Johnson v. Missouri Bd. of Nursing Adm'Rs

• Decision Date: 30 January 2004
• Docket Number: No. WD 62429.,WD 62429.
• Citation: 130 S.W.3d 619
• Parties: Teresa JOHNSON, Appellant, v. MISSOURI BOARD OF NURSING ADMINISTRATORS, Respondent.
• Court: Missouri Court of Appeals

130 S.W.3d 619

Teresa JOHNSON, Appellant, v. MISSOURI BOARD OF NURSING ADMINISTRATORS, Respondent.

No. WD 62429.

Missouri Court of Appeals, Western District.

January 30, 2004.

Motion for Rehearing and/or Transfer to Supreme Court Denied March 30, 2004.

Application for Transfer Denied April 27, 2004.

James P. Lemonds, St. Louis, MO, for appellant.

Ronald Molteni, Assistant Attorney General, Jefferson City, MO, for respondent.

Before JOSEPH M. ELLIS, Chief Judge, HAROLD L. LOWENSTEIN, Judge and VICTOR C. HOWARD, Judge.

JOSEPH M. ELLIS, Chief Judge.

Appellant Teresa Johnson ("Johnson") appeals a judgment of the Circuit Court of Cole County upholding the decision of the Administrative Hearing Commission ("AHC") that Johnson's license to practice as a professional nursing home administrator in Missouri was subject to discipline by the Missouri Board of Nursing Home Administrators ("Board") and upholding the order of the Board revoking Johnson's license. After reviewing the record and the law, we affirm.

Procedural History

In June 2001 and January 2002, respectively, the Board filed original and amended complaints with the AHC, seeking the AHC's determination that the professional nursing home administrator license held by Johnson was subject to discipline for incompetency, misconduct, gross negligence, and violations of various Board regulations governing such professionals, which caused or contributed to cause the heat-related deaths of four elderly residents at the Leland Health Care Center ("Leland" or "the facility"), a 130-bed skilled nursing facility in University City, Missouri.¹ On January 29, 2002, Johnson filed an answer to the Board's amended complaint in which she issued a general denial to all but two of the 109 allegations. The following day, Johnson invoked her privilege against self-incrimination under Article I, § 19 of the Missouri Constitution and the Fifth Amendment to the United States Constitution² in response to every paragraph of the Board's requests for admissions and production of documents and to all but the first three paragraphs of the Board's interrogatories (to which she responded by providing only her name, her attorney's name, and her address).

On March 8, 2002, the Board filed a Motion for Summary Determination ("Motion"), which contained supporting exhibits, attachments, reports, affidavits, and other kindred documentary material, primarily from members of the University City Fire and Police Departments who responded to 911 calls from Leland on April 8 and 9, 2001. On March 14, 2002, the AHC conducted a telephonic hearing on the Board's Motion, during which counsel for Johnson stated that she had no objection to the motion and would not be filing a response thereto since she planned to continue invoking, on advice of her independently retained criminal counsel, her privilege against self-incrimination under Article I, § 19 of the Missouri Constitution and the Fifth Amendment to the United States Constitution.³

In April 2002, the AHC granted the Board's Motion pursuant to the former 1 CSR 15-2.450(4).⁴ That regulation provides, in its entirety:

(4) Summary Determination.

(A) For Petitioner. Petitioner may move for a summary determination on all or any part of the complaint. Petitioner may so move after the time has passed for respondent to file a responsive pleading or in response to this motion filed by respondent.

(B) For Respondent. A respondent upon whom a notice of complaint has been served may move for summary determination on all or any part of the complaint.

(C) Motion and Proceedings. The movant shall serve the motion for summary determination upon an adverse party no fewer than forty-five (45) days before the time fixed for hearing on the complaint. The opposing party may serve opposing affidavits before the day of any hearing on the motion. The commission shall grant the motion if the pleadings and evidence on file show that there is no genuine issue as to any material fact and that any party is entitled to relief as a matter of law as to all or any part of the complaint. The commission may order summary determination against the moving party.

(D) Case Not Fully Adjudicated on Motion. If the commission grants the motion, but not as to the entire complaint, it shall issue an order finding facts. Those facts shall be established for purposes of the hearing on the complaint.

(E) Form of Affidavits—Further Testimony. A party filing a motion under this section may file with or without affidavits. The commission may permit a party to supplement or oppose affidavits by depositions or further affidavits. Affidavits filed by any party shall be made on personal knowledge, shall set forth facts which would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated. The affiant shall attach sworn or certified copies of all documents referred to in the affidavit.

(F) Defense Required. When a party supports a motion under this section with affidavits or other evidence, the adverse party shall not rest upon the mere allegations or denial of its own pleadings. The adverse party's response shall set forth specific facts showing that there is a genuine issue of material fact for hearing and support these by affidavit or other evidence. If the adverse party does not so respond, the commission shall enter summary determination, if appropriate, against it.

(G) The provisions of 1 CSR 15-2.480⁵ govern whether the commission will hear oral argument or evidence on the motion.

The AHC determined that Johnson's license to practice as a professional nursing home administrator was subject to discipline by the Board for violating sixteen different state regulations and for gross negligence and incompetence in the performance of her professional duties. The Board subsequently initiated disciplinary proceedings against Johnson. After conducting a hearing, pursuant to §§ 621.110 and 344.070.3,⁶ to determine what level of discipline was warranted, the Board issued an order in July 2002 revoking Johnson's license.⁷ In August 2002, as authorized by § 621.145, Johnson then sought judicial review of the AHC's decision and the Board's order in the Circuit Court of Cole County. After briefing, the circuit court affirmed the decision of the AHC and the order of the Board. Johnson now appeals the circuit court's judgment.⁸

Standard of Review

For purposes of appellate review, the AHC's determination and the Board's disciplinary order are "`treated as one decision.' " Dorman v. State Bd. of Registration for the Healing Arts, 62 S.W.3d 446, 453 (Mo.App. W.D.2001) (quoting § 621.145).⁹ We review the final decision of the AHC and the Board, not the judgment of the circuit court. Id. We will affirm the decision unless it: (1) was in violation of constitutional provisions; (2) was in excess of its statutory authority or jurisdiction; (3) was unsupported by competent and substantial evidence upon the whole record; (4) was, for any reason unauthorized by law; (5) was made upon unlawful procedure or without a fair trial; (6) was arbitrary, capricious or unreasonable; or (7) involved an abuse of discretion. Id.; § 536.140.2.

The parties cite and our research revealed no Missouri case law interpreting 1 CSR 15-2.450(4) or its successor, 1 CSR 15-3.440(3). Understandably, both parties therefore rely heavily on cases interpreting and applying Missouri Rule of Civil Procedure 74.04 ("Summary Judgment"). The general rule, however, is that the Missouri Rules of Civil Procedure do not govern the conduct of proceedings before administrative agencies:

The rules of civil procedure have no function in a proceeding still administrative. The rules of civil procedure by the very terms of promulgation apply only to civil actions in judicial courts. A proceeding for judicial review of an administrative decision does not become a civil action so as to be entitled to the melioration of the civil rules of procedure until the appeal lodges with the court and within the time prescribed by the legislative act which enables the appeal.

Dorrell Re-Insulation Sys., Inc. v. Dir. of Revenue, 622 S.W.2d 516, 518 (Mo.App. W.D.1981) (internal citations and italics omitted). However, although the AHC adjudicated the Board's Motion under 1 CSR 15-2.450(4) rather than Rule 74.04, the two are sufficiently similar (and in many instances, nearly identical) as to make many cases interpreting the latter helpful. As always, of course, we are also guided by general common law principles governing appellate review of summary determinations. Accordingly, in reviewing the AHC's decision to grant the Board's Motion and the Board's subsequent disciplinary order, we will apply the following well-known standards:

The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially. As the trial court's judgment is founded on the record submitted and the law, we need not defer to the trial court's order granting summary judgment. Because our review is de novo, we may affirm on an entirely different basis than that used by the trial court. A movant is entitled to summary judgment if the motion for summary judgment and the response thereto show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. We view the record in the light most favorable to the party against whom summary judgment is entered and accord the non-movant the benefit of all reasonable inferences from the record. We take as true the facts set forth by affidavit or otherwise in support of the moving party's motion unless they are contradicted by the nonmoving party's response to the summary judgment motion. The non-moving party's response must show the existence of some genuine dispute as to one of the material...