Coleman v. MISSOURI SECRETARY OF STATE, WD 71390.
| Citation | 313 S.W.3d 148 |
| Decision Date | 29 June 2010 |
| Docket Number | No. WD 71390.,WD 71390. |
| Parties | Stephen M. COLEMAN, et al., Appellants, v. MISSOURI SECRETARY OF STATE, Commissioner of Securities, Respondent. |
| Court | Court of Appeal of Missouri (US) |
Larry D. Coleman, Raytown, MO, for appellants
J. Scott Stacey, Jefferson City, MO, for respondent.
Before Division One: KAREN KING MITCHELL, Presiding Judge, LISA WHITE HARDWICK, Judge and CYNTHIA L. MARTIN, Judge.
Stephen Coleman, Daedalus Capital, LLC, Chicken Little Fund Group, Daedalus Alpha, Inc., and Alpha Strategy Fund, L.P.1 (collectively, "Coleman") appeal from the trial court's judgment dismissing their petition for review due to Coleman's failure to exhaust administrative remedies. Coleman claims that the trial court erred in: (1) holding that it lacked subject matter jurisdiction to determine the propriety of the "final order" entered by the Commissioner of Securities ("Commissioner"); (2) holding that Coleman failed to exhaust administrative remedies; and (3) failing to hold that the Commissioner failed to discharge his duties as required by law. We affirm.
On October 17, 2007, the Securities Division (the "Division") of the Office of Secretary of State filed a Petition for an Order to Cease and Desist, to Show Cause why Civil Penalties and Costs Should not be Imposed ("Petition"), and to refer the matter to the administrative hearing commission for revocation of registration against Coleman individually, and two of the entities he controlled. The Petition alleged that Coleman violated multiple securities regulations in an effort to defraud.
On October 25, 2007, the Commissioner of Securities ("Commissioner") entered a corresponding Order that Coleman Cease and Desist and Show Cause why the Commissioner should not impose Civil Penalties and Costs ("Cease and Desist Order") against Coleman. The Cease and Desist Order informed Coleman that pursuant to sections 409.6-604(d)3 and 409.4-412(c) of the Missouri Securities Act, the Commissioner would determine whether to grant the Division's Petition and to impose civil penalties in a Final Order unless Coleman requested a hearing and showed cause why penalties should not be imposed. Coleman also received a separate pleading entitled "Notice." In the Notice, Coleman was again informed of his right to request a hearing within thirty days. Although the legal file does not include a copy of Coleman's request for a hearing, it appears uncontested as evidenced by the parties' briefs that a timely request for a hearing was made by Coleman.
On January 17, 2008, a pre-hearing conference was held. Coleman appeared by counsel. Both Coleman and the Division requested that a preliminary date scheduled for the hearing requested by Coleman be continued to permit discovery. The hearing was continued to March 27, 2008. On March 26, 2008, the hearing was again continued, on the Division's request, to May 15, 2008. On May 13, 2008, the Commissioner ruled on various pending motions and once again continued the hearing to June 26, 2008. On June 17, 2008, the Division requested a continuance to complete additional discovery and to permit the Division to file an Amended Petition. On June 25, 2008, the Commissioner continued the hearing to August 21, 2008. On July 25, 2008, the Division filed an Amended Petition adding two other entities Stephen Coleman controlled and adding additional counts.
On August 18, 2008, another pre-hearing conference was held. Coleman appeared by counsel. The hearing was once again continued to October 23, 2008. On August 27, 2008, the Commissioner entered an amended order ("Amended Cease and Desist Order"), which corresponded to the Division's Amended Petition. The Commissioner stated that all issues raised by the Amended Cease and Desist Order would be addressed at the hearing scheduled on October 23 and 24, 2008, and that if any party wished to do so, a separate hearing could be requested and would be thereafter scheduled.
On October 17, 2008, Coleman filed a motion to enforce discovery and a motion for continuance of the hearing. On October 21, 2008, the Division filed objections to both motions and a status conference was held. The hearing was again continued to December 1, 2008.
On November 13, 2008, Coleman sent a notice to take a deposition to the Division. Five days later, Coleman sent an email to the Division cancelling the deposition and stating that he was uncertain whether he would appear for the hearing. On November 19, 2008, a status conference was held to discuss Coleman's appearance at the hearing. On November 21, 2008, Coleman submitted a Notice of Withdrawal of Hearing Request ("Withdrawal Notice"). The Withdrawal Notice stated that Coleman and all of his related entities were "withdrawing their hearing request for the hearing currently set for December 1, 2008 and December 2, 2008, owing to Fifth Amendment issues." As a result, the Commissioner did not conduct a hearing on December 1, 2008.
Although not included in the legal file, it appears the Division filed a Petition for Final Order on December 12, 2008. Though not entirely clear from the record, it appears the Petition for Final Order requested specific penalties against Coleman. On January 30, 2009, the Commissioner entered its Final Order to Cease and Desist and Order "Imposing Civil Penalties and Costs as to all Respondents" ("Final Order"). In the Final Order, the Commissioner found that Coleman did not submit a response to the Petition for Final Order. The Commissioner found that Coleman's withdrawal of a hearing request, coupled with the Petition for Final Order to which Coleman did not respond, eliminated the need for a hearing. The Final Order declared that the Cease and Desist Order and the Amended Cease and Desist Order were final. The Final Order also directed Coleman to pay certain penalties as had been specified in the Division's Petition for Final Order.
On February 25, 2009, Coleman filed a petition for review with the trial court. Coleman argued that the Commissioner failed to afford a hearing, that there was no factual or legal basis for the adjudication, that the Commissioner acted outside of his jurisdiction, and that he was denied due process. The Commissioner filed a motion to dismiss Coleman's petition for review. The trial court sustained the motion to dismiss. The trial court entered its Judgment dismissing Coleman's petition for review finding that it was without subject matter jurisdiction to entertain Coleman's petition for review because of Coleman's failure to exhaust administrative remedies.4 Coleman appeals.
Our review of the trial court's dismissal of a petition for lack of subject matter jurisdiction presents a question of law which is reviewed de novo. Oanh Thile Huynh v. King, 269 S.W.3d 540, 542 (Mo.App. W.D.2008). Our review of dismissal of a case for failure to state a claim upon which relief can be granted is also de novo. Hamid v. Kansas City Club, 293 S.W.3d 123, 125 (Mo.App. W.D.2009).
Rule 84.04 violations
Preliminarily, we note Coleman's brief is deficient in several respects. The legal file submitted by Coleman fails to include the Petition or the Amended Petition, the Petition for Final Order, the Cease and Desist Order, or the Amended Cease and Desist Order. Although the Commissioner submitted a supplemental legal file which contained some of these documents, Coleman's failure to provide this court with the documents necessary for appellate review is a basis for dismissal of his appeal. Lewis v. Allstate Ins. Co., 131 S.W.3d 451, 453 (Mo.App. W.D.2004). "Rule 81.12(a) specifically requires the legal file to include `the pleadings upon which the action was tried, the verdict, the findings of the court or jury, the judgment or order appealed from, motions and orders after judgment, and the notice of appeal....'" Id. Coleman failed to satisfy his duty under Rule 81.12(c) to prepare and provide this court with an adequate legal file.
Coleman's statement of facts fails to comply with Rule 84.04(i), which requires that all statements of fact and argument shall have specific page references to the legal file. Coleman provides one cite to the legal file at the end of each paragraph. This is insufficient. The requirement that all statements of fact and argument in an appellate brief have specific page references to the legal file or the transcript is mandatory and essential for the effective functioning of appellate courts because courts cannot spend time searching the record to determine if factual assertions in the brief are supported by the record; to do so would effectively require the court to act as an advocate for the non-complying party. Lueker v. Mo. W. State Univ., 241 S.W.3d 865, 868 (Mo.App. W.D. 2008).
Coleman's statement of facts is also grossly deficient as it fails to advise this court of any of the facts preceding the entry of the Final Order by the Commissioner, though one of Coleman's issues on appeal relates to whether the trial court erroneously dismissed Coleman's petition for review for failing to exhaust administrative remedies. Rule 84.04(c) requires a statement of facts to be a "fair and concise statement of the facts relevant to the questions presented for determination." But for the Commissioner's legal file, this court would have been completely unable to discern the factual and procedural history preceding the Commissioner's entry of the Final Order as to permit it to evaluate the merit of Coleman's claim of improper dismissal of his petition for review.
Coleman also fails to comply with Rule 84.04(d)(5), which provides that immediately following each point relied on, the appellant shall include a list of cases and the constitutional, statutory, and regulatory provisions or other authority principally relied on. In addition,...
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