Johnston v. Livingston Cnty. Comm'n, WD 78197

CourtCourt of Appeal of Missouri (US)
Citation462 S.W.3d 859
Docket NumberWD 78197
PartiesLarry Johnston and Gloria Gay Johnston, Respondents, v. Livingston County Commission, Appellant.
Decision Date09 June 2015

462 S.W.3d 859

Larry Johnston and Gloria Gay Johnston, Respondents
Livingston County Commission, Appellant.

WD 78197

Missouri Court of Appeals, Western District.

June 9, 2015

Larry A. Johnston and Gloria G. Johnston, Chillicothe, MO, Respondents, pro se.

Adam L. Warren, Livingston County Prosecuting Attorney, Chillicothe, MO, Attorney for Appellant.

Before Division One: James Edward Welsh, Presiding Judge, and Thomas H. Newton and Karen King Mitchell, Judges


Karen King Mitchell, Judge

This appeal follows the circuit court's reversal of the Livingston County Commission's entry of a Public Nuisance Order against Larry and Gloria Johnston. Because of the parties' and the circuit court's failure to abide by the requirements of the Missouri Administrative Procedure Act (MAPA), we vacate the circuit court's

462 S.W.3d 863

judgment and remand the matter for further proceedings consistent with this opinion.


On May 11, 2011, the Missouri Legislature passed Senate Bill 187, which amended § 67.402.1(6)1 to allow “[a]ny county of the third classification with a township form of government and with more than fourteen thousand five hundred but fewer than fourteen thousand six hundred inhabitants” to “enact nuisance abatement ordinances as provided” by § 67.402. 2011 Mo. Legis. Serv. 41 (West). Senate Bill 187 became effective on August 28, 2011.

On November 8, 2012, the Livingston County Commission passed Ordinance 11812, pursuant to § 67.402.1(6), providing procedures for nuisance identification and abatement. Among the required procedures provided in Ordinance 11812 was a public hearing, wherein “any party may be represented by counsel, and all parties shall have the opportunity to be heard and present evidence.” At the conclusion of a hearing, the Commission is required to either issue a public nuisance order, if supported by the evidence, or not issue a public nuisance order if the evidence fails to support the existence of a public nuisance.

In accordance with these procedures, the Commission held a public hearing on March 25, 2014, to determine whether there existed a public nuisance on the Johnstons' property. At the hearing, the Commission heard testimony from the Johnstons, the County Nuisance Enforcement Officer, and neighboring property owners, and received exhibits. Following the hearing, on April 3, 2014, the Commission issued a public nuisance order, finding that the Johnstons' property constituted a public nuisance under Ordinance 11812 and that the nuisance was detrimental to the health, safety, and welfare of the community. Accordingly, the Commission ordered the Johnstons to remove the specific conditions identified in the order within thirty days. If they failed to do so, the County Nuisance Enforcement Officer would come upon their property and remove the items at the Johnstons' expense. The order advised the Johnstons of their right to appeal the order to the Livingston County Circuit Court within thirty days of the order.

Thereafter, on May 1, 2014, the Johnstons filed a “Verified Petition for Judicial Review” in the Livingston County Circuit Court, seeking review of the Commission's decision on the grounds that it was not supported by competent and substantial evidence and that the Johnstons had already commenced work to abate the nuisance within the time frame specified by the Commission. The record of the proceedings before the Commission was never filed with the circuit court, but the Commission raised no objection. Rather, the Commission requested a “trial setting,” and subsequently presented evidence to the circuit court, without any objection by the Johnstons.

Following a purported “de novo review” under § 536.140.3, the circuit court issued its findings and judgment, declaring that the Commission's Public Nuisance Order entered against the Johnstons was “beyond the statutory authority of Livingston County, Missouri, and [was] therefore reversed.” The circuit court found, sua sponte, that, based upon the 2010 Census, the population of Livingston County was

462 S.W.3d 864

15,195 and therefore outside the population limits provided by § 67.402.1(6). The Commission filed a motion to reconsider or amend the judgment, arguing that the 2010 Census was not the applicable source for determining the population of Livingston County for purposes of § 67.402.1(6) when the ordinance was enacted. Rather, the Commission argued, under § 1.100, the court was to apply the 2000 Census data, which determined the population of Livingston County to be 14,558, which was within the parameters of § 67.402.1(6). The circuit court overruled the Commission's motion, and the Commission filed an appeal with this court.

After filing the notice of appeal, the Commission filed the record on appeal and the appellant's brief, challenging the circuit court's judgment. The Johnstons filed a respondent's brief, defending the circuit court's judgment. Neither party mentioned or challenged the Commission's determination that the Johnstons' property constituted a public nuisance.


The Commission brings a single point on appeal, challenging the circuit court's determination that the Commission lacked authority to enact Ordinance 11812. The Commission, however, is not the proper party to file an appellant's brief, and the circuit court's judgment is not the proper judgment for review. In short, there are a multitude of procedural errors that have brought the parties to the point before us, with each misstep leading to another. To untangle this procedural thicket, it is necessary to explain how this case should have proceeded to this point and identify each instance wherein it went awry.

To begin, in any administrative matter, a party seeking judicial review must first discern whether the administrative proceeding involved a contested case or a non-contested case, as the scope of review and procedural steps differ. City of Valley Park v. Armstrong, 273 S.W.3d 504, 506–07 (Mo. banc 2009). A “contested case” is “a proceeding before an administrative agency in which legal rights, duties or privileges of specific parties are required by law to be determined after hearing.” § 536.010(4).

Contested case review is controlled by sections 536.100 to 536.140. Contested cases provide the parties with an opportunity for a formal hearing with the presentation of evidence, including sworn testimony of witnesses and cross-examination of witnesses, and require written findings of fact and conclusions of law. The review of a contested case is a review by the trial court of the record created before the administrative body. The trial court's decision upon such review is appealable, but the appellate court also looks back to the record created before the administrative body.
Non-contested cases do not require formal proceedings or hearings before the administrative body. As such, there is no record required for review. In the review of a non-contested decision, the circuit court does not review the administrative record, but hears evidence, determines facts, and adjudges the validity of the agency decision. Under the procedures of section 536.150, the circuit court conducts such a hearing as an original action.
In either a contested or a non-contested case the private litigant is entitled to challenge the governmental agency's decision. The difference is simply that in a contested case the private litigant must try his or her case before the agency, and judicial review is on the record of that administrative trial, whereas in a non-contested case the private litigant tries his or her case to the court. Depending
462 S.W.3d 865
upon the circumstances, this difference may result in procedural advantages or disadvantages to the parties, but in either situation, the litigant is entitled to develop an evidentiary record in one forum or another.

Armstrong, 273 S.W.3d at 506–07 (emphasis added) (internal citations omitted) (quoting Furlong Companies, Inc. v. City of Kansas City, 189 S.W.3d 157, 165 (Mo. banc 2006) ).

Here, both § 67.402 and Ordinance 11812 require a hearing before the Commission to determine whether property constitutes a public nuisance, and both provide for certain procedural protections at the hearing, such as the assistance of counsel and presentation of evidence. Thus, the hearing before the Commission was a contested case.

Because the Commission's decision constituted a contested case, to obtain judicial review, the Johnstons were required to file a petition seeking judicial review within 30 days of the Commission's order.2 § 536.110.1. Then, according to § 536.130, the Johnstons were responsible for ensuring that the record before the Commission was filed with the circuit court within thirty days of filing the petition. They could have accomplished this duty by either filing the record themselves or by requesting the Commission to file it. § 536.130.4. The record shall consist of any one of the following:

(1) Such parts of the record, proceedings and evidence before

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