Opinion
No. WD66638
June 19, 2007
Appeal from Circuit Court of Cole County, Hon. Richard G. Callahan.
Kathleen R. Robertson, Counsel for Appellant.
John E. Taylor, Counsel for Respondent.
Opinion
The Missouri Board for Architects, Professional Engineers, Professional Land Surveyors and Landscape Architects (Board) appeals the judgment of the Circuit Court of Cole County reversing the decision of the Administrative Hearing Commission (AHC), that Bruce F. Bird, a professional engineer, licensed by the Board, was subject to disciplinary action by the Board, as authorized by Section 327.441.2(6). Pursuant to the disciplinary complaint of the Board, filed with the AHC in accordance with Section 327.441.2, the AHC found, inter alia, that Bird had violated Board regulations 4 CSR 30-3.030(7) and 4 CSR 30-13.010, and Section 327.401.1, as a basis for the Board's disciplining him. As authorized by Section 327.441.3, the Board, thereafter, suspended Bird's professional license, License No. E-12144, for three years, to be followed by one year of probation.
All statutory references are to RSMo, 2000, unless otherwise indicated.
Although Bird prevailed before the circuit court, because the court reversed the decision of the AHC and our review is of that decision, by which Bird is aggrieved, he is required by Rule 84.05(e) to file the appellant's brief. Bird raises five points on appeal. In Point I, he claims that we are without jurisdiction to review the AHC's decision because it is not a final appealable judgment due to the circuit court's purported remand to the AHC after reversing its decision. In Point II, he claims that the AHC's decision, that he violated 4 CSR 30-3.030(7), 4 CSR 30-13.010, and Section 327.401.1, subjecting him to disciplinary action by the Board, was not supported by competent and substantial evidence, and was arbitrary, capricious and an abuse of discretion. In Point III, he claims that the disciplinary action of the Board was not supported by competent and substantial evidence because it was based on Bird "signing all of the drawings, including those prepared or revised by Bird," and the AHC only found that he "had improperly signed and sealed architectural drawings only." In Point IV, he claims that the AHC's decision was an abuse of discretion because it relied on "comments made by an assistant attorney general [which improperly] included facts not in evidence, were inflammatory and prejudicial." In Point V, he claims that the disciplinary action ordered by the Board was "arbitrary, capricious, unreasonable, an abuse of discretion and in violation of [his] due process and equal protection rights."
All rule references are to Missouri Rules of Civil Procedure, 2007, unless otherwise indicated.
Because in determining our jurisdiction, sua sponte, as we are required to do in every case, we find that Bird failed to include in his petition for judicial review by the circuit court, any of the claims that he now raises on appeal, they are not preserved for our review, requiring us to dismiss.
Facts
The Board is an agency of the State of Missouri and was established, pursuant to Section 327.031, for the purpose of enforcing the provisions of Chapter 327, which regulate the professional practice of architects, engineers, and land surveyors. The Board first licensed Bird to practice professional engineering on February 28, 1968.
On April 4, 2001, Landmark Builders (Landmark) of Blue Springs, Missouri, entered into a contract with Alan McInnis of McInnis Associates, an architectural firm, for him to design an office complex for Landmark. McInnis prepared final site plans and submitted a copy of them to Landmark. McInnis did not affix his seal or signature to the plans. Each page of the plans included McInnis' title block. Landmark submitted the unsealed plans to the City of Independence Planning Commission for a preliminary review, which rejected them. Landmark contacted McInnis and instructed his firm to make modifications to the plans to satisfy the concerns of the Planning Commission. McInnis made the necessary modifications, but refused to affix his seal and signature to the plans because Landmark refused to pay him for the modifications.
Rather than pay McInnis, Landmark entered into a contract with Bird, another architect who was not affiliated with McInnis, to finish the plans. After receiving a copy of the plans from Landmark, Bird modified them. Once he was finished, Bird affixed his seal and signature to each page of the plans. On May 7, 2002, the plans, which included McInnis' title block and Bird's seal and signature, were submitted to the City of Independence. On June 3, 2002, Bird was notified about the fee dispute between McInnis and Landmark and withdrew his certification of the plans.
On May 2, 2003, pursuant to Section 327.441, the Board filed a complaint against Bird with the AHC. The complaint alleged that, inter alia, Bird had violated Board regulations 4 CSR 30-3.030(7) and 4 CSR 30-13.010, and Section 327.401.1 when he affixed his seal and signature to plans, which he did not personally prepare and of which he did not supervise the preparation. On April 22, 2004, the AHC conducted a hearing on the Board's complaint. On August 30, 2004, the AHC issued its findings of fact and conclusions of law determining that Bird was subject to discipline by the Board, as authorized by Section 327.441.3, for violating Board regulations 4 CSR 30-3.030(7) and 4 CSR 30-13.010, and Section 327.401.1 by affixing his seal and signature to the plans. On November 8, 2004, the Board suspended Bird's professional license, License No. E-12144, for three years, to be followed by one year of probation.
As authorized by Section 536.110, Bird sought judicial review of the AHC's decision, that he was subject to disciplinary action by the Board, by filing a petition for judicial review in the Circuit Court of Cole County. In his petition, he did not allege any specific claims of error. Rather, he simply alleged that:
Petitioner denies the allegations asserted against him in the Complaint, a copy of which is attached hereto, and seeks review of the findings of facts in the Final Order because it is in violation of constitutional provisions, is in excess of the statutory authority or jurisdiction of the agency, is not supported by competent and substantial evidence upon the whole record, was made upon unlawful procedure, is arbitrary, capricious or unreasonable and involves an abuse of discretion. Petitioner, whose personal experience as an engineer and land surveyor exceeds 40 years contends that he complied with all statutory and regulation requirements.
On December 30, 2005, the circuit court entered its judgment reversing the decision of the AHC. In entering its judgment, the court found that the decision of the AHC was unlawful, unreasonable and not supported by substantial and competent evidence. The court "remanded" the case to the AHC for "rehearing and findings not inconsistent" with its order.
This appeal follows.
Appellate Jurisdiction
As in every case, before considering the merits of this appeal, we must first determine, sua sponte, our jurisdiction to do so in that if we do not have jurisdiction, we must dismiss. Brock v. Blackwood , 143 S.W.3d 47, 55 (Mo.App. 2004). Our jurisdiction to review the AHC's decision is predicated on the circuit court first having jurisdiction to review. Wrenn v. City of Kan. City , 908 S.W.2d 747, 751 (Mo.App. 1995). And, if the circuit court did not have jurisdiction to review the AHC's decision, then likewise, we have no jurisdiction to review it. Id. In that case, we only have the jurisdiction to determine our jurisdiction in the first instance. Brock , 143 S.W.3d at 55.
The right of judicial review of a final administrative decision that affects a private right is granted by article V, section 18 of the Missouri Constitution. Lederer v. Dep't of Social Servs., Div. of Aging , 825 S.W.2d 858, 861 (Mo.App. 1992). However, the procedure to give effect to that right is a function of legislation or supreme court rule. Id. And, "[w]hen a statute or rule provides a special method of review it is exclusive and mandatory." Id. The failure to follow the mandatory method of review of an administrative decision is a matter of jurisdiction, requiring dismissal. Farmer's Stone Prods. Co. v. Hoyt , 950 S.W.2d 673, 675 (Mo.App. 1997). Section 621.145 governs judicial review of decisions of the AHC. Section 621.145 reads:
Except as otherwise provided by law, all final decisions of the administrative hearing commission shall be subject to judicial review as provided in and subject to the provisions of sections 536.100 to 536.140, RSMo, except that in cases where a disciplinary order may be entered by the agency, no decision of the administrative hearing commission shall be deemed final until such order is entered. For purposes of review, the action of the commission and the order, if any, of the agency shall be treated as one decision. The right to judicial review as provided herein shall also be available to administrative agencies aggrieved by a final decision of the administrative hearing commission.
Hence, pursuant to Section 621.145, the AHC's decision in this case, that, pursuant to Section 327.441, Bird was subject to disciplinary action by the Board for violating regulations 4 CSR 30-3.030(7) and 4 CSR 30-13.010, and Section 327.401.1, became final and "subject to judicial review as provided in and subject to the provisions of sections 536.100 to 536.140, RSMo" when the Board entered its order suspending Bird's license for three years, to be followed by one year of probation. However, the circuit court did not acquire jurisdiction to review the AHC's decision, unless and until Bird filed a petition for judicial review in accordance with Section 536.110.1. Wrenn , 908 S.W.2d at 751; Britz v. Reynolds , 895 S.W.2d 645, 648 (Mo.App. 1995). In that regard, Section 536.110.1 provides: "Proceedings for review may be instituted by filing a petition in the circuit court of the county of proper venue within thirty days after the mailing or delivery of the notice of the agency's final decision."
While Section 536.110 sets forth, inter alia, the manner for instituting judicial review of a decision of the AHC, Section 536.140 sets forth the scope of that review. Section 536.140 provides, in pertinent part:
1. The court shall hear the case without a jury and, except as otherwise provided in subsection 4 of this section, shall hear it upon the petition and record filed as aforesaid.
2. The inquiry may extend to a determination of whether the action of the agency
(1) Is in violation of constitutional provisions;
(2) Is in excess of the statutory authority or jurisdiction of the agency;
(3) Is unsupported by competent and substantial evidence upon the whole record;
(4) Is, for any other reason, unauthorized by law;
(5) Is made upon unlawful procedure or without a fair trial;
(6) Is arbitrary, capricious or unreasonable;
(7) Involves an abuse of discretion.
As this court stated in Citro v. City of Lee's Summit , 658 S.W.2d 86, 89 (Mo.App. 1983):
[Section] 536.110 selects the circuit court as the forum for review . . . [and] Section 536.140 [ ] defines the scope of that review. In the absence of these enactments, the circuit court could not function as a court of review, nor understand the legitimate bournes of that authority. Those enactments confer both jurisdiction to review and describe the extent of that authority.
Recognizing the fact that Section 536.140 authorizes the circuit court to hear the case only "upon the petition and record filed," except in very limited circumstances, the court concluded: "These statutes evince . . . that a petition for review [as any other petition for suit in the circuit court] functions to initiate the judicial process by a pleading which defines the issues to be met by the adversary and motivates a court to its adjudicative function. Id. (bracketed language appears in original); see also Keesee v. Meadow Heights R-II School Dist. , 865 S.W.2d 818, 820 (Mo.App. 1993). Thus, treating the petition required by Section 536.110.1 like any other petition "to initiate the judicial process by a pleading which defines the issues," in this case, judicial review of the AHC's decision that Bird was subject to discipline by the Board, to invoke the circuit court's jurisdiction, Bird's petition necessarily had to set forth the issues on which he was seeking judicial review. Otherwise, he, in effect, did not state a cause of action for judicial review under Section 536.140. The failure to state a cause of action for judicial review, like in any other civil matter, deprives the circuit court of jurisdiction. Brock, , 143 S.W.3d at 55-56. And, because the circuit court would not have jurisdiction, neither would this court. Wrenn , 908 S.W.2d at 751.
Section 536.140.4 provides:
Wherever under subsection 3 of this section or otherwise the court is entitled to weigh the evidence and determine the facts for itself, the court may hear and consider additional evidence if the court finds that such evidence in the exercise of reasonable diligence could not have been produced or was improperly excluded at the hearing before the agency. Wherever the court is not entitled to weigh the evidence and determine the facts for itself, if the court finds that there is competent and material evidence which, in the exercise of reasonable diligence, could not have been produced or was improperly excluded at the hearing before the agency, the court may remand the case to the agency with directions to reconsider the same in the light of such evidence. The court may in any case hear and consider evidence of alleged irregularities in procedure or of unfairness by the agency, not shown in the record.
In determining what claims Bird preserved for judicial review by the circuit court, we can look only to the face of his petition and cannot look to his memorandum filed in support of his petition. Burgdorf v. Bd. of Police Comm'rs , 936 S.W.2d 227, 231 (Mo.App. 1996); see also Dino v. State Bd. of Pharmacy , 909 S.W.2d 755, 758 (Mo.App. 1995) (explaining that the trial court was correct to dismiss the appellant's petition because, while his memorandum alleged that the Board was biased against him, that claim was not contained in his petition for review). In that regard, Bird's petition alleges, in pertinent part, that:
Petitioner denies the allegations asserted against him in the Complaint, a copy of which is attached hereto, and seeks review of the findings of facts in the Final Order because it is in violation of constitutional provisions, is in excess of the statutory authority or jurisdiction of the agency, is not supported by competent and substantial evidence upon the whole record, was made upon unlawful procedure, is arbitrary, capricious or unreasonable and involves an abuse of discretion. Petitioner, whose personal experience as an engineer and land surveyor exceeds 40 years contends that he complied with all statutory and regulation requirements.
This is nothing more than a regurgitation of Section 536.140, which does not assert specific errors for judicial review by the circuit court. As such, Bird's petition fails to state a claim for judicial review, with respect to the AHC's decision that he was subject to disciplinary action by the Board. Accordingly, there was nothing for the circuit court to review and there is nothing for us to review, requiring us to dismiss.
Conclusion
For the reasons stated, the Board's appeal of the judgment of the circuit court, reversing the decision of the AHC, that Bird was subject to disciplinary action by the Board, is dismissed, and the case is remanded to the circuit court with directions to dismiss Bird's petition for judicial review of the AHC's decision.