FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS The Honorable
David Dowd, Judge.
Patricia Breckenridge, chief justice.
Carpenter sought judicial review of the State Board of
Nursing's (Board) disciplinary order, which imposed
discipline on her nursing license, including a three-year
probationary period with numerous conditions and
restrictions. The circuit court found that the Board's
disciplinary order was arbitrary, unreasonable, and
excessive. The court reduced the probationary period to one
year and eliminated almost all conditions and restrictions
originally imposed by the Board. Ms. Carpenter then sought
attorney's fees under section 536.087.1,  which allows a "prevailing
party" in an agency proceeding or civil action therefrom
to collect attorney's fees. The circuit court rejected
Ms. Carpenter's request, finding that, because Ms.
Carpenter was still subject to discipline, she was not a
Carpenter appeals, arguing that the circuit court erred in
finding that she was not a "prevailing party" based
on the broad definition of "prevails" found in
section 536.085 and Missouri and federal court
interpretations of the term. This Court agrees. While the
circuit court found that Ms. Carpenter's actions
warranted some discipline, it also found that, as requested
by Ms. Carpenter in her petition, the amount of discipline
imposed was excessive, unreasonable, arbitrary, and
capricious. Section 536.085(3) defines "prevails"
broadly as "obtains a favorable order, decision,
judgment, or dismissal in a civil action or agency
proceeding[.]" The circuit court applied a much narrower
definition and found that Ms. Carpenter did not prevail on
the "significant issue" of whether her actions
warranted discipline. Under the broad definition of
"prevails" found in the statute, however, Ms.
Carpenter "prevailed" when she successfully
petitioned the circuit court to reduce the probationary
period on her license from three years to one and to
eliminate almost all of the conditions and restrictions
imposed by the Board.
the circuit court did not err in overruling Ms.
Carpenter's motion for attorney's fees. Even though
the Board acted in a dual capacity as both an advocate and an
adjudicator at the disciplinary hearing, the attorney for the
Board never took a position as to what discipline the Board
should impose on Ms. Carpenter's license. Rather, it was
the Board, acting in its adjudicatory role, that decided to
impose the probation conditions with which the circuit court
later found fault. Accordingly, Ms. Carpenter is not entitled
to attorney's fees under section 536.087.1, and the
circuit court's judgment denying her fee application is
and Procedural Background
Carpenter worked as a nurse at Fulton State Hospital until
April 25, 2008, when she failed a drug screening and tested
positive for "pain killers" for which she did not
have a prescription. The hospital reported the incident to
the Board the same day. On May 5, 2011, the Board filed a
complaint with the Administrative Hearing Commission (AHC),
seeking a finding that cause existed to discipline Ms.
Carpenter's license as a registered nurse. On September
13, 2012, the AHC issued its decision, finding that Ms.
Carpenter violated the Nursing Practice Act, chapter 335
RSMo, by unlawfully possessing and testing positive for
light of the findings by the AHC, the Board convened a
hearing to determine what discipline should be imposed on Ms.
Carpenter's license. On December 17, 2012, the Board
entered its disciplinary order that included a three-year
probationary period. The disciplinary order included seven
sections, with more than 30 restrictions and conditions,
• Ms. Carpenter shall provide a copy of this Board Order
to any current employer and to any potential employer. Ms.
Carpenter shall cause an evaluation from each and every
employer to be completed for the Board at least quarterly.
• Ms. Carpenter may not serve on the administrative
staff, as a member of the faculty or as a preceptor at any
school of professional or practical nursing.
• Ms. Carpenter shall only work as a nurse where there
is on-site supervision. Ms. Carpenter shall not work in a
home health care, hospice, or durable medical equipment.
• Ms. Carpenter shall not administer, possess, dispense
or otherwise have access to controlled substances for the
first twelve months of probation.
• Ms. Carpenter shall, within six weeks from the
effective date of this agreement, undergo a thorough
evaluation for chemical dependency performed by a licensed
chemical dependency professional.
• Ms. Carpenter shall contract with the Board-approved
third party administrative (TPA) to schedule random witnessed
screening for alcohol and other drugs of abuse. The frequency
and method of such screenings shall be at the Board's
discretion. The screenings may be conducted on urine, breath,
blood or hair. The random screens shall be at the expense of
• Ms. Carpenter shall call the TPA each day of the week
including weekends, holidays, and each day that Ms. Carpenter
is on vacation, between the hours of 5:00 a.m. and 4:00 p.m.
C.S.T. Failure to call the TPA every day shall constitute a
violation of the terms of discipline.
• During the disciplinary period, Ms. Carpenter shall
abstain completely from the use or consumption of alcohol in
any form. The presence of any alcohol whatsoever in any
biological sample obtained from Ms. Carpenter, regardless of
the source, shall constitute a violation.
January 15, 2013, Ms. Carpenter, through counsel, filed a
petition for judicial review in the circuit court of the City
of St. Louis. The petition alleged that (1) the AHC did not
have authority to issue its decision because the Board's
complaint was not timely filed and (2) the terms and
conditions specified in the Board's disciplinary order
were unreasonable, arbitrary, capricious, and an abuse of the
Board's discretion. Ms. Carpenter also requested a stay
while the case was being litigated. The court granted a stay,
noting Ms. Carpenter's otherwise clean disciplinary
record and the failure by the Board to show the risk of harm
to the public if a stay was granted.
September 26, 2014, the court issued its order reversing the
Board's disciplinary order and remanding the case to the
Board to reconsider discipline. The court found that
"the discipline imposed against [Ms. Carpenter's]
license is unreasonable under all the circumstances, and an
abuse of discretion. More specifically, the Court finds the
Board's Discipline Order to be arbitrary and
October 24, 2014, Ms. Carpenter filed a motion seeking
attorney's fees under section 536.087.1, which allows
"[a] party who prevails in an agency proceeding or civil
action arising therefrom, brought by or against the state,
" to be awarded reasonable fees and expenses incurred by
that party in the civil action or agency proceeding. Although
the court, in its September 26 order, remanded the case to
the Board for a reconsideration of the terms of discipline,
the Board requested that the court make that determination
because the Board would not meet until March 2015.
February 20, 2015, the court issued its final judgment,
incorporating its previous order and vastly reducing the
number and scope of the terms and conditions of Ms.
Carpenter's discipline from that imposed by the Board.
The court, finding that the length and terms of the
Board's disciplinary order were excessive, arbitrary, and
capricious, reduced the length of probation from three years
to one and eliminated the majority of the conditions and
restrictions in the Board's original disciplinary order.
Specifically, the revised disciplinary order contained only
one section labeled "General Requirements" with
only nine restrictions and conditions, including:
• Ms. Carpenter shall meet with the Board or its
professional staff at such times and places as required by
• Ms. Carpenter shall not violate the Nursing Practice
• Ms. Carpenter shall inform the Board within ten days
of any change of home address or home telephone number.
• Ms. Carpenter shall obey all federal, state and local
laws, and all rules and regulations governing the practice ...