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City of Raymore v. O'Malley

Court of Appeals of Missouri, Western District, Second Division

August 29, 2017

LORI L. O'MALLEY, Respondent.

         Appeal from the Circuit Court of Cass County, Missouri The Honorable Daniel W. Olsen, Judge

          Before: Edward R. Ardini, Jr., Presiding Judge, and Karen King Mitchell and Anthony Rex Gabbert, Judges


         The City of Raymore appeals the grant of Lori L. O'Malley's motion to dismiss the municipal charge of disorderly conduct against her. City brings three points on appeal, each challenging a separate ground for dismissal argued in O'Malley's motion below. Because the dismissal cannot be supported upon any of the grounds raised in O'Malley's motion, we reverse the dismissal and remand the matter for further proceedings.


         On September 13, 2014, O'Malley was charged by uniform citation with disorderly conduct for "[a]ct[ing] in a violent manner by pushing a door against another; [f]ighting in public." City subsequently filed an amended information, charging O'Malley with disorderly conduct under § 210.230(A)(5) of City's Municipal Code, alleging that, on September 13, 2014, she

did then and there assemble or congregate with another or others for the purpose of causing, provoking, or engaging in any fight or brawl, to wit: did recruit and bring onto the scene a number of unknown male parties with the intention of "find[ing] some big guys to throw [Larry D. Wiseman and Warren O. Wiseman] out" of the building in which they were located.

         On February 5, 2015, O'Malley was found guilty in municipal court and given a suspended imposition of sentence, which consisted of a fine of $300. O'Malley thereafter filed an application for a trial de novo in the Cass County Circuit Court. There, she filed a motion to dismiss on three grounds, claiming: (1) the information does not charge a crime; (2) the disorderly conduct ordinance under which she was charged was unconstitutionally vague; and (3) the disorderly conduct ordinance was overbroad and infringed upon the First Amendment right to freedom of expression. City filed a response to O'Malley's motion, arguing that the information was sufficient and that O'Malley had waived her constitutional challenges by failing to raise them at the first opportunity.

         On March 14, 2016, the circuit court received arguments on O'Malley's motion to dismiss, wherein O'Malley argued that the matter should be dismissed because O'Malley was acting in defense of property when she engaged in the conduct underlying the disorderly conduct charge and, therefore, was legally justified and could not be prosecuted.[2] In making the argument, O'Malley referred the circuit court to evidence and transcripts from the municipal court hearing. City argued that, because the matter was before the court as a trial de novo, the court was not permitted to consider any of the evidence relied upon by O'Malley. City also disputed many of the underlying facts as alleged by O'Malley and argued that the court could not rule on O'Malley's motion without first receiving evidence itself. Despite City's representation that the facts were in dispute, O'Malley argued that the court could rely on the evidence because the necessary facts were undisputed. The court then asked to meet with the parties in chambers.

         Following the in-chambers meeting, back in open court, the parties indicated they had reached an accord: City agreed to a one-year diversion of O'Malley's case and, so long as there were no further similar incidents, City would dismiss the charge at the end of the one-year period. But, on August 23, 2016, O'Malley reasserted her right to a jury trial on the charge.[3]Accordingly, the court set the matter for trial.

         O'Malley again argued her motion to dismiss to the court, claiming that, taking all of City's allegations as true, there was no crime because O'Malley was acting in defense of property.[4] City again countered that "[w]hether [the statute defining defense of property] applies in this case or not is going to be subject to this Court to decide after the evidence has been presented." The parties again debated the underlying facts, prompting the court to ask if they had considered instructing the jury on defense of property. O'Malley indicated that she had prepared an instruction to that point, and when asked if it approved, counsel for City stated: "Well, I'm going to wait till the evidence is in before I can determine whether or not it's supported by the facts, and that's what we have a trial for, Judge."

         Following the hearing, the court granted O'Malley's motion to dismiss by docket entry without any indication as to its rationale. City appeals.

         Standard of Review

         "We review the grant of a motion to dismiss de novo and will affirm the dismissal on any meritorious ground stated in the motion." Gerke v. City of Kansas City, 493 S.W.3d 433, 436 (Mo. App. W.D. 2016). "In reviewing the petition to determine if it states a claim, we accept the allegations in the petition as true and grant the plaintiff[] all reasonable inferences from those allegations." Id. "We do not weigh the factual allegations to determine their credibility or persuasiveness." Id. "Rather, we review the petition 'to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case.'" Id. (quoting Bromwell v. Nixon, 361 S.W.3d 393, 398 (Mo. banc 2012)).

         A. O'Malley was not entitled to dismissal on the basis of her claimed justification based on defense of property.

         In its first point, City argues that it was improper to dismiss the information on the basis of O'Malley's claimed ...

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