Smith v. City of St. Louis
| Decision Date | 23 April 2019 |
| Docket Number | No. ED 106751,ED 106751 |
| Citation | 573 S.W.3d 705 |
| Parties | William SMITH, Appellant, v. CITY OF ST. LOUIS, Respondent. |
| Court | Missouri Court of Appeals |
Rufus J. Tate, Jr., 230 Bemiston Avenue, Suite 1470, Clayton, MO. 63105, for appellant.
Alexis L. Silsbe, Robert H. Dierker, Co-Counsel, 1200 Market Street, Room 314, St. Louis, MO. 63103, for respondent.
William Smith ("Appellant") appeals from the judgment of the trial court dismissing as untimely his petition for judicial review of a decision of the Civil Service Commission (the "Commission"). Appellant asserts three points on appeal, arguing: (1) the trial court erred in considering documents outside the pleadings when adjudicating the City’s motion to dismiss; (2) the Commission erred in dismissing his case without conducting an evidentiary hearing; and (3) the trial court erred in concluding Appellant’s petition for judicial review was barred by the thirty-day filing deadline in Section 536.110. We affirm the judgment.
Appellant was a police officer with the St. Louis Police. On May 22, 2014, the police chief proposed to demote Appellant as discipline following allegations of misconduct. Appellant timely appealed his demotion to the Commission and requested an evidentiary hearing. While that case was pending, the police chief proposed to terminate Appellant, suspended him without pay, and asked him to surrender his badge and his gun. Appellant also timely appealed his termination and requested an evidentiary hearing. Appellant was given a hearing date for his cases. However, prior to the hearing, Appellant submitted a written letter of resignation.
Following Appellant’s resignation, the Commission dismissed Appellant’s case challenging his termination, but the case challenging his demotion remained pending.1 On April 26, 2016, the Commission mailed notice of the dismissal to the address on file for Appellant’s counsel of record ("Counsel"). On September 11, 2017, Counsel contacted the Commission to check on the status of Appellant’s case regarding the termination, and was informed that it had been dismissed. Counsel requested a copy of the Commissions dismissal, which the Commission provided on December 14, 2017.
On January 12, 2018, Counsel filed a Petition for Judicial Review of the Commission’s decision to dismiss the appeal of Appellant’s termination. The City filed a Rule 55.27(a)(1) motion to dismiss Appellant’s petition for "lack of subject matter jurisdiction," arguing the petition was not filed within thirty days of the "mailing or delivery" of the Commission’s decision, as required by Section 536.110. In support of its motion to dismiss, the City attached a copy of the Commission’s April 26, 2016 dismissal notice, which indicated it was sent to the address on file for Appellant’s Counsel. The City also attached an affidavit from the Secretary of the Civil Service Commission, stating: he has personal knowledge of the Commission’s decision to dismiss Appellant’s case; the Commission entered its decision dismissing the appeal on April 19, 2016; and notice regarding the Commission’s decision was mailed to Counsel on April 26, 2016 at the address listed on the dismissal notice.
The trial court held a hearing on the City’s motion to dismiss, and heard arguments from the parties.2 Appellant did not file a written response to the motion to dismiss prior to the hearing. During the oral argument, Counsel for Appellant asserted he did not receive the April 26, 2016 notice of dismissal from the Commission, and that the address the notice was mailed to was Counsel’s former address, prior to relocating his office in December of 2015. Other than Counsel’s assertions during oral argument, Appellant did not provide any evidence demonstrating Counsel moved his office prior to April 26, 2016. In response, the City asserted Appellant did not advise the Commission of any change of address prior to April 26, 2016, and Counsel was still using the same address on his filings with the Commission nearly a year after notice of the dismissal was mailed.
At the hearing, Appellant sought and was granted leave to file a written response after the hearing. In his written response, Appellant argued the thirty day filing deadline in Section 536.110.1 does not apply in this case because Appellant was never given a contested case hearing, therefore the Commission’s dismissal did not constitute a final decision in a contested case. Appellant also asserted "the City never mailed or delivered its actual Decision to [Appellant] until December 14, 2017." (Emphasis added). Appellant did not challenge the City’s evidence that it mailed notice of the dismissal on April, 26, 2016, nor did he present any argument or cite any evidence supporting that Counsel moved his office prior to April 26, 2016 or informed the Commission of any change of address.
Following the hearing, the trial court granted the City’s motion to dismiss and entered judgment dismissing Appellant’s petition for judicial review. In the judgment, the court found that, on April 26, 2016, the Commission mailed notice of its decision dismissing Appellant’s case to "the address on file for [Appellant]’s counsel of record[.]" The court found "[Appellant] did not advise the Civil Service Commission of any change of address prior to April 26, 2016, and that nearly a year after the mailing of the notice, [Appellant] was still using the [same] address on his filings with the Civil Service Commission." The court also noted that "[Appellant] was again notified on September 11, 2017 via e-mail by an administrative assistant at the Civil Service Commission that his appeal of the proposed termination had been dismissed on April 26, 2016, but that [Appellant] still did not file his Petition until ninety four days after that e-mail[,] on January 13, 2018." Based on this evidence, the court concluded (internal quotations and citation omitted).
The trial court’s judgment dismissing Appellant’s petition became final on May 9, 2018. On May 21, 2018, Appellant improperly filed his notice of appeal directly with this Court. After the filing was returned and the error explained, Appellant untimely filed his notice of appeal in the circuit court on May 22, 2018. Appellant subsequently filed a Rule 81.07 motion to accept an untimely filed notice of appeal, which this Court granted.
On May 29, 2018, Appellant filed the record on appeal. After Appellant failed to file his initial Appellant’s Brief by the July 28, 2018 deadline in Rule 84.05(a), this Court sent a notice of dismissal granting Appellant until August 16, 2018 to file his brief, pursuant to Rule 84.08. On August 16, 2018, Appellant filed a motion requesting to extend the filing deadline until August 24, 2018, which this Court granted. When Appellant missed the extended filing deadline, this Court issued a second notice of dismissal, granting Appellant until September 13, 2018 to file his brief. On September 13, 2018, Appellant filed another motion requesting to extend the filing deadline until September 17, 2018, which was granted. On September 19, 2018, Appellant untimely filed his brief without seeking leave to file an untimely brief.
On September 21, 2018, the City filed a Motion to Strike Appellant’s brief as untimely, and for failure to comply with the briefing requirements of Rule 84.04(c) and (h). On September 24, 2018, Appellant filed a motion requesting permission to file his brief out of time. On October 15, 2018, this Court granted Appellant’s motion to file his brief out of time, and ordered the City’s Motion to Strike Appellant’s Brief to be taken with the case.
On December 4, 2018, Appellant requested a motion to extend the time to file his Reply Brief, which this Court granted. However, the extended filing deadline passed without Appellant filing a Reply Brief.
Appellant asserts three points on appeal. In Point I, Appellant argues the trial court erred in granting the City’s motion to dismiss because the court relied on documents extrinsic to the Petition without notifying the parties that the motion to dismiss would be converted to a summary judgment proceeding, in violation of Rule 55.27(a). In Point II, Appellant argues the commission erred in unilaterally dismissing Appellant’s appeal from his termination because the Commission was not authorized to deny Appellant a duly-requested contested case hearing. In Point III, Appellant argues the trial court erred in concluding Section 536.110 barred judicial review of his petition because the thirty-day limitation petition for contested cases does not apply when, as in this case, the Commission does not conduct an evidentiary hearing.
We must first address the City’s motion to strike Appellant’s Brief and Appendix as untimely filed and for failure to comply with the briefing requirements of Rule 84.04(c) and (h).
We agree with the City that Appellant’s brief was not timely filed, despite this Court granting Appellant four extensions, twice placing Appellant’s case on the dismissal docket, and twice granting Counsel’s eleventh-hour requests for an extension on the day Appellant’s appeal would have been dismissed pursuant to Rule 84.08. Given that the merits of this case principally concern Counsel’s conduct in failing to timely file Appellant’s petition for judicial review, Counsel’s repeated failures to comply with appellate filing deadlines and orders of this Court are concerning. Howeve...
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