Cemon Byrd, Appellant, v. STATE of Missouri, Respondent.
WD 78968
Missouri Court of Appeals, Western District.
ORDER FILED: June 14, 2016
497 S.W.3d 667
PER CURIAM
Cemon Byrd (Byrd) appeals the motion court’s judgment denying his motion for postconviction relief. Byrd alleges that trial counsel was ineffective for providing information to the jury during opening statements that was inconsistent with Byrd’s trial testimony. Following an evidentiary hearing in which Byrd and trial counsel testified, the motion court found trial counsel’s testimony more credible, and denied Byrd’s post-conviction motion. On appeal, Byrd argues that the motion court clearly erred by finding trial counsel not ineffective. Because we defer to the motion court’s assessment of witness credibility, we hold that the motion court did not clearly err in denying Byrd’s motion.
We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.
The judgment of the trial court is affirmed in accordance with
Jennifer L. JOYNER, Appellant, v. Christopher E. JOYNER, Respondent.
WD 79142
Missouri Court of Appeals, Western District.
ORDER FILED: June 14, 2016
497 S.W.3d 667
Randall Barnes, Jefferson City, MO, Counsel for Appellant. Mary Browning, Jefferson City, MO, Counsel for Respondent. Before Division Two: Victor C. Howard, P.J., Thomas H. Newton, and Karen King Mitchell, JJ.
Per Curiam:
Ms. Jennifer Joyner appeals a judgment and decree of dissolution of marriage. Ms. Joyner and Mr. Christopher E. Joyner were married for almost eight years and had no children. Ms. Joyner claims that the trial court misapplied the law in failing to award maintenance and that the award was not supported by substantial evidence and was against the weight of the evidence.
For reasons stated in the memorandum provided to the parties, the judgment of the trial court is affirmed in accordance with
LAKE OZARK-OSAGE BEACH JOINT SEWER BOARD, et al., Appellants, v. MISSOURI DEPARTMENT OF NATURAL RESOURCES, Land Reclamation Commission and Magruder Limestone Co., Inc., Respondents.
WD 78869
Missouri Court of Appeals, Western District.
OPINION FILED: June 14, 2016
497 S.W.3d 667
Steven Mauer, Kansas City, MO, Counsel for Appellants. S. Jay Dobbs, St. Louis, MO, Adam Troutwine, Co-Counsel, Amy Fitts, Kansas City, MO, Counsels for Respondent Magruder Limestone. Timothy Duggan, Jefferson City, MO, Counsel for Respondents, MO. Dept, of Natural Resources and MO. Land Reclamation Commission. Before Division Three: Gary D. Witt, P.J., James Edward Welsh, and Anthony Rex Gabbert, JJ.
The Lake Ozark-Osage Beach Joint Sewer Board and Larry and Vicky Stockman (Appellants) appeal the Missouri Land Reclamation Commission’s decision to grant Magruder Limestone Co., Inc., (Magruder) a permit to operate a limestone quarry on a site adjacent to a wastewater treatment plant owned and operated by the Lake Ozark-Osage Beach Joint Sewer Board (Sewer Board).1 We affirm.
Statutory Framework
Missouri’s Land Reclamation Act (the Act),
The Act requires any operator desiring to engage in surface mining to make written application to the director for a permit.
Factual and Procedural Background
Magruder operates several quarries under a permit from the Commission. This case originated in April 2007, when Magruder filed an application to expand its permit to operate a limestone quarry on a 212-acre site in Miller County. Magruder sought permission from the Commission to engage in surface mining on 205 of those acres. The new quarry site is adjacent to a wastewater treatment plant operated by the Sewer Board. Magruder’s application proposed quarry activity approximately 700 feet from that plant. In addition, two force main sewer lines transverse through the center of the proposed quarry site and transmit all the sewage from the City of Osage Beach to the sewer treatment plant.3
Magruder’s application was deemed complete, and it published the required notice. Both Magruder and opponents of
The Miller County Circuit Court reversed the Commission’s decision to grant the permit. On appeal, this Court found that the decision was made upon unlawful procedure because the Commission incorrectly imposed the burden of persuasion on the petitioners in contravention of
On remand, the Commission designated Commissioner Winn from the Administrative Hearing Commission to take evidence and make recommendations. Following a five-day hearing, the Commissioner issued a Recommended Decision. She found that the Sewer Board met its burden of production by establishing issues of fact regarding the impact, if any, of the permitted activity on [its] health, safety, or livelihood but the individual petitioners (including the Stockmans5) did not. See
The Commission took up the matter at its next public meeting. It voted unanimously to adopt the recommendations and findings of Commissioner Winn and to grant Magruder’s permit, but it incorporated only the first five of the recommended conditions. The Commission also modified Condition 4 to make it easier to understand.
The Appellants filed a petition for judicial review, claiming that the Commission erred in failing to accept all of the hearing officer’s suggested conditions, and that the Commission lacked the authority to impose any conditions that were not in Magruder’s application. The circuit court rejected those arguments, stating that it had reviewed the Commission’s reasons for removing Conditions 6, 7, and 8 and found no basis for rejecting the Commission’s findings. The court also found that the Commission had the authority to impose or reject conditions when issuing a permit and affirmed the Commission’s decision to grant the permit with conditions.
Standard of Review
On appeal from the circuit court’s review of an agency’s decision, we review the agency’s actions and not those of the circuit court. Albanna v. State Bd. of Registration for Healing Arts, 293 S.W.3d 423, 428 (Mo. banc 2009). Our review is limited to determining whether the agency’s decision was constitutional; was within the agency’s statutory authority and jurisdiction; was supported by competent and substantial evidence upon the whole record; was authorized by law; was made upon lawful procedure with a fair trial; was not arbitrary, capricious or unreasonable; and was a proper exercise of discretion. Lagud v. Kansas City Bd. of Police Comm‘rs, 136 S.W.3d 786, 791 (Mo. banc 2004);
Point I
The Appellants first contend that the Commission erred in granting Magruder’s permit because the Commissioner’s Order is not supported by competent and substantial evidence and is arbitrary and capricious, in that the Commission removed Conditions 6, 7, and 8, which Commissioner Winn deemed necessary to the grant of the permit.
Section 444.773.3 of the Act provides that, where the Director recommends issuing a permit, a formal hearing may be held upon a timely petition from, any person whose health, safety or livelihood will be unduly impaired by the issuance of this permit. Lake Ozark/Osage Beach, 326 S.W.3d at 43. Following the formal hearing, if the Commission finds, based on competent and substantial scientific evidence on the record, that an interested party’s health, safety or livelihood will be unduly impaired by the issuance of the permit, then the Commission may deny the permit application.
Pursuant to section 444.789.3, the Commission may designate a hearing officer to hold a hearing and make recommendations to the Commission. Here, the Commission designated Commissioner Winn to do so. In the course of the hearing, the Commissioner accepted portions of the evidence from the 2008 hearing that the parties designated and heard additional testimony. As noted, the Commissioner ultimately found that the Sewer Board met its burden of production but that the individual petitioners did not. The Commissioner also found, however, that Magruder met its burden of persuasion.6 She recommended that Magruder’s application for permit expansion be granted subject to these Conditions:
Magruder must adhere to its blast plan.... Any significant alterations to the blast plan should be filed with the LRC and a copy provided to the Sewer Board. If smaller blast, smaller holes or lesser bench height is warranted because of concerns about safety or proximity to the sewer system, such downward departures should be allowed without notice. - The conditions set forth in the blast plan shall apply to the entire 205-acre mine plan.
- Blasting shall be confined to weekdays between 8:00 a.m. and 5:00 p.m. Magruder shall notify sewer plant staff prior to each blast. The Sewer Board shall provide the name of the appropriate contact person to [Magruder].
- The elevation of the mine floor at the quarry shall be maintained above the sewer lines to reduce the possibility of ground shifting or block movement in the pipeline area from blasting.
- Magruder shall not stockpile rock on or within 150 feet of the sewer line easement.
- Trucks or other heavy equipment shall not travel over the sewer line easement. If that necessity arises, Magruder shall consult with the Sewer Board and the City of Osage Beach to engineer and build a safe crossing over the sewer lines.
- Magruder shall employ the best available technology for dust suppression and control.
- If the Sewer Board documents a correlation between blasting at the quarry site and disruption to [its] UV [ultraviolet treatment] system, Magruder shall pay the cost of repairs and shall adjust its blasts to eliminate or minimize any such disruption.
At the Commission’s next public meeting, a member of the Land Reclamation Program Staff presented the Staff’s recommendations for modifications to the conditions recommended by Commissioner Winn. The Staff’s recommendations pertinent to this appeal are as follows:
4. Condition 4 was modified slightly from the original recommendation staff had prepared and placed in the packets for the meeting, and was altered to match the original recommendation of Hearing Officer Tichenor, from the first hearing. The condition deals with the elevation of the mine floor. The elevation of the floor of the mine (quarry) shall run at or above the grade of the City of Osage Beach’s sewer line easement as it crosses the Magruder property, so that no blasting holes will be drilled to a depth that would be below the elevation of that grade. Permittee shall submit an annual report prepared by a Missouri registered Professional Engineer to verify compliance with this requirement.
Justification for the above modification is that the proposed language is easier to understand for all parties and meets the intent of the Administrative Hearing Commission’s recommendation.
. . . .
6. Trucks or other heavy equipment shall not travel over the sewer easement line. If that necessity arises, Magruder shall consult with the Sewer Board and the City of Osage Beach to engineer and build a safe crossing over the sewer line. Staff recommendation is not to include this as a condition of the permit because this condition is between the company and the Sewer Board.
7. Magruder shall employ the best available technology for dust suppression and control.
Staff recommendation is not to include this as a condition of the permit because this activity will be regulated and enforceable under the Missouri Clean Air Conservation Law.
8. If the Sewer Board documents a correlation between blasting at the quarry site and disruption to the UV system, Magruder shall pay the cost of repairs and shall adjust its blasts to eliminate or minimize such disruption.
Staff recommendation is not to include this as a condition of the permit because it’s not feasible for Land Reclamation Program staff to make a determination as to a cause of UV system disruption and nearly impossible to enforce.
Following the Staff recommendations, each side was allowed five minutes to address the Commission. One of the Commissioners then moved to adopt the findings of the hearing officer with the changes presented by staff and the further change for Condition 4 to include the words ‘at the surface’ following ‘the Magruder property.’ Another Commissioner seconded the motion, and a third Commissioner commented that these conditions narrowed the aspects to the things that are under the jurisdiction of the Land Reclamation Program while other issues are enforced in different ways but they are addressed.
The Commission voted unanimously to adopt the recommendations and findings of Commissioner Winn and to grant Magruder’s permit. Pursuant to Staff recommendations, the Commission rejected Conditions 6, 7, and 8. The Commission also modified Condition 4 to make it easier to understand. In a letter dated January 13, 2014, the Commission issued formal notice of its decision, stating that it had adopted the Commissioner’s recommended decision, including the permit conditions as modified by the Commission.
The evidence supported the Commission’s decision to incorporate these modifications. As to Condition 6, Magruder’s representative testified at the formal hearing that Magruder would use a conveyor system to transport material at the mine and would engineer and build a proper crossing if it needs to use trucks to convey the material over the sewer lines. The Commission, as the finder of fact, was free to believe this testimony, Dierks v. Kraft Foods, 471 S.W.3d 726, 737 (Mo.App. 2015), and to conclude from it that Condition 6 was unnecessary and that engineering a crossing, if needed, is between [Magruder] and the Sewer Board.
As to Condition 7, requiring Magruder to employ the best available technology for dust suppression, the Staff pointed out that it was unnecessary because Magruder is subject to Missouri’s Clean Air Conservation Law dust emission limits.
In rejecting Condition 8, requiring Magruder to pay for repairs if Magruder’s blasting causes a disruption of the UV system, the Staff noted that it would be nearly impossible to enforce, in that it would not be feasible for the Staff to determine the cause of a UV system disruption. Moreover, the evidence showed that the treatment plant’s alert system recently had been upgraded so that personnel are notified within 90 seconds of any failure in the UV system; that resetting the system takes about five minutes; that if the UV system is offline only for a few minutes, the quality of the plant’s effluent will not be impaired; and that Condition 3 requires Magruder to provide advance notice of blasting, after which plant personnel can inspect the UV system. In light of all this, it is not surprising that the Commission determined that Condition 8 was not needed.
Finally, the decision to modify Condition 4 was based on the Staff’s advice that the
The Appellants contend that the Commission’s decision to accept Commissioner Winn’s recommendation to grant the permit while modifying her suggested conditions was outside the Commission’s authority and thus arbitrary and capricious. This argument, which suggests that the Commission was bound by the Commissioner’s recommendations, is without merit.
As noted, the Commission may designate a hearing officer to conduct a hearing and make recommendations to the Commission.
The Appellants’ suggestion that the Commission must either accept or reject the Recommended Decision in its entirety is simply incorrect. The legislature gave the Commission, not the hearing officer, the power to examine and pass on mining-permit applications. See
The Appellants clarify in their reply brief that they are not claiming that the Commission does not have the authority to make its own decision on the merits or modify recommendations. Rather, they are arguing that if the Commission does modify the recommendations, it must issue its own findings of fact and conclusions of law. Specifically, they contend that Magruder eliminates the requirement that the [Commission] make findings to support its decision. See
The Appellants assert, in other words, that the Commission may not grant the permit and then reject some of the required conditions, but must reject some or all of the factual findings and then make its own findings. Absent new findings, they argue, the decision to grant a permit was arbitrary and capricious.
This claim, however, also is without merit. The portion of
In addition, the Appellants fail to show how they were prejudiced by the Commission’s failure to issue findings of fact and conclusions of law. Only prejudicial error is reversible error. Saxony, 404 S.W.3d at 912. Here, the Commission’s formal notice of its decision, with attached minutes from the hearing on the Recommended Decision, explained the Staff’s reasoning for its recommended modifications, which the Commission adopted.
We also disagree with the Appellants’ (rather convoluted) claim that the Commission’s decision to eliminate some of the recommended conditions somehow rendered the entire decision unsupported by competent and substantial evidence. Our review of the record reveals that the Commission’s decision was supported by competent and substantial evidence upon the whole record. See
Finally, to the extent that the Appellants argue that the Commission was required to adopt all eight of the suggested conditions in order for Magruder to satisfy its burden of proof, we again disagree.9 As discussed above, the hearing officer is not the ultimate decision maker on mining permits; that role is the Commission’s alone. Saxony, 404 S.W.3d at 908-09;
Point II
The Appellants next argue that the Commission erred in granting Magruder’s permit because its Order is made upon unlawful procedure and without a fair trial, in that Commissioner Winn’s act of sua sponte adding conditions to the permit carried the burden of proof for Magruder. As the Commission appoints a hearing officer only for the limited purpose of conducting a hearing and making recommendations, the issue is whether the Commission has authority to attach conditions to a permit.
We find that the Commission does have such authority. We note, first, that
In Saxony, the Eastern District of this Court determined that the Commission
In examining
Citing other Department of Natural Resources agencies which have provisions for issuing conditional permits, the Saxony Court stated, we have no reason to believe [that] the legislature intended [the Commission] to be the only permit-granting entity without power to impose conditions on such permits during the process. Id. at 910. The Court held that the only logical conclusion is that the Commission’s power to ‘pass on’ applications under the Act includes the ability to conditionally approve permit applications in ways that align with the Act and fulfill the Commission’s purpose to balance interests of operators and the public. Id. at 911.
The Court also noted that
The Saxony Court concluded, in light of the foregoing, that the Commission had the authority to approve [the] permit subject to the condition that [the applicant] relocate its mine plan boundary. Id. at 912. Although the Saxony Court at times framed the issue more narrowly, nothing in its reasoning is limited to the specific circumstances of that case; rather, its reasoning necessarily decides the broader question of whether the Commission has the authority to attach conditions generally.10
Conclusion
Based on the foregoing, we affirm the circuit court’s judgment which upheld the Commission’s decision to grant Magruder its permit subject to the conditions cited.
All concur.
Alfred VALDEZ, Respondent, v. GILSTER-MARY LEE CORPORATION, Appellant.
No. ED 103808
Missouri Court of Appeals, Eastern District, DIVISION TWO.
Filed: June 14, 2016
497 S.W.3d 678
Samuel E. Buffaloe, 1000 West Nifong, Building 7, Suite 100, Columbia, MO. 65203, for appellant. Gregory L. Barnes, P.O. Box 899, Jefferson City, MO. 65102, for respondent. Before Philip M. Hess, P.J., Gary M. Gaertner, Jr., J. and Angela T. Quigless, J.
PER CURIAM.
Gilster-Mary Lee Corporation (Employer) appeals from the Labor and Industrial Relations Commission’s (the Commission) Final Award, awarding Alfred Valdez (Claimant), inter alia, 40% of the body as a whole for permanent and partial disability for herniated discs and subsequent fusion, and $701,892.59 for past medical expenses (the Final Award). The Final Award modified the decision of the Administrative Law Judge awarding Claimant 7.5% of the body as a whole for permanent and partial disability for a low back strain/sprain and denying Claimant’s claim for past medical expenses. Employer asserts on appeal that the Final Award was against the weight of the evidence because Claimant was not a credible witness as to the development of his symptoms. Employer also asserts the award of $701,892.59 for past medical expenses was against the weight of the evidence because Employer is entitled to a credit. Employer argues that the medical bills in the record provide evidence of extinguishment and write-offs of various kinds. Claimant has filed a motion to strike Employer’s brief and dismiss the appeal, alleging Employer failed to comply with
We have reviewed the briefs of the parties, the record on appeal, and the parties’ oral argument. We find the Commission did not err because the Final Award was supported by competent and substantial evidence and was not against the weight of the evidence. Employer’s Points I and II are denied. An extended opinion would
Notes
The elevation of the floor of the mine (quarry) shall run at or above the grade of the City of Osage Beach’s sewer line easement as it crosses the Magruder property at the surface, so that no blasting holes will be drilled to a depth that would be below the elevation of that grade.
The commission shall issue its own decision, based on the appeal, for permit issuance, denial, suspension, or revocation. If the commission changes a finding of fact or conclusion of law made by the administrative hearing commission, or modifies orvacates the decision recommended by the administrative hearing commission, it shall issue its own decision, which shall include findings of fact and conclusions of law. [Emphasis added.]