Shelton v. Farr

• Decision Date: 13 April 1999
• Docket Number: No. WD,WD
• Citation: 996 S.W.2d 541
• Parties: Gregory SHELTON and Shelton Wholesale, Inc., Appellants, v. William FARR, Respondent. 56160.
• Court: Missouri Court of Appeals

Page 541

996 S.W.2d 541

Gregory SHELTON and Shelton Wholesale, Inc., Appellants, v. William FARR, Respondent.

No. WD 56160.

Missouri Court of Appeals Western District.

April 13, 1999.

Motion for Rehearing and/or Transfer to

Supreme Court Denied June 1, 1999.

Application for Transfer Denied

Aug. 24, 1999.

David Whipple, Kansas City, for appellant.

Theodore Allen Bruce, Attorney General Office, Jefferson City, for respondent.

SPINDEN, Judge.

Gregory Shelton and Shelton Wholesale, Inc., ¹ appeal the circuit court's judgment dismissing their petition for declaratory judgment and for writ of mandamus in their lawsuit against William Farr, state fire marshal. Shelton asked the circuit court to declare that Farr's refusal to grant Shelton new fireworks permits was unlawful, and he asked the circuit court to require Farr to issue him fireworks permits.

In this appeal, Shelton contends that the circuit court improperly dismissed his petition for declaratory judgment on the ground that he did not state a claim for which it could grant relief. He also asserts that, because Farr did not move to dismiss the two counts of his petition concerning transfer of ownership and discriminatory enforcement, the circuit court erred in dismissing those two counts. We dismiss the appeal.

The evidence established that, on August 13, 1997, Farr revoked Shelton's fireworks permits for 18 months until February 15, 1999, on the ground that he possessed illegal fireworks. ² Pursuant to the order of revocation, Farr informed Shelton that no permit would be issued during the suspension ³ period.

On November 4, 1997, Shelton applied for jobber and manufacturer fireworks permits. On November 12, 1997, Farr sent a letter to Shelton telling him that Farr had denied his application. The letter said:

It has been previously determined by the Court of Appeals and the Circuit Court of Cole County that disciplinary action was appropriate for a suspension period of three years. It was the decision of the State Fire Marshal that an eighteen (18) months suspension be applied, with no permit(s) being issued during that suspension period.

Therefore, your application(s) for fireworks permit(s) has been denied.

Shelton responded by filing this lawsuit for writ of mandamus and declaratory judgment.

Shelton opted for this lawsuit instead of appealing to the Administrative Hearing Commission as required by § 621.045, RSMo 1994, and Regulation 11 CSR 40-3.010(7). To be entitled to judicial review, Shelton was obligated to exhaust all of his administrative remedies "unless some other provision for judicial review is provided by statute." Section 536.100, RSMo 1994. "Exhaustion of administrative remedies is a jurisdictional requirement for a declaratory judgment action." State ex rel. Missouri State Board of Registration for the Healing Arts v. Hartenbach, 768 S.W.2d 657, 659 (Mo.App.1989). The reason for requiring a party to exhaust his administrative remedies is:

"[To prevent] premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review."

Schierding v. Missouri Dental Board, 705 S.W.2d 484, 486 (Mo.App.1985)(quoting Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975)).

By filing an action for declaratory judgment and for writ of mandamus, Shelton attempted to bypass the AHC and the procedures mandated by the General Assembly for judicial review. "[T]he declaratory judgment act, while it is to be interpreted liberally, is not a general panacea for all real and imaginary legal ills, nor is it a substitute for already existing remedies." Schierding, 705 S.W.2d at 487. A declaratory judgment "should be used with caution and, except in exceptional circumstances plainly appearing, it is not to be used and applied where an adequate remedy already exists." Id. The same is true for a writ of mandamus. A writ of mandamus is an extraordinary remedy and " 'ought to be reserved for those cases in which no alternative measure will be effective.' " State ex rel. KelCor, Inc. v. Nooney Realty Trust, Inc., 966 S.W.2d 399, 402 (Mo.App.1998)(quoting State ex rel. Kelley v. Mitchell, 595 S.W.2d 261, 266 (Mo. banc 1980)). Shelton had an adequate remedy, but he let the time for using it expire. He cannot revive his action concerning the denial of his applications for fireworks permits by filing an action for declaratory judgment and writ of mandamus.

Shelton asserts that, because the issues presented by his petition are solely questions of law and because no adequate remedy exists through the administrative process, he is not required to exhaust his administrative remedies. We disagree. As the Supreme Court instructed in Bridge Data Company v. Director of Revenue, 794 S.W.2d 204, 207 (Mo. banc 1990), abrogated on other grounds, International Business Machines Corporation v. Director of Revenue, 958 S.W.2d 554 (Mo. banc 1997), the AHC has "full authority to reach a decision on the law as it finds it, subject, of course, to judicial review." Thus, even in matters of interpretations of questions of law, the AHC should be given the first opportunity to make such interpretations before subjecting those interpretations to judicial review. Shelton had an adequate remedy at law. Hence, the circuit court did not err in dismissing Shelton's petition.

Moreover, Shelton's appeal has become moot. Pursuant to Farr's order of August 13, 1997, the revocation or suspension of Shelton's permits remained in effect only...