Court of Appeals of Missouri, Eastern District, Fifth Division
from the Circuit Court of St. Louis County Honorable Robert
S. ODENWALD, Judge
appeal stems from the denial by the St. Louis County Council
(the "County Council") of the application for a
conditional-use permit by Winter Brothers Material Company
("Winter Brothers") to extract sand and gravel from
property owned by Winter Brothers. Following the denial of
the permit by the County Council, Winter Brothers filed a
petition with the circuit court seeking contested-case review
of the County Council's decision under Sections 536.100
through 536.140 of the Missouri Administrative Procedure
Act ("MAPA"). The circuit court reviewed the denial
of the conditional-use permit as a contested case under MAPA
and upheld the County Council's denial of the permit.
Winter Brothers appeals to this Court.
Because the administrative hearing provided by St. Louis
County ordinances did not mandate the procedural formalities
necessary to establish a contested case under MAP A, the
circuit court erred in undertaking review of the County
Council's denial of the conditional-use permit as a
contested case. Instead, the circuit court was required to
review the County Council's decision as a non-contested
case under Section 536.150 (RSMo (2000)) of MAP A, which is a
fundamentally different judicial review from that of a
contested case. Accordingly, we reverse and remand with
instructions that the circuit court dismiss Winter
Brothers' claim seeking contested-case administrative
review, but with further instructions to allow Winter
Brothers leave to amend its petition to assert a claim for
administrative review of a non-contested case under Section
and Procedural History
Brothers owns 900 acres of land on the west side of the
Meramec River. The tract of land contains commercially
valuable sand and gravel. A majority of the property (575 of
900 acres) is located in unincorporated St. Louis
County. Of the 575 acres located in St. Louis
County, 537 acres are in the Meramec River floodplain. These
537 acres are the subject of this dispute. Under the
applicable St. Louis County zoning ordinance, sand-and-gravel
extraction is allowed only as a conditional use. Winter
Brothers applied for a conditional-use permit with the County
to allow the extraction of gravel and sand. The St. Louis
Planning and Zoning Commission ("Planning
Commission") considered Winter Brothers'
application. Following a public hearing, the Planning
Commission recommended denial of the conditional-use permit.
Winter Brothers appealed the denial to the County Council.
County Council initially referred Winter Brothers'
statement of appeal back to the Planning Commission for
reconsideration. The Planning Commission reiterated its
recommendation to deny the conditional-use permit. The County
Council then referred the appeal to its Public Improvements
Committee (the "PIC Committee"). The PIC Committee
held another public hearing in which it heard from Winter
Brothers, staff of the County Planning Department, and the
public. As had occurred before the Planning Commission,
persons speaking at the committee meeting spoke on the
record, but no witnesses were examined or cross-examined
under oath. The PIC Committee recommended that the County
Council uphold the Planning Commission's denial of the
receipt of the PIC Committee report and recommendation, the
County Council, during a regular session, adopted Resolution
6034 denying Winter Brothers' request for a
conditional-use permit. The resolution contained findings of
fact and also stated the reasons for the County Council's
decision to deny the conditional-use permit.
exhausted all avenues with St. Louis County, Winter Brothers
filed a two-count petition in the circuit court. Count I of
its petition sought contested-case review of the County
Council's decision to deny the conditional-use permit
under Section 536.100. If Count I failed, Count II asserted a
claim for inverse condemnation, alleging that the County took
Winter Brothers' property for public use without just
compensation. The circuit court ordered Count II to be held
in abeyance pending a ruling on Count I.
circuit court entered judgment against Winter Brothers on
Count I. The circuit court provided written findings and
conclusions upholding the County Council's denial of the
conditional-use permit. Following the process for
contested-case review, the circuit court acted as an
appellate court by reviewing the record compiled in the
administrative proceedings and concluding that substantial
evidence supported the County Council's decision to deny
the conditional-use permit. The circuit court did not hear
evidence or conduct a de novo review of Winter Brothers'
application for the conditional-use permit. Although Count II
was not resolved, the circuit court certified the judgment on
Count I as final and appealable under Rule
74.01(b) by finding "no just reason for
delay." Winter Brothers appeals the circuit court's
judgment on Count I.
appeal, Winter Brothers asserts that the County Council's
denial of the conditional-use permit was unsupported by
substantial evidence, and was arbitrary and capricious.
Before we may address the substantive arguments raised by the
parties, it is incumbent upon us to resolve two procedural
issues. We first must determine if the circuit court properly
certified its judgment as final and appealable under Rule
74.01(b). If we find that the judgment is properly
appealable, then we must determine if the administrative
proceedings conducted by the County Council constituted a
contested case. Only then did the circuit court properly
engage in contested-case review of the County Council's
action under MAPA.
The Circuit Court Judgment May Be Appealed as a Final
noted above, the circuit court's judgment did not resolve
Count II of Winter Brothers' petition. Normally, court
rulings that do not resolve all counts of a petition are not
deemed final for purposes of appeal. See Boley v.
Knowles, 905 S.W.2d 86, 88 (Mo. banc 1995). A final
judgment is usually required for appellate review. Absent a
final judgment, we must dismiss the appeal. Gibson v.
Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997). As a
prerequisite to our appellate review, we review the finality
of a judgment sua sponte. Id.
74.01(b) sets forth an exception to the final-judgment rule:
Rule 74.01(b) provides that a "court may enter a
judgment as to one or more but fewer than all of the claims
... only upon an express determination that there is no just
reason for delay." The circuit court here certified its
judgment on Count I (for administrative review) as final and
appealable under Rule 74.01(b), expressly finding that there
was no just reason to delay the appeal.
even a partial final judgment certified under Rule 74.01(b)
is appealable only if the judgment resolves a distinct
"judicial unit." Gibson, 952 S.W.2d at
244. What constitutes a "judicial unit for an
appeal" is settled law. A judicial unit exists for
purposes of appeal when a trial-court ruling fully resolves a
claim. Id. A judicial unit is not resolved when the
court makes a "ruling on some of several issues arising
out of the same transaction or occurrence which does not
dispose of the claim." Id. "An order
dismissing some of several alternative counts, each stating
only one legal theory to recover damages for the same wrong,
is not considered an appealable judgment while the other
counts remain pending because the counts are concerned with a
single fact situation." Id. (emphasis added).
The presence of differing, separate, and ...