Ard v. Shannon Cnty. Comm'n

Decision Date17 March 2014
Docket NumberNo. SD 32173.,SD 32173.
Citation424 S.W.3d 468
CourtMissouri Court of Appeals
PartiesMargaret ARD and Robert Comely, Petitioners–Respondents, v. SHANNON COUNTY COMMISSION, Respondent–Appellant.


David G. Neal, Eminence, MO, for appellant.

Roy E. Williams, Jr., West Plains, MO, for respondents.


The Shannon County Commission (Commission) appeals from an amended judgment vacating a section of a county road. The judgment reversed the Commission's earlier decision to deny a § 228.110 application to vacate the road filed by Margaret Ard and Robert Comely (referred to individually as Ard and Comely, and collectively as Landowners).1 The trial court decided the Commission's decision to deny Landowners' application was arbitrary and capricious. The Commission appealed and presents five points for decision. Because none of the Commission's points have merit, the trial court's judgment is affirmed.

Standard of Review

To determine the appropriate standard of review, an overview of the controlling statutory scheme is necessary. Landowners filed their application to vacate a section of the road at issue pursuant to § 228.110, which provides for vacation when a road or part thereof is “useless, and the repairing of the same an unreasonable burden upon the district or districts.” § 228.110.1. This statute further provides that [t]he county may, by order or ordinance, provide for notice and hearing of such petitions and for filing and hearing remonstrances against them.” § 228.110.4 (emphasis added).2 An appeal from a county commission's decision is governed by § 228.120, which provides that [a]ny order of the county commission establishing or vacating a public road shall be subject to judicial review to the same extent and in the manner prescribed by chapter 536, RSMo” § 228.120.2 RSMo (2000); see also Davis v. St. Charles County, 250 S.W.3d 408, 410 (Mo.App.2008).

Chapter 536, governing administrative procedure and review, distinguishes between review of “contested cases and non-contested cases.” Furlong Companies, Inc. v. City of Kansas City, 189 S.W.3d 157, 165 (Mo. banc 2006). As our Supreme Court explained in Furlong.

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. Section 536.140. 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.

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.

Id. (citations omitted).

“The key to the classification of a case as contested or noncontested is the requirement of a hearing.” City of Valley Park v. Armstrong, 273 S.W.3d 504, 507 (Mo. banc 2009); see also State ex rel. Christian Health Care Of Springfield, Inc. v. Missouri Dept. Of Health And Senior Services, 229 S.W.3d 270, 275 (Mo.App.2007) (“the issue in determining whether a case is contested is not whether a hearing was actually conducted, but whether one was required by law”). Because the Commission in this case was not required to conduct a hearing by § 228.110, the circuit court proceeding was an original action, conducted pursuant to § 536.150, to review the Commission's determination of a non-contested case. See State ex rel. Christian Health Care, 229 S.W.3d at 274–75;BBCB, LLC v. City of Independence, 201 S.W.3d 520, 526–28 (Mo.App.2006); see, e.g., Hedges v. County Court for Ray County, 581 S.W.2d 73, 78 (Mo.App.1979) (landowners were entitled to judicial review by the circuit court, as a non-contested case under § 536.150, of the county court's order vacating a road).3 Here, both Landowners and the Commission agree this is a non-contested case.

Review of a non-contested case pursuant to § 536.150 means the 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, 273 S.W.3d at 508. “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.

Following a circuit court's judgment in a § 536.150 proceeding to review an agency's decision in a non-contested case, an aggrieved party may appeal. State ex rel. Christian Health Care, 229 S.W.3d at 275. We review the judgment of the circuit court, rather than the decision of the administrative agency. Id. An appellate court “reviews the circuit court's judgment to determine whether its finding that the agency decision was or was not unconstitutional, unlawful, unreasonable, arbitrary, capricious, or the product of an abuse of discretion rests on substantial evidence and correctly declares and applies the law.” Missouri Nat. Educ. Ass'n v. Missouri State Bd. of Educ., 34 S.W.3d 266, 275 (Mo.App.2000). This standard requires an appellate court to accept the trial court's credibility determinations and view the evidence in the light most favorable to the judgment, while disregarding all contrary evidence and permissible inferences. State ex rel. Koster v. Morningland of the Ozarks, LLC, 384 S.W.3d 346, 350 (Mo.App.2012). Our summary of facts, which is set forth below, has been prepared in accordance with these principles.

Factual and Procedural Background

The county road at issue is CR 227. Landowners asked the Commission to vacate that part of CR 227 located on Landowners' properties (hereinafter referred to as the Ard and Comely section).4 In August 2009, Landowners filed their original application with the Commission to vacate the Ard and Comely section “in accordance with § 228.110[.] In December 2009, Landowners filed an amended application, along with a written request that the Commission notify them of the date and time of the Commission's next term. No notice of the next proceeding was provided to Landowners. On April 5, 2010, the Commission read the amended application and rejected it that same day without presentation of any evidence. There is no record of the Commission's proceeding that denied Landowners' application.

On April 30, 2010, Landowners filed a Petition for Judicial Review in the circuit court for review of the Commission's denial of Landowners' application. In this petition, Landowners alleged that: (1) they were authorized to seek judicial review pursuant to § 228.120.2 RSMo (2000); (2) they had no other adequate remedy at law; (3) the Commission failed to follow the statutory mandates of § 228.110; and (4) the Commission's actions were, inter alia, unlawful, arbitrary, capricious and/or unreasonable, and involved an abuse of discretion. The Landowners prayed that the court vacate the Commission's denial of Landowners' application and order vacation of the road. The Commission made no written response to the petition.

On September 1, 2011, a trial was held before the Hon. Harvey Allen. After the presentation of evidence, the matter was taken under advisement. Thereafter, the judge recused himself because of a possible conflict of interest. In January 2012, while waiting for the assignment of another judge, the parties entered into a Stipulation to Submit Case to Court for Determination” that was filed with the court. The parties stipulated “to the Court's determination of this cause based upon review by the Court of the pleadings, filings including briefs filed by counsel in support of their clients' respective positions, and transcript of the proceedings in the above-styled cause, without presentation of further evidence by the parties herein.” The case was assigned to the Hon. Randy Schuller.

In June 2012, the trial court entered a judgment reversing the Commission's decision to deny Landowners' application to vacate the Ard and Comely section. The court found that the Ard and Comely section “is useless and that the repairing of same would be an unreasonable burden upon the district....” In an amended judgment entered four weeks later, the court entered the same judgment but added a finding that the Commission's decision was “arbitrary and/or capricious.” This appeal followed.5 Additional facts necessary to the disposition of the case are included below as we address the Commission's five points on appeal. For ease of analysis, we will address the Commission's points out of order.

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