City of Richmond v. Suddarth, WD 61809.

CourtCourt of Appeal of Missouri (US)
Citation120 S.W.3d 212
Docket NumberNo. WD 61811.,No. WD 61810.,No. WD 61809.,WD 61809.,WD 61810.,WD 61811.
PartiesCITY OF RICHMOND, Respondent, v. Donald SUDDARTH, Appellant.
Decision Date30 September 2003

Bruce B. Brown, Kearney, for Appellant.

R. Brian Hall, North Kansas City, for Respondent.



On June 13, 2001, the City of Richmond ("City"), pursuant to ordinances in compliance with the enabling legislation contained in Section 67.400,1 proposed the demolition of three of appellant Donald Suddarth's buildings, which the City, at the conclusion of a hearing, deemed a nuisance. During the hearing, Suddarth was unrepresented by counsel, as he was when he filed three so-called "Motions to Appeal" in the Circuit Court of Ray County. Suddarth had not filed a copy of the record with the court, within thirty days of the filing of any of these motions, as required by Section 536.130.2 The City moved to dismiss his motions for, among other reasons, failure to timely file a copy of the administrative record. At this point, Suddarth hired counsel. Seven months later, still no record had been filed with the trial court. On June 12, 2002, the trial court granted the City's motion to dismiss the Suddarth motions, treating them as petitions for judicial review. The judgment of dismissal was without prejudice and was entered June 12, 2002, nearly one year after the City's demolition order. Suddarth's appeal followed. A timeline of the procedural events follows:

                Date Description
                June 13, 2001     The City, after hearing, enters an order declaring three of Suddarth's
                                  buildings dangerous
                July 13, 2001     Suddarth files in the circuit court a "Motion to Appeal" City's determination
                                  that the buildings are dangerous
                October 2, 2001   The City files a motion to dismiss the cases on several grounds, including
                                  Suddarth's failure to comply with Section 536.130.4 by not filing a record
                October 17, 2001  Suddarth retains counsel
                May 7, 2002       Hearing is held on the City's motion to dismiss. Court notes that
                                  Suddarth still had failed to file the record
                June 12, 2002     The Court, pursuant to Section 536.130.4 (failure to file a record), sustains
                                  the City's motion, and without prejudice dismisses Suddarth's "Motion to


Before proceeding to the merits, this court must first ascertain whether there has been a final judgment of the dismissal of what is in reality Suddarth's petition for judicial review under Section 536.130. See Logan v. Sho-Me Power Elec. Coop., 83 S.W.3d 109, 111 (Mo.App. 2002). In general, a dismissal without prejudice is not a final judgment and, hence, not appealable, unless an exception applies. Chromalloy Am. Corp. v. Elyria Foundry Co., 955 S.W.2d 1, 3 (Mo. banc 1997). There are two exceptions to this rule. Id. "[W]here the dismissal has the practical effect of terminating the litigation in the form cast or in the plaintiff's chosen forum" or where dismissal "may operate to preclude the party from bringing another action for the same cause and may be res judicata of what the judgment actually decided," an appeal will lie. Id.

In this case, a dismissal of Suddarth's appeal would kill any attempt by him to have the City's demolition order reviewed. Suddarth's petition was dismissed without prejudice. "A dismissal without prejudice permits the party to bring another civil action for the same cause, unless the civil action is otherwise barred ..." Rule 67.01. Here, a new petition for review would be "otherwise barred," for if this court were to dismiss Suddarth's appeal for lack of a final judgment, Section 536.110, which requires a party to file a petition for review of an agency decision within thirty days "after the mailing or delivery of the notice of the agency's final decision," would bar him from refiling, since this thirty-day period has long since expired. See Rackley v. Firemen's Ret. Sys., 848 S.W.2d 26, 29 (Mo.App.1993). Because Chrommalloy's first exception applies, this court has jurisdiction to review the trial court's judgment.

The trial court concluded that Suddarth's failure to file a record warranted the dismissal of his petition. The filing of a record within the thirty-day period established by Section 536.130.4 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.2001). However, just as the reviewing trial court may exercise its discretion to extend the deadline for filing the record, Knapp v. Mo. Local Gov't Employees Ret. Sys., 738 S.W.2d 903, 910-11 (Mo.App.1987), so it may, in its discretion, decide not to extend the time—that is, it may dismiss the suit. Bland v. City of Trenton, 618 S.W.2d 438, 441 (Mo.App.1981); Gore v. Wochner, 558 S.W.2d 333, 335 (Mo.App.1977). (The failure to file a record is akin to failure to prosecute, for which the trial court has the inherent power to dismiss a civil or criminal action. See State v. Honeycutt, 96 S.W.3d 85, 89 (Mo. banc 2003).) Discretionary decisions are presumed correct and reversed only when the trial court has abused its discretion. Mo. Dep't of Transp. ex rel. PR Developers, Inc. v. Safeco Ins. Co. of Am., 97 S.W.3d 21, 40 (Mo.App.2002). If the trial court's decision is reasonable, it has not abused its discretion. Id.

In this court, Suddarth admits that he has not complied with Section 536.130.4, but, nevertheless, contends the trial court erred because it failed to take into account, under a theory he now proposes, the City's burden of proof regarding the filing of a record. According to Suddarth, a trial court may not grant an agency's motion to dismiss a petition for review unless the court first concludes that the movant-agency has proved (1) that it prepared a record and (2) that it was prejudiced by the non-movant's failure to timely file a record. Suddarth has not claimed that the City did not create a record nor that the City refuses to provide him a copy of the record. It should again be noted that Suddarth has never requested the record nor has he, ante or post counsel, ever attempted to obtain court approval for additional time in which to supply the record.



Suddarth assumes that a motion to dismiss for failure to timely file a record as required by Section 536.130.4, cannot be granted unless the trial court first finds that the administrative agency—here, the City—actually produced an adequate record. There is no such requirement in Section 536.130 or in any other authority cited by Suddarth.

What Suddarth is asking this court to do is to excise the burden on petitioners seeking review of agency adjudications where the agency acts as both prosecutor and adjudicator. The general rule is that appellants (petitioners seeking judicial review of agency decisions are akin to appellants) have the burden to provide a record on appeal that provides meaningful review. Wright v. Dir. of Revenue, 50 S.W.3d 344, 346 (Mo.App.2001). Section 536.130.4 clearly places the burden of filing a record on the plaintiff-petitioner.

The general rule and Section 536.130 seem to presuppose that an adequate record was prepared. Against this conclusion, Suddarth argues that because the City had the burden to prove that he did not timely file a proper record, this implies that the City has the burden to first prove that a record was produced. However, to prevent dismissal of his case, all Suddarth had to do was to ask the City to transmit a copy of the record to the clerk of the reviewing court. § 536.130.4. If the City failed to do so, Suddarth could have applied for a writ of mandamus. State ex rel. Bunker Res. Recycling & Reclamation, Inc. v. Mehan, 782 S.W.2d 381, 389 (Mo. banc 1990) ("A writ of mandamus may issue in cases where the ministerial duties sought to be coerced are simple and definite, arising under conditions admitted or proved and imposed by the law."). Because fairness does not necessitate creating Suddarth's proposed burden of proof and because such a burden of proof would result in a waste of judicial and administrative resources, this court rejects Suddarth's claim, a claim to which his other arguments, which this court now turns to provide no support.

Suddarth relies on Rose v. State Board of Registration for Healing Arts, in which the Supreme Court of Missouri held that "simply because the administrative agency initiates the charge and then tries it does not, alone and of itself, vitiate the proceedings... due process is accorded despite such procedure, where judicial review is provided." 397 S.W.2d 570, 574 (Mo.1965). He claims that, unless this court recognizes this burden of proof, his right to judicial review would be gutted. He is mistaken; judicial review was available to Suddarth and all those in his position. He just didn't comply with the procedural ground rules for review, rules that Rose does not put into question.

In Gore v. Wochner, 558 S.W.2d 333, 335 (Mo.App.1977), this court held that a plaintiffs right to judicial review of an agency decision requires plaintiff-petitioner to file a copy of the transcript within the...

To continue reading

Request your trial
7 cases
  • Covert v. Dir., Mo. Dep't of Soc. Servs., ED 109952
    • United States
    • Court of Appeal of Missouri (US)
    • 15 Noviembre 2022
    ...Regional Hosp. , 922 S.W.2d 840, 842 (Mo. App. E.D. 1996).These principles apply in administrative cases. City of Richmond v. Suddarth , 120 S.W.3d 212, 214–15 (Mo. App. W.D. 2003) (dismissal without prejudice is not normally a final judgment, but it is when as here a new petition for revie......
  • Covert v. Dir., Mo. Dep't of Soc. Servs., ED109952
    • United States
    • Court of Appeal of Missouri (US)
    • 15 Noviembre 2022
    ...Regional Hosp., 922 S.W.2d 840, 842 (Mo. App. E.D. 1996). These principles apply in administrative cases. City of Richmond v. Suddarth, 120 S.W.3d 212, 214-15 (Mo. App. W.D. 2003) (dismissal without prejudice is not normally a final judgment, but it is when as here a new petition for review......
  • Aust v. Platte Cnty., WD 78181
    • United States
    • Court of Appeal of Missouri (US)
    • 29 Diciembre 2015
    ...filed within the 30–day period, the circuit court has the discretion to dismiss the petition for review. City of Richmond v. Suddarth, 120 S.W.3d 212, 215 (Mo.App. W.D.2003). A circuit court contemplating dismissing a petition for failure to timely file an adequate record under Section 536.......
  • Brown v. Bennett, WD 62959.
    • United States
    • Court of Appeal of Missouri (US)
    • 22 Junio 2004
    ...the claim that Brown could have discovered the cause of the flooding by exercising reasonable care. See City of Richmond v. Suddarth, 120 S.W.3d 212, 217 (Mo.App.2003) (argument deemed abandoned where appellant fails to cite authority on point or to explain absence 2. The Bennetts contend t......
  • Request a trial to view additional results

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