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Piercy v. Missouri State Highway Patrol

Court of Appeals of Missouri, Western District, Special Division

August 20, 2019


          Appeal from the Circuit Court of Cole County, Missouri The Honorable Patricia S. Joyce, Judge.

          Before : Zel M. Fischer, Special Judge, Presiding, Gary D. Witt, Judge and Thomas N. Chapman, Judge.

          Gary D. Witt, Judge.

         The Missouri State Highway Patrol ("Highway Patrol")[1] appeals the decision of the Circuit Court of Cole County, remanding to the Superintendent of the Highway Patrol ("Superintendent") the disciplinary action regarding Anthony Piercy ("Piercy"). The circuit court found that the Superintendent did not have the statutory authority to terminate Piercy's employment where the Disciplinary Review Board ("Board") recommended a lesser punishment. The Highway Patrol raises two allegations of error on appeal and in addition argues that the case before us is now moot. We affirm and remand for further proceedings consistent with this opinion.

         Factual and Procedural Background

         On May 14, 2014, Piercy was employed by the Highway Patrol as a Trooper and was on marine duty. While working a shift on the Lake of the Ozarks, Piercy stopped Brandon Ellingson ("Ellingson") under suspicion of operating a boat while intoxicated. A portable breath test showed the presence of alcohol in Ellingson's blood. Piercy placed Ellingson under arrest, handcuffed Ellingson's hands behind his back, and placed a life jacket around Ellingson with his body and handcuffed arms inside the life jacket. Piercy secured the life jacket with the three front clips but neglected to secure the crotch strap. While Piercy was transporting Ellingson to the zone office in Piercy's patrol boat, Piercy had to slow down quickly due to choppy waters. As Piercy slowed and stopped, Ellingson began to exit the patrol boat, falling over the side of the boat and into the water. Piercy first attempted to reach Ellingson with the boat hook but, as he did, the life jacket came off of Ellingson. Piercy immediately attempted a water rescue but was unsuccessful. As a result Ellingson drowned.

         Piercy was criminally charged based on his actions during his encounter with Ellingson and ultimately plead guilty to negligent operation of a vessel, a class B misdemeanor. The court sentenced Piercy to 180 days incarceration in the county jail, with execution of the sentence suspended, and placed him on two years' supervised probation with ten days of shock incarceration in the county jail.[2]

         Following the guilty plea, the Highway Patrol initiated an investigation by and through its Professional Standards Division ("PSD"). The PSD report concluded that there was cause for discipline and the Board was convened by the Superintendent to conduct a hearing pursuant to section 43.150.[3] The Board held a hearing on December 11, 2017. Following the hearing, the Board issued Findings of Fact, Conclusions of Law and Recommendation; the Board found the factual allegations to be true and recommended that Piercy be reinstated to active duty and as a disciplinary sanction transferred to a different troop.

         On December 15, 2017, following a review of the record made before the Board, the Superintendent issued her own Final Decision, ordering Piercy's employment with the Highway Patrol terminated.

         Piercy filed a Petition for Judicial Review in the Circuit Court of Cole County, eventually filing a First Amended Petition for Judicial Review ("Petition"). The Petition raised five counts. As relevant here, Count I asked the court to review the Superintendent's action as a non-contested case under section 536.150 and in the alternative Count II requested the court to review the matter as a contested case under section 536.140. The Highway Patrol moved to dismiss Count I because the court had no authority to review the case as a non-contested case and noticed the motion to dismiss for a hearing. Piercy filed a motion for summary judgment as to Count I and noticed that motion for a hearing.

         The circuit court held a hearing on both motions on June 22, 2018. Following the hearing, the court issued Final Judgment on Counts I, II, III and IV ("Judgment"). The Judgment found that whether it was a non-contested case or a contested case--Counts I and II--Percy's dismissal was a violation of the Superintendent's statutory authority. Because Counts III and IV sought plenary administrative review in the alternative, they were dismissed as moot. Count V remained but the Judgment was certified as interlocutory and final for the purposes of appeal.[4]

         The Highway Patrol appealed.


         The Highway Patrol raises three points of error on appeal. The first two points address alleged errors in the court's Judgment. The third point on appeal alleges that the court erred in denying the Highway Patrol's post-trial motion because the case is now moot given that Piercy's peace officer license has been revoked. Because the third point would be dispositive of the entire case we begin our discussion there.


         "A case is moot if the decision would have no practical effect upon an existent controversy." Jackson Cnty. Bd. of Election Comm'rs ex rel. Brown v. City of Lee's Summit, 277 S.W.3d 740, 744 (Mo. App. W.D. 2008) (internal quotation omitted). "When an event occurs that makes a court's decision unnecessary or makes it impossible for the court to grant effectual relief, the case is moot and generally should be dismissed." Id.

         As Piercy notes, while his peace officer license was revoked on an administrative level, that case is still going through the appeals process. The question of Piercy's future employment would not become moot unless and until such time as the revocation of his peace officer license becomes final, a point which was conceded by the Highway Patrol at oral argument.[5] The record contains no final judgment on the license issue and this Court has received no stipulation from the parties that such a final decision has been issued. Even were the revocation to become final during the pendency of this appeal, the case is not rendered moot because, again as noted by Piercy, in the event that this Court finds that the Superintendent did not have the authority to dismiss Piercy at the point in time that he was dismissed then he may be entitled to make a claim for damages stemming from any period of time between his wrongful termination and any lawful termination, even if he is not ultimately able to be finally reinstated due to a lack of a required license.[6] Therefore Point III is denied.


         "When reviewing a governmental agency's decision, this Court considers whether the matter before the agency was a 'contested' or 'non-contested case' to determine the scope of judicial review." State ex rel. Robison v. Lindley-Myers, 551 S.W.3d 468, 471 (Mo. banc 2018) (internal quotations omitted). As such we must next address the Highway Patrol's second allegation of error - that the circuit court erred in reviewing the case as a non-contested case under section 536.150 because this action is a contested case, requiring review under section 536.140.

         Under the Missouri Administrative Procedure Act ("MAPA") there are two types of cases: contested cases and non-contested cases. The determination of whether a case is "contested" or "noncontested" is made as a matter of law. City of Valley Park v. Armstrong, 273 S.W.3d 504, 506 (Mo. banc 2009). "A 'contested case' is defined in the MAPA as 'a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after hearing.'" Furlong Cos., Inc. v. City of Kansas City, 189 S.W.3d 157, 165 (Mo. banc 2006) (quoting section 536.010(4)). "The MAPA does not explicitly define a 'non-contested case,' but it has been defined by [the Missouri Supreme Court] as a decision that is not required by law to be determined after a hearing." Id.

Contested cases provide the parties with an opportunity for a formal hearing with the presentation of evidence, including sworn testimony of witnesses and cross-examination of witnesses, and require written findings of fact and conclusions of law. The review of a contested case is a review by the trial court of the record created before the administrative body. The trial court's decision upon such review is ...

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