Dickens v. Missouri Dept. of Health
| Decision Date | 31 October 2006 |
| Docket Number | No. ED 87591.,ED 87591. |
| Citation | 208 S.W.3d 281 |
| Parties | Chrystal L. DICKENS, Petitioner/Appellant, v. MISSOURI DEPARTMENT OF HEALTH AND SENIOR SERVICES, Respondent/Respondent. |
| Court | Missouri Court of Appeals |
Matthew J. Ghio, Chackes, Carlson, Spritzer & Ghio, LLP, St. Louis, MO, for appellant.
Amy L. Braudis, Assistant Attorney General, Jefferson City, MO, for respondent.
Petitioner, Chrystal L. Dickens, appeals from the circuit court's judgment dismissing for failure to prosecute her action seeking judicial review of an administrative decision by respondent, the Department of Health and Senior Services (DHSS). We affirm.
Petitioner was a certified nurse assistant at a long-term care facility. On December 3, 2004, DHSS sent a Notice of Violation to petitioner of its intent to place petitioner on the employee disqualification list for eighteen months for knowingly or recklessly abusing a resident of a licensed facility. Petitioner appealed. After an administrative hearing, DHSS entered a decision and order affirming the proposal to place petitioner on the employee disqualification list.
On June 22, 2005, petitioner filed a petition for judicial review in the circuit court. On July 22, 2005, she filed a Notice of Filing of Administrative Record, in which she recited that she was filing two audiotapes of the administrative hearing as part of the record. On August 6, 2006, DHSS notified petitioner's attorney that section 536.130.1(3) RSMo (2000)1 required petitioner to submit a transcript of the proceedings, that a transcript was necessary because the briefs could not cite audiotapes, and that DHSS would not agree to substitute the tapes for a transcript. DHSS further advised that it would not oppose a reasonable continuance for petitioner to prepare and file a transcript. Petitioner did not file a transcript, request a continuance, or respond to DHSS. On December 8, 2005, DHSS moved to dismiss the action for failure to prosecute for the reasons that petitioner had not filed a transcript and had not contacted DHSS about a continuance to file the transcript. After a hearing, the trial court granted the motion and dismissed the action.
We will not reverse a judgment dismissing an action for failure to prosecute in the absence of an abuse of discretion. Belleville v. Director of Revenue, 825 S.W.2d 623, 624 (Mo. banc 1992). An abuse of discretion occurs when the ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Id. at 624-25.
For her sole point on appeal, petitioner asserts that the trial court abused its discretion in granting DHSS's motion to dismiss for failure to prosecute because the parties disputed whether audiotapes of the hearing constituted a transcript for the purposes of section 536.130.1(3). We disagree.
First, this issue was not preserved for appeal. The legal file does not contain any document showing that petitioner ever raised this issue in the circuit court. There is no record that petitioner ever filed any motion, pleading, or response to a motion or pleading indicating that she was taking the position that the audiotapes constituted a transcript. The judgment entered by the court does not reference this issue. We will not convict a circuit court of error on theories that were not presented to it. Watts v. Sechler, 140 S.W.3d 232, 236 (Mo.App.2004).
In her brief petitioner contends that she orally raised this issue at the hearing on the motion to dismiss. No record was made of this proceeding. It was petitioner's responsibility to have a record made in order to preserve this claim for appeal. Leahy v. Leahy, 858 S.W.2d 221, 228-29 (Mo. banc 1993).
Even if this issue was preserved, it has no merit. Rule 100.01 provides that the provisions of sections 536.100 through 536.150 govern procedures in circuit courts for judicial review of actions of administrative agencies, unless the statute governing a particular agency has different provisions. Section 536.130.1...
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Egan v. St. Anthony's Medical Center
...not find that a trial court committed error for failing to consider theories not presented to it. Dickens v. Mo. Dept. of Health & Senior Serv's., 208 S.W.3d 281, 283 (Mo.App. E.D.2006). Point Based on the foregoing, we find that the trial court did not err in determining that St. Anthony's......
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Ice v. Harris
...Court reviews an action for failure to prosecute under an abuse of discretion standard of review. Dickens v. Missouri Dept. of Health and Senior Srvs., 208 S.W.3d 281, 282 (Mo.App.2006). "An abuse of discretion occurs when the ruling is clearly against the logic of the circumstances then be......