Ringer v. MO. DEPT. HEALTH & SENIOR SERV.

• Decision Date: 12 January 2010
• Docket Number: No. WD 70489.,WD 70489.
• Citation: 306 SW 3d 113
• Parties: Julie Rose RINGER, Respondent, v. MISSOURI DEPARTMENT OF HEALTH AND SENIOR SERVICES, Appellant.
• Court: Missouri Court of Appeals

306 S.W.3d 113

Julie Rose RINGER, Respondent, v. MISSOURI DEPARTMENT OF HEALTH AND SENIOR SERVICES, Appellant.

No. WD 70489.

Missouri Court of Appeals, Western District.

January 12, 2010.

Margaret K. Landwehr, Jefferson City, MO, for Appellant.

Julie R. Ringer, Genevieve, MO, Respondent Acting pro se.

Before JAMES EDWARD WELSH, P.J., JOSEPH M. ELLIS, and MARK D. PFEIFFER, JJ.

JAMES EDWARD WELSH, Judge.

The Missouri Department of Health and Human Services notified Julie Rose Ringer that it intended to place her name, for a period of three years, on the Employee Disqualification List¹ because she recklessly or knowingly abused residents of a licensed nursing home facility. Ringer requested and received a hearing on the matter before the Department's hearing officer. Thereafter, the Director of the Division of Regulation and Licensure of the Missouri Department of Health and Senior Services issued a decision affirming the Department's decision to place Ringer on the Employee Disqualification List. Ringer sought review of this decision in the circuit court, and the circuit court overturned the Director's decision. As the party aggrieved by the circuit court's decision, the Department filed a notice of appeal to this court. Because, however, we review the agency's decision and not the circuit court's decision, this court, pursuant to Rule 84.05(e), designated Ringer to file the opening brief. Ringer, however, failed to file a brief and, therefore, failed to preserve any issue for appellate review. Thus, we reverse the circuit court's judgment and remand with directions to reinstate the decision of the Director.

In an appeal following judicial review of an administrative agency's decision, this court reviews the agency's decision and not the circuit court's judgment. Mo. Coalition for the Env't v. Herrmann, 142 S.W.3d 700, 701 (Mo. banc 2004). In so reviewing, we presume that the agency's decision is correct, and the burden to show otherwise is placed on the party challenging the decision. Versatile Mgmt. Group v. Finke, 252 S.W.3d 227, 231 (Mo. App.2008). Therefore, if a party prevails at the agency level but is unsuccessful at the circuit court level, it is not that party's burden to claim error in an appellant's brief before the appellate court "because, to put it simply, the party prevailed at the agency level, which is the decision to be reviewed by the appellate court." Id. at 231-32. Thus, the party who contests the agency decision bears the burden of persuading the appellate court that the agency decision was in error, even though that party did not appeal to this court. Id. at 232. Indeed, our court rules recognize this procedural anomaly and set forth the briefing procedures to be followed in these types of cases. Rule 84.05(e) provides:

If the circuit court reverses a decision of an administrative agency and the appellate court reviews the decision of the agency rather than of the circuit court, the party aggrieved by the agency decision shall file the appellant's brief and reply brief. ... The party aggrieved by the circuit court decision shall prepare the respondent's brief. ...

Pursuant to Rule 84.05(e), this case was placed into a reverse briefing schedule whereby Ringer was designated to file the opening brief. Ringer failed to file a brief in this case, and this court sent her a notice informing her that she was in default and giving her time to remedy the default by filing a brief before June 11, 2009. Even in response to this notice, Ringer did not file a brief. Because Ringer failed to file a brief, she failed to preserve any issue for appellate review and failed to carry her burden of persuading this court that the Director's decision was in error. Under these circumstances, we have no alternative but to affirm the Director's decision.

Indeed, our holding in this case is identical to that of McCleney v. Neese, 288 S.W.3d 326 (Mo.App.2009), a recent decision of this court's Southern District. In that case, the Children's Division of the Department of Social Services recommended revocation of claimant's foster/adoptive home license. Id. at 327. Claimant requested an administrative hearing to challenge the revocation, and, following a hearing, the Director of the Children's Division issued a decision affirming the revocation of claimant's license. Id. Claima...