Hunter v. Madden

Decision Date04 April 1978
Docket Number38724,Nos. 38714,s. 38714
Citation565 S.W.2d 456
PartiesLaVerne HUNTER, Administratrix of the Estate of Emil Hunter, Deceased, and LaVerne Hunter, Plaintiffs-Respondents-Appellants, v. William MADDEN, Glenn Smith, Philip V. Paul, Defendants-Appellants-Respondents. . Louis District,Division Four
CourtMissouri Court of Appeals

Walsh, Howe & Ebert, Robert T. Ebert, Clayton, for LaVerne Hunter.

Paul Taub, Overland, for William Madden, Glenn Smith and Philip V. Paul.

SNYDER, Judge.

Mandamus action brought by LaVerne Hunter individually and as administratrix of the estate of Emil Hunter, deceased. Plaintiff LaVerne Hunter, administratrix, in Count I sought a writ of mandamus to the Board of Trustees of the Community Fire Protection District requiring the board to hold a hearing on the application of Emil Hunter, plaintiff's deceased husband, for disability benefits under the district's pension plan. Plaintiff LaVerne Hunter, individually, in Count II sought mandamus against the same board to require the members to hold a hearing on her application for widow's death benefits under the pension plan. Plaintiff LaVerne Hunter, administratrix, appeals from the Count I judgment denying a peremptory writ of mandamus as to her deceased husband's application for disability benefits. 1 Defendant trustees appeal the Count II judgment granting a writ of mandamus as to LaVerne Hunter's application for widow's benefits. The parties' joint motion to consolidate the appeals was granted. The petition included a third count for damages which was dismissed by the trial court. No appeal was taken as to the judgment on this count and the issue has been abandoned.

Plaintiff moved to dismiss defendants' appeal alleging that defendants' brief failed to comply with Rule 84.04(a) and (d) which requires an appellant to state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous. We have examined the motion, defendants' brief and the suggestions in support and in opposition to the motion submitted by the respective parties. The motion is denied.

Emil Hunter was first employed as a fireman by the Community Fire Protection District of St. Louis County on January 25, 1953. He attained the rank of Captain. His employment terminated on April 12, 1969 when he became totally disabled. He died on November 3, 1971 after undergoing surgery at Wohl Hospital after a fall in the bathroom of his residence.

The Community Fire Protection District had established a pension plan by the passage on December 6, 1966 of Ordinance 66-1 which was amended on December 20, 1966 by Ordinance 66-2. The plan provided for retirement and disability benefits for salaried members of the district and "for the payment of death benefits to the widows and minor children of salaried members of the district who lose their lives in the performance of their duties, * * *."

Captain Hunter applied for benefits under the plan alleging that he had become disabled and that the disability was caused by disease to his heart and lungs suffered in the line of duty as a fireman. On February 13, 1970 the defendant trustees, through their attorney, wrote a letter to Captain Hunter advising him that the board by resolution had voted to deny him benefits from the pension fund because his disability was not incurred in the line of duty. The denial was based on a review of his medical history and a subsequent examination by the district's medical board, the majority of whom were of the opinion that smoke inhalation was not the primary cause of his disability. No action was taken by Captain Hunter in response to this denial of benefits until September 24, 1970 when he filed suit seeking mandamus in the Circuit Court of St. Louis County. On October 23, 1974 the suit was dismissed for lack of jurisdiction. The petition here in question was filed on October 7, 1975.

The court ordered an alternative writ of mandamus to issue as prayed. Defendants' return to the alternative writ included a motion to dismiss plaintiff's petition. The court granted the motion to dismiss as to Counts I and III but denied the motion as to Count II. After hearing evidence, the court ordered a peremptory writ of mandamus to issue on Count II commanding the defendants to grant plaintiff LaVerne Hunter a hearing on her application for widow's benefits. Timely appeals followed except as to Count III.

We shall consider first plaintiff's appeal from the judgment dismissing Count I which related to Captain Hunter's application for disability benefits. We affirm the trial court's judgment as to Count I.

Chapter 536, RSMo 1959 relates to rules of administrative agencies (§ 536.010 through § 536.050), procedures by and before agencies (§ 536.060 through § 536.095) and judicial review of administrative decisions (§ 536.100 through § 536.150). It is applicable to municipal as well as state agencies. State ex rel. Leggett v. Jensen, 318 S.W.2d 353, 356(2) (Mo. banc 1958).

Rule 100 contains language identical to that in certain of the sections in Chapter 536 governing judicial review of administrative decisions. Rules 100.03 through 100.07 relate to judicial review of "contested cases" as defined in 100.01. Rule 100.08 relates to review of uncontested cases "by suit for injunction, certiorari, mandamus, prohibition or other appropriate action." A "contested case" is defined in Rule 100.01 as follows: "a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after hearing."

The initial question presented in connection with Captain Hunter's application for disability retirement benefits is whether it is a "contested case" under Rule 100. If so, a timely appeal would have required the filing of a petition for review within 30 days after the mailing of the notice of the board's final decision to Captain Hunter on February 13, 1970. Rule 100.04. If this is not a "contested case", the remedy of Captain Hunter would have been the filing of a petition for certiorari as permitted by Rule 100.08 in cases other than contested cases and as mandated by Section 4 of Ordinance 66-1. No time limitation is specified either in the rule or in the ordinance for the filing of a petition for certiorari.

The Supreme Court in State ex rel. Leggett v. Jensen, supra, at page 356, defines a "contested case" as follows:

"We think this means that a 'contested case' (to which the Administrative Procedure Act and its judicial review provisions apply) is a case which must be contested before an administrative agency because of a requirement (by constitutional provision, statute, municipal charter provision or ordinance; see Sec. 536.105, subd. 1) for a hearing before it of which a record must be made unless waived. § 536.060."

The § 536.105 referred to is now § 536.150 from which Rule 100.08 was derived.

The court in Jensen then stated:

"In other words, 'contested case' within the meaning of the Act does not mean every case in which there may be a contest about 'rights, duties or privileges' but instead one in which a contest is required by law to be decided in a hearing before an administrative agency."

This case is not a "contested case" under the rule. No statute or ordinance requiring a hearing has been cited to us. On the contrary, Section 24 of Ordinance 66-1 states that the Board of Trustees may hold hearings. There is no reason to ascribe other than a discretionary meaning to the word "may". If the board has discretion, obviously there is no requirement that a hearing be held. There is also no hearing requirement in the controlling statute which only grants a general authorization to the board of directors of a district to provide for pensions and death benefits after approval by the voters of the district and to have and exercise all rights and powers necessary or incidental to or implied from the specific powers granted by the statute. § 321.220, RSMo 1959 as amended 1961.

Captain Hunter's application for disability benefits then is not a contested case and therefore falls under the provisions of Rule 100.08.

Section 4 of Ordinance 66-1 of the Community Fire Protection District provides that the records, evidence, findings and decisions of the Board of Trustees shall be preserved by the board and be "subject to judicial review on certiorari", thus prescribing a specific remedy for those aggrieved by decisions of the board, a remedy which is included in Rule 100.08 as an avenue of judicial inquiry or review. Certiorari was the appropriate remedy here.

Plaintiff contends that judicial review on certiorari has been nullified by Article V, Section 22 of the Missouri Constitution, citing State ex rel. Police Retirement System of City of St. Louis v. Murphy, 359 Mo. 854, 224 S.W.2d 68 (1949). However, the later case of State ex rel. Leggett v. Jensen, supra, at pages 357 and 358(3) and (4), clearly holds that the remedies provided in Rule 100.08, including certiorari, are applicable to many cases...

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13 cases
  • State ex rel. City of Springfield v. Crouch, 13803
    • United States
    • Missouri Court of Appeals
    • February 22, 1985
    ...cases so state. The Administrative Procedure and Review Act applies to "contested cases" in municipal agencies. Hunter v. Madden, 565 S.W.2d 456, 458-459 (Mo.App.1978) (citing State ex rel. Leggett v. Jensen, 318 S.W.2d 353, 356 (Mo. banc 1958) ). See also Davis, The Missouri Administrative......
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    ...See Randle v. Spradling, 556 S.W.2d 10, 11 (Mo. banc 1977); State v. Jensen, 318 S.W.2d 353, 356 (Mo. banc 1958); Hunter v. Madden, 565 S.W.2d 456, 459 (Mo.App.1978); Williams v. Jones, 562 S.W.2d 391, 396 (Mo.App.1978); Vorbeck v. McNeal, 560 S.W.2d 245, 250 (Mo.App.1977). And certainly in......
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