Gan v. Schrock

Decision Date06 September 2022
Docket NumberWD84637
PartiesXINSHENG (RANDY) GAN, Appellant, v. PENNY SCHROCK, APPOINTING AUTHORITY, DEPARTMENT OF SOCIAL SERVICES, DIVISION OF FINANCE AND ADMINISTRATIVE SERVICES, Respondent.
CourtMissouri Court of Appeals

Appeal from the Circuit Court of Cole County, Missouri The Honorable Cotton Walker, Judge

Before Janet Sutton, Presiding Judge, and Alok Ahuja and Karen King Mitchell, Judges

KAREN KING MITCHELL, JUDGE

Xinsheng (Randy) Gan appeals from the Administrative Hearing Commission's denial of his application for attorney's fees following his claim for improper dismissal from employment. On appeal, Gan raises four points challenging the Commission's decision. But, due to his multiple violations of Rule 84.04,[1] we dismiss this appeal.

Background

This case has come repeatedly before this court. It began after Gan was dismissed from his position with the Missouri Department of Social Services, Division of Finance and Administrative Services, in February of 2013. Schrock v Gan, 494 S.W.3d 631, 633 (Mo. App. W.D. 2016) (Gan I).

Gan, a merit system employee, appealed his dismissal to the [Administrative Hearing Commission (AHC)], and the AHC initially determined that Gan's dismissal was not for the good of the service and ordered that he be reinstated. Id. The Department sought review in the circuit court, and the circuit court reversed the AHC's decision finding that the AHC failed to use a proper analysis, and the court remanded the matter back to the AHC to reconsider under the proper analysis. Id. Gan appealed the circuit court's decision to this court, and we dismissed the appeal for lack of a final judgment and remanded the matter to the AHC for final determination. Id. at 637.
In March 2017, the AHC adopted its previous findings of fact found additional facts, and concluded that Gan's dismissal was not for the good of the service and reinstated him to his position as Research Analyst III. Schrock v Gan, 563 S.W.3d 127, 129 (Mo. App. W.D. 2018) (Gan II). The Department again sought review in the circuit court, and the circuit court again reversed the AHC's decision, finding that the AHC exceeded its authority and misapplied the law and that its determination was not supported by competent and substantial evidence upon the whole record. Id. Gan again appealed to this court and we held that there was no error in the AHC's determination that the Department failed to show that Gan's dismissal was for the good of the service. Id. at 136-37. Therefore, we reversed the decision of the circuit court, affirmed the decision of the AHC reinstating Gan to his former position, and remanded the matter to the AHC for determination of attorney's fees and costs. Id. at 137.
On February 14, 2019, the AHC reopened the matter to determine Gan's date of reinstatement and the amount of back pay to which he was entitled. The AHC held a hearing on July 24, 2019, wherein it received documentary evidence and testimony from Penny Schrock, the former Appointing Authority for the Department; Dawn Plybon, the current Appointing Authority for the Department; James Brinkmann, a vocational rehabilitation specialist; and Gan. The parties agreed that Gan's dismissal date was February 1, 2013, and that he was reemployed as a Research Analyst III with the Department on January 14, 2019. They also agreed that the total wages Gan would have received for the nearly six years he was unemployed was $239,399.19. The Department argued, however, that Gan was not entitled to the full amount as a result of his failure to mitigate his damages by working during the period between dismissal and reemployment. Gan argued that he was entitled to not only the full amount of lost wages but also additional compensation for (1) the difference in medical insurance premiums paid and those he would have paid under the State's medical plan (MCHCP), (2) the loss in value of social security benefits, (3) the value of all lost annual leave, and (4) the value of his lost time in the Missouri State Employees Retirement System (MOSERS).

Gan v. Schrock, 640 S.W.3d 451, 454-55 (Mo. App. W.D. 2022) (Gan III).

In Gan III, this court affirmed the AHC's decision, holding that "The AHC did not err in entering its order determining Gan's reinstatement date of February 1, 2013, nor in its determination of Gan's back-pay award." Id. at 462.

As part of his original claim, Gan filed an application for attorney's fees on June 18, 2014. Since then, he has periodically filed updated affidavits from counsel and receipts, identifying additional fees and expenses incurred. The AHC denied Gan's application on February 25, 2020, "due to lack of evidence"; specifically, the AHC indicated that Gan "did not establish that he met the definition of a 'party' under § 536.085(2)(a)" insofar as the record contained insufficient information "to determine Gan's net worth at any relevant time."[2] Gan sought judicial review of the AHC's decision, and the circuit court upheld the decision. Gan appeals.

Analysis

Gan raises four points on appeal in a brief that suffers from multiple violations of Rule 84.04. To begin, Gan's brief fails to include a statement of facts in violation of Rule 84.04(a)(3).[3] Instead, Gan's brief includes a "Statement of Procedural History," which consists of 37 mostly single-sentence, numbered paragraphs,[4] containing only procedural history and omitting facts necessary to determine his four points on appeal.[5] "A statement of facts that consists of nothing more than an abbreviated procedural history fails to provide an understanding of the case and is deficient." Parnes v. Centertainment, Inc., 14 S.W.3d 145, 147 (Mo. App. W.D. 2000) (quoting Angle v. Grant, 997 S.W.2d 133, 134 (Mo. App. S.D. 1999)). Thus, even if we considered Gan's "Statement of Procedural History" a substitute for the statement of facts (which we do not), it would violate Rule 84.04(c) insofar as it is not "a fair and concise statement of the facts relevant to the questions presented for determination."

Additionally, many of the paragraphs cite entire case files, e.g., "See Case No. 19-0115," or "See Case No. 20AC-CC00008." These citations violate Rule 84.04(c)'s requirement that "[a]ll statements of facts shall have specific page references to the relevant portion of the record on appeal, i.e., legal file, transcript, or exhibits." See Kent v. Charlie Chicken, II, Inc., 972 S.W.2d 513, 516 (Mo. App. E.D. 1998) (holding that a citation directing, "See the entire record," violated Rule 84.04(c)). "A violation of Rule 84.04(c), standing alone, constitutes grounds for dismissal of an appeal." Washington v. Blackburn, 286 S.W.3d 818, 820 (Mo. App. E.D. 2009).

But the violation of Rule 84.04(c) is just the beginning. Gan's brief also violates Rule 84.04(d) insofar as none of his points relied on comply with the requirements of the rule.

"Where the appellate court reviews the decision of an administrative agency," each "point shall be in substantially the following form":

The [name of agency] erred in [identify the challenged ruling or action], because [state the legal reasons for the claim of reversible error, including the reference to the applicable statute authorizing review], in that [explain why, in the context of the case, the legal reasons support the claim of reversible error].

Rule 84.04(d)(2). Although each of Gan's points contains a distinct legal conclusion related to the claim of error, none of the points "[e]xplain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error," as required by Rule 84.04(d)(2)(C). For example, Point I alleges that "Gan was denied a meaningful contested case hearing on his application for attorney's fees," but it provides no context explaining how the hearing he, in fact, received was not "a meaningful contested case." Similarly, Point IV states, "it will now require multiple hearings on attorney's fees instead of a single attorney's fees hearing as contemplated by 536.087 and Schrock v. Gan," without any context or explanation for why multiple hearings will be required. And it fails to connect the alleged need for multiple hearings with the claimed error- denial of his application for attorney's fees.

Unlike Points I and IV, Point II provides no facts from the underlying case and instead merely asserts a rule of law: "Section 537.087.3 RSMo mandates that the AHC issue a ruling on whether the State's dismissal of Gan was substantially justified." "Abstract statements of law, standing alone, do not comply with th[e] rule." Rule 84.04(d)(4). Instead, "[a] point relied on should provide insight into the facts of the case and the legal reasons why the Commission erred." Pearson v. Keystone Temp. Assignment Grp., Inc., 588 S.W.3d 546, 551 (Mo. App. E.D. 2019).

Point III, though identifying facts, fails to connect those facts to the claimed error. Point III states, "the AHC determined that Gan's showing that net worth did not exceed $2 million at the time of his dismissal was insufficient as a matter of law," but it does not challenge this determination as unfounded or erroneous. "Merely stating what errors are, without also stating why they are errors, neither complies with the rule nor preserves anything for review." Id. (quoting Jones v. Buck, 400 S.W.3d 911, 915 (Mo. App. S.D. 2013)). And, contrary to the purpose of the point relied on, this conclusion seems supportive of the AHC's decision to deny Gan's application for attorney's fees insofar as a determination that the evidence was insufficient to establish that Gan's net worth did not exceed $2 million would warrant a denial of attorney's fees. See note 1, supra.

"The requirement that the point relied...

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