Orion Security Inc. v. Board of Police Commissioners

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Kenneth W. Shrum
• Citation: 43 S.W.3d 467
• Parties: (Mo.App. W.D. 2001) Orion Security Inc., Respondent, v. Board of Police Commissioners of Kansas City, Missouri, and its Members in their Official Capacities as Commissioners; Jeffrey J. Simon, President, Joseph J. Mulvihill, Vice-President, Dennic C. Eckold, Treasurer, Dr. Stacey Daniels, Member, Kay Barnes, Member, Appellants. WD58473 0
• Decision Date: 24 April 2001

43 S.W.3d 467 (Mo.App. W.D. 2001) Orion Security Inc., Respondent,
v.
Board of Police Commissioners of Kansas City, Missouri, and its Members in their Official Capacities as Commissioners; Jeffrey J. Simon, President, Joseph J. Mulvihill, Vice-President, Dennic C. Eckold, Treasurer, Dr. Stacey Daniels, Member, Kay Barnes, Member, Appellants. WD58473 Missouri Court of Appeals Western District 04/24/2001

Appeal From: Circuit Court of Cole County, Hon. Byron L. Kinder

Counsel for Appellant: Dale H. Close

Counsel for Respondent: Robert P. Smith

Opinion Summary: None

Kenneth W. Shrum, Special Judge

Appellants appeal from the judgment of the trial court which ruled for Orion Security, Inc. ("Orion") on Orion's "Petition For Judicial Review Of The . . Decision of Board of Police Commissioners of Kansas City, Missouri."¹ Specifically, the trial court reversed Police Board's thirty-day suspension of Orion's license to conduct private security services. The question on appeal is whether the trial court erred when it entered the judgment based on a motion filed by Orion of which Appellants had no notice. We answer, "Yes." We reverse and remand.

The Police Board and Commissioners are empowered by sections 84.420 and 84.720 to regulate and license private security firms that perform security services in Kansas City.² Orion has held such a license for over a decade. In March 1998, Supervisor notified Orion that its license would be suspended for ninety days. Orion then asked Police Board to review Supervisor's decision. On January 25, 2000, Police Board rendered a decision suspending Orion's license for thirty days. Orion timely filed a petition with the Cole County circuit court for review of Police Board's decision.³

Section 536.130.1 provides that after a petition for review of agency action is filed, "the record before the agency shall be filed in the reviewing court" within thirty days of the initial filing. When disputes arose in this case about the content of the record or who would prepare and file the record, Orion relied on section 536.130.4 and requested that Police Board prepare and file the agency record.⁴ Police Board does not dispute it had the obligation, under the circumstances, to file its agency record with the Cole County circuit court. Moreover, Police Board concedes "[i]n this case the record was due to be filed by March 1, 2000."

When Orion filed its petition for judicial review on January 31, 2000, it requested and was granted by the court, ex parte, a "Temporary Order Staying Enforcement of [Police Board's] Order." The Court also scheduled a hearing for March 1, 2000, "on the question of whether the [temporary order] shall be continued in effect."

Before March 1, 2000, the parties worked on a stipulation which, if agreed to, might have made unnecessary the hearing scheduled on that date. The record reflects an agreement was finally reached on the stipulation--exactly when is unclear--and on March 1, 2000, Orion's lawyer appeared before the Cole County circuit court to request the stay order be continued. In its brief, Orion asserts Police Board's lawyer did not appear in court on this date, presumably because of the stipulation.

As stated before, to comply with the thirty-day requirement of section 536.130.1, the record made before Police Board had to be filed by March 1, 2000. Police Board, however, failed to file the record by that date. Accordingly, Orion filed a "Motion For Judgment" on March 2, 2000. The motion was not verified or accompanied by affidavit. It recited the procedural history of the case, recounted the reasons why Orion claimed Police Board erred in suspending its license for thirty days, and pointed out that Police Board had "failed to file the record on judicial review pursuant to RSMo. 536.130." Orion concluded its motion with a request for judgment in its favor, i.e., the court should set aside Police Board's finding and decision and order reinstatement of Orion's license. The certificate of service required by Rule 43.01 recited that the notice of hearing was sent to Appellants' attorney on March 2, 2000, by U.S. Mail.

On the day the motion was filed (March 2, 2000), the trial court complied with Orion's motion request. The judgment was entered without notice to Appellants about the motion, its contents, the filing of it, or the court's intent to sustain the same. The substantive provisions of the judgment provide:

"WHEREUPON the Court has considered [Orion's] Motion for Judgment,

"WHEREUPON THE COURT FINDS that [Appellants] have failed to file the record on judicial review pursuant to RSMo 536.130.

"WHEREUPON THE COURT FURTHER FINDS that the allegations contained in [Orion's] Petition for Judicial Review . . . are true and accurate.

"IT IS HEREBY ORDERED, ADJUDGED AND DECREED that judgment be and is hereby entered in favor of Orion . . . and against [Appellants] as follows:

"1) The Findings of Fact, Conclusions of Law and Decision of the [Police Board] are hereby set aside; and

"2) The license of Orion . . . and all individuals licensed under it is hereby reinstated."

Upon learning of the judgment, Police Board moved to set it aside. The trial court denied the motion, and this appeal followed.

In their first point, Appellants rely on Rule 44.01(d) to argue they were entitled to a five-day notice and an opportunity to be heard on Orion's "Motion For Judgment." They charge the court committed reversible error when it entered the judgment without giving them an opportunity to be heard. We agree.

At the outset, we note that...