Buescher Mem'l Home, Inc. v. Mo. State Bd. of Embalmers & Funeral Dirs., WD 75907.

Decision Date05 November 2013
Docket NumberNo. WD 75907.,WD 75907.
PartiesBUESCHER MEMORIAL HOME, INC., et al., Respondents, v. MISSOURI STATE BOARD OF EMBALMERS AND FUNERAL DIRECTORS, Appellant.
CourtMissouri Court of Appeals

OPINION TEXT STARTS HERE

Clifford W. Cornell, Jefferson City, MO, Attorney for Respondents.

Chris Koster, Attorney General, Margaret K. Landwehr, Assistant Attorney General, Jefferson City, MO, Attorneys for Appellant.

Before Division II: MARK D. PFEIFFER, Presiding Judge, and JOSEPH M. ELLIS and VICTOR C. HOWARD, Judges.

MARK D. PFEIFFER, Presiding Judge.

The Missouri State Board of Embalmers and Funeral Directors (“the Board”) appeals from the Judgment of the Circuit Court of Cole County, Missouri (circuit court), reversing the Board's discipline of the licenses of Barbara Buescher (Buescher) and Buescher Memorial Home (Funeral Home) (collectively, “Licensees”) after a finding by the Administrative Hearing Commission (“AHC”) of over 120 causes to discipline. We reverse.

Factual and Procedural Background

Buescher, a licensed funeral director and embalmer, operated the Funeral Home, a licensed funeral establishment located in Jefferson City, Missouri. In 2008, the Board filed a Complaint with the AHC to establish cause to discipline the licenses of Licensees. The Board filed a motion for summary determination, which the AHC denied because there had been no service obtained on Licensees.

Thereafter, the Board filed a First Amended Complaint with the AHC, seeking a determination from the AHC that cause existed to discipline Buescher's funeral director and embalmer licenses and the Funeral Home's funeral establishment license and preneed seller and provider registrations. The original Complaint, the AHC's notice of Complaint/notice of hearing, the Board's motion for summary determination and the AHC's order denying same, the first amended complaint, and the AHC's notice setting the hearing were personally served on Licensees. The Licensees did not file an answer to the original or first amended complaint, thereby admitting the allegations. The Board later served a Second Request for Admissions on the Licensees, as to the facts alleged in the Complaint, to which the Licensees did not respond, thereby admitting the requests for admission.

The Board filed a Second Motion for Summary Decision. The Licensees did not file a response. The AHC granted Summary Decision 1 to the Board and issued its decision, finding over 120 causes to discipline Licensees' licenses and registration. In its final decision, the AHC documented the over 120 causes for discipline citing incompetence, gross negligence, violations of professional trust and confidence, monetary misconduct, and a complete disregard and refusal to cooperate with the investigative process by the Board's investigators.

After the AHC issued its decision, which, in part, directed the Board to determine and impose discipline, the Board held a disciplinary hearing to determine the appropriate discipline to impose against Licensees' licenses and registration.2 Licenseesreceived notice of the hearing but did not appear in person or by legal counsel. Following the hearing, the Board issued a revocation of all of Licensees' licenses and registrations.

Licensees filed a timely Petition for Review and Request for Stay of the administrative action. The circuit court held a hearing on September 16, 2010, and decided that it would rule on the issue of the stay along with the Petition for Review. Licensees filed a motion pursuant to section 536.140.4 for leave to submit and argue additional evidence and/or irregularities in the disciplinary hearing and unfairness by the Board. The circuit court held a hearing and required the Board to file a motion to submit additional evidence in order to reply to Buescher's evidence. A hearing was held on November 1, 2010, at which Martin Vernon (“Vernon”), the Board chairman at the time of Licensees' disciplinary hearing; John McCulloch (“McCulloch”), Board member and owner of American Prearranged Services, Inc. (“APS”), a preneed company that had previously done business with Buescher; a representative of the Attorney General's Office (“AGO”); the Executive Director of the Board; and Buescher testified.

Thereafter, on July 13, 2012, the Board filed a motion to dismiss the Petition for Review, arguing that because no stay of the revocation of Licensees' licenses had been issued, and because Licensees' licenses had not been renewed for over two years, the licenses were void by operation of law and the pending action was moot. The circuit court denied the motion.

On October 30, 2012, the circuit court issued its Findings of Fact, Conclusions of Law, and Judgment. The circuit court determined that the Licensees' preneed registrations were void by operation of law. The circuit court found in the Board's favor on all issues raised by the Licensees, except for the due process issue, concluding that the Board's hearing was fatally flawed because of: (i) disciplinary hearing notice defects; and (ii) the presence or participation of two biased Board members thereby creating the “appearance of impropriety and actual impropriety as to the disciplinary process.” The circuit court also entered a stay with regard to the Board's revocation of Buescher's embalmer's license and funeral director's license, and of the Funeral Home's funeral establishment license. The circuit court reversed the Board's decision and remanded the matter to the Board for a new hearing on the issue of what discipline, if any, the Board may exercise with regard to the discipline of Licensees' licenses.

The Board timely appealed.3

Standard of Review

Generally, on appeal from the circuit court's review of an agency decision, the appellate court does not review the circuit court's judgment but, rather, we review the AHC's findings and conclusions and the Board's discipline as one decision.4Albanna v. State Bd. of Registration for Healing Arts, 293 S.W.3d 423, 428 (Mo. banc 2009); Bird v. Mo. Bd. of Architects, Prof'l Eng'rs, Prof'l Land Surveyors & Landscape Architects, 259 S.W.3d 516, 520 (Mo. banc 2008); see§ 621.145. The whole record is viewed objectively and not in the light most favorable to the agency's decision. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003). We will affirm the AHC's decision and the Board's disciplinary order unless the agency 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;

(7) Involves an abuse of discretion.

§ 536.140.2, RSMo Cum.Supp.2012. (Emphasis added.)

In this case, the point of disagreement is not whether grounds existed to discipline Buescher's and Funeral Home's licenses; but instead, whether Licensees produced clear and convincing additional evidence, pursuant to section 536.140, to the circuit court of a violation of Licensees' due process right to a fair disciplinary hearing sufficient to overcome the strong presumption in favor of the validity of the administrative determination. “The clear and convincing standard refers to evidence that instantly tilts the scales in the affirmative when weighed against the opposing evidence, leaving the fact finder with an abiding conviction that the evidence is true.” State ex rel. Dep't of Soc. Servs., Div. of Child Support Enforcement v. Stone, 71 S.W.3d 643, 646 (Mo.App.W.D.2002). Thus, the dispositive issue in this case is the correctness of the circuit court's judgment concluding that the Board's decision was unconstitutional and unfair because of the presence or participation of two Board members who were allegedly biased, thereby creating “the appearance of impropriety and actual impropriety as to the disciplinary process.”

“It is presumed that administrative decisionmakers act honestly and impartially.” Burgdorf v. Bd. of Police Comm'rs, 936 S.W.2d 227, 234 (Mo.App.E.D.1996), overruled on other grounds by Bird, 259 S.W.3d at 521. The party challenging that presumption has the burden of overcoming it. Id. “The court indulges a strong presumption in favor of the validity of an administrative determination and will not assume that an administrative body was improperly influenced absent clear and convincing evidence to the contrary.” Orion Sec., Inc. v. Bd. of Police Comm'rs of Kansas City, 90 S.W.3d 157, 164 (Mo.App.W.D.2002) (internal quotation omitted). Pursuant to section 536.140.6, [a]ppeals may be taken from the judgment of the [circuit] court as in other civil cases.” “A trial court's determination of an administrative decisionmaker's impartiality is reviewed for abuse of discretion.” Burgdorf, 936 S.W.2d at 234.

Analysis

The Board raises three issues on appeal, alleging circuit court error. However, because Point III is dispositive of this appeal, we need not address Points I 5 or II.6See Whitworth v. McBride & Son Homes, Inc., 344 S.W.3d 730, 737 (Mo.App.W.D.2011).

III—Due Process

In Point III, the Board asserts that the circuit court erred in reversing and remanding this case for a new disciplinary hearing because there was no lack of due process. Specifically, the Board asserts that Licensees received adequate notice 7 and a fair disciplinary hearing, which they chose not to attend.

“The procedural due process requirement of fair trials by fair tribunals applies to an administrative agency acting in an adjudicative capacity.” Fin. Solutions & Assocs. v. Carnahan, 316 S.W.3d 518, 522 (Mo.App.W.D.2010) (internal quotation omitted). Administrative tribunals acting in a quasi-judicial capacity must be free of “actual bias or the probability of bias” but such quasi-judicial administrative tribunals are not subject to due process claims of unfairness merely on...

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