City of Butler v. Kuecker

559 S.W.2d 575, 1977 Mo. App. LEXIS 2366
CourtMissouri Court of Appeals
DecidedDecember 5, 1977
DocketNo. KCD 28752
StatusPublished
Cited by6 cases

This text of 559 S.W.2d 575 (City of Butler v. Kuecker) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Butler v. Kuecker, 559 S.W.2d 575, 1977 Mo. App. LEXIS 2366 (Mo. Ct. App. 1977).

Opinion

WASSERSTROM, Judge.

The City of Butler filed this declaratory judgment suit under the Sawyers Act, Sec. 71.015 RSMo 1969, in twelve counts to annex twelve separately described tracts. The trial court found against annexation as to Tracts Nos. 2, 5,11 and 12 (referred to in the counts bearing those respective numbers), but found the proposed annexation under the other eight counts reasonable and necessary to the proper development of the City and approved the annexations of the areas described in the latter counts. Defendants appeal and assign error as to the approval of all eight counts sustained by the trial court.

In support of their appeal, defendants rely upon the following grounds: 1) that the evidence failed to show that the annexation proposals were reasonable and necessary to the proper development of the City; 2) that the evidence failed to show the ability of the City to furnish normal municipal services to the areas sought to be annexed within a reasonable time; 3) that the petition should have been dismissed for failure to state a claim upon which relief could be granted; and 4) that the trial court erroneously admitted Exhibit 28. Because Points 3 and 4 go to the case as a whole and affect all eight counts, those points will be considered first. Thereafter consideration will be given to defendants’ Points 1 and 2.

I.

Failure to State a Claim

In connection with this argument, defendants rely upon the provision of Section 71.015 which requires that the City’s petition state facts showing the area to be [577]*577annexed, that such annexation is reasonable and necessary to the proper development of the City, and that the City has the ability to furnish normal municipal services. They point out that each of the counts in the City’s petition here merely sets forth the fact that the City has adopted a resolution which is attached to the petition and adopted by reference; and each count then goes on to state that the necessity for and the expediency of annexing each area is set forth in the resolution, and that the provisions which the City desires to make for the annexed area are also set forth in the resolution. Each of the twelve resolutions so attached and incorporated into the petition states only the determination by the City Council that the annexation is reasonable and necessary and that the City has ability to furnish normal services, together with a legal description of the respective tract. Defendants argue that these bare allegations do not constitute a statement of “facts” required by Sec. 71.015.

The only objection made by defendants at the trial level relating to this point was a general objection by motion and then a repetition of that objection in answer that the petition “failed to state a claim for which relief can be granted.” At no time and in no way did defendants in the trial court make a specific objection to the lack of specificity in the petition. Much more importantly, they made no objection on this ground to the introduction of any evidence. Accordingly, the City’s petition by operation of law has been amended to conform to the proof. Rule 55.33(b).

II.

Admission of Exhibit 28

The Exhibit in question consists of a large aerial map on which is marked a new proposed sewer system for the City of Butler. The basic map was part of an application made by the City to the Missouri Department of Natural Resources in order to obtain matching funds for a multi-million dollar sewer project proposed and sought to be built by the City. Lamberton, the witness through whom this exhibit was offered, is a partner in a firm of consulting engineers who were retained by the City and who prepared the basic map as part of a larger report put together by them in 1973 and submitted to the Missouri Department of Natural Resources. The City passed a $410,000 bond issue in 1974 to fund its 10% share of the proposed sewer project, and the Department of Natural Resources has approved stages 1 and 2 of that project. Witness Woodard testified that a federal appropriation for this purpose was made.

Defendants’ objection to Exhibit 28 at trial was that a very similar plan had been offered in evidence in City of Butler v. Bock, 492 S.W.2d 160 (Mo.App.1973), in which case this court held that the proposals as they existed in 1971 showed no more than “hopes, aspirations and great expectations.” This court further held that “[tjhere is no evidence that the Federal or State governments have become committed, again even conditionally, to aid in whatever might be needed by the City to expand its normal municipal services into the area.” Defendants at the trial took the position that the present proposal and especially Exhibit 28 were equally speculative.

That objection is untenable. The City has now shown the “concrete factual bases” of a City bond issue, state approval of the first stages of the project, and inclusion of this project in a federal appropriation. It can no longer be said here, as was true in Bock, that there is no evidence of commitment by the federal or state governments. Exhibit 28 therefore pertains to a live proposal and tends to show what the City can reasonably expect to provide within a reasonable period.

Before this court, defendants shift ground and base the bulk of their complaint on the fact that witness Lamberton added onto Exhibit 28 just before the trial indications of lateral sewers which had not been drawn onto the map which had been presented to the Missouri Department of Natural Resources as part of the City application. No objection was made on this new ground in the trial court and therefore [578]*578should not be available to defendants in this court.

Moreover, Exhibit 28 taken as a whole, was of only slight importance to the City’s case and that exhibit can be disregarded without affecting the result. On a court tried ease such as this, it is practically impossible to predicate reversible error on the erroneous admission of evidence. The party advancing the contention must demonstrate the absence of sufficient competent evidence to support the trial court’s decree. Broyles v. Broyles, 555 S.W.2d 696 (Mo.App.1977). That cannot be done in this case.

III.

Reasonableness and Necessity to Development of the City

In their argument at this point, defendants attempt to lump together all twelve tracts sought to be annexed by the petitioner. They say the propriety of annexation must be deemed ruled by City of Butler v. Bock, supra, unless the City can show a substantial change of condition since 1971 when the Bock ease was tried, and defendants claim there are no such substantial changes.

Defendants’ approach must be rejected. In Bock, the City was attempting to annex some 3,118 acres of land all as part of a single proposal. The result was that the City was either entitled to annex all of the 3,118 acres or nothing. City of Bourbon v. Miller, 420 S.W.2d 296 (Mo.banc 1967); City of Rock Port v. Atchison County Cooperative Ass’n., 432 S.W.2d 317 (Mo.1968). That is not the present situation.

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Bluebook (online)
559 S.W.2d 575, 1977 Mo. App. LEXIS 2366, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-butler-v-kuecker-moctapp-1977.