Court of Appeals of Missouri, Western District, Special Division
from the Circuit Court of Cole County, Missouri The Honorable
Patricia S. Joyce, Judge.
: Zel M. Fischer, Special Judge, Presiding, Gary D. Witt,
Judge and Thomas N. Chapman, Judge.
D. Witt, Judge.
Missouri State Highway Patrol ("Highway
Patrol") 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.
and Procedural Background
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.
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.
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. 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.
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
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.
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.
Highway Patrol appealed.
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
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.
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. 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. Therefore Point III is denied.
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
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."
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 ...