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Nowden v. Division of Alcohol & Tobacco Control

Court of Appeals of Missouri, Western District, Fourth Division

April 25, 2017

GRAYLAND NOWDEN, Appellant,
v.
DIVISION OF ALCOHOL & TOBACCO CONTROL, MISSOURI DEPARTMENT OF PUBLIC SAFETY, Respondent.

         Appeal from the Circuit Court of Cole County, Missouri The Honorable Jon E. Beetem, Judge

          Before: Mark D. Pfeiffer, Chief Judge, and Lisa White Hardwick and Gary D. Witt, Judges

          Mark D. Pfeiffer, Chief Judge

         Mr. Grayland Nowden ("Nowden") appeals from the Judgment entered by the Circuit Court of Cole County, Missouri ("circuit court"), granting summary judgment in favor of the Missouri Department of Public Safety's ("Department") Division of Alcohol and Tobacco Control ("Division") on Nowden's first amended petition for review under Chapter 536 on the grounds that Nowden's failure to exhaust his administrative remedies deprived the circuit court of authority to proceed. We reverse the circuit court's judgment and remand the cause for judicial review as a noncontested case pursuant to section 536.150.

         Facts and Procedural History

         Prior to October 1, 2013, Nowden was employed as a special agent with the Division. The Division conducted an investigation regarding Nowden's possible interest in a liquor establishment and possible violations of Division employee policies. After the investigation, the Division notified Nowden that he was terminated from his position as special agent effective October 1, 2013, "subject to your right to appeal as set forth in Missouri Department of Public Safety's Policy G-2, " a copy of which was attached to the letter. A Notification of Disciplinary Action dated October 1, 2013, was enclosed with the letter. The Notification advised Nowden that his application for appeal must be submitted to Supervisor Lafayette Lacy by October 8, 2013, seven calendar days from receipt of the Notification. Nowden did not submit his Application for Appeal until October 10, 2013. On November 4, 2013, the Division notified Nowden that his appeal was untimely and would not be considered.

         Nowden filed a complaint with the Administrative Hearing Commission ("AHC") on November 1, 2013. The AHC dismissed Nowden's appeal for lack of jurisdiction because Nowden was not a merit employee and the Department had appropriate internal appeal procedures for Division employees.

         On February 21, 2014, Nowden filed a petition for review under Chapter 536.[1] The parties filed cross-motions for summary judgment. The circuit court denied Nowden's motion for summary judgment, granted the Division's motion for summary judgment, and dismissed Nowden's petition with prejudice because he failed to exhaust his administrative remedies. Nowden timely appealed.

         Standard of Review

         The Division's administrative determination was a noncontested case. "On appeal in a non-contested case, we review the judgment of the circuit court, not the decision of the administrative agency." Sch. Dist. of Kansas City v. Mo. Bd. of Fund Comm'rs, 384 S.W.3d 238, 264 (Mo. App. W.D. 2012) (internal quotation omitted). Therefore, our review of the circuit court's summary judgment in favor of the Division "is essentially the same as the review for a court-tried case." Id. In granting summary judgment in favor of the Division, the circuit court held that Nowden failed to exhaust his administrative remedies, which deprived the circuit court of authority to proceed. Therefore, we must analyze this stated basis for the Judgment to determine whether the circuit court's conclusion "rests on substantial evidence and correctly declares or applies the law." Id. at 265 (internal quotation omitted).

         Analysis

         Nowden asserts five points on appeal. In Points I and III, Nowden asserts that he was not required to exhaust administrative remedies because under Policy G-2 there was no right to a formal hearing. In Points II and IV, he contends that he had no opportunity to exhaust his administrative remedy because he was immediately terminated. And in Point V, he argues that the circuit court erred in denying his motion for summary judgment because the Division's immediate termination denied him his rights to pre-deprivation due process. The exhaustion of remedies issue must be addressed first because "if the litigant has failed to exhaust administrative remedies, the trial court is deprived of statutory authority to act other than in dismissing the petition." Whithaus v. Curators of Univ. of Mo., 347 S.W.3d 102, 104-05 (Mo. App. W.D. 2011).

         Missouri Constitution article V, section 18 provides that: "All final decisions, findings, rules and orders on [sic] any administrative officer or body existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights, shall be subject to direct review by the courts as provided by law[.]" The statutory framework for judicial review of administrative decisions is found in Chapter 536.

         The resolution of this appeal rests on whether the circuit court was required to treat this matter as a contested or noncontested case. In its Judgment, the circuit court did not make an express determination as to the type of case before it. Nevertheless, the circuit court dismissed Nowden's petition with prejudice for lack of subject matter jurisdiction, concluding that Nowden failed to exhaust his administrative remedies because the Division "maintained a policy wherein a disciplined employee could seek review of the discipline decision by filing an 'appeal' within seven (7) days of the notice, " and Nowden "did not seek this remedy within ...


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