White v. Missouri Veterinary Medical Bd.

• Decision Date: 25 July 1995
• Docket Number: No. WD,WD
• Citation: White v. Missouri Veterinary Medical Bd., 906 S.W.2d 753 (Mo. App. 1995)
• Parties: Nelson L. WHITE, D.V.M., Appellant, v. MISSOURI VETERINARY MEDICAL BOARD, et al., Respondent. 50376.
• Court: Missouri Court of Appeals

Page 753

906 S.W.2d 753

Nelson L. WHITE, D.V.M., Appellant, v. MISSOURI VETERINARY MEDICAL BOARD, et al., Respondent.

No. WD 50376.

Missouri Court of Appeals Western District.

July 25, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 29, 1995.

Application to Transfer Denied

Oct. 24, 1995.

John David Landwehr, Jefferson City, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Kurt P. Valentine, Asst. Atty. Gen., Jefferson City, for respondent.

Before FENNER, C.J., and BRECKENRIDGE and SMART, JJ.

FENNER, Chief Judge.

This is an appeal by Nelson L. White, D.V.M., from the judgment of the Circuit Court of Cole County affirming the decision of the Administrative Hearing Commission ("AHC") finding that appellant was not a "prevailing party" in the underlying litigation because he did not obtain a favorable order, decision, judgment or dismissal of the underlying action and, therefore, was not entitled to an award for attorneys' fees and expenses in the matter pursuant to section 536.087.1, RSMo 1994. ¹ We affirm.

The underlying case involved an administrative complaint filed by the Missouri Veterinary Medical Board (the "Board"), against respondent, seeking a determination that appellant's veterinary license was subject to discipline based on the findings of an investigation of the Joplin Regional Stockyards, where appellant was the market veterinarian, conducted by the United States Department of Agriculture. Allegations by Valerie Earl, a technician working for appellant with whom appellant had what is characterized as an "acrimonious" relationship, served as part of the impetus for the Department of Agriculture's investigation.

The complaint filed by the Board alleged that appellant discarded four blood samples of animals he concluded were too young to test for brucellosis after Ms. Earl allegedly concluded the animals exhibited positive test results for the disease and that appellant changed the initial test records to reflect his opinion; that appellant conducted brucellosis tests without his glasses and reported negative results, though he was unable to accurately read the results, thereby failing to properly guard against the spread of the disease; that appellant failed to comply with regulations requiring the individual listing of animals on a health certificate; that appellant declared a heifer too young for testing for brucellosis only after the state laboratory issued a discrepancy finding between its results and a negative test reported by appellant; that appellant labeled a bull "too wild to test" and allowed the bull to exit the stockyard untested; that appellant allowed two heifers to enter the sale ring without having been tested for brucellosis; that there were numerous clerical errors in appellant's records; that appellant improperly allowed his son to sign his test charts; and that appellant improperly allowed brucellosis infected animals to leave the stockyards by substituting samples of blood. After a full hearing, the Board prevailed on the charges that White falsified the test records of the four heifers he labeled too young to test after Ms. Earl reported positive results and that appellant had failed to accurately report test results when reading the brucellosis tests without his glasses.

The AHC found appellant's actions to constitute misconduct, gross negligence, fraud, misrepresentation, dishonesty, and incompetency, and that cause existed to discipline appellant's license under section 340.125. After a disciplinary hearing, the Board revoked appellant's license.

Appellant subsequently filed this complaint with the AHC seeking a determination that the Board was responsible for appellant's attorneys's fees and expenses incurred while defending against the charges that the Board did not prevail upon. Appellant contended that because he prevailed on certain "issues" and one count of the complaint, he was entitled to an award for his fees and expenses associated with those issues as a "prevailing party" pursuant to sections 536.085 and 536.087.1. The Board contended that appellant did not "prevail" because he did not receive a favorable order, decision, judgment or dismissal of the underlying claim as defined in section 536.085(3); instead, cause for discipline was found and appellant's license was eventually revoked as a result, clearly indicating appellant did not "prevail" in the underlying action.

After a hearing, the AHC issued its decision on March 5, 1993 denying appellant's claim for attorney's fees and costs. The Circuit Court of Cole County affirmed the decision of the AHC on appeal on November 1, 1994. This appeal ensued.

I. STANDARD OF REVIEW

The standard of review for action such as the one presented in this case is specifically set forth in section 536.087.7:

The reviewing or appellate court's determination on any judicial review or appeal heard under this subsection shall be based solely on the record made before the agency or court below. The court may modify, reverse or reverse and remand the determination of fees and other expenses if the court finds that the award or failure to make an award of fees and other expenses, or the calculation of the amount of the award, was arbitrary and capricious, was unreasonable, was unsupported by competent and substantial evidence, or was made contrary to law or in excess of the court's or agency's jurisdiction.

This court is bound to the application of this standard in the case at bar.

II. WAS APPELLANT, DR. NELSON WHITE, A "PREVAILING PARTY" IN THE UNDERLYING LITIGATION?

Section 536.087.1 provides the following with regard to awards for reasonable fees and expenses in civil actions or agency proceedings:

A party who prevails in an agency proceeding or civil action arising therefrom, brought by or against the state, shall be awarded those reasonable fees and expenses incurred by that party in the civil action or agency proceeding, unless the court or agency finds that the position of the state was substantially justified or that special circumstances make an award unjust. (emphasis added).

There is no dispute that appellant was a "party" as defined by section 536.085(2). The crux of the dispute at hand, however, is whether appellant "prevailed" in the underlying action. A party "prevails" when they obtain a favorable order, decision, judgment, or dismissal in a civil or agency proceeding as defined by § 536.085(3). The question is whether appellant can be considered a "prevailing party" when, though he succeeded in defending against several of the allegations made by respondent, the ultimate decision in the underlying action was that cause was found to discipline appellant's veterinary license--the outcome sought by the respondent Board.

The Missouri statutes in question are patterned after the Federal Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412 (1982). The purpose of this law is to require agencies to carefully scrutinize agency and court proceedings and to increase accountability of the administrative agencies. St. Joseph State Hosp. v. Soliday, 861 S.W.2d 145, 147 (Mo.App.1993); Melahn v. Otto, 836 S.W.2d 525, 527 (Mo.App.1992); State Bd. of Registration for the Healing Arts v. Warren, 820 S.W.2d 564, 565 (Mo.App.1991). The law is designed to encourage relatively impecunious private parties to challenge abusive or unreasonable government behavior by relieving such parties of the fear of incurring large litigation expenses. United States v. 1,378.65 Acres of Land, 794 F.2d 1313, 1314-15 (8th Cir.1986); St. Joseph State Hosp., 861 S.W.2d at 147.

Missouri courts have not addressed the specific issue of whether a defendant in appellant's situation is entitled to a fee and expense award. We therefore turn to federal jurisprudence interpreting the EAJA for guidance. The legislative history of the EAJA indicates that the term "prevailing party" is not limited "to a victor only after entry of a final judgment following a full trial on the merits." H.R.Rep. No. 1418, 96th Cong., 2d Sess. 11 (1980), reprinted in 1980 U.S.C.C.A.N. 4953, 4984, 4990; Melahn, 836 S.W.2d at 528. A party will be deemed prevailing if he obtains a settlement of the case; if the plaintiff has sought a voluntary dismissal of a groundless complaint; or even if he does not ultimately prevail on all issues. Id.

The United States Supreme Court offered its opinion on when a plaintiff who does not prevail on all the issues may receive an award for fees and expenses under the EAJA in Texas State Teachers Ass'n v. Garland Indep. School Dist., 489 U.S. 782, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989). The Court resolved a conflict among the federal circuits in holding that if "the plaintiff has succeeded on 'any significant issue in litigation which achieve[d] some of the benefit the parties sought in bringing suit,' the plaintiff has crossed the threshold to a fee award of some kind." Texas State Teachers Ass'n, 489 U.S. at 791-92, 109 S.Ct. at 1493-94 (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.1978)). The touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute. Id. at 792-93, 109 S.Ct. at 1493-94.

In light of the Texas State Teachers Ass'n decision, it is clear that a partially prevailing plaintiff may receive an award for fees and expenses pursuant to the EAJA. These principles should also apply to the Missouri statutes in question. The question remains whether a partially prevailing defendant may receive an award for fees and expenses. ²

Appellant discusses several cases in his brief that allegedly support his position that partially prevailing defendants are entitled to awards for fees and expenses, including Alphin v. National Transp. Safety Bd., 839 F.2d 817 (D.C.Cir.1988), Cinciarelli v. Reagan, 729 F.2d 801 (D.C.Cir.1984), and Martin v. Lauer, 740 F.2d 36 (D.C.Cir.1984). We...