State ex rel. Walmar Inv. Co. v. Mueller

• Decision Date: 09 July 1974
• Docket Number: No. 35320,35320
• Citation: 512 S.W.2d 180
• Parties: STATE ex rel. WALMAR INVESTMENT COMPANY, relator, Plaintiff-Respondent, v. Donald E. MUELLER et al., etc., Defendants-Appellants. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 180

512 S.W.2d 180

STATE ex rel. WALMAR INVESTMENT COMPANY, relator, Plaintiff-Respondent, v. Donald E. MUELLER et al., etc., Defendants-Appellants.

No. 35320.

Missouri Court of Appeals, St. Louis District, Division One.

July 9, 1974.

Thomas W. Wehrle, County Counsellor, Andrew J. Minardi, Associate County Counsellor, Clayton, for defendants-appellants.

Ziercher, Hocker, Tzinberg, Human & Michenfelder, Robert C. Jones, Clayton, for plaintiff-respondent.

WEIER, Judge.

This case is before this court for the second time. On the first appeal, reported in State ex rel. Walmar Investment Co. v. Armstrong, 477 S.W.2d 730 (Mo.App.1972), this court reversed the judgment of the circuit court which had affirmed the Board of Building Appeals of St. Louis County. In the contested hearing before the Board no record had been made of the proceedings and it was therefore impossible for the Board to certify a true and complete record on relator's appeal. Absent a record, we reversed the judgment with directions that the determination of the Board be quashed and the case be returned to it for hearing, and a proper record made.

Subsequent to our mandate in the first case, the Board of Building Appeals again held hearings at which time the testimony of witnesses was recorded and upon the completion of the hearings a transcript of the proceedings was prepared.

The evidence reveals that Walmar Investment Company was the owner of a subdivision of land in St. Louis County known as Inverness. Nationwide Lifetime Homes, Inc. was engaged in the construction of homes in the subdivision. In order to promote the sales of these homes, under a lease agreement with Walmar, Nationwide obtained building permits to construct model houses at 3015 and 3019 North Lindbergh Boulevard located on Lot 23 of Inverness subdivision. They were to be erected as display structures only for sales purposes and not to be occupied. On December 17, 1964, after Nationwide had made an assignment for benefit of creditors, the trustee under the assignment offered to transfer by a bill of sale all of the improvements on Lot 23 to Walmar, the owner of the fee simple title. Prior to its purchase of the property, officers of Walmar discussed the purchase with its attorney. He thereupon talked to an employee at the Building Commissioner's office in the County with regard to whether the structures could be used for commercial purposes. This employee, according to the testimony of the attorney, stated that they could be so used. A corporate officer of Walmar had also discussed this matter with the same building office employee and, so this officer testified, he was informed that the 'property' could be used for commercial purposes. The buildings were then purchased by Walmar. It is interesting to note that the real property itself was zoned commercial but the buildings could not be used for commercial purposes other than as model display homes. This was for the reason that they were of frame construction and did not comply with the building code then in effect. After being unsuccessful in obtaining occupancy permits from the building officer, an appeal was taken to the Board of Building Appeals which, under a County ordinance, consisted of the five members of the St. Louis County Building Commission. Being unsuccessful in this appeal, Walmar instituted a certiorari proceeding on July 21, 1965 in the circuit court of St. Louis County. As reported in the previous case hereinabove cited, the circuit court upheld the decision of the Board of Building Appeals. We thereupon reversed and remanded with instructions to quash the record. The Board thereafter held two hearings on July 11, 1972 and August 1, 1972, and the testimony in the proceedings was reduced to writing. The Board again refused to issue occupancy permits for commercial uses to Walmar for the structures addressed as 3015 and 3019 North Lindbergh Boulevard, and ordered that the structures be immediately removed from the premises in compliance with Section 220 of the BOCA Code. A petition for certiorari was thereupon filed on November 8, 1972 in the circuit court, and on February 26, 1973 the court decreed that relator was entitled to occupancy permits for commercial uses for these structures and set aside the Board's determination of November 3, 1972.

The Board has appealed, contending first that the court erred by exceeding its jurisdiction in overruling the Board because the evidence sustained the Board's decision and the court was in error for determining that the Board acted without the limits of its jurisdiction or in abuse of its jurisdiction, the only legal grounds upon which it might quash the Board's action in certiorari. The Board further contends that the court erred in finding that reliance by Walmar upon the statement of the County building employee estopped the Board from denying occupancy permits. Walmar, on the other hand, seeks to sustain the court's decision on the grounds of estoppel by reason of the oral statements made by the building officer and the action of relator in spending substantial sums of money in reliance thereon. Further, relator contends that the ruling of November 3, 1972 to the effect that it must remove the structures from the property was in excess of the proper authority of the Board in that the issue had not been raised on the appeal before the Board; and since there was no opportunity for relator to meet the issue of removal, it was a deprivation of relator's property without due process of law.

We first consider the procedure here used for the review of the determination of the Board, an administrative agency. Review of administrative decisions depends upon whether or not the case is a 'contested case' within the meaning of Rule 100.01(3), V.A.M.R. (§ 536.010). ¹ A contested case is defined in Rule 100.01(3) as a 'proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after hearing; * * *.' In a 'contested case', one in which a hearing is required, review is by a petition for review; in a case in which no hearing is required by law, review is by one of the methods specified in Rule 100.08, substantially the same as § 536.150. Section 536.150 was enacted as a companion bill to the Administrative Procedure Act. There are numerous cases where agencies act without having a hearing or making a record of the evidence heard. Section 536.150 was designed to provide for the making in court, in a 'statutory' certiorari proceeding, of the same kind of record that would be made before the agency in a case reviewable under Article V, § 22 of the Constitution, V.A.M.S. Section 536.150 gave the court the power to hear evidence on the merits of a case so that the court may determine, in the light of the facts as they appear to the court, whether the agency's decision was proper. State ex rel. State Tax Commission v. Walsh, 315 S.W.2d 830, 835 (Mo. banc 1958). The judicial review under this section (now Rule 100.08) is broader in scope than that required by the constitutional provision for cases in which a hearing is required by law in the agency, being in effect a hearing de novo. State ex rel. Leggett v. Jensen, 318 S.W.2d 353, 358 (Mo. banc 1958).

This proceeding was a 'contested case' within the meaning of Rule 100.01(3) in that legal rights, duties and privileges of specific parties have been determined after a required hearing. § 1104.070 St.L.Co.Rev.Ord.; Morrell v. Harris, 418 S.W.2d 20, 22 (Mo.1967). Mo.Const. Art. V, § 22 provides that all final decisions, findings, rules and orders of any administrative officer or body existing under the Constitution or by law, and that affect private rights, shall be subject to direct review by the courts as provided by law. The legislature in 1945 enacted § 536.010 through § 536.140 to implement this provision of the Constitution. These statutes have been largely superseded by Rules 100.01 through 100.07. Rule 41.04. These rules set out the procedures for trial and review of contested cases in administrative agencies. Because this was a contested case, we are governed by them and Walmar should have commenced its contest in the circuit court by filing a petition for review rather than certiorari. State ex rel. Leggett v. Jensen, supra, 318 S.W.2d 353, 356(2); State ex rel. Bond v. Simmons, 299 S.W.2d 540, 542(1) (Mo.App.1957). We recognize that under the prior submission of this case on appeal (State ex rel. Walmar Investment Co. v. Armstrong, supra) we determine that relator could proceed by certiorari under § 536.150. But upon further reflection, we believe that since this was a contested case, the review should have been by a petition for review. Because the record was inadequate for purposes of review, we properly remanded the cause for a more complete record so that the matter may be properly reviewed. Section 536.150, formerly 536.105, now Rule 100.08, specifically provides in Rule 100.08(b) that it shall not apply to contested cases reviewable pursuant to the previous rules. See Jensen, supra, 318 S.W.2d at 357. Therefore as to the approval of the writ of certiorari we must now abrogate our holding in State ex rel. Walmar Investment Co. v. Armstrong, supra insofar as it relates to the use of certiorari in this proceeding. The proper method of review in this present proceeding is by a petition for review rather than by the use of certiorari.

But even though the correct method to secure review was not here pursued, the appeal will not be dismissed. The decision of the Board of Building Appeals was approved on November 3, 1972. Within 30 days thereafter, as provided by Rule 100.04, that is, on November 8, 1972, a petition for writ of certiorari was filed in the office of the clerk of the circuit court. We will therefore consider the petition for writ of certiorari as though it were a petition seeking a review of the administrative decision, and...