.
Opinion Vote: Judges Ahrens and Sullivan concur

The City of Hillsboro (“the City”) appeals from the trial court’s grant of summary judgment in favor of Darryl and Donna Curtis, Stephen and Janie Jehle, and Beck Family, LLC (collectively referred to as “Respondents”) on Respondents’ petition for declaratory judgment and an injunction from the enforcement of ordinances annexing certain property into the City. The City contends the trial court erred in granting summary judgment in favor of Respondents because the trial court misapplied the law regarding “compactness.” The City further argues the trial court’s application of the term “compact” is an unconstitutional impairment of the right to contract and the trial court’s interpretation of “contiguous and compact” is an unconstitutional impairment on the City’s and property owners’ right to peaceably assemble. Because the annexations did not meet the compactness requirement of the statute and there are no constitutional violations, we affirm the trial court’s grant of summary judgment.
The uncontested facts show Respondents are residents of Jefferson County, Mo. and are owners of real property located along Pioneer Road near the City. In November of 2006, the City passed Ordinances No. 45-2006, No. 46-2006, and No. 47-2006. The ordinances purported to annex into the City the right of way of Pioneer Road from the existing city limits for a length of about 1,700 feet, together with two tracts of land located on the opposite sides of the Pioneer Road stretch, known as the Blackwell tract and the Brigadoon tract in accordance with petitions for voluntary annexation filed by the property owners.
Respondents filed a petition for declaratory judgment and injunction against the City.(FN1) Respondents sought a declaration that the ordinances were illegal, invalid, and void and to enjoin the City and the Board from taking any action in furtherance of the ordinances.
Respondents subsequently filed a motion for summary judgment. In their motion for summary judgment, Respondents alleged neither the Pioneer Road stretch, the Blackwell tract, nor the Brigadoon tract were “compact” to the pre-annexation boundaries of the City as required by Section 71.014, RSMo 2000.(FN2) The trial court granted Respondents’ motion for summary judgment. The City now appeals.
In its first point, the City contends the trial court erred in granting summary judgment in favor of Respondents because the trial court misapplied the law. The City argues a roadway is not an automatic exclusion from the “compact” requirement of Section 71.014 and material issues of fact as to the reasonableness of the annexations remain. We disagree.
Appellate review of a trial court’s grant of summary judgment is essentially de novo. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). We will review the record in the light most favorable to the party against whom judgment was entered. Id. We accord the non-movant the benefit of all reasonable inferences from the record. Id. The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially. Id. The propriety of summary judgment is purely an issue of law. Id.
The City sought to annex the properties pursuant to Section 71.014. Section 71.014 provides as follows:
Notwithstanding the provisions of section 71.015, the governing body of any city, town, or village which is located within a county which borders a county of the first classification with a charter form of government with a population in excess of six hundred fifty thousand, proceeding as otherwise authorized by law or charter, may annex unincorporated areas which are contiguous and compact to the existing corporate limits upon verified petition requesting such annexation signed by the owners of all fee interests of record in all tracts located within the area to be annexed.
The terms “contiguous” and “compact,” as used in Section 71.014, are not defined by statute. However, in the recent case of Dodson v. City of Wentzville, 216 S.W.3d 173 (Mo. App. E.D. 2007), the court addressed the meaning of “compact” in Section 71.014. The court noted:
“Compact” is defined in the dictionary as “firmly put together, joined, or integrated … marked by an arrangement of parts or units closely pressed, packed, grouped, or knit together with very slight intervals or intervening space … marked by concentration in a limited area.” Webster’s Third New International Dictionary 1966 p. 461. “Compact” is defined in Black’s Law Dictionary as “closely or firmly united or packed, as the particles of solid bodies; … also, lying in a narrow compass or arranged so as to economize space; having a small surface or border in proportion to contents or bulk….” Black’s Law Dictionary Fifth Edition 1979 p. 255.
Id. at 177.
The Dodson court also noted that Section 71.012 sheds light on the meaning of the terms “contiguous” and “compact.” Dodson, 216 S.W.3d at 177. Section 71.012, which provides for voluntary annexations in other jurisdictions across the state, contains an express limitation on the phrase “contiguous and compact.” Section 71.012.1 provides, in pertinent part:
The term “contiguous and compact” does not include a situation whereby the unincorporated area proposed to be annexed is contiguous to the annexing city, town or village only by a railroad line, trail, pipeline or other strip of real property less than one-quarter mile in width within the city, town or village so that the boundaries of the city, town or village after annexation would leave unincorporated areas between the annexed area and the prior boundaries of the city, town or village connected only by such railroad line, trail, pipeline or other such strip of real property.
The Dodson court also noted that the issue of the meaning of compactness, as used in Section 71.012, was previously addressed in Reed v. City of Union, 913 S.W.2d 62, 64 (Mo. App. E.D. 1995), and that court stated the area sought to be annexed must be compact to the city. Dodson, 216 S.W.3d at 177.
In Reed, the City of Union attempted to voluntarily annex a parcel of land, which was connected to the city by a strip of land 6.14 feet in width. Reed, 913 S.W.2d at 63. Of the parcel’s 8,400 foot perimeter, only 6.14 feet abutted the city limits. Id. The Reed court concluded that the annexation did not meet the test of compactness stating as follows:
It is to be noted that the statutory language used is “contiguous and compact to the city”. That requirement is not met simply because the area sought to be annexed is compact within itself, it must be compact to the city. “Compact” was defined in Martee as “having parts or units closely packed or joined.” Websters New Collegiate Dictionary 228 (1977). This annexation does not meet that test. The land is barely connected to the city and as we have previously discussed would be difficult to directly provide services to. The annexation does not make the city’s boundaries more regular nor would the city and the annexed area be one compact solid tract of land.
Id. at 64 citing to Martee v. City of Kennett, 784 S.W.2d 621 (Mo. App. S.D. 1990).
In Dodson, a landowner sought to voluntarily annex a parcel of property pursuant to Section 71.014 into the City of Wentzville. Dodson, 216 S.W.3d at 174. The city then sought to condemn a 40 foot by 2038 foot portion of land to connect the city to the parcel of property and to allow for the extension of sewer lines. Id. Thereafter, the city voluntarily annexed the strip of land and the parcel by ordinances. Id. The annexation was challenged on the grounds that it did not meet the compactness requirement in Section 71.014. Id. at 176.
The Dodson court, after determining the meaning of compactness and relying on Reed, held that the attempted “flag annexation” did not meet the test of compactness. Id. at 178. In applying the law to the facts of the case, the court held that the attempted annexation of the strip and the parcel did not meet the statutory requirement of compactness because of the shape of the tracts. Id. The court stated that the annexation did not make the city’s boundaries more regular, nor would the city and the annexed area be one closely-grouped, solid tract of land. Id.
Here, following Reed and Dodson, we conclude the attempted annexation does not meet the test of compactness. The annexation does not make the City’s boundaries more regular, nor would the City and the annexed area be one closely-grouped, solid tract of land.
The City asserts the use of the road as the “flagpole” of the flagpole annexation is authorized by a portion of Section 71.012 and Missouri Rural Elec. Co-op. v. City of Hannibal, 938 S.W.2d 903 (Mo. banc 1997). The portion of Section 71.012 relied on by the City provides:
Notwithstanding the provisions of this section, the governing body of any city, town or village in any county of the third classification which borders a county of the fourth classification, a county of the second classification and Mississippi River may annex areas along a road or highway up to two miles from existing boundaries of the city, town or village.
Section 71.012.1.
In Missouri Rural Elec. Co-op, the court interpreted a previous version of Section 71.012.1, RSMo 1994, which was repealed in 1995, and contained the sentence “[n]othwithstanding the provisions of the section, the governing body of any city . . . may annex areas along a road or highway up to two miles from existing boundaries of the city.” Missouri Rural Elec. Co-op., 938 S.W.2d at 904 (Emphasis added). The court looked at the statutory list of narrow strips of land, including railroad line, trail, pipeline, that automatically will not make a tract contiguous and compact to the limits of a city and noted that the language did not include a more common narrow strip of land, a road. Id. at 905. The court determined the sentence created an exception, “providing that tracts of land touching the city only by a strip of property within the city which is less than a quarter mile wide are not removed from the definition of compact and contiguous if that strip is a road.” Id. The court further noted that under the current version of the statute the ability to annex areas along a road or highway appears only to apply to Perry County. Id. at 905 n. 2.
The City’s reliance on that portion of Section 71.012 and Missouri Rural Elec. Co-op. is misplaced. Under the current version of Section 71.012, the exception for annexing areas along a road or highway up to two miles from the existing boundary of a city only applies to a third class city, town, or village that borders a fourth class county, a second class county, and the Mississippi River. The City here, located in Jefferson County, does not meet those requirements. If the legislature intended for any city to be able to annex along a road up to two miles, it could have expanded the exceptions, but it did not.
The City asserts that because a road is not specifically listed in Section 71.012 as an automatic exclusion from the definition of contiguous and compact, the annexation along the road and the width of the road should be considered in determining the reasonableness of the annexation. First, we note the term reasonableness does not appear in Section 71.014. Furthermore, a determination of the reasonableness of an annexation that is objected to is only considered when the annexation meets the statutory requirements. See Section 71.015(FN3); City of Centralia v. Norden, 879 S.W.2d 724, 726-27 (Mo. App. W.D. 1994)(where the proposed annexation pursuant to Section 71.015 met the condition precedent that the subject land was contiguous and adjacent to the corporate limits of the city before the court considered the reasonableness factors).
Here, the prerequisite of compactness required by Section 71.104, the statute by which the City attempted to annex the tracts of land, was not met. The trial court did not err in entering summary judgment in favor of Respondents because there are no genuine issues of fact and the Respondents were entitled to judgment as a matter of law. Point one is denied.
In its second point, the City maintains the trial court erred in granting summary judgment in favor of Respondents because the trial court’s application of compact is an unconstitutional impairment of the right to contract and violated due process. The City claims it would be able to provide services to the annexed property along the roadway which is a purpose of the “compact” requirement, and the property owners were not made parties to the case prior to the abolition of their contractual rights. We disagree.
In making its argument, the City relies on Article I, Section 10 of the United States Constitution, which provides that “no state shall . . . pass . . . any law impairing the obligation of contract.” The City further relies on Article I, Section 13 of the Missouri Constitution, which states “that no . . . law impairing the obligation of contracts . . . can be enacted.” The City maintains it contracted separately with the owners of the Pioneer Road, the Blackwell tract, and the Brigadoon tract for the properties to become part of the City. The City asserts that the petition for annexation was the offer and the ordinance annexing the property was the acceptance of the contract by the City. The City maintains the trial court unconstitutionally invalidated the property owners’ contracts without the participation of the property owners of the Pioneer Road stretch, the Blackwell tract, and the Brigadoon tract thereby depriving them of due process of law.
Our state constitution vests the Missouri Supreme Court with the exclusive jurisdiction to decide cases in which the validity of a state statute is challenged. Mo. Const. Article 5, Section 3.(FN4) We have jurisdiction if the constitutional issue was not preserved for appellate review. Sharp v. Curators of University of Missouri, 138 S.W.3d 735, 737 (Mo. App. E.D. 2003). The constitutional issue was properly preserved in this case as it was raised at the first opportunity in the City’s answer to Respondents’ amended petition and in granting the motion for summary judgment, the trial court implicitly ruled the application of Section 71.014 was constitutional. See Id. at 738 (to properly preserve a constitutional issue for appellate review, the issue must be raised at the earliest opportunity and preserved at each step of the judicial process and the trial court must have ruled on the issue).
The next question is whether the City’s claim that the trial court’s application of Section 71.014 violates the right to contract and due process is real and substantial. In order for the mandate of Article 5, Section 3 to apply, the claim presented must be “real and substantial, not merely colorable.” Sharp, 138 S.W.3d at 738. We find the City’s claim is not real and substantial.
The City’s contention that the trial court’s application of compact is an unconstitutional impairment of the right to contract and violated due process fails first and foremost because the City has not established there was a contract. These were voluntary annexations of property not contractual situations. Because they were voluntary annexations, the annexations must meet the requirements of the statute, in particular Section 71.014. The annexations here did not meet the requirements because the tracts were not compact to the City. The property owners were not required to be parties. There is no unconstitutional impairment of the right to contract or violation of due process. Point two is denied.
In its third and final point, the City asserts the trial court erred in granting summary judgment in favor of Respondents because the trial court’s interpretation of “contiguous and compact” is an unconstitutional impairment on the City’s and property owners’ right to peaceably assemble. The City argues the narrow definition prohibits the ability of the property owners to join their land to the City. We disagree.
In making this argument, the City relies on the First Amendment to the United States Constitution, which provides in pertinent part that “Congress shall make no law . . . abridging . . . the right to of the people peaceably to assemble.” The City further relies on Article I, Section 9 of the Missouri Constitution, which provides “that the people have the right peaceably to assemble for their common good, and to apply to those invested with powers of government for redress of grievances by petition or remonstrance.”
This constitutional argument was preserved and we must determine whether it is real and substantial. Here, again the City’s constitutional challenge is not real and substantial. The City has cited no authority for its assertion the trial court’s interpretation of “contiguous and compact” is an unconstitutional impairment on the City’s and property owners’ right to peaceably assemble. The trial court’s interpretation of the statute and the requirement that the annexed property must be compact in no way interferes with the City’s and the property’s owners’ First Amendment right to peaceably assemble. There is no constitutional violation. Point three is denied.
The trial court’s grant of summary judgment in favor of Respondents is affirmed.

Footnotes;
1. Respondents also filed their petition against the mayor of the City and the individual members of the Board of Alderpersons for the City. These individuals were later dismissed as defendants.
2. All further statutory references are to RSMo 2000 unless otherwise indicated.
3. Section 71.015 provides procedures for objections to involuntary annexations and states in pertinent part:
Before the governing body of any city, town, or village has adopted a resolution to annex any unincorporated area of land, such city, town, or village shall first as a condition precedent determine that the land to be annexed is contiguous to the existing city, town, or village limits and that the length of the contiguous boundary common to the existing city, town, or village limit and the proposed area to be annexed is at least fifteen percent of the length of the perimeter of the area proposed for annexation.
Section 71.015.1(1).
4. We note this case was transferred by order of this court to the Missouri Supreme Court because of the constitutional issues raised. The Missouri Supreme Court, however, transferred the case back to this court without addressing any of the issues, including the constitutional issues.