State ex rel. Tivol Plaza, Inc. v. Mo. Comm'n On Human Rights
| Decision Date | 12 April 2016 |
| Docket Number | WD78477 |
| Parties | STATE OF MISSOURI, EX REL. TIVOL PLAZA, INC., Appellant, v. MISSOURI COMMISSION ON HUMAN RIGHTS, Respondent. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Cole County, Missouri
Tivol Plaza, Inc. appeals the circuit court's dismissal of its petition for preliminary and permanent writ of mandamus against the Missouri Commission on Human Rights. Because the circuit court denied Tivol's petition for writ of mandamus without issuing a preliminary order, Tivol's proper course was to file its writ in a higher court. We, therefore, dismiss Tivol's appeal.
On December 18, 2013, Karen Norton, a former employee who worked at two of Tivol's retail jewelry stores in Kansas City, filed a complaint against Tivol with the Commissionasserting claims of retaliation, sex discrimination, age discrimination, and a hostile work environment. Tivol, in its statement of position, challenged the timeliness of a number of Norton's allegations. Tivol expressly requested that, if the Commission chose to issue a right-to-sue notice without first dismissing the complaint's untimely aspects, the Commission make "specific factual findings sufficient for a circuit court to determine whether the Commission acted appropriately in issuing the Notice of Right to Sue." Tivol further stated that it would regard the Commission's failure to make such findings to constitute an arbitrary or capricious administrative action and an abuse of the Commission's discretion under section 536.150.1, RSMo 2000.
At Norton's request and more than 180 days after Norton filed her complaint with the Commission, the Commission issued a right-to-sue notice pursuant to section 213.111.1, RSMo 2000, and 8 C.S.R. 60-2.025(7)(B). According to the notice, the Commission had not completed the administrative processing of the complaint, "including determinations of jurisdiction."
Within 30 days of the issuance of the right to sue notice, Tivol filed a petition for preliminary and permanent writ of mandamus with the Circuit Court of Cole County, challenging the Commission's issuance of the right to sue notice. Tivol requested that the circuit court vacate the right to sue notice and order the Commission to determine whether or not Norton's charges had been timely filed. Relying on Farrow v. St. Francis Medical Center, 407 S.W.3d 579 (Mo. banc 2013), Tivol claimed that the Commission had a statutory duty to determine the timeliness of Norton's charges and that the Commission lacked the authority to issue a right to sue notice if Norton's charges were not timely filed. Tivol asserted that mandamus was appropriate because the Commission failed to "perform the ministerial act of determining whether it had jurisdiction over the entirety of the allegations within the Charge."
After Tivol filed the petition for mandamus, the circuit court issued summonses rather than issuing a preliminary order in mandamus. The Commission then filed a motion to dismiss alleging that Tivol's petition failed to state a cause of action. Thereafter, the circuit court dismissed Tivol's petition. Tivol appeals from that dismissal.
Tivol asserts three points on appeal: (1) the circuit court erred in dismissing its petition for preliminary and permanent writ of mandamus because the Commission had a ministerial duty to determine its jurisdiction to issue the notice of right to sue and to dismiss any untimely claims; (2) the circuit court erred in dismissing its petition for preliminary and permanent writ of mandamus because mandamus was appropriate under section 213.085.2, RSMo 2000, section 536.150, RSMo 2000, and the Missouri Supreme Court's decision in Farrow; and (3) the circuit court erred in finding that Tivol had preserved its right to raise the untimeliness issue in a subsequent civil action because Farrow mandates that the proper procedure for challenging the Commission's issuance of a notice of right to sue on untimely claims is by seeking judicial review of the Commission's administrative action.
Before we can address the merits of Tivol's claims, we must first determine whether we have authority to entertain this appeal. Powell v. Dep't of Corrections, 463 S.W.3d 838, 840 (Mo. App. 2015). We have a "duty to determine, sua sponte, whether the circuit court entered a final appealable judgment before substantive review of the issues presented on appeal." Banks v. Slay, 410 S.W.3d 767, 768 (Mo. App. 2013). "'Generally, when the circuit court denies a petition for writ of mandamus, the petitioner's proper course of action is not to appeal the denial but to file the writ in a higher court.'" Powell, 463 S.W.3d at 840 (quoting Stone v. Mo. Dep't of Corrections, Prob. & Parole Bd., 313 S.W.3d 158, 160 (Mo. App. 2010)). "'By contrast, where a preliminary [order] is granted and the court then determines on the merits whether the writshould be made permanent, or quashed, then appeal is the proper remedy.'" Powell, 463 S.W.3d at 480 (quoting Wheat v. Mo. Bd. of Prob. & Parole, 932 S.W.2d 835, 838 (Mo. App. 1996)).
The problem in this case is that the circuit court did not issue a preliminary order in mandamus as provided in Rule 94.04. Instead, the circuit court issued a summons, a procedure not authorized by Rule 94.2 Indeed, the Supreme Court of Missouri has acknowledged that the issuance of a summons by the circuit court instead of a preliminary order is not authorized by Rule 94. U.S. Dep't of Veterans Affairs v. Boresi, 396 S.W.3d 356, 359 n.1 (Mo. banc 2013).3 In Boresi, however, the Supreme Court chose to exercise its discretion to consider the case before it on the merits4 and issue a writ even though the circuit court issued a summons rather than a preliminary order. In doing so, the Court stated:
An appeal will lie from the denial of a writ petition when a lower court has issued a preliminary order in mandamus but then denies a permanent writ. Likewise, when the lower court issues a summons, the functional equivalent of a preliminary order, and then denies a permanent writ, appellate review is available.
Id. at 358-59 (citations omitted). In exercising its discretion to consider the merits, the Court made clear that it was "not required to exercise its discretion in like manner in the future." Id. at 359 n.1. In a concurring opinion in Boresi, Judge Fischer went even further and declared that a summons should not be allowed "to be a substitute for a preliminary order in any future case." Id. at 366.
Since Boresi, this court and this court's Eastern District have addressed the issue of whether we have the authority to entertain an appeal in cases where the circuit court issued summonses rather than preliminary orders. Powell, 463 S.W.3d at 840; Banks, 410 S.W.3d at 771.5 In both cases, the courts either dismissed the appeal or denied the plaintiff's request for a writ. Powell, 463 S.W.3d at 843; Banks, 410 S.W.3d at 771.
In Powell, the court opined that, in "[r]eading the majority's comments and the concurring opinion [in Boresi] together, it is clear that the Supreme Court is directing circuit courts to discontinue the practice of issuing a summons in lieu of a preliminary order in mandamus or prohibition." 463 S.W.3d at 842. Further, the Powell court noted: "It is likewise clear that, in the future, it is highly unlikely that the Missouri Supreme Court will exercise its discretion to hear an appeal on the merits where a summons, rather than a preliminary order, was issued by the circuit court." Id. The Powell court determined that, based upon the perceived guidance in Boresi, that courts "generally should decline to exercise [their] discretion to hear appeals on the merits in writ proceedings where a summons rather than a preliminary order has been issued bythe circuit court." Id. The court stated that it was unfortunate that the circuit court had issued a summons rather than following the procedure set forth in Rule 94 and encouraged all circuit courts "to follow the writ procedures set forth in Rule 94 (writs of mandamus) and Rule 97 (writs of prohibition), especially with respect to the issuance of preliminary orders." Id. The Powell court concluded that, because the circuit court denied the writ without issuing a preliminary order, "Appellant's proper course was to file his writ in a higher court." Id. at 842-43. The court, therefore, declined to hear the appeal on the merits and dismissed the appeal. Id. at 843.
In Banks, this court's Eastern District noted that the circuit court failed to follow the procedure set forth in the rules by issuing a summons and stated that "our Supreme Court has indicated this failure will not be condoned." 410 S.W.3d at 768. The Banks court concluded: "Rather than perpetuate a procedural process that is not authorized by Rule 94 and is disfavored by the Supreme Court of Missouri . . ., this court denies the writ without prejudice to seeking an original writ in the Supreme Court of Missouri." Id. at771. The Banks court further instructed, "In the future, our circuit courts should follow the procedure set out in Rule 94 rather than issue a summons." Id.
As decided in Powell and Banks, we refuse to perpetuate a procedural process that is not authorized by Rule 94. "The rules of civil procedure are 'rules of practice and procedure to promote the orderly administration of justice.'" Sitelines, LLC v. Pentstar Corp., 213 S.W.3d 703, 707 (Mo. App. 2007) (quoting Mello v. Williams, 73 S.W.3d 681, 685 (Mo. App. 2002)). "When properly adopted, the rules of court are binding on courts, litigants, and counsel, and it is the court's duty to enforce them." Sitelines, 213 S.W.3d at 707 (...
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