Independent Stave Co., Inc. v. State Highway Commission of Missouri

• Decision Date: 24 November 1981
• Docket Number: No. WD,WD
• Citation: 625 S.W.2d 246
• Parties: INDEPENDENT STAVE COMPANY, INC., Appellant, v. STATE HIGHWAY COMMISSION OF MISSOURI, Respondent. 31961.
• Court: Missouri Court of Appeals

Page 246

625 S.W.2d 246

INDEPENDENT STAVE COMPANY, INC., Appellant, v. STATE HIGHWAY COMMISSION OF MISSOURI, Respondent.

No. WD 31961.

Missouri Court of Appeals, Western District.

Nov. 24, 1981.

John W. Ellinger, Jefferson City, for appellant.

Bruce A. Ring, Chief Counsel, Curtis F. Thompson, Asst. Counsel, Jefferson City, for respondent.

Before TURNAGE, P. J., and PRITCHARD and CLARK, JJ.

PRITCHARD, Judge.

The dispositive question is whether appellant is precluded from challenging, by petition for restraining order and injunction, respondent's order to remove an interstate highway billboard or signboard by reason of appellant's failure to seek administrative or other judicial review of the order within 30 days after receipt of the notice to remove in accordance with § 226.580, RSMo 1978. On the issue, the trial court sustained a motion of respondent for judgment on the pleadings.

It was stipulated by the parties that respondent sent a notice to remove the subject sign to appellant by certified mail which was received on August 8, 1977. Appellant did not seek administrative review, did not file suit in circuit court as provided by § 536.150, and did not correct the alleged unlawfulness within 30 days of receipt of the notice. Also, in response to respondent's requests for admissions, appellant expressly admitted that Exhibit A, the notice of unlawful sign, attached to the request, was sent to it. (The attached notice is: "You are advised that an outdoor advertising structure or sign is being unlawfully maintained in a location described situated in Boone County, adjacent to State Highway I-70, specifically located 1.35 Miles East of Jct. I-70 & 240, identified as sign number 57-E-12A and by the enclosed photograph. The sign or outdoor advertising described is unlawful for the following reasons: * * * 7. The sign was erected on or after March 30, 1972, contrary to law. * * * 10. Other Located less than 500' from existing sign structures. * * *.") Appellant filed a request for hearing on October 12, 1977, and on January 3, 1978, respondent's hearing examiner directed appellant to show cause why its request for hearing should not be denied because of untimeliness. On January 26, 1978, appellant responded to the order to show cause by stating that the notice to remove was misplaced in its office. According to appellant's petition for restraining order and injunction, which was denied by the trial court on the motion of respondent, it sought leave to file an application for administrative review out of time which was denied on March 22, 1978, by a unanimous vote of the Commission.

By Point I, appellant contends that the trial court erred in denying its petition for injunction and in affirming respondent's order denying a hearing out of time because the notice to remove the sign was deficient in that it failed to specify the remedial action required to correct the alleged unlawfulness. The notice here is similar to the supplemental notice in Hen House Interstate v. State Highway Commission, 604 S.W.2d 821 (Mo.App.1980), which advised Hen House that " 'your sign location is within 500 feet of another sign' " and it was held that it was contrary to law in that it did not " 'meet the spacing requirements of § 226.540, Subsection 3, Part (a), Item a, of Senate Bill No. 382.' " It was also noted that it did not specify what remedial action should be taken, "but perhaps that would be obvious enough." 604 S.W.2d 824. The same would be true here, especially because the notice was entitled "Notice to Remove Outdoor Advertising", which removal would be the specification of the remedial action. The Hen House case compels a ruling against appellant on Point I.

By Point 8 appellant says respondent's order (of March 22, 1978), denying review out of time, was error because appellant became out of time through mistake, accident or inadvertence and that it had a meritorious claim, and respondent would not have been damaged by a hearing. Appellant did not timely request a hearing because, as it says, the notice was misplaced in its office. This was obvious negligence, and is a factual situation inapposite to that in State ex rel. Overland Outdoor Advertising Co. v. Missouri State Highway Commission, 612 S.W.2d 57 (Mo.App.1981), where it was held to be an abuse of discretion for the commission to deny a request for a hearing out of time where the appellant's chief operating officer had been ill, absent from his office, and found the notice to remove only upon his return, he being the only one with knowledge and responsibility for appellant's affairs and for the sign in question. Here, there was no showing of a justifiable cause for the untimely request for a hearing. There was no need to show a meritorious claim. Respondent exercised its jurisdiction in considering the request for a hearing out of time, and there was no error in denying the same. Appellant cites Cherry v. Wertheim, 25 S.W.2d 118 (Mo.App.1930), but that case does not aid it because it requires that any accident, mistake, inadvertence, mischance, or unavoidable circumstances, which prevented a hearing, be unmixed with negligence or inattention.

Absent an allowance of a review out of time as provided by respondent's Rule 7 C.S.R. 10-6.090(2), the 30-day time for a request for review of the merits of respondent's determination that the subject sign is unlawful, is jurisdictional. Absent the grant of a review out of time upon a showing of justifiable cause for same, respondent was without power to consider the merits of appellant's claims. Nor did the trial court, in an exercise of derivative jurisdiction have the power to do so. See Holmes v. Navajo Freight Lines,...