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08/16/83 ROBERT CIMASI v. CITY FENTON

August 16, 1983

ROBERT CIMASI, ET AL., PLAINTIFFS-RESPONDENTS,
v.
CITY OF FENTON, DEFENDANT-APPELLANT



From the Circuit Court of St. Louis County; Civil Appeal; Judge Ninian M. Edwards.

Motion for Rehearing Overruled, Transfer Denied October 4, 1983. Application Denied November 22, 1983.

Before Crist, P.j., Simon, J., Gunn, Sp.J.

The opinion of the court was delivered by: Simon

The City of Fenton (City) appeals from a judgment of the Circuit Court of St. Louis County providing: (1) that the City ordinance (Ordinance No. 48) governing retail sale of liquor by the drink void and unenforceable; (2) that the City is permanently enjoined from enforcing the ordinance; and (3) $15,000 as and for attorney's fees for Robert J. Cimasi and J. Barleycorn's, Inc. (respondents). Judgment affirmed in part and reversed in part.

On appeal, the City contends the trial court erred in: (1) not entering a nunc pro tunc order; (2) failing to find respondents had waived their objection to Ordinance No. 48 by applying for a license; (3) holding Ordinance No. 48 void and unenforceable after having found the ordinance had been relied upon for over twenty years; (4) issuing a permanent injunction; (5) awarding attorney's fees; (6) making supplemental findings of fact and Conclusions of law after the judgment was final; and (7) admitting testimony of respondents' counsel concerning attorney's fees, which violated the best evidence rule.

Our review is governed by the holding in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). In court tried cases, we shall affirm the decree or judgment unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. We shall not reverse a decree or judgment on the ground that it is against the weight of the evidence, unless we are of the firm belief that it is wrong. Further, due regard shall be given to the opportunity to the trial court to Judge the credibility of the witnesses. Murphy v. Carron, at 32; Rule 73.01(c)(1), (2).

The City of Fenton is a city of the fourth class in St. Louis County. The corporate respondent, J. Barleycorn's, Inc., is a Missouri corporation with its principal place of business in St. Louis County, and the individual respondent, Robert J. Cimasi, is also a resident of St. Louis County. J. Barleycorn's, Inc. was formed for the purpose of operating a restaurant and bar within the City's boundaries.

Respondents initially applied for a liquor license from the City in November, 1980 and subsequently, were denied on three separate occasions.

In January, 1981, respondents obtained liquor licenses from the State of Missouri and St. Louis County. Shortly thereafter, respondents began operating a bar and restaurant and selling liquor without a City license, and were charged with violating Ordinance No. 48. They were informed that if the sale of liquor without a City license continued, further summonses and complaints would be issued, which could ultimately result in an arrest. Later, respondents filed a petition for declaratory judgment on the ordinance and an injunction. Their request for a temporary restraining order was denied. Responding, the City countered for a nunc pro tunc order to correct the minutes of a special meeting of the Board of Aldermen held on March 12, 1960. Respondents' petition was submitted on stipulation and a nunc pro tunc hearing was ordered. Evidence presented at the hearing revealed a special meeting of the City's Board of Aldermen was held on March 12, 1960, when Ordinance No. 48 was allegedly passed. Seven of the ten aldermen comprising the Board were present for the meeting. Prior to trial, two of the seven died, and four testified. The four remembered the ordinance passing and did not remember any aldermen voting against it.

The trial court found the testimony of the City's witnesses, due to the passage of time, was vague, uncertain, and lacking the credibility necessary for the court to enter an order nunc pro tunc correcting the Board's minutes to reflect the passage of Ordinance No. 48. The minutes of the special meeting on March 12, 1960 show an amendment to Ordinance No. 48 was passed, setting the price of a liquor license. The aldermen's names and their votes were duly recorded. Another amendment concerning the application form for a liquor license was similarly passed and the votes recorded. The only other reference to Ordinance No. 48 in the minutes is this statement: "As a result of the vote, Mayor Hitzert declared Ordinance No. 48 passed and enacted as an ordinance in the City of Fenton." There is no record of aldermen's names and their votes on final passage of the ordinance. The ordinance has been relied on for over twenty years.

The trial court, on March 25, 1981, after the nunc pro tunc hearing, entered judgment against the City, finding: (1) the City's evidence insufficient to permit the minutes of the meeting on March 12, 1960 changed nunc pro tunc; (2) Ordinance No. 48 void and unenforceable; (3) the City permanently enjoined from enforcing the ordinance; and (4) respondents entitled to reasonable attorney's fees, the amount to be determined at a subsequent hearing. A hearing to determine the amount of the attorney's fees was held on April 30, 1981 and respondents were awarded $15,000 attorney's fees.

The City, in its first point, contends the trial court erred in failing to enter a nunc pro tunc order correcting the City's records because evidence in support of the order was unopposed, unrebutted, and consistent with case law allowing such orders. In essence, the City in contending that the judgment is against the weight of the evidence.

Section 79.130 RSMo (1978) describing the procedure a city of the fourth class must follow to enact an ordinance, provides in pertinent part:

"No ordinance shall be passed except by bill, and no bill shall become an ordinance unless on its final passage a majority of the members elected to the Board of Aldermen shall vote for it, and ...


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