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City of Bellefontaine Neighbors v. Carroll

Court of Appeals of Missouri, Eastern District, Second Division

January 14, 2020

CITY OF BELLEFONTAINE NEIGHBORS, Respondent,
v.
JAMES CARROLL, Appellant.

          Appeal from the Circuit Court of St. Louis County Honorable Robert M. Heggie

          Philip M. Hess, Presiding Judge

         Introduction

         James Carroll ("Appellant") appeals from the trial court's judgment finding he violated section 302.4.3[1] of the City of Bellefontaine Neighbors' ("City") Property Maintenance Code by allowing bare dirt in his rear yard and section 29-29(b)(5)[2] of the Zoning Ordinance by having chickens and poultry on his property closer than 150 feet from his lot line. The trial court imposed a fine of $250.

         Appellant brings five points on appeal. In his first point on appeal, Appellant argues the trial court erred in finding him guilty of violating section 302.4.3 of the Property Maintenance Code and section 29-29(b)(5) of the Zoning Ordinance because the information and violation notices were facially insufficient so Appellant "c[ould not] understand how he [wa]s violating the ordinances in order to prepare a defense." Appellant's remaining arguments assert the trial court erred in finding him guilty of violating section 29-29(b)(5) of the Zoning Ordinance. In his second point on appeal, Appellant argues the information charged him with violating the incorrect Zoning Ordinance. In his third point on appeal, Appellant argues the Building Inspector had no authority under section 29-118(a)[3] of the Zoning Ordinance to enforce violations. In his fourth point on appeal, Appellant argues section 89.020.1[4] of the Zoning Enabling Act does not give the City "the police power to regulate enclosures or shelters" and the City acted outside the scope of its authority by enacting section 29-29(b)(5). Finally, Appellant argues section 29-29(b)(5) is "not in harmony" with Chapter 4 of the City's ordinances and "no reasonable person would consult the Zoning [Ordinance] when purchasing animals (e.g., chickens)." Each of Appellant's five points on appeal are denied. The trial court's judgment finding Appellant guilty of violating section 29-29(b)(5) of the Zoning Ordinance is affirmed. However, the trial court's judgment finding Appellant guilty of violating section 302.4.3 of the Property Maintenance Code after the City abandoned that charge at trial is reversed, and we amend the trial court's judgment accordingly.

         Factual and Procedural Background

         Appellant resides in the City on Ashbrook Drive. Appellant's residence is in the R-3 zoning district, and the dimensions of his lot are 85 x 104 feet. In early 2018, Appellant allegedly allowed chicken and poultry to roam free on his fenced-in rear yard, which was not cultivated in grass. Section 29-29(b)(5) of the Zoning Ordinance provides "any structure, enclosure or shelter for poultry or livestock shall be located at least one hundred fifty (150) feet from all lot lines." Section 302.4.3 of the Property Maintenance Code provides "[a]ll bare ground areas of residential lots with dwellings shall be cultivated with grass lawns."

         On May 22, 2018, Appellant received a violation notice from the City's Building Inspector, stating that, "by allowing chickens/poultry to be on [his] property, [he was] not in compliance with the City of Bellefontaine Neighbors' Ordinance 29-29(b)(5)." The violation notice stated the dimensions of his residence "would not allow [him] to comply with [section 29-29(b)(5)'s] requirement." The violation notice also requested Appellant "provide a grass lawn at the rear yard," as "[g]round cover is required at all bare ground areas." The violation notice requested he correct his violations by June 5, 2018. Appellant made no corrections.

         On June 7, 2018, Appellant received a second violation notice from the City's Building Inspector, again stating he did not comply with section 29-29(b)(5) of the Zoning Ordinance and requesting he provide a grass lawn at the rear yard. The violation notice requested he correct his violations by June 21, 2018, and provided, if no corrections were made, he would be issued a court summons. Appellant made no corrections. On July 14, 2018, the City charged Appellant by information, alleging Appellant violated section 302.4.3 of the Property Maintenance Code by allowing bare dirt in his rear yard and section 29-29 of the Zoning Ordinance by having chickens and poultry on his property closer than 150 feet from his lot line.

         On August 8, 2018, Appellant appeared for a hearing at the City's municipal court. At the hearing, Appellant requested the case be heard in the Twenty-First Circuit Court. On August 28, 2018, Appellant's case was certified to the Twenty-First Circuit Court. On September 17, 2018, Appellant moved to dismiss the information. He argued dismissal was proper because the information and violation notices were facially insufficient. On September 21, 2018, Appellant again moved to dismiss the information, arguing dismissal was proper because the information charged him with violating the incorrect Zoning Ordinance. A bench trial was held on November 20, 2018. The City appeared by the City Prosecuting Attorney. Appellant waived his right to counsel and represented himself. The trial court heard arguments on Appellant's motions to dismiss and took the motions with the case. The City presented testimony from the Building Inspector and Appellant's neighbor. Appellant testified in his own defense. The City abandoned its charge alleging Appellant violated section 302.4.3 of the Property Maintenance Code at trial.

         On January 22, 2019, the trial court entered its order and judgment, denying Appellant's motions to dismiss and finding Appellant guilty, beyond a reasonable doubt, of violating section 302.4.3 of the Property Maintenance Code by allowing bare dirt in his rear yard and section 29-29 of the Zoning Ordinance by having chickens and poultry on his property closer than 150 feet from his lot line. On March 8, 2019, Appellant was sentenced and fined $250.

         Appellant now appeals.

         Rule 84.04

         Appellant's brief violates Rule 84.04(e)[5] because it fails to set forth the standard of review. Rule 84.04(e) requires the appellant's argument to "include a concise statement of the applicable standard of review for each claim of error." Rule 84.04(e). "Pro se appellants are held to the same standards as attorneys regarding the mandatory appellate briefing rules of Rule 84.04." Scott v. Potter Elec. Signal Co., 310 S.W.3d 311, 312 (Mo. App. E.D. 2010) (footnote omitted). Noncompliance with Rule 84.04(e) justifies dismissal, as "it is not our duty to supplement the deficient brief with our own research." Anglin Family Invs. v. Hobbs, 375 S.W.3d 244, 250 (Mo. App. S.D. 2012) (internal quotation and citation omitted). However, our preference is to reach the merits of every appeal, "provided we can ascertain the gist of an appellant's arguments, notwithstanding minor shortcomings in briefing." Unifund CCR Partners v. Myers, 563 S.W.3d 740, 743 (Mo. App. E.D. 2018) (citing Comp & Soft, Inc. v. AT&T Corp., 252 S.W.3d 189, 193-94 (Mo. App. E.D. 2008)). Because Appellant's omission of the standard of review governing his claim "does not impede review or require us to act as [his] advocate," we will address his claims ex gratia. Hobbs, 375 S.W.3d at 252.

         Standard of Review

         "In Missouri, violations of municipal ordinances are civil matters but, because of the quasi-criminal nature of an ordinance, are subject to the criminal standard of proof beyond a reasonable doubt." City of Dexter v. McClain, 345 S.W.3d 883, 885 (Mo. App. S.D. 2011) (citing City of Strafford v. Croxdale, 272 S.W.3d 401, 404 (Mo. App. S.D. 2008)). "We review the trial court's decision in a court-tried, civil matter (including violations of municipal ordinances) under the standard set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976)." Id. (footnote omitted). "Under the Murphy standard, we must affirm the trial court's decision unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law." Id. (citing Murphy, 536 S.W.2d at 32). "When reviewing a court-tried case, we view all evidence and inferences in the light most favorable to the judgment and disregard all contrary evidence and inferences." Houston v. Crider, 317 S.W.3d 178, 186 (Mo. App. S.D. 2010) (internal quotation and citation omitted). We review the trial court's interpretation of a city ordinance de novo. City of Creve Coeur v. Nottebrok, 356 S.W.3d 252, 257 (Mo. App. E.D. 2011), overruled on other grounds by Edwards v. City of Ellisville, 426 S.W.3d 644 (Mo. App. E.D. 2013).

         Discussion

         Mistake in the Trial Court's Judgment

         The trial court's order and judgment found Appellant guilty of violating section 302.4.3 of the Property Maintenance Code by allowing bare dirt in his rear yard despite the City's abandonment of that charge during trial. Although not raised by Appellant in his brief, this finding in the trial court's order and judgment is error. Rule 84.14 allows us to "give such judgment as the court ought to give" and finally dispose of the case. Rule 84.14; Mitalovich v. Toomey, 206 S.W.3d 361, 365 (Mo. App. E.D. 2006). "[W]e can enter judgment that should have been entered by the trial court instead of remanding the cause for correction . . . . where the evidence in the record before us assures us that the conclusion reached is reasonable, fair, and accurate" and where the circumstances indicate there is no need for further proceedings in the trial court. Mitalovich, 206 S.W.3d at 365 (citing Malawey v. Malawey, 137 S.W.3d 518, 525 (Mo. App. E.D. 2004); Taylor v. State Farm Mut. Auto. Ins. Co., 368 S.W.3d 174, 182 (Mo. App. W.D. 2012).

         Here, the record evidences the judgment actually rendered differs from the judgment entered. At the conclusion of the City's closing argument, the trial court asked the City: "Is the - the first charge here, it looks like a violation regarding bare ground in residential lots. Is the City abandoning that[?]" The City responded, "Yes it is." The trial court's sentencing memorandum imposed a $250 fine on Appellant as to "Count I" and did not mention any second count. At oral argument, Appellant conceded the $250 fine was imposed for his violation of section 29-29(b)(5) of the Zoning Ordinance. To the extent the judgment improperly finds Appellant guilty of violating section 302.4.3 of the Property Maintenance Code, we reverse and amend the judgment of the trial court. To the extent Appellant's first point relied on asserts the trial court erred in finding him guilty of violating section 302.4.3 of the Property Maintenance Code, we do not address his claim.

         Point I

         In his first point on appeal, Appellant argues the trial court erred in finding him guilty of violating section 29-29(b)(5) of the Zoning Ordinance because the information and supporting violation notices were facially insufficient so Appellant "c[ould not] understand how he [wa]s violating the ordinances in order to prepare a defense." Specifically, Appellant argues the information did not conform to Rule 37.34 and Rule 37.35(b) because it:

1) did not state the essential facts constituting the ordinance ...

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