Wrenn v. City of Kansas City

Decision Date22 August 1995
Docket NumberNo. WD,WD
Citation908 S.W.2d 747
PartiesThomas WRENN, Appellant, v. CITY OF KANSAS CITY, Missouri, Respondent. 50478.
CourtMissouri Court of Appeals

Edward L. Pendleton, Kansas City, for appellant.

Kathleen A. Hauser, City Atty., Walter J. O'Toole, Asst. City Atty., Kansas City, for respondent.

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

BRECKENRIDGE, Judge.

Dr. Thomas Wrenn appeals from an order denying his petition for injunctive relief by which he sought to prevent the demolition of commercial property he owns. He also appeals the denial of his motion for recusal of all judges of the 16th Judicial Circuit and appointment of a judge from a different circuit to hear his petition for injunctive relief.

The appeal is dismissed.

On June 17, 1992, in response to a complaint from a neighbor, the City of Kansas City, Missouri ("City"), sent Dr. Wrenn a Warning of Alleged Violation, informing him that a commercial building which he owned was to be inspected for reported violations of the City's nuisance ordinance. A City building inspector conducted the inspection and concluded that the building was a dangerous building and a public nuisance as defined by Chapter 20 of the City's Code of General Ordinances (the "Code"). Consequently, on August 10, 1993, the inspector sent a Declaration of Nuisance to Dr. Wrenn, informing him that he needed to make preparations to either repair or demolish the building.

On October 6, 1993, a hearing was held to determine whether the building was a dangerous building as defined by Chapter 20 of the Code. On October 8, 1993, the City issued findings of fact which concluded that the building was unsafe and a nuisance, and the City issued an accompanying order that the building be demolished. On October 13, 1993, Dr. Wrenn appealed this order to the Property Maintenance Appeals Board (the "Board"). The Board conducted a hearing on December 9, 1993 to consider the appeal. On the same date, the Board issued written findings of fact and conclusions of law affirming the City's order of October 8, 1993, and returning the case to the City for enforcement.

Eleven months later, on November 23, 1994, Dr. Wrenn filed a petition seeking a temporary restraining order, a preliminary injunction, and a permanent injunction to prevent the City from demolishing the building. On November 28, 1994, the trial court issued a temporary restraining order preventing the demolition of the building. Then, in an order entered on December 8, 1994, the trial court extended the temporary restraining order until December 23, 1994.

The December 8th order stated that the parties would meet at the building on the 23rd of December to determine if a secure fence had been placed around the structure, if trash had been removed from the interior and exterior of the building, if all points of entry into the building had been boarded up, and if Dr. Wrenn had submitted financial and architectural/engineering plans for repairs to the building. During the inspection of the building on December 23, 1994, the trial judge, H. Michael Coburn, fell into an open elevator shaft in the floor of the building and was fatally injured.

On December 28, 1994, Dr. Wrenn filed a request for a hearing on his petition for injunctive relief. On December 30, 1994, the day of the hearing, Dr. Wrenn filed a request for recusal of all the judges of the 16th Judicial Circuit, claiming that it would be difficult for any judge of said circuit to hear the case "without the implication or semblance of partiality" in light of Judge Coburn's death in the building. Dr. Wrenn's request for recusal was denied, and Judge Lee E. Wells of the 16th Judicial Circuit presided over the hearing.

Following the hearing, the trial court entered an order denying Dr. Wrenn's petition for a preliminary and permanent injunction. The trial court also overruled Dr. Wrenn's motion to extend the temporary restraining order entered on November 28, 1994, and found that the temporary restraining order had expired. Accordingly, the trial court ruled that the City could proceed with the demolition of the property.

On appeal, Dr. Wrenn claims that the trial court's denial of his petition for injunctive relief was unsupported by the evidence, and that the trial court erred by denying his motion for recusal. It is unnecessary for this court to address the merits of Dr. Wrenn's points on appeal, because Dr. Wrenn failed to follow the statutory procedure provided by the legislature for seeking relief from administrative decisions. This is a jurisdictional matter which this court must consider, sua sponte if necessary, prior to any discussion of the substantive issues raised. American Hog Company v. County of Clinton, 495 S.W.2d 123, 125 (Mo.App.1973). See also Ackerman v. City of Creve Coeur, 553 S.W.2d 490, 491 (Mo.App.1977).

Actions which are delegated by a municipality to a board or retained to itself to enforce an ordinance are administrative and are reviewable under the Missouri Administrative Procedure Act, Chapter 536, RSMo 1994 (the "Act"). 1 Temple Stephens Co. v. Westenhaver, 776 S.W.2d 438, 440 (Mo.App.1989). As noted by this court in Reynolds v. City of Independence, 693 S.W.2d 129, 131 (Mo.App.1985), a party aggrieved by such an administrative decision has a choice between two distinct mechanisms for relief under Chapter 536. If the decision occurs in the context of a contested case, it is subject to judicial review under § 536.100. Id. If the decision occurs in the context of an uncontested case, it is subject to judicial review by way of injunction, certiorari, mandamus, or other remedy pursuant to § 536.150. Id.

When applied here, these principles mean that if the Board's decision occurred in the context of an uncontested case, then Dr. Wrenn's petition for injunctive relief would have been consistent with the procedures for judicial review afforded by § 536.150. However, if the Board's decision occurred in the context of a contested case, then the Act provided a procedure for judicial review under § 536.110, a procedure which Dr. Wrenn failed to pursue. Therefore, it is necessary to determine whether the City's action constituted a contested or uncontested case.

Section 536.010(2) of the Act defines a contested case as "a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after a hearing." In order to constitute a contested case, a proceeding must be contested because of some requirement by statute, municipal charter, ordinance, or constitutional provision for a hearing of which a record must be made unless waived. 2 State v. Jensen, 318 S.W.2d 353, 356 (Mo. banc 1958). The hearing requirement here is imposed by Section 20.74 of the Code, which charges the Board with the responsibility of conducting hearings that must be suitably recorded. 3

Section 67.430.1 provides that, if the hearing required by a city's nuisance or dangerous buildings ordinance maintains a proper record, then the ordinance is to provide for judicial review of the administrative decision as a contested case pursuant to § 536.100. 4 Such a hearing record exists in the case at bar; 5 therefore, § 67.430 would indicate that this case is a contested case subject to judicial review pursuant to § 536.100.

In Hagely v. Board of Educ., 841 S.W.2d 663, 668 (Mo. banc 1992), the Missouri Supreme Court enumerated a series of procedural formalities which must accompany a hearing in order for the underlying proceeding to qualify as a contested case:

In a contested case, the agency must provide notice to all necessary parties. § 536.067. At the hearing, oral evidence must be taken on oath or affirmation; the parties may call and examine witnesses, introduce exhibits, cross-examine opposing witnesses, impeach any witness, and rebut the evidence; a record of the proceedings must be made and preserved; and evidentiary rules must be followed. § 536.070. Depositions may be taken, subpoenas may be issued, and briefs may be filed. §§ 536.073, RSMo Supp.1991; 536.077, 536.080. Decisions must be in writing and must include findings of fact and conclusions of law. § 536.090.

Here, there is an audiotaped record of the December 9, 1993 hearing before the Board, and that record reveals that all witnesses were sworn in before testifying, that the parties presented witnesses and introduced exhibits, that Dr. Wrenn had the opportunity to cross-examine opposing witnesses, and that evidentiary rules were followed. In addition, the written record reveals that the Board's decision included findings of fact and conclusions of law.

In a more recent case, the Supreme Court has suggested that it may have "painted with too broad a brush" when, in Hagely, it held that a hearing in a...

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