Veile v. Bryant

• Decision Date: 14 September 2004
• Docket Number: No. 03-186.,03-186.
• Parties: David VEILE, Appellant (Petitioner), v. Michael BRYANT and The Bryant Funeral Home, Inc., Appellees (Respondents).
• Court: Wyoming Supreme Court

97 P.3d 787

2004 WY 107

David VEILE, Appellant (Petitioner), v. Michael BRYANT and The Bryant Funeral Home, Inc., Appellees (Respondents).

No. 03-186.

Supreme Court of Wyoming.

September 14, 2004.

Representing Appellant: Bill G. Hibbler, Cheyenne, Wyoming.

Representing Appellees: Michael Bryant, Pro se.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

KITE, Justice.

[¶ 1] David Veile filed with the Board of Embalmers (Board) a petition to revoke Michael Bryant's funeral license alleging Mr. Bryant violated certain statutes and regulations governing funeral home directors. After Mr. Veile presented his evidence at a hearing, the Board granted Mr. Bryant's motion for a directed verdict and Mr. Veile filed a petition for review with the district court. The district court denied the petition finding the Board's decision was not subject to review and Mr. Veile timely appealed to this Court. We reverse the district court's denial of the petition and find the Board's decision was subject to review and we affirm the Board's order.

ISSUES

[¶ 2] The issues presented by Mr. Veile are:

I. Whether the proceeding held before the Wyoming State Board of Embalming was a contested case, pursuant to the Wyoming Administrative Procedure Act, Wyo. Stat. §§ 16-3-101 et seq.?

II. Whether the decision entered by the Wyoming State Board of Embalming, pursuant to Wyo.R.Civ.P. 52(c), is arbitrary and capricious (Wyo.Stat. § 16-3-114(c)(ii)(A))?

III. Whether the action of the Wyoming State Board of Embalming requiring appellant Veile, a private citizen, to prosecute a professional licensing disciplinary case is contrary to law (Wyo.Stat. § 16-3-114(c)(ii)(A), (C) and/or (D))?

IV. Whether the decision entered by the Wyoming State Board of Embalming violates Wyo. Stat. § 16-3-110?

V. Whether the Wyoming State Board of Embalming is a necessary party to this appeal of its decision and action?

[¶ 3] Mr. Bryant rephrases the issues as follows:

I. Whether the proceeding held before the Wyoming State Board of Embalming was a contested case proceeding pursuant to Wyo. Stat. § 16-3-101 et seq.

II. Whether the decision entered by the Wyoming State Board of Embalming was reasonable and rational based upon all the evidence before it.

III. Whether the decision of the Wyoming State Board of Embalming violates Wyo. Stat. § 16-3-110.

IV. Whether Mr. Veile's decision to personally prosecute Michael Bryant and the Bryant Funeral Home, Inc., and the Wyoming State Board of Embalming's decision to allow the same, is an issue between Mr. Veile and the Wyoming State Board of Embalming, not Mr. Bryant or the Bryant Funeral Homes, Inc.

FACTS

[¶ 4] Mr. Veile's family started Veile Mortuary in Worland, Wyoming in 1921. It was the only funeral home in Worland until Mr. Bryant opened Bryant Funeral Home, Inc. in 1995. In addition to owning his own funeral home, Mr. Bryant worked part-time as a deputy county coroner.

[¶ 5] In 1996, Mr. Veile filed a complaint with the Board against Mr. Bryant and Bryant Funeral Home alleging violations of Wyo. Stat. Ann. § 33-16-310(a)(ii)(A), (C), (D), (E), (N), (O) and/or (R) (LexisNexis 2003). In compliance with its rules, the Board assigned the complaint to an investigative committee and, ultimately, closed the case for lack of evidence of any violation by Mr. Bryant. On February 4, 1998, Mr. Veile filed a complaint with the Board for revocation or suspension of Mr. Bryant's license alleging Mr. Bryant had capped, steered and/or solicited funeral business in violation of § 33-16-310. Mr. Veile also filed a petition for writ of mandamus with the district court seeking to compel the Board to proceed with disciplinary action on the underlying complaints against Mr. Bryant which the Board had previously dismissed. The district court held the mandamus action in abeyance as a result of a stipulated agreement that the Board would re-investigate the initial allegations using an investigator chosen by Mr. Veile. At its January 2000 board meeting, after the investigation had been completed, the committee was prepared to make a recommendation to the Board. However, Mr. Veile attended the meeting and requested a private meeting with the committee so that he could provide them with new evidence against Mr. Bryant. The committee heard the new evidence, but before it could act, Mr. Veile filed suit against Mr. Bryant in federal court.¹ The federal court granted summary judgment in favor of Mr. Bryant and the case before the Board essentially started over.

[¶ 6] Mr. Veile filed a pleading entitled "Reassertion, Refiling and Supplement to Amended Petition for Revocation or Suspension of License and Complaint" on February 28, 2000.² On August 2, 2000, the Board notified Mr. Bryant that Mr. Veile had refiled his complaint alleging the same charges he alleged in 1998.³ Mr. Bryant responded to the Board stating he was in full compliance with the requirements of his embalming and funeral director licenses and that Mr. Veile's accusations were "false, malicious, groundless, and should be dismissed." Mr. Bryant also claimed the issues raised by Mr. Veile had been raised previously and were dismissed by the Board as groundless. The Board referred the matter to the Office of Administrative Hearings (OAH). On December 29, 2000, Mr. Veile filed an amended petition for revocation or suspension with OAH alleging twenty-one specific violations by Mr. Bryant.⁴ Mr. Veile alleged Mr. Bryant capped, steered and/or solicited funeral business, and overcharged his customers contrary to his general price list, which is required by the Federal Trade Commission (FTC) rules.⁵ The FTC rules require that providers of funeral goods and services provide customers with an itemized list of prices for described services to enable consumers to select and purchase only the goods and services they want, except for those required by law. Chapter 3, Sec. 7 of the Board's rules incorporates the FTC rules.

[¶ 7] After Mr. Veile filed his amended petition with OAH, the hearing examiner set the matter for hearing. Prior to the hearing, Mr. Bryant filed a motion for summary judgment, which was granted by the hearing examiner. Mr. Veile filed a petition for review with the district court, which certified the case to this Court. On November 20, 2001, this Court issued an order dismissing Mr. Veile's appeal for failure to exhaust administrative remedies because the Board had not acted on the OAH recommendation to grant the summary judgment motion and remanded the matter back to the district court with instructions to remand it to the Board. Upon remand, the Board issued an order rejecting OAH's recommendation for summary judgment and again set the matter for hearing.

[¶ 8] OAH held a hearing on February 4, 5 and 6, 2002, which three of the five Board members attended. At the close of Mr. Veile's evidence, the Board granted Mr. Bryant's motion for a directed verdict finding Mr. Veile failed to provide sufficient evidence to support his allegations. Mr. Veile filed a petition for review with the district court, as well as a motion to join the Board as a party, and an appeal pursuant to Wyo. Stat. Ann. § 33-16-312 (LexisNexis 2003) requesting a trial de novo.⁶ The district court denied the petition for review finding that Wyo. Stat. Ann. § 33-16-311 (LexisNexis 2003) permitted Mr. Veile to initiate a petition to revoke a license, but did not authorize him to prosecute the claim. The court held that when the Board receives a petition to revoke/suspend, it is obligated only to determine if there is a sufficient basis to prosecute and, therefore, the hearing was not a contested case. The court characterized the hearing as an investigation after which the Board determined there was not a sufficient basis to prosecute Mr. Veile's claims. The court also denied Mr. Veile's motion to join the Board as a party. This appeal followed.

STANDARD OF REVIEW

[¶ 9] We recently restated our standard of review for agency decisions in State ex rel. Department of Transportation v. Legarda, 2003 WY 130, ¶¶ 9-10, 77 P.3d 708, ¶¶ 9-10 (Wyo.2003).

Our review is governed by Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2003), which provides:

(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:

...

(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:

(A) Arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

We do not afford any special deference to the district court's decision when we review a matter initiated before an administrative agency. Rather, this court reviews the case as if it came directly from the administrative agency. Our review must focus on the evidence and consider the reasonableness of the agency's exercise of judgment while determining if the agency committed any errors of law. If the agency committed any errors of law, this court must correct them.

We have further stated:

When an agency decides that the party charged with the burden of proof has failed to meet that burden, the case is reviewed under the "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law" language of WYO. STAT. § 16-3-114(c)(ii) (1990).

Newman v. State ex rel. Workers' Safety & Comp. Div., 2002 WY 91, ¶ 12, 49 P.3d 163, ¶ 12 (Wyo.2002) (citations omitted). See also City of Casper v. Utech, 895 P.2d 449, 452 (Wyo.1995)

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[¶ 10] The arbitrary or capricious test requires the...