             IN THE MISSOURI COURT OF APPEALS
                     WESTERN DISTRICT

LARRY JOHNSTON and GLORIA GAY                    )
JOHNSTON,                                        )
                                                 )
                                Respondents,     )
                                                     WD78197
                                                 )
v.                                               )
                                                     OPINION FILED:
                                                 )
                                                     June 9, 2015
                                                 )
LIVINGSTON COUNTY COMMISSION,                    )
                                                 )
                                   Appellant.    )


               Appeal from the Circuit Court of Livingston County, Missouri
                         The Honorable Daren L. Adkins, Judge

               Before Division One: James Edward Welsh, Presiding Judge, and
                     Thomas H. Newton and Karen King Mitchell, Judges

       This appeal follows the circuit court’s reversal of the Livingston County Commission’s

entry of a Public Nuisance Order against Larry and Gloria Johnston. Because of the parties’ and

the circuit court’s failure to abide by the requirements of the Missouri Administrative Procedure

Act (MAPA), we vacate the circuit court’s judgment and remand the matter for further

proceedings consistent with this opinion.
                                                     Background

        On May 11, 2011, the Missouri Legislature passed Senate Bill 187, which amended

§ 67.402.1(6)1 to allow “[a]ny county of the third classification with a township form of

government and with more than fourteen thousand five hundred but fewer than fourteen

thousand six hundred inhabitants” to “enact nuisance abatement ordinances as provided” by

§ 67.402. 2011 Mo. Legis. Serv. 41 (West). Senate Bill 187 became effective on August 28,

2011.

        On November 8, 2012, the Livingston County Commission passed Ordinance 11812,

pursuant to § 67.402.1(6), providing procedures for nuisance identification and abatement.

Among the required procedures provided in Ordinance 11812 was a public hearing, wherein

“any party may be represented by counsel, and all parties shall have the opportunity to be heard

and present evidence.” At the conclusion of a hearing, the Commission is required to either issue

a public nuisance order, if supported by the evidence, or not issue a public nuisance order if the

evidence fails to support the existence of a public nuisance.

        In accordance with these procedures, the Commission held a public hearing on March 25,

2014, to determine whether there existed a public nuisance on the Johnstons’ property. At the

hearing, the Commission heard testimony from the Johnstons, the County Nuisance Enforcement

Officer, and neighboring property owners, and received exhibits. Following the hearing, on

April 3, 2014, the Commission issued a public nuisance order, finding that the Johnstons’

property constituted a public nuisance under Ordinance 11812 and that the nuisance was

detrimental to the health, safety, and welfare of the community. Accordingly, the Commission

ordered the Johnstons to remove the specific conditions identified in the order within thirty days.

If they failed to do so, the County Nuisance Enforcement Officer would come upon their
        1
            All statutory citations are to the Revised Statutes of Missouri (2000), as updated, unless otherwise noted.


                                                            2
property and remove the items at the Johnstons’ expense. The order advised the Johnstons of

their right to appeal the order to the Livingston County Circuit Court within thirty days of the

order.

         Thereafter, on May 1, 2014, the Johnstons filed a “Verified Petition for Judicial Review”

in the Livingston County Circuit Court, seeking review of the Commission’s decision on the

grounds that it was not supported by competent and substantial evidence and that the Johnstons

had already commenced work to abate the nuisance within the time frame specified by the

Commission. The record of the proceedings before the Commission was never filed with the

circuit court, but the Commission raised no objection. Rather, the Commission requested a “trial

setting,” and subsequently presented evidence to the circuit court, without any objection by the

Johnstons.

         Following a purported “de novo review” under § 536.140.3, the circuit court issued its

findings and judgment, declaring that the Commission’s Public Nuisance Order entered against

the Johnstons was “beyond the statutory authority of Livingston County, Missouri, and [was]

therefore reversed.” The circuit court found, sua sponte, that, based upon the 2010 Census, the

population of Livingston County was 15,195 and therefore outside the population limits provided

by § 67.402.1(6). The Commission filed a motion to reconsider or amend the judgment, arguing

that the 2010 Census was not the applicable source for determining the population of Livingston

County for purposes of § 67.402.1(6) when the ordinance was enacted. Rather, the Commission

argued, under § 1.100, the court was to apply the 2000 Census data, which determined the

population of Livingston County to be 14,558, which was within the parameters of

§ 67.402.1(6). The circuit court overruled the Commission’s motion, and the Commission filed

an appeal with this court.




                                                 3
       After filing the notice of appeal, the Commission filed the record on appeal and the

appellant’s brief, challenging the circuit court’s judgment. The Johnstons filed a respondent’s

brief, defending the circuit court’s judgment.      Neither party mentioned or challenged the

Commission’s determination that the Johnstons’ property constituted a public nuisance.

                                            Analysis

       The Commission brings a single point on appeal, challenging the circuit court’s

determination that the Commission lacked authority to enact Ordinance 11812.                  The

Commission, however, is not the proper party to file an appellant’s brief, and the circuit court’s

judgment is not the proper judgment for review. In short, there are a multitude of procedural

errors that have brought the parties to the point before us, with each misstep leading to another.

To untangle this procedural thicket, it is necessary to explain how this case should have

proceeded to this point and identify each instance wherein it went awry.

       To begin, in any administrative matter, a party seeking judicial review must first discern

whether the administrative proceeding involved a contested case or a non-contested case, as the

scope of review and procedural steps differ. City of Valley Park v. Armstrong, 273 S.W.3d 504,

506-07 (Mo. banc 2009). A “contested case” is “a proceeding before an administrative agency in

which legal rights, duties or privileges of specific parties are required by law to be determined

after hearing.” § 536.010(4).

       Contested case review is controlled by sections 536.100 to 536.140. Contested
       cases provide the parties with an opportunity for a formal hearing with the
       presentation of evidence, including sworn testimony of witnesses and
       cross-examination of witnesses, and require written findings of fact and
       conclusions of law. The review of a contested case is a review by the trial court
       of the record created before the administrative body. The trial court’s decision
       upon such review is appealable, but the appellate court also looks back to the
       record created before the administrative body.




                                                4
       Non-contested cases do not require formal proceedings or hearings before        the
       administrative body. As such, there is no record required for review. In        the
       review of a non-contested decision, the circuit court does not review           the
       administrative record, but hears evidence, determines facts, and adjudges       the
       validity of the agency decision. Under the procedures of section 536.150,       the
       circuit court conducts such a hearing as an original action.

       In either a contested or a non-contested case the private litigant is entitled to
       challenge the governmental agency’s decision. The difference is simply that in a
       contested case the private litigant must try his or her case before the agency, and
       judicial review is on the record of that administrative trial, whereas in a
       non-contested case the private litigant tries his or her case to the court.
       Depending upon the circumstances, this difference may result in procedural
       advantages or disadvantages to the parties, but in either situation, the litigant is
       entitled to develop an evidentiary record in one forum or another.

Armstrong, 273 S.W.3d at 506-07 (emphasis added) (internal citations omitted) (quoting Furlong

Companies, Inc. v. City of Kansas City, 189 S.W.3d 157, 165 (Mo. banc 2006)).

       Here, both § 67.402 and Ordinance 11812 require a hearing before the Commission to

determine whether property constitutes a public nuisance, and both provide for certain

procedural protections at the hearing, such as the assistance of counsel and presentation of

evidence. Thus, the hearing before the Commission was a contested case.

       Because the Commission’s decision constituted a contested case, to obtain judicial

review, the Johnstons were required to file a petition seeking judicial review within 30 days of

the Commission’s order.2 § 536.110.1. Then, according to § 536.130, the Johnstons were

responsible for ensuring that the record before the Commission was filed with the circuit court

within thirty days of filing the petition. They could have accomplished this duty by either filing

the record themselves or by requesting the Commission to file it. § 536.130.4. The record shall

consist of any one of the following:

       (1) Such parts of the record, proceedings and evidence before the agency as the
       parties by written stipulation may agree upon;


       2
           The Johnstons met this requirement.


                                                 5
        (2) An agreed statement of the case, agreed to by all parties and approved as
        correct by the agency;

        (3) A complete transcript of the entire record, proceedings and evidence before
        the agency. Evidence may be stated in either question and answer or narrative
        form. Documents may be abridged by omitting irrelevant and formal parts
        thereof. Any matter not essential to the decision of the questions presented by the
        petition may be omitted. The decision, order and findings of fact and conclusions
        of law shall in every case be included.

§ 536.130.1. Filing the record with the circuit court is required for judicial review of contested

cases because, under § 536.140.1, “[t]he court shall hear the case . . . upon the petition and

record filed as aforesaid.” Here is where the procedural thicket began; by not presenting the

circuit court with the record of the proceedings before the Commission, the Johnstons failed to

meet their obligation under § 536.130.4. And without the record, there was nothing for the court

to review.

        Apparently unconcerned with the lack of a record for the court’s review, the Commission

instead sought a hearing to introduce evidence for the court’s consideration anew.3 But judicial

review of a contested case generally does not allow for the presentation of additional evidence at

the circuit court.4 There is one exception, however, as noted by the circuit court. “Whenever the

action of the agency being reviewed does not involve the exercise by the agency of

administrative discretion in the light of the facts, but involves only the application by the agency

        3
            During oral argument, the Commission advised this court that the reason for presenting evidence anew
before the circuit court was because the recording made at the Commission hearing “wasn’t great,” so the
Commission chose to bring all of the evidence again, rather than presenting the circuit court with an inadequate
record. Bringing new evidence before the circuit court due to an insufficient record before the administrative
agency, however, is not an authorized action under the MAPA. Because “the review required by § 536.140 . . . is
not possible without an adequate record of the evidence heard by the commission,” the appropriate action would
have been for the circuit court to remand the matter back to the Commission for “a rehearing of the evidence and the
preservation of the evidence for review.” Sullivan Cnty. v. State Tax Comm’n, 513 S.W.2d 452, 454 (Mo. 1974).
          4
            In a non-contested case, however, “[t]he circuit court does not review the record for competent and
substantial evidence, but instead conducts a de novo review in which it hears evidence on the merits, makes a record,
determines the facts and decides whether the agency’s decision is unconstitutional, unlawful, unreasonable,
arbitrary, capricious or otherwise involves an abuse of discretion.” City of Valley Park v. Armstrong, 273 S.W.3d
504, 508 (Mo. banc 2009). “The circuit court does not defer to facts found or credibility assessed by the agency and
need not conform doubtful evidence to the agency’s decision.” Id. “The circuit court in a noncontested case acts to
determine the evidence and give judgment from that evidence.” Id.


                                                         6
of the law to the facts, the court may upon application of any party conduct a de novo review of

the agency decision.” § 536.140.3.

        When a court reviews the actions of an agency under § 536.140.3, the court has the

discretion to weigh evidence and determine facts for itself, § 536.140.4, but the exercise of that

discretion is “dependent upon additional findings.” Derleth v. Derleth, 432 S.W.3d 771, 778

(Mo. App. W.D. 2014). “[T]he court may hear and consider additional evidence [only] 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.” § 536.140.4. The

Commission’s request for a “trial setting” did not include any allegations to support either of the

required findings. Consequently, neither finding was made in this case. But the Johnstons raised

no objection to the Commission’s presentation of evidence or the court’s acceptance of the same.

“In the absence of [a] circuit court’s determin[ation] that the [administrative] record [i]s

incomplete, it should not . . . [even] schedule[] a hearing.” Pearman v. Dep’t of Soc. Servs., 20

S.W.3d 540, 541 (Mo. App. W.D. 2000).5

        Even if the court had made one of the findings required by § 536.140.4, it was still not at

liberty to simply reverse the Commission’s decision. Instead, “the court may remand the case to

the agency with directions to reconsider the same in the light of such evidence.” § 536.140.4.6




        5
          In Pearman, we noted that “[t]ypically, the circuit court will wait for parties to request a hearing before
advancing a case,” but we also cautioned that “[t]hese cases should not be handled in this manner.” Pearman v.
Dep’t of Soc. Servs., 20 S.W.3d 540, 542 n.3 (Mo. App. W.D. 2000).

        Because a hearing is not required—the circuit court’s review will be restricted to examining the
        record—it should move forward sua sponte to set a briefing schedule and to consider the record in
        light of the issues raised. It should set a hearing only if a party establishes a proper basis for a
        hearing under § 536.140.4.
Id.
        6
           “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.” § 536.140.4.


                                                         7
       Under the normal scope of judicial review following a contested case, the court must

determine whether the agency’s action

       (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; [or]

       (7) Involves an abuse of discretion.

§ 536.140.2.

       Here, presumably because it lacked a record to review and, therefore, could not directly

address the claims raised by the Johnstons’ petition, the circuit court attempted to comply with

its obligations under § 536.140.2 by determining whether the Commission’s order was in excess

of its statutory authority or jurisdiction or otherwise unauthorized by law. In doing so, the court

sua sponte evaluated Ordinance 11812, noting that the ordinance identified § 67.402 as its

enabling authority. The court then examined § 67.402, noting subdivision .1(6)’s population

limits of more than 14,500 but fewer than 14,600. The court then indicated that, pursuant to

§ 1.100,7 it was considering the 2010 Census data, reflecting a population in Livingston County


       7
           Section 1.100 provides:

       The population of any political subdivision of the state for the purpose of representation or other
       matters including the ascertainment of the salary of any county officer for any year or for the
       amount of fees he may retain or the amount he is allowed to pay for deputies and assistants is
       determined on the basis of the last previous decennial census of the United States. For the
       purposes of this section the effective date of the 1960 decennial census of the United States is
       July 1, 1961, and the effective date of each succeeding decennial census of the United States is
       July first of each tenth year after 1961; except that for the purposes of ascertaining the salary of
       any county officer for any year or for the amount of fees he may retain or the amount he is allowed
       to pay for deputies and assistants the effective date of the 1960 decennial census of the United


                                                        8
of 15,195. The court concluded that, in light of the 2010 Census data, § 67.402.1(6) did not

provide authority for Ordinance 11812.                     Accordingly, the court determined that the

Commission’s order lacked statutory authority and had to be reversed.8

         Because it was aggrieved by this decision, the Commission filed a notice of appeal.

When evaluating an appeal involving a contested case, however, we review the decision of the

agency and not the circuit court. Morris v. Mo. Dep’t of Health and Senior Servs., 444 S.W.3d

913, 914 (Mo. App. W.D. 2014). Under Rule 84.05(e),9

         If the circuit court reverses a decision of an administrative agency and the
         appellate court reviews the decision of the agency rather than of the circuit court,
         a party aggrieved by the circuit court decision shall file a notice of appeal and the
         record on appeal and shall file with the record on appeal a notice designating the
         party that is aggrieved by the agency decision.

(Emphasis added.)

         Though the Commission filed both the notice of appeal and the record on appeal, it failed

to comply with its obligation under Rule 84.05(e) to provide this court with “a notice designating

the party that is aggrieved by the agency decision”—in other words, the Johnstons. Thereafter,

the Commission filed an appellant’s brief, challenging the circuit court’s decision, and the




          States is January 1, 1961, and the effective date of each succeeding decennial census is January
          first of each tenth year after 1961.
          8
            We seriously question the court’s conclusion on this matter. Section 1.100.1 states that the determination
of population “for the purpose of representation or other matters including . . . [ascertaining] the salary of any
county officer . . . or . . . the amount of fees he may retain or the amount he is allowed to pay . . . is determined on
the basis of the last previous decennial census of the United States.” The statute further indicates that “the effective
date of each succeeding decennial census of the United States is July first of each tenth year after 1961.” Id.
          The amendment to § 67.402, adding subdivision .1(6)—the enabling authority for Ordinance 11812, was
passed on May 11, 2011. At that time, the only effective decennial census available to the legislature was the 2000
version, as the 2010 version did not take effect under section 1.100.1 until July 1, 2011. In light of the 2000 Census
data, § 67.402.1(6) provided sufficient enabling authority for Livingston County to pass Ordinance 11812.
Furthermore, the Johnstons’ argument—that section 1.100.1 is wholly inapplicable on the basis that the statute’s
reference to “other matters including” county officer salaries, credits, and expenditures, constitutes a limitation to
only those matters listed—has already been rejected. See Union Electric Co. v. Cuivre River Electric Co-op., Inc.,
571 S.W.2d 790, 794-96 (Mo. App. 1978) (determining that “the term ‘other matters,’ as used in § 1.100[.1] . . . , is
not restricted to those matters specifically enumerated after the word ‘including.’”).
          9
            All rule citations are to the Missouri Court Rules (2014), unless otherwise noted.


                                                           9
Johnstons filed a respondent’s brief, defending the circuit court’s decision.          Neither party

addressed the Commission’s Public Nuisance Order.

       Rule 84.05(e) requires that “[t]he party aggrieved by the agency decision [i.e., the

Johnstons] shall file the appellant’s brief and reply brief, if any, and serve them within the time

otherwise required for the appellant to serve briefs.” The rule further provides that “[i]f a party

who is aggrieved by an agency decision fails to file the first brief, that party shall be given notice

of dismissal as required in Rule 84.08(b).” Rule 84.05(e). But because the Commission failed to

comply with its notification obligation under Rule 84.05(e), this court was unable to comply with

its obligation under Rules 84.05(e) and 84.08(b) to notify the Johnstons that their failure to file

an appellant’s brief would result in dismissal of the appeal. Thus, we find ourselves now facing

an appeal of the wrong decision (the circuit court’s judgment) by the wrong party (the party that

prevailed before the agency), and we have only a sparse and incomplete record for purposes of

reviewing the Commission’s decision, with no real challenge made to that decision.

       Ordinarily, our review would be the same as the circuit court’s review. In other words,

we would examine the agency’s decision to determine if it

       (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; [or]

       (7) Involves an abuse of discretion.




                                                 10
§ 536.140.2. We would “examine[] the whole record to determine whether there is sufficient

evidence to support the decision.” Lester v. Dep’t of Soc. Servs., 439 S.W.3d 229, 231 (Mo.

App. S.D. 2014). We generally “will not substitute our judgment for that of the [agency] on

factual matters.” Id. If we determine that the agency’s decision “is supported by substantial and

competent evidence found in the record, then the [agency’s] decision should be affirmed.”

Garrett v. Mo. Dep’t of Soc. Servs., 57 S.W.3d 916, 919 (Mo. App. S.D. 2001).

       Here, however, we are not asked to review the agency’s decision at all. Rather, the

parties both focus upon the circuit court’s judgment and whether it is correct. Though the circuit

court’s judgment is not typically the subject of our review, it will be where there is a question

regarding compliance with MAPA or other procedural irregularities. See, e.g., Derleth, 432

S.W.3d at 778 (reviewing circuit court’s denial of requested hearing); Madden v. Poplar Bluff

R-1 Sch. Dist., 399 S.W.3d 843, 847 (Mo. App. S.D. 2013) (reviewing circuit court’s refusal to

hear additional evidence); Orion Sec., Inc. v. Bd. of Police Comm’rs of Kansas City, 43 S.W.3d

467, 468 (Mo. App. W.D. 2001) (“The question on appeal is whether the trial court erred when it

entered the judgment based on a motion filed by Orion of which Appellants had no notice.”);

Pearman, 20 S.W.3d at 542 n.4 (reviewing claim that associate circuit court lacked subject

matter jurisdiction); Boyer v. City of Potosi, 38 S.W.3d 430, 433-35 (Mo. App. E.D. 2000)

(analyzing “whether the trial court acted in excess of its jurisdiction by holding evidentiary

hearings outside Washington County without the consent of all the parties,” whether the trial

court erred in striking paragraphs of the amended petition for judicial review, and whether the

trial court erred in dismissing the initial petition); Neosho R-V Sch. Dist. v. McGee, 979 S.W.2d

537, 539-40 (Mo. App. S.D. 1998) (reviewing circuit court’s decision and determining that court




                                               11
lacked authority to act outside the scope of MAPA). Under those circumstances, we could

review the circuit court’s judgment as in any other court-tried case.

         Here, though neither party claims any procedural irregularities, the case is obviously rife

with them, as identified above. Thus, we must vacate the judgment and remand the case to the

circuit court for proper consideration pursuant to the procedures laid out in Chapter 536 and

Rule 84.05(e) pertaining to judicial review and appeal of contested cases. If the state of the

record allows for review by the circuit court, it should conduct such a review.10 If the state of the

record does not afford the circuit court the opportunity for a review on the record, the court must

remand the matter to the county commission for the creation of a record sufficient for review.

We, therefore, vacate the circuit court’s judgment and remand for further proceedings consistent

with this opinion.




                                                       Karen King Mitchell, Judge

James Edward Welsh, Presiding Judge,
and Thomas H. Newton, Judge, concur.




         10
             It is not too late to correct the first procedural misstep that occurred in this case. “[A]lthough the
Administrative Review Act is silent about the penalty or consequence when an agency fails to timely file its record
in the circuit court as required by § 536.130.1, timely filing thereof is not a jurisdictional requirement.” Orion Sec.,
Inc. v. Bd. of Police Comm’rs of Kansas City, 43 S.W.3d 467, 470 (Mo. App. W.D. 2001). “Accordingly, a circuit
court has authority to grant an extension application made after the original thirty-day period has expired.” Id. But
if the record before the Commission is inadequate to permit review, as represented by the Commission before this
court, the circuit court should remand the matter back to the Commission for a rehearing of the evidence and
preservation of the evidence for review. Sullivan Cnty., 513 S.W.2d at 454.


                                                          12
