Missouri Real Estate Appraisers Commission v. Mark A. Funk
2016 Mo. LEXIS 206
Mo.2016Background
- Mark Funk applied in 2007 for state-certified real estate appraiser certification; he submitted two 2006 appraisal reports that the Missouri Real Estate Appraisers Commission found deficient under USPAP and state rules.
- The Commission denied Funk’s application (Aug. 2007) after an interview and review of the 2006 reports.
- Funk appealed pro se to the Administrative Hearing Commission (AHC) and introduced three 2007 appraisals not previously before the Commission; the AHC credited the 2007 work and granted certification (Nov. 2008).
- The Commission sought judicial review; the circuit court reversed the AHC. Funk (with counsel) appealed to the court of appeals and prevailed; the court of appeals’ mandate ordered certification (Feb. 2010).
- Funk sought attorney’s fees under Mo. Rev. Stat. § 536.087, but filed his fee application belatedly and with the AHC rather than (the court where he first incurred fees) the court of appeals. The AHC later awarded fees; the circuit court reversed. The Supreme Court affirmed the circuit court.
Issues
| Issue | Plaintiff's Argument (Funk) | Defendant's Argument (Commission) | Held |
|---|---|---|---|
| Where must a prevailing party file a § 536.087 fee application when the party first prevailed at the agency without counsel but later incurred attorney fees on appeal? | Because Funk first prevailed at the AHC, the fee application to recover later-incurred appellate fees could properly be filed with the AHC after he incurred fees. | The statute requires filing in the forum where the party first prevailed or where the fees were incurred; Funk should have filed with the court of appeals, where he first incurred fees. | Held: Funk should have filed his fee application in the court of appeals (where he first prevailed while represented and first incurred fees); his AHC filing was untimely. |
| Was Funk’s post-mandate attempt to have the appellate court recall its mandate sufficient to cure untimeliness? | Funk sought recall/reissuance analogizing to Greenbriar to preserve fee timeliness. | The court of appeals mandate had issued and Funk did not timely move to recall within 30 days; the filing was untimely. | Held: Untimely; Funk did not file within 30 days of the final and unreviewable appellate decision. |
| Whether the AHC erred by denying the Commission’s claim of substantial justification based on deference to AHC fact/credibility findings on appeal. | (Implicit) The Commission’s appeal was unreasonable because appellate courts must defer to AHC credibility findings, so appeal had little chance. | Whether the state’s position was "substantially justified" must be judged on the record before the agency when it made the challenged decision, not on the merits of the later appeal. | Held: The AHC applied the wrong standard by focusing on the appeal’s chances; substantial-justification analysis must be based on the agency record that led to the challenged position. |
| Was the Commission’s initial denial substantially justified based on the record before it? | Funk argued the AHC’s ultimate finding (crediting 2007 appraisals) showed the Commission’s denial lacked justification. | The Commission presented expert testimony and statutory/rule-based grounds (errors in 2006 reports, interview evidence) showing a reasonable factual and legal basis for denial. | Held: The Commission’s position was substantially justified on the basis of the record before it; the AHC’s fee award was unsupported by competent and substantial evidence and contrary to law. |
Key Cases Cited
- Greenbriar Hills Country Club v. Director of Revenue, 47 S.W.3d 346 (Mo. banc 2001) (§ 536.087 substantial-justification analysis is based on the record before the agency in the original proceeding)
- Bird v. Missouri Bd. of Architects, Prof'l Engineers, Prof'l Land Surveyors & Landscape Architects, 259 S.W.3d 516 (Mo. banc 2008) (appellate review of agency actions is based on the record made before the agency)
- Dishman v. Joseph, 14 S.W.3d 709 (Mo. App. 2000) (agency’s fee-time substantial-justification inquiry limited to what the agency knew when it acted)
- Dishman v. Joseph, 81 S.W.3d 147 (Mo. App. 2002) (post-remand discussion of agency’s burden to show reasonableness of its prior action)
- State ex rel. Pulliam v. Reine, 108 S.W.3d 148 (Mo. App. 2003) (investigation and statutory authority can support substantial justification)
- Missouri Comm’n on Human Rights v. Red Dragon Rest., Inc., 991 S.W.2d 161 (Mo. App. 1999) (fee application held in abeyance before agency when state appeals until final appellate disposition)