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October 5, 1993



Prewitt, Crow, Garrison

The opinion of the court was delivered by: Prewitt

Plaintiff alleged in his petition that he was employed by defendant as a "fire-fighter". He sought declaratory judgment of "his rights regarding calculation for longevity steps of pay and vacation pay arising out of his employment". The trial court sustained defendant's motion for summary judgment because it felt that the statute of limitations had run on plaintiff's claim.

Defendant has filed a motion to strike the legal file presented by plaintiff. It does so because pages 15 through 79 of the legal file were not a part of the trial court's file. With defendant's motion is an affidavit of the Circuit Clerk of Greene County that those pages were not included in the trial court's file.

Plaintiff does not dispute the affidavit, but claims the documents shown at those pages were properly included as they "are a complete copy of the Merit Rules and Regulations of the City of Springfield, Missouri" and "there is no dispute" regarding them. Plaintiff states these rules "are at the base of the dispute before this Court."

Rule 81.12(a) provides that the "legal file shall . . . contain . . . exact copies of the pleadings and other portions of the trial record previously reduced to written form." As plaintiff states in his suggestion, the record reflects that certain portions of the rules were marked and admitted into evidence without objection at the hearing on the motion for summary judgment. Plaintiff does not contend that the balance of the rules were in the trial court's files or ever before it. The motion is sustained as to the portion of the legal file containing defendant's merit rules except for Rules 13.4 through 13.6 which were admitted into evidence. The remainder of said motion is denied.

Defendant has also filed a motion to dismiss the appeal, contending that plaintiff has failed to complete the record on appeal and "misrepresented material facts to the Court" because appellant failed to order the transcript and has stated that there is no transcript. Defendant has filed a transcript of the hearing on the motion for summary judgment. It consists of counsel's arguments, Discussions with the courts and the court's ruling. As would be expected on a motion for summary judgment, no evidence was presented by witnesses testifying before the Judge.

Arguments, unless necessary to determine issues on appeal, are not to be included in a transcript. Rule 81.12(b). Likewise, a transcript containing only argument would rarely be necessary or of assistance to an appellate court. As we read Rule 81.12, it generally refers to a transcript including testimony. Here, the transcript is of no aid in determining the issues and plaintiff cannot be faulted for failing to order and provide it. The motion to dismiss is denied.

On an appeal from summary judgment, this court reviews the record in the light most favorable to the party against whom the judgment was entered. ITT Commercial Finance v. Mid-Am. Marine, 854 S.W.2d 371, 376 (Mo. banc 1993). The party seeking summary judgment has to show a right to judgment based on undisputed facts. Id. at 378.

Plaintiff alleged that he was laid off from work August 3, 1981 and reinstated October 3, 1982. He claims that since that time the City has miscalculated his wages, longevity and "vacations steps".

The trial court granted summary judgment because it felt that this action was time barred by § 516.120(1), RSMo 1986, allowing five years for the filing of certain actions. The parties agree that this is the statute of limitations section applicable to plaintiff's claim.

Defendant correctly states that a judgment in a non-jury case is to be affirmed if it could properly have been reached on any reasonable theory, Worlledge v. City of Greenwood, 627 S.W.2d 328, 331 (Mo.App. 1982). Defendant briefs three other theories by which it says the trial court's action was correct.

The first contention of defendant is that the trial court was correct because the "petition failed to state a claim upon which relief could be granted, in that appellant produced no evidence of the city ordinances that purportedly formed the basis for the declaratory judgment action". That contention has no merit.

Whether a claim "upon which relief can be granted", see Rule 55.27(a)(6), is stated, is determined by an examination of the petition, not evidence. Inman v. Reorganized ...

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