                      In the Missouri Court of Appeals
                              Eastern District
                                          DIVISION ONE

STATE OF MISSOURI EX REL.,                    )       No. ED102033
ATTORNEY GENERAL KOSTER and                   )
THE MISSOURI DEPARTMENT OF                    )
NATURAL RESOURCES,                            )
                                              )
         Respondents,                         )
                                              )
vs.                                           )       Appeal from the Circuit Court
                                              )       of St. Louis County
                                              )       10SL-CC5162
                                              )
WHISPERING OAKS RESIDENTIAL                   )       Honorable Michael D. Burton
CARE FACILITY, LLC,                           )
                                              )
         Appellant.                           )       FILED: October 27, 2015

                                             OPINION

         Whispering Oaks Residential Care Facility, LLC (Whispering Oaks) appeals from the

judgment entered following a jury verdict in favor of the State of Missouri (State) on its

enforcement action against Whispering Oaks for violations of the Missouri Safe Drinking Water

Act, Sections 640.100 to 640.140, RSMo 2000. 1 We dismiss.

                                Factual and Procedural Background

         Whispering Oaks owned and operated a drinking water well and water distribution system

that provided water to the Whispering Oaks and a neighboring residential care facility. On

December 21, 2010, the State of Missouri, through the Department of Natural Resources

1
    Unless otherwise indicated, all further statutory references are to RSMo 2000.
(Department) filed its “Petition for Injunction and Civil Penalties” against Whispering Oaks

alleging five counts of violations of the Missouri Safe Drinking Water Law (Missouri Water

Law), namely that Whispering Oaks, as an owner and operator of a community water system, (1)

failed to place the supervision of the system under a certified chief operator, (2) failed to develop

and implement an emergency operations plan for assuring continuous water service under

emergency conditions, and on January 8, 2010, (3) failed to maintain minimum positive pressure

within the system under normal operating conditions.

       In its responsive motions, Whispering Oaks argued, inter alia, that the State could not

bring a civil suit against Whispering Oaks for violations of the Missouri Water Law because

Section 640.130 required the existence of an emergency situation and a subsequent

administrative order before the State could pursue a civil case for civil penalties and injunctive

relief. The trial court denied these motions.

       After a four day jury trial, the jury rendered three verdicts in favor of the State and

assessed civil penalties in the amount of $135,650.00. Whispering Oaks filed a motion for

judgment notwithstanding the verdict, and a motion for new trial, which the trial court denied.

This appeal follows.

                                             Discussion

       Whispering Oaks raises ten points on appeal challenging: (1) the trial court’s

interpretation and application of Section 640.130 (Points I, IV, V, VI, VIII, and IX) 2; (2) the trial


2
  With respect to Point IX, we note Whispering Oaks did not raise any constitutional issues
relating to the applicable statute until the first day of trial. As such, Whispering Oaks has waived
these issues. “To properly preserve a constitutional issue for appellate review, the issue must be
raised at the earliest opportunity and preserved at each step of the judicial process.” Sharp v.
Curators of the Univ. of Mo., 138 S.W.3d 735, 738 (Mo. App. E.D. 2003). Additionally, the
issue must have been presented to and ruled upon by the trial court. Id. “This rule is necessary
to prevent surprise to the opposing party and to allow the trial court the opportunity to identify

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court’s determination that whether Whispering Oaks owns a “community water system” is a

factual question for the jury (Point II); (3) the trial court’s proffering a jury instruction that only

provided the definition of a “community water system” (Point III); (4) the trial court’s denial of

Whispering Oaks’ motion for new trial on the correct standard of proof being preponderance of

the evidence not “clear and convincing” (Point VII); (5) the trial court’s issuing an injunction as

part of its final judgment (Point X) 3.

        As a threshold matter, we note that while Whispering Oaks filed a copy of the transcript

from the instruction conference, it has failed to include a copy of the trial transcript in the record

on appeal. This court’s review is based only on the record on appeal and an appellant has the

duty to furnish the records necessary to review issues. Dale v. Dir., Mo. Dept. of Soc. Servs.,

Family Support & Children’s Div., 285 S.W.3d 770, 772 (Mo. App. S.D. 2009). As all of the

issues raised on appeal have an evidentiary basis, without a trial transcript, this court “lack[s] the

necessary information to rule with any degree of confidence in the fairness, reasonableness and

accuracy of our final conclusion.” Dale, 285 S.W.3d at 772; St. Louis Cnty. v. River Bend

Estates Homeowners’ Ass’n, 408 S.W.3d 116, 122 (Mo. banc 2013); Rule 81.12. Without a trial

transcript, our court has no information with respect to what testimony and other evidence was

considered by the trial court, and we will not convict a trial court of error when we do not know

what evidence was before it. Dale, 285 S.W.3d at 772. Rule 81.12(a) provides that the record on

appeal shall contain all of the record, proceedings and evidence necessary to the determination of

all questions to be presented. Id. This rule requires an appellant to file a transcript and prepare a

and rule on the issue.” Carpenter v. Countrywide Home Loans, Inc., 250 S.W.3d 697, 701 (Mo.
banc 2008). Given our disposition of this point, the jurisdictional issue ordered taken with the
case is denied as moot.
3
  In its reply brief, Whispering Oaks states that it does not contest Paragraph 10 of the trial
court’s injunction, which ruled that: “Defendant [Whispering Oaks] shall be absolutely
ENJOINED from operating any public water system within the State of Missouri, other than
Defendant’s public water system located at 1450 Ridge Road.”

                                                   3
legal file so that the record contains all the evidence necessary for a determination of the

questions presented to the appellate court for a decision. Id. In the absence of a sufficient

record, there is nothing for this court to review, and the appeal must be dismissed. Id.

       Accordingly, it is impossible for this court to consider Whispering Oaks’ claims, and we

must dismiss the appeal on the grounds that the record is insufficient under Rule 81.12(a) to

allow for meaningful appellate review. Id.

                                             Conclusion

       The appeal is dismissed.




                                                      _____________________________
                                                       MARY K. HOFF, JUDGE


Robert G. Dowd, Jr., Presiding Judge, and Roy L. Richter, Judge, concur.




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