Legal Comm. Corp. v. St. Louis Cty Printing & Pub.

• Decision Date: 09 May 2000
• Citation: 24 S.W.3d 744
• Court: Missouri Court of Appeals
• Parties: (Mo.App. E.D. 2000) . Legal Communications Corporation, Appellant, v. St. Louis County Printing & Publishing Company, Inc., d/b/a St. Louis Printing, Respondent. Case Number: ED76211 Missouri Court of Appeals Eastern District Handdown Date: 0

24 S.W.3d 744 (Mo.App. E.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Legal Communications Corporation, Appellant, v. St. Louis County Printing & Publishing Company, Inc., d/b/a St. Louis Printing, Respondent.

Case Number: ED76211

Missouri Court of Appeals Eastern District

Handdown Date: 05/09/2000

Appeal From: Circuit Court of the City of St. Louis, Hon. Robert H. Dierker, Jr.

Counsel for Appellant: Robert A. Hoemeke and Benjamin A. Lipman

Counsel for Respondent: Robert L. DeVoto and Arthur S. Hyatt

Opinion Summary: Legal Communications Corp. filed a petition for declaratory judgment challenging the decision of an administrative agency. The trial court granted St. Louis County Printing & Publishing Co.'s motion for judgment on the pleadings. Legal Communications Corp. appeals.

REVERSED AND REMANDED.

Division One holds: (1) Legal Communications Corp. has standing to bring this action. (2) The decision of the administrative agency was not a contested case. (3) The decision of the administrative agency is subject to a de novo review by the trial court.

Opinion Author: James R. Dowd, Judge

Opinion Vote: REVERSED AND REMANDED. Gaertner, P.J., and Simon, J., concur.

Opinion:

Facts

On November 24, 1997, the Circuit Court of the City of St. Louis met en banc in its November term meeting to take up matters relating to the operation of the Court. Pursuant to Section 493.110, the Circuit Court sat as a board (hereafter "the Board") to determine which entities were qualified to publish legal notices under two separate statutes, Sections 493.070 and 493.100.¹ Section 493.100 provides the qualifications to publish real estate foreclosure notices, and Section 493.070 provides the qualifications to publish legal notices other than foreclosure notices. At the meeting, the Board certified several publications, including the Daily Record and St. Louis Legals. The Daily Record is produced by Legal Communications Corp. (hereafter "Legal Communications"). St. Louis Legals is produced by St. Louis County Printing and Publishing Co., Inc. (hereafter "St. Louis Printing"). On December 29, 1997, St. Louis Printing admitted it was not qualified to print legal notices other than foreclosure notices under Section 493.070 and withdrew its petition to print these notices. Nevertheless, it maintained that it was qualified to publish real estate foreclosure notices under Section 493.100. Because it was certified by the Board, St. Louis Printing began publishing foreclosure notices in January of 1998. Therefore, we are only called upon to decide the validity of its certification under Section 493.100.

On June 16, 1998, Legal Communications filed a petition for declaratory judgment in the Circuit Court of the City of St. Louis, seeking a declaration that St. Louis Printing failed to meet the requirements of Section 493.100 and was, therefore, improperly certified to publish foreclosure notices.² Legal Communications alleged that St. Louis Printing had not established that it had cash receipts in excess of $6,000 and that it had not published in the City of St. Louis continuously for three consecutive years prior to its qualification by the Board and therefore did not meet the statutory requirements.

On March 8, 1999, St. Louis Printing filed a motion to dismiss, which the trial court treated as a motion for judgment on the pleadings. The trial court granted the motion, determining that the Board had unreviewable discretion. Legal Communications appeals from that order and judgment.

Standing

We must first determine whether Legal Communications has standing to bring this action against St. Louis Printing. St. Louis Printing contends that Legal Communications lacks standing because the Board's decision does not directly affect any of its legally protectable interests.

The standing to contest an administrative action depends on a variety of considerations, including the nature and extent of the interest of the party contesting the action, the character of the administrative action, and the terms of the governing statute.³ The question of standing to oppose an administrative decision is a question of law, but one driven by the peculiar facts of each case.⁴ It rests on policy considerations rooted in the values set out in the legislation in question.⁵ A plaintiff properly has standing if the decision of the administrative body adversely affects an interest the law protects.⁶ The injury to the party must arguably fall within the "zone of interest" the statute protects.⁷

Chapter 493 provides no procedure by which the decisions of the Board may be appealed. Consequently, we cannot look to the statute for explicit guidance as to who has standing to contest the Board's action. We can, however, look to the purpose of the statute to determine if the alleged injury to Legal Communications is the type of interest the statute seeks to protect.

The purpose of Section 493.100 is to ensure that those who have an interest in real property will receive adequate notice if that property becomes subject to a foreclosure sale. In order for a foreclosure notice to be valid, it need only be published in one newspaper certified under the statute.⁸ Every certified newspaper, therefore, must meet the statutorily created requirements to advance the statute's purpose. Unless a publication meets the subscription, cash receipts and duration requirements, it presumptively fails to provide actual and constructive notice contemplated by the statute.

Legal Communications alleged in its petition that St. Louis Printing was not qualified to publish foreclosure notices and that it was damaged by its unauthorized publication. The interest Legal Communications seeks to protect is its right to compete only with lawful competition. St. Louis Printing observes, correctly, that there is no right to be free from legitimate competition.⁹ Standing exists if the alleged illegitimate competition of St. Louis Printing damages Legal Communications in a manner sought to be prevented by the statute.

The status of Legal Communications as a competitor is not sufficient, by itself, to give it standing to challenge the Board's action.¹⁰ The status of a competitor has, however, been used in combination with policy considerations to grant standing to challenge the decisions of an administrative agency. In Farmer's Bank of Antonia v. Kostman, the Western District held that a bank had standing to challenge the decision of the Director of Finance to issue a certificate of authority to a competitor.¹¹ The Court reasoned that standing was necessary "not to protect a monopoly, but to keep the system of banks within an equipoise of competition and regulation and so secure the public against the economic havoc of bank failure."¹² The Supreme Court of the United States reached a similar holding in Association of Data Processing Service Org., v. Camp.¹³

Section 493.100 contemplates a similar system of competitive regulation. The statute sets out minimum circulation and duration qualifications necessary to publish real estate foreclosure notices. The goal of the statute is to give notice to the widest audience possible. In order to ensure that each newspaper that publishes these notices can reach the entire audience, the statute mandates the duration and circulation requirements. To attain this goal, a newspaper must successfully compete with other newspapers. If Legal Communications is forced to face illegitimate competition, its ability to compete is impeded, and the purpose of the statute is emasculated. Legal Communications has standing to bring the instant action.

Constitutional Validity of Section 493.110

St. Louis Printing argues that if the Board's decision can be reviewed, this case cannot be decided without construing the constitutionality of Section 493.110. Article V, Sec. 3 of the Missouri Constitution provides that our Supreme Court has exclusive jurisdiction over real and substantial constitutional challenges to a statute's validity.¹⁴ However, this Court may dispose of colorable claims.¹⁵ In this case, it is undisputed that the Board acted as an administrative agency. The Missouri Constitution provides that decisions of administrative agencies are "subject to direct review by the courts as provided by law."¹⁶ Nothing in the Missouri Constitution prohibits the judges of the Circuit Court from sitting as an administrative board. St. Louis Printing's jurisdictional contention is merely colorable and does not invoke the exclusive jurisdiction of the Missouri Supreme Court.

Discretion of the Board

In order to determine if the Board had unreviewable discretion, we must first classify the character of the proceeding in question. If it was a contested case, the trial court had no jurisdiction because Legal Communications failed to file its petition within thirty days of the Board's decision as required by Section 536.110. If it was not a contested case, Section 536.150 controls and expressly provides that Legal Communications has the right to bring a declaratory judgment action to review the Board's decision.

A contested case before an administrative agency is one in which "legal rights, duties or privileges of specific parties are required by law to be determined after hearing."¹⁷ In Cade v. State, the Western District defined the term "hearing" as a proceeding in which evidence may be presented, and witnesses may be cross-examined.¹⁸ The Missouri Supreme Court found in Strozewski v. City of Springfield that a hearing is considered noncontested if it is "made without any requirement of an adversarial hearing at which a measure of procedural formality is followed."¹⁹ Procedural formalities in contested cases generally include: notice of the issues; oral evidence taken upon oath or affirmation; the calling, examining and cross-examining of witnesses; the making of a record; adherence to evidentiary rules; and...