            In the Missouri Court of Appeals
                    Eastern District
                                         DIVISION ONE

REGIONAL CONVENTION AND                          )   No. ED103320
SPORTS COMPLEX AUTHORITY,                        )
                                                 )
       Plaintiff/Respondent,                     )   Appeal from the Circuit Court
                                                 )   of the City of St. Louis
vs.                                              )
                                                 )
CITY OF ST. LOUIS,                               )
                                                 )
       Defendant/Respondent,                     )
                                                 )   Honorable Thomas J. Frawley
JEANETTE OXFORD, et. al.,                        )
                                                 )
       Proposed Intervenors/Appellants.          )   FILED: April 5, 2016

       Jeanette Oxford, William White, and Earl Garrett (collectively, "Appellants") appeal

from the trial court's judgment denying Appellants' right to intervene in the action below

concerning the validity of a city ordinance. The only issue we address in this appeal is whether

or not the trial court erred in denying intervention to Appellants. Finding no error, we affirm.

                                       I. BACKGROUND

       The action before the trial court in which Appellants attempted to intervene concerned

the validity of City Ordinance 66509 ("the Ordinance"), codified as Chapter 3.91 of the Revised

Code of the City of St. Louis. The Regional Convention and Sports Complex Authority ("the

RSA") brought suit against the City of St. Louis ("the City") seeking a declaration that the

Ordinance was unconstitutional and void. The Ordinance was enacted in 2002 via initiative
petition and was designed to bar the City from providing financial assistance to the development

of a professional sports facility without first: (1) preparing a fiscal note and making it available

to the public for at least twenty days prior to action; (2) holding a public hearing allowing

opportunity for proponents and opponents to be heard; and (3) obtaining voter approval for

financial assistance by a majority vote of City of St Louis voters.

       The RSA, along with a stadium task force formed by Governor Nixon, were developing a

financing plan for construction and operation of a sports stadium to present to the St. Louis Rams

Football Club and the National Football League ("NFL"). The financing plan developed by the

RSA included an assumption that the City would provide financial assistance to the development

of a new football stadium. As the Ordinance prohibited the City from providing any financial

assistance without a public hearing and vote, RSA brought a declaratory judgment action against

the City seeking a ruling that the Ordinance does not apply to a financing plan for a new stadium

or, alternatively, is unconstitutional and void.

       Appellants are all residents, registered voters, and taxpayers in the City of St. Louis. In

addition, one of the Appellants, Jeanette Mott Oxford, is one of the original signatories of the

petition to place the ordinance on the City ballot in 2002. Appellants filed a Motion for Leave to

Intervene in the case as defendants, seeking a public hearing and public vote on whether

financial assistance would be provided for the construction of a new professional sports facility

pursuant to their rights as set forth in the Ordinance.

       On August 3, 2015, the trial court entered two separate Orders and Judgments, one of

which held that Appellants did not meet the burden to intervene of right, nor did they meet the




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requirements for permissive intervention1, and therefore denied Appellants’ Motion to Intervene.

This is the Order and Judgment we address. This appeal followed.

                                                   II. DISCUSSION

           Appellants raise five points on appeal. Appellants' first two points on appeal claim the

trial court erred in denying Appellants' Motion for Leave to Intervene because they had a right to

intervene as registered voters and taxpayers and were not adequately being represented by the

City. Appellants also claim the trial court's denial of their Motion for Leave to Intervene

deprived them of a property and liberty interest protected by the Fourteenth Amendment to the

United States Constitution.

           In their third point, Appellants allege the trial court erred in striking portions of their

affidavits because the stricken portions included Appellants' offer of evidence about their

interests in the case. Appellants claim the trial court abused its discretion and could not have

properly denied their Motion for Leave to Intervene without considering the evidence stricken

from their affidavits.

           Finally, in Appellants' fourth and fifth points, they challenge the trial court's decision that

the Ordinance was invalid and too vague, claiming that decision was erroneous as a matter of

law.

A. Denial of Motion for Leave to Intervene

           Appellants' first two points on appeal allege the trial court erred in denying Appellants'

Motion for Leave to Intervene, arguing this ruling was contrary to law as Appellants were

registered voters and taxpayers with an interest in the litigation, which was not being adequately

represented by the City. Appellants also claim their right to vote as provided by the Ordinance

constituted a property and liberty interest protected by the Fourteenth Amendment to the United
1
    Appellants did not appeal the trial court’s denial of permissive intervention.

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States Constitution, and denying their right to intervene took away this interest without due

process.

Standard of Review

         The trial court's judgment denying Appellants' request to intervene as a matter of right

will be affirmed 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. Dunivan v. State, 466 S.W.3d 514,

517 (Mo. banc 2015); Myers v. City of Springfield, 445 S.W.3d 608, 611 (Mo. App. S.D. 2014).

"It is the [proposed] intervenor who must meet all of the requirements." Myers, 445 S.W.3d at

611, citing In re Clarkson Kehrs Mill Transp. Dev. Dist., 308 S.W.3d 748, 753 (Mo. App. E.D.

2010).

Analysis

         In support of their Motion for Leave to Intervene, Appellants rely on their status as

registered voters and taxpayers to show their interest in the matter. They claim their interest was

not adequately represented by the City at the trial court level.

         Rule 52.12(a)(2) governs intervention as a matter of right when not explicitly provided by

statute, and it allows for intervention:

         when the applicant claims an interest relating to the property or transaction that is
         the subject of the action and the applicant is so situated that the disposition of the
         action may as a practical matter impair or impede the applicant's ability to protect
         that interest, unless the applicant's interest is adequately represented by existing
         parties.

Thus, in order to intervene as a matter of right, the burden is on Appellants to show: (1) they

have an interest in the subject matter at hand; (2) disposition of the matter may impede

Appellants' ability to protect that interest; and (3) Appellants' interest is not adequately

represented by the existing parties. Rule 52.12(a)(2); Ring v. Metro. St. Louis Sewer Dist., 41



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S.W.3d 487, 491 (Mo. App. E.D. 2000). "The trial court may deny the motion to intervene if

one of the requirements is not met." Ring, 41 S.W.3d at 491-92.

       The level of interest required to intervene as a matter of right is high, and the interest

"'must be a direct and immediate claim to, and have its origin in, the demand made or the

proceeds sought or prayed by one of the parties to the original action." Myers, 445 S.W.3d at

611, quoting LeChien v. St. Louis Concessions, Inc., 33 S.W.3d 602, 604 (Mo. App. E.D. 2000).

       An interest necessary for intervention as a matter of right does not include a mere,
       consequential, remote or conjectural possibility of being affected as a result of the
       action, but must be a direct claim upon the subject matter such that the intervenor
       will either gain or lose by direct operation of judgment.

State ex rel. Nixon v. Am. Tobacco Co., Inc., 34 S.W.3d 122, 128 (Mo. banc 2000).

       The trial court found that status as a registered voter and signatory to a

referendum petition is not an interest of adequate directness or immediacy as required to

intervene as a matter of right. We agree. As in Myers, Appellants here "merely claim to

be signers of the referendum petition; they do not claim to be adjoining landowners, or

citizens who claim some specific economic harm." 445 S.W.3d at 614. "That is simply

not enough in this case. Appellants do not have a direct interest in the proceedings

merely as registered voters and as signers of the petition." Id. Appellants' real interest

here can be characterized the same way as the appellants in Myers, none other than a

"generalized concern for the promotion of laws." Id. Appellants' interest in having the

Ordinance enforced is no greater than any other registered voter or taxpayer in the City of

St. Louis, exactly the type of "consequential" or "conjectural possibility of being affected

as a result of the action," which is not enough to constitute an interest necessary for

intervention as a matter of right. State ex rel. Nixon, 34 S.W.3d at 128.




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        Appellants also have failed to meet the second requirement of Rule 52.12(a)(2),

that disposition of the matter may impede Appellants' ability to protect their interest.

Appellants argue that they had rights that the trial court took away when it invalidated the

Ordinance. However, the action in the trial court did not concern Appellants' alleged

interest in ensuring a public hearing and vote on City financial assistance to a new

professional sports facility. The action at the trial court was solely concerned with the

validity of the Ordinance.

        Having found that Appellants did not meet either the first or second requirement,

we need not address the third requirement.

        The record clearly demonstrates that Appellants failed to show an adequate

interest in the subject matter and failed to show that their ability to protect that interest

would be impeded absent intervention. The trial court's decision not to allow Appellants

to intervene was supported by substantial evidence. Thus, Appellants' first point on

appeal is denied.

        Appellants' second point alleges they were deprived of a property and liberty

interest by the trial court without due process in violation of their Fourteenth Amendment

rights. This argument, however, was never made to the trial court. "As a general rule, an

appellate court will not convict a trial court of error on an issue which was not before it."

River City Dev. Assocs., LLC v. Accurate Disbursing Co., LLC, 345 S.W.3d 867, 873

(Mo. App. E.D. 2011). Appellants did not make any argument to the trial court relating

to their Fourteenth Amendment rights to due process, nor did they submit any motion for

directed verdict on this issue. This issue is not properly preserved for our review and




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thus Appellants' second point on appeal is considered waived. Crystal Tire Co. v. Home

Serv. Oil Co., 525 S.W.2d 317, 320-21 (Mo. banc 1975).

B. Striking Portions of Appellants' Affidavits

       In Appellants' third point on appeal, they allege the trial court erred in striking

portions of their affidavits because the stricken portions included offers of evidence about

Appellants' interest in the subject matter, and the trial court could not have properly

denied the Motion for Leave to Intervene without considering this stricken evidence.

Standard of Review

       "[W]ith respect to evidentiary rulings, the trial court 'enjoys considerable

discretion in the admission or exclusion of evidence, and, absent clear abuse of

discretion, its action will not be grounds for reversal.'" Moore v. Ford Motor Co., 332

S.W.3d 749, 756 (Mo. banc 2011) (quoting State v. Mayes, 63 S.W.3d 615, 629 (Mo.

banc 2001)).

Analysis

       The portions of the affidavits stricken by the trial court included claims that

Appellants had seen press reports, which Appellants argue would have helped them

demonstrate their concern that the City was not adequately defending the Ordinance, as

well as purported background information about the context of the passing of the

Ordinance.

       Simply put, press reports and information about the passage of the Ordinance are

completely irrelevant to the issue at hand, which was whether Appellants had an interest

of the level necessary to justify intervention as a matter of right. None of this purported

evidence would have made Appellants' argument that they had an interest based on their



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status as registered voters and taxpayers any stronger. The trial court was well within its

discretion in striking these portions of the submitted affidavits. Appellants' third point on

appeal is denied.

C. Arguments Pertaining to the Trial Court's Decision to Invalidate the Ordinance

        Appellants' fourth and fifth points on appeal allege the trial court erred when it

invalidated the Ordinance because that decision was erroneous as a matter of law.

However, as Appellants were not allowed to intervene, we do not reach the merits of

these points.

        "Any party to a suit aggrieved by any judgment of any trial court in any civil

cause from which an appeal is not prohibited by the constitution, nor clearly limited in

special statutory proceedings, may take his or her appeal to a court having appellate

jurisdiction . . . ." Section 512.020, RSMo (2000) (emphasis added). It is well-settled

law that if a proposed intervenor fails to intervene in the underlying lawsuit, they may not

appeal any further judgment in the proceeding other than the denial of their motion to

intervene. See Marino v. Ortiz, 484 U.S. 301, 304 (1988) ("The rule that only parties to a

lawsuit, or those that properly become parties, may appeal an adverse judgment, is well

settled."); See Ring, 41 S.W.3d at 490-91 (granting motion to dismiss appeal of judgment

on merits of matter filed by proposed intervenors whose motion to intervene was denied

by the trial court).

        Appellants admit that this Court could only reach the merits of the trial court's

decision on the validity of the Ordinance if we found that Appellants were improperly

denied intervention. However, as we are affirming the trial court's denial of Appellants'

right to intervene, Appellants were not parties to the underlying lawsuit, and therefore



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have no right to appeal an adverse judgment in the case. Appellants' fourth and fifth

points are denied.

                                  III. CONCLUSION

       The judgment of the trial court denying Appellants' Motion for Leave to Intervene is

affirmed.




                                             ___________________________________
                                             ROY L. RICHTER, Judge

Robert G. Dowd, Jr., P.J., concurs.
Robert M. Clayton III, J., concurs.




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