Ross v. Robb

• Decision Date: 10 May 1983
• Docket Number: No. WD32540,D,No. 81,81,WD32540
• Citation: 651 S.W.2d 680
• Parties: 11 Ed. Law Rep. 1100 Robert ROSS, Plaintiff-Respondent, v. Tracy V. ROBB, Guy S. Wright, Howard Fleming, David B. Riley, Salim S. Tadrus, and Larry D. Zimmerman, as duly elected members of the Board of Education of Moberly Public School Districtefendants-Appellants.
• Court: Missouri Court of Appeals

Page 680

651 S.W.2d 680

11 Ed. Law Rep. 1100

Robert ROSS, Plaintiff-Respondent, v. Tracy V. ROBB, Guy S. Wright, Howard Fleming, David B Riley, Salim S. Tadrus, and Larry D. Zimmerman, as duly elected members of the Board of Education of Moberly Public School District No. 81, Defendants-Appellants.

No. WD32540.

Missouri Court of Appeals Western District.

May 10, 1983.

William O'Donnell Lee, Hunter, Chamier, Lee, Elsberry & Wright, Moberly, for defendants-appellants.

John L. Port, Windsor, for plaintiff-respondent.

Before SOMERVILLE, C.J., and SHANGLER, PRITCHARD, DIXON, CLARK, MANFORD and KENNEDY, JJ.

DIXON, Judge.

The school board appeals from the action of the circuit court in reinstating respondent Robert Ross as a teacher in the school district. Upon a finding that this court has no jurisdiction, the cause is transferred to the Supreme Court of Missouri. Mo. Const. Art. V, § 3.

Pursuant to § 168.116 RSMo 1978, ¹ Ross was discharged as a tenured teacher. This dismissal was after a hearing and statement of charges. The cause for dismissal was activity of the teacher that was found by the school board to be "immoral conduct." § 168.114.1(2). The teacher petitioned the circuit court for review. § 168.120. The circuit court then entered its findings, conclusions, and order, which specified the sole ground for decision as follows:

When it comes to subparagraph 5 of paragraph 2 of Section 536.140, as to whether or not there was a fair trial, the Court will find that there was not.....

The Court is of the opinion that fair trial ... cannot be had when the same body draws the charges, employs the attorney to present their evidence, and then sets [sic ] as judge and jury to render a verdict.

This issue was not raised in the petition for review. The circuit court addressed none of the issues raised by respondent's petition for review, relying solely on the above-stated ground for its decision.

The brief for the school board filed in this court addressed all of the issues raised by the petition for review, as well as the extraneous ground relied upon by the circuit court, but not raised in the petition for review. Respondent's brief countered supporting the extraneous ground of the circuit court decision and also asserting that the findings of the school board were not supported by competent and substantial evidence, as well as the claim of constitutional invalidity of the statute. The briefs thus assert three issues: (1) the propriety of the action of the trial court ruling on the extraneous issue; (2) the issue of a lack of substantial competent evidence to support the findings of the school board; and (3) the constitutional issue. Before the constitutional claim of invalidity of the statute is reached (and thus the question of our jurisdiction), the other claims must be resolved.

The review by both the circuit court and this court in a contested case has been recently defined by our court in Phipps v. School District of Kansas City, 645 S.W.2d 91 (Mo.App.1982):

The statutes, rules and precedents which define and measure the role of the circuit court on review of an administrative contested case codefine and comeasure the role of the appeals court. Thus, neither the circuit court under § 536.140.1 nor the court of appeals from the judgment of the circuit court review de novo ...; rather, each reviews the decision of the agency ..., each defers to the administrative adjudication ... and each must sustain the agency decision unless the contestant by cogent evidence proves that the determination does not rest on competent and substantial evidence or is otherwise not valid ....

Id. at 95.

The initial question, then, must be whether this court will review the issue decided by the circuit court, which was not raised in the petition for review. ² Whether the circuit court was required to have decided such an issue, not raised by the parties, and whether this court is required, in turn, to do so is not free from doubt.

Section 536.140 provides the statutory direction for the scope of review for both this court and the circuit court. It reads in pertinent part:

536.140. Scope of judicial review--judgment--appeals

1. The court shall hear the case without a jury and, except as otherwise provided in subsection 4, shall hear it upon the petition and record filed as aforesaid.

2. The inquiry may extend to a determination of whether the action of the agency

(1) Is in violation of constitutional provisions;

(2) Is in excess of the statutory authority or jurisdiction of the agency;

(3) Is unsupported by competent and substantial evidence upon the whole record;

(4) Is, for any other reason, unauthorized by law;

(5) Is made upon unlawful procedure or without a fair trial;

(6) Is arbitrary, capricious or unreasonable;

(7) Involves an abuse of discretion.

(emphasis supplied).

The emphasized language quoted above seems to premise the application of all of the subsections of § 536.140.2 upon a requirement that the case be heard by the circuit court and, in turn, by this court upon the "petition and record." That construction of the statute would preclude a requirement of review as to matters not raised in the petition for review.

The "subsection 4" excepted in the language quoted is § 536.140 subsection 4 providing for supplementation of the record under specified circumstances. This subsection has no effect on the language of § 536.140 subsection 1 relating to the petition.

Perez v. Webb, 533 S.W.2d 650, 655 (Mo.App.1976), so holds. In that case, the circuit court decided the case on a constitutional principle not contained in the petition of the aggrieved party. The court of appeals said:

Even though the constitutionality of a statute or ordinance is included within the permissible scope of judicial inquiry upon review of administrative decisions under Section 536.140(2)(1) RSMo 1969, quoted above, it is beyond the scope of logic and does violence to the existing and binding rules with reference to pleading and preservation of constitutional points, to hold that in such judicial review a court (the Circuit Court in this instance) is required to (or would be within its historical function, if it did) search, sua sponte, for constitutional infirmities not put forward by the parties.

* * *

Not only would such a rule impose an onerous and unnecessary task upon the judicial review tribunal--one in which the parties evidenced no interest--but, if it was concluded that such constitutional problem existed, the court would, sua sponte, then have to decide if such problem was one of construction or application to test its own jurisdiction. Such foolish and useless intent will not be ascribed by this court to the legislative intent implicit in the enactment of Section 536.140(2)(1) RSMo 1969. City of Joplin v. Joplin Water Works, 386 S.W.2d 369, 373-374[5-7] (Mo.1965).

* * *

The constitutional considerations upon which this case was ruled in the court below were foreign to the matter before it, should not have been considered, and were, therefore, not decisive.

Id. at 655-56.

The holding of Perez is consistent with principled appellate review. A court sitting as an appellate court considers only allegations of error raised by the appealing party and does not sua sponte review for error not asserted or raised aside from a limited power to review for plain error. Rule 84.13. That principle of appellate review is stated in State ex rel. Houser v. Goodman, 406 S.W.2d 121 (Mo.App.1966):

With few exceptions, the forte of any court is to relegate itself to limbo until presented proper pleadings to be employed as vehicles for judicial locomotion. Even in matters over which a court has general jurisdiction, it cannot, ex mero motu, set itself in motion nor have power to determine questions unless they are presented to it in the manner and form prescribed by law.

Id. at 126.

The Perez case would appear to control, but it does not stand alone. In an earlier case, May Department Stores Co. v. State Tax Commn., 308 S.W.2d 748 (Mo.1958), the supreme court concluded that no authority denied a party the right to raise on appeal a question not asserted in the petition for review. The language of the May case on that issue is as follows:

Defendants say that this point was not raised in the petition for review, that it was not urged before the Commission, and that it is not properly here. We have searched the petition with the point in mind; we find no facts alleged which would raise the point, and no such theory of invalidity advanced. However, our statutes providing the remedy of judicial review (§§ 536.100, 536.110) do not require specific grounds to be stated in the petition, as does, for instance, the Public Service Commission Act in motions for rehearing (see §§ 386.500, 386.510); we find no previous authority requiring such under Chapter 536. We hesitate to impose the requirement here, although counsel did see fit to set out the other grounds in great detail. Under the circumstances we shall consider the point.

Id. at 762.

The May opinion neither mentions nor discusses § 536.140(1). This court, in Century State Bank v. State Banking Board, 523 S.W.2d 856 (Mo.App.1975), relying on the language of May set forth above, again permitted a party to raise an issue on review in the appellate court that was not raised in the petition for review. In doing so, Century State Bank overruled two cases, Carroll Construction Co. v. Kansas City, 278 S.W.2d 817 (Mo.App.1955), and Isgrigg v. Board of Trustees of Policemen's & Firemen's Pension Board, 401 S.W.2d 936 (Mo.App.1966), in which courts had refused to consider the failure of the agency to make findings of fact and conclusions of law when that issue was not raised in the petition for review.

In Century State Bank, supra, the party raised the issue in terms of a violation of § 536.090, which explicitly requires such findings and conclusions. As a departure from the...