Bird v. MISSOURI BD. FOR ARCHITECTS, WD 71451.

Decision Date11 May 2010
Docket NumberNo. WD 71451.,WD 71451.
Citation309 SW 3d 855
PartiesBruce F. BIRD, Appellant, v. MISSOURI BOARD FOR ARCHITECTS, PROFESSIONAL ENGINEERS, PROFESSIONAL LAND SURVEYORS AND LANDSCAPE ARCHITECTS, Respondent.
CourtMissouri Court of Appeals

John E. Taylor, Leawood, KS, for Appellant.

Chris Koster, Attorney General, Daryl Hylton, Assistant Attorney General, Jefferson City, MO, for Respondent.

Before Division II: MARK D. PFEIFFER, Presiding Judge, and VICTOR C. HOWARD and ALOK AHUJA, Judges.

MARK D. PFEIFFER, Presiding Judge.

Bruce F. Bird ("Bird") appeals from the judgment of the Cole County Circuit Court ("circuit court") dismissing Bird's application for attorney's fees and expenses ("fee application") as untimely. Bird argues that he filed the fee application within thirty days of finally prevailing against the Missouri Board for Architects, Professional Engineers, Professional Land Surveyors and Landscape Architects ("Board") in a licensing dispute. We agree.

Procedural History and Background Facts

The Board filed a complaint against Bird on May 2, 2003, alleging that he violated board regulations 4 CSR 30-3.030(7) and 4 CSR 30-13.010. On April 22, 2004, the Administrative Hearing Commission ("AHC") held a hearing, and on November 22, 2004, authorized discipline under section 327.441.2(6) ordering Bird's license suspended for three years followed by one year of probation. Subsequently, Bird filed a petition for judicial review on December 17, 2004. On December 30, 2005, the circuit court issued a judgment in Bird's case, which stated:

Now on this 30th day of December, 2005, this matter is again taken up by the court for the purpose of entering its final order and judgment.
The Court, having heard the argument of counsel, having reviewed the administrative record, and being fully advised in the premises, finds the issues in favor of the Petitioner (Bird) and against Respondent (the Board) .
WHEREFORE, this Court finds that the Findings of Fact, Conclusions of Law, Decision and Order of the Administrative Hearing Commission in Case No. 03-0563 AR is unlawful, unreasonable and unsupported by substantial and competent evidence on the record as a whole. This cause is REMANDED to the Administrative Hearing Commission for rehearing and findings not inconsistent with this order.
IT IS SO ORDERED.

The Board appealed the circuit court judgment to the Missouri Court of Appeals which on June 19, 2007, dismissed the appeal and remanded the case back to the circuit court with instructions to dismiss Bird's petition for judicial review.1 The Missouri Supreme Court then took transfer of Bird's case and itself reversed the AHC's decision on June 10, 2008.2 On September 3, 2008, the Missouri Supreme Court issued its mandate, and two days later, for the first time, Bird filed a fee application and a motion to recall the mandate with the Missouri Supreme Court. After Bird filed his fee application, the Board filed a "Motion to Dismiss Attorney's Fees Application" on September 22, 2008, which argued the identical timeliness issue upon which the circuit court ultimately relied upon. The Board's Motion to Dismiss did not, however, respond to the substance of Bird's fee application. On September 26, 2008, the Missouri Supreme Court issued an order requesting that the Board file suggestions in opposition to Bird's Motion for Attorney's Fees. The September 26 order specified that "said Suggestions should set forth information regarding whether the Board's position was substantially justified and/or any special circumstances that would make an award unjust."3 Thus, although the Board had filed a Motion to Dismiss arguing that a threshold issue defeated any substantive analysis of Bird's fee application, the Missouri Supreme Court responded by ordering the Board to address the merits of the application.4 The Board complied by filing Suggestions in Opposition on October 3, 2008. Notably, those Suggestions make no reference to the Board's Motion to Dismiss or to the timeliness arguments raised therein. On October 30, 2008, the Supreme Court issued an order which began: "Motion to recall the mandate sustained. Mandate ordered recalled. New mandate to issue...." On November 3, 2008, the Missouri Supreme Court then issued its amended mandate, which stated, in pertinent part:

The judgment of the Circuit Court of Cole county is affirmed as modified by the opinion of this Court herein delivered and the Circuit Court of Cole County is directed to set aside its prior judgment and to issue a new judgment in conformity with this Court's opinion. The circuit court also shall award, in the manner provided in section 536.087, RSMo 2000, what it finds to be Bruce F. Bird's reasonable fees and expenses incurred at the agency, trial and appellate level in this litigation, and the amount thereof, unless the circuit court finds that the position of the state was substantially justified or that special circumstances make an award unjust.

(Emphasis added.)

Back at the circuit court, the Board filed a motion with the circuit court to dismiss Bird's fee application for exactly the same reasons argued to the Missouri Supreme Court, that is, that the fee application was not timely. Pursuant to section 536.087,5 the circuit court concluded that Bird was required to file his fee application within thirty days of the final judgment with the court where he first prevailed. The circuit court stated that it issued its initial judgment in the cause on December 30, 2005, and upon ruling after-trial motions on March 27, 2006, the circuit court concluded that its initial judgment became final on March 27, 2006.6 Thus, the circuit court found section 536.087 required Bird to file his fee application in the circuit court within thirty days of March 27, 2006. However, more than two years later, Bird instead first filed a fee application with the Missouri Supreme Court on September 5, 2008. As a result, the circuit court entered its second judgment dismissing Bird's fee application and stated that the "defect is jurisdictional, and this Court has no jurisdiction to consider the application for attorney's fees and other expenses."7 This appeal follows.

Standard of Review

This case arises from the circuit court's dismissal of Bird's fee application pursuant to section 536.087. The standard of review for a circuit court's grant of a motion to dismiss is de novo. Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008).

The Mandate

In its initial judgment, the circuit court remanded the case to the AHC. In its opinion, the Missouri Supreme Court stated that there was no basis for the circuit court to remand the proceedings back to the AHC, and instead, the Missouri Supreme Court stated that "normally, this Court would affirm or reverse the decision of the trial court. In this case, however, the circuit court was correct in its decision to reverse the decision of the AHC, but there was, for the reasons set forth above, no basis for remand." Bird v. Mo. Bd. of Architects, 259 S.W.3d 516, 526 n. 14 (2008) (emphasis added). Therefore, in its mandate, the Supreme Court stated that the circuit court's judgment was "affirmed as modified by the opinion of this Court," and the circuit court was instructed to "set aside its prior judgment and to issue a new judgment in conformity with this Court's opinion." (Emphasis added.)

More importantly, after Bird had filed a fee application and Motion to Recall Mandate with the Supreme Court, after the Board filed a Motion to Dismiss the fee application on the grounds that Bird's fee application was untimely, after the Supreme Court issued an order directing the Board to address the merits of Bird's fee application, after the Board complied and did not file suggestions relying upon a timeliness argument, and after the Supreme Court sustained the Motion to Recall Mandate, the Supreme Court issued the following instruction in its amended mandate:

The circuit court also shall award, in the manner provided in section 536.087, RSMo 2000, what it finds to be Bruce F. Bird's reasonable fees and expenses incurred at the agency, trial and appellate level in this litigation, and the amount thereof, unless the circuit court finds that the position of the state was substantially justified or that special circumstances make an award unjust.

(Emphasis added.) The mandate's directive that "the circuit court ... shall award ... Bird's reasonable fees and expenses" is subject to only two, specifically identified contingencies: it requires a fee award "unless the circuit court finds 1 that the position of the state was substantially justified or 2 that special circumstances make an award unjust."8 To the contrary, the circuit court's dismissal did not rely upon either of the mandate-specified conditions.

Generally speaking, "`a mandate of an appellate court serves the purpose of communicating its judgment to a lower court. It has been described as an `official mode' of communication. It is not a judgment or decree but a notification of a judgment.'" Moore v. Beck, 730 S.W.2d 538, 540 (Mo. banc 1987) (quoting State v. Pub. Serv. Comm'n, 360 Mo. 339, 228 S.W.2d 738, 741 (1950)). But Moore and later cases make clear that an appellate court's mandate is not a mere transmittal. While the mandate, standing alone, may not constitute the appellate court's judgment, the directions a lower court must follow are to be found in the mandate and the appellate court's opinion, considered together. Moore itself explains that the "direction to the lower court on remand is determined not only by the terms of the mandate but also by the opinion of the appeals court which the mandate integrates." Moore, 730 S.W.2d at 541 (emphasis altered).

Other, more recent decisions make clear that the terms of the mandate, construed in light of the appellate court's opinion, control further proceedings in lower courts:

On remand, proceedings in the trial court should be in
...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT