author: WILLIAM RAY PRICE, JR., Judge. RONNIE L. WHITE, Chief Justice,

text:
    UNITED PHARMACAL COMPANY OF MISSOURI INC., Respondent, v. MISSOURI BOARD OF PHARMACY, Appellant.
    No. SC 86104.
    Supreme Court of Missouri, En Banc.
    April 5, 2005.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Daryl R. Hylton, Asst. Atty. Gen., Jefferson City, MO, for Appellant.
    R. Todd Ehlert, R. Dan Boulware, Sharon Kennedy, St. Joseph, MO, for Respondent.
   WILLIAM RAY PRICE, JR., Judge.

United Pharmacal Company of Missouri brought suit in Buchanan County for declaratory judgment against the Missouri Board of Pharmacy claiming jurisdiction under section 536.050, RSMo 2000, which allows suit to be brought in the county where plaintiff resides if the suit concerns an administrative rule. The trial court granted summary judgment on the merits for Pharmacal. After opinion by the court of appeals, this Court granted transfer. Mo. Const, art. V, sec. 10. The state claims that venue was only proper in Cole County under the general venue statute, section 508.010(1). The judgment is reversed, and the case is remanded because the facts pleaded concern statutory violations, which cannot support venue in Buchanan County.

I. Background

Pharmacal is a St. Joseph, Missouri, business selling animal supplies. It has been in business for twenty years and sells federal “veterinary legend” drugs to animal owners with a veterinarian’s prescription. The board of pharmacy is a part of the Missouri Division of Professional Registration and is in charge of pharmacy licensing for the state. Secs. 338.140, 620.010.14. The board maintains its offices in Jefferson City.

The board issued a cease-and-desist letter on June 21, 2001, demanding that Pharmacal stop selling animal drugs without a pharmacy license. The cease-and-desist letter stated “Specifically, it is the Board’s determination that the following Laws and/or rules are being violated.” The letter then listed sections 338.010.1, 338.220, and 338.195 including the text of each statute. It listed no rules as authority. The board claims that it has statutory authority over animal drugs prescribed by veterinarians as well as human medicines. Pharmacal denies that the board has any authority over animal drugs.

Pharmacal claims that the cease-and-desist letter was issued pursuant to an agency rule posted as a frequently asked question (FAQ) on the board’s website. Sometime in 2001, the board of pharmacy’s website displayed a number of FAQs. One of them, which is no longer displayed on the website, reads as follows:

Missouri

Board of Pharmacy

Division of Professional Registration

Frequently Asked Questions — General Pharmacy Law

8. Does an entity have to be licensed as a pharmacy to sell veterinary legend drugs to the consumer/owner of the animal(s)? Yes. Veterinary legend drugs may only be sold based on the order/prescription of a veterinarian. An entity may not sell veterinary legend drugs directly to the consumer (owner of animal) based on a prescription without being licensed as a pharmacy.
If an entity sells veterinary legend drugs to veterinarians or other wholesalers, the entity would have to be licensed as either a pharmacy or a drug distributor. Pharmacies are limited to 5% of their gross pharmaceutical sales before licensure as a drug distributor is required. State law allows a licensed veterinarian to dispense veterinary prescription drugs to clients with whom he has an established relationship.

The board denies that the PAQ was a rule. The board did not comply with the rule-making requirements of section 536.021 concerning this FAQ.

Pharmacal brought this action for declaratory judgment stating in its petition:

22. On information and belief, in 2001, the Board of Pharmacy adopted a rule, applicable to all sellers of federal veterinary legend drugs to consumers, requiring those entities to have licensed pharmacists present when such sales take place and to obtain a license to operate a pharmacy to conduct such sales.
28. The Board of Pharmacy’s rules requiring sellers of federal veterinary legend drugs to consumers to comply with licensure and regulatory requirements as a licensed pharmacy and to have a licensed pharmacist on duty when such sales take place fall outside of the delegation of authority to the Board of Pharmacy by the General Assembly, and were promulgated without notice and hearing. Said rules are, therefore, unlawful, illegal and void under the applicable statutory provisions and all other pertinent law.

The board of pharmacy was the only defendant named in the declaratory judgment suit.

II. The Venue Statutes

This Court has held that “when a state agency is the sole defendant, [section 508.010(1) ... requires that the action be brought in Cole County unless a special venue statute allows the action to be filed elsewhere.” State ex rel. Mo. Dept. of Natural Res. v. Roper, 824 S.W.2d 901, 903 (Mo. banc 1992). Alternate venue may be available pursuant to section 536.050.1. That section provides:

The power of the courts of this state to render declaratory judgments shall extend to declaratory judgments respecting the validity of rules, or of threatened applications thereof, and such suits may be maintained against agencies whether or not the plaintiff has first requested the agency to pass upon the question presented. The venue of such suits against agencies shall, at the option of the plaintiff, be in the circuit court of Cole County, or in the county of the plaintiffs residence, or if the plaintiff is a corporation, domestic or foreign, having a registered office or business office in this state, in the county of such registered office or business office.

Sec. 536.050.1 (emphasis added). Pharmacal claims that this statute provided it with venue in Buchanan County, where its business office is located. The state claims that the venue for this case was improper in Buchanan County. Unfortunately, after judgment by the circuit court and opinion by the court of appeals, this Court agrees because this case does not concern an administrative rule or the validity or threatened application of a rule.

A. The FAQ was not a rule

Administrative rules have independent power as law. Psychare Mgmt., Inc. v. Dept. of Soc. Serv. Div. of Med. Serv., 980 S.W.2d 311, 813-14 (Mo. banc 1998). For this reason, specific and detailed protective procedures are required for an agency to promulgate an administrative rule. In St Louis Christian Home v. Missouri Commission on Human Rights, 634 S.W.2d 508, 515 (Mo.App.1982), the court observed:

The very purpose of the notice procedure for a proposed rule is to allow opportunity for comment by supporters or opponents of the measure, and so to induce a modification.... To neglect the notice ... or to give effect to a proposed rule before the time for comment has run ... undermines the integrity of the procedure.

Section 536.010(6) defines the substantive requirements of a rule as follows: “ ‘Rule’ means each agency statement of general applicability that implements, interprets, or prescribes law or policy, or that describes the organization, procedure, or practice requirements of any agency.” However, “[o]nly rules promulgated by an administrative agency with properly delegated authority have the force and effect of law.” Psychare Mgmt., Inc., 980 S.W.2d at 313-14; see Mo. Soybean Ass’n v. Mo. Clean Water Comm’n, 102 S.W.3d 10, 22-23 (Mo. banc 2003). Section 536.021 provides these promulgation requirements. “No rule shall hereafter be proposed, adopted, amended or rescinded by any state agency unless such agency shall first file with the secretary of state a notice of proposed rulemaking and a subsequent final order of rulemaking, both of which shall be published in the Missouri Register by the secretary of state as soon as practicable after the filing thereof in that office. ...” Sec. 536.021.

This Court has held that “[fjailure to follow rulemaking procedures renders void purported changes in statewide policy.” NME Hosps. Inc. v. Dept. of Soc. Serv., 850 S.W.2d 71, 74-75 (Mo. banc 1993). This Court has further held that “something that is void is null; ineffectual; nugatory; having no legal force or binding effect ...; an instrument or transaction which is wholly ineffective, inoperative, and incapable of ratification and which thus has no force or effect so that nothing can cure it.” R.E.J., Inc. v. City of Sikeston, 142 S.W.3d 744, 745 (Mo. banc 2004) (citation omitted).

Not everything that is written or published by an agency constitutes an administrative rule. In this case, the board made no attempt to comply with the protective procedures required for the promulgation of a rule. In fact, the agency did not even try to promulgate the FAQ as a rule. Pharmacal’s claim of venue pursuant to section 536.050.1 must fail because the FAQ was not an administrative rule and, as such, there is no challenge to the validity of a rule or to a threatened application of a rule. The FAQ was merely an expression of the board’s interpretation of law without any force or legal effect.

B. A challenge to “validity” requires at least a promulgated rule.

Pharmacal continues its argument by claiming that section 536.050.1 provides venue because it is challenging the validity of this FAQ as an administrative rule. Section 536.014 provides circumstances in which a rule could be invalid. It states that:

No department, agency, commission or board rule shall be valid in the event that: (1) There is an absence of statutory authority for the rule or any portion thereof; or (2) The rule is in conflict with state law; or (3) The rule is so arbitrary and capricious as to create such substantial inequity as to be unreasonably burdensome on persons affected.

Sec. 536.014 (emphasis added). Section 536.024 provides: “When the general assembly authorizes any state agency to adopt administrative rules or regulations, the granting of such rulemaking authority and the validity of such rules and regulations is contingent upon the agency complying with the provisions of this section in promulgating such rules .... ” (emphasis added).

The question of validity, however, presupposes the existence of a promulgated rule, or at least, a rule that purports to have been promulgated. Section 536.053 links standing to a promulgated rule. Section 536.053 provides that “[a]ny person who is or may be aggrieved by any rule promulgated by a state agency shall have standing to challenge any rule promulgated by a state agency and may bring such an action pursuant to the provisions of section 536.050.” Sec. 536.053 (emphasis added).

In this case there was no attempt by the board to promulgate this FAQ as a rule. Without promulgation of an administrative rule, section 536.050.1 cannot support venue to dispute the validity of a rule. There simply cannot be a suit regarding an administrative rule’s statutory authority, conflict with state law, or arbitrary and capriciousness when there was never a rule promulgated or an attempt to promulgate a rule. Secs. 536.014, 536.024.

C. This case also did not involve the threatened application of a rule.

Section 536.050.1 also provides a choice of venue for declaratory judgment actions. “respecting ... threatened applications” of rules. The cease-and-desist letter sent to Pharmacal by the board stated “Specifically, it is the Board’s determination that the following Laws and/or rules are being violated” The letter then listed sections 338.010.1, 338.220, and 338.195 including the text of each statute. It listed no rule as a source for its action.

Half a century ago, this Court considered the venue provision of section 536.050 in nearly the same type of situation presented here. State ex rel. Toberman v. Cook, 365 Mo. 274, 281 S.W.2d 777, 780 (Mo. banc 1955). In that case, plaintiff tried to create venue by merely alleging that it concerned a rule dispute. Id. But this Court said:

Our only concern is whether the petition states or can be amended to state a cause of action that gives rise to the special venue provisions of [section] 536.050. If the facts pleaded in the petition show that they do not and cannot present a justiciable issue as to the validity of a rule or rules (promulgated by relators as administrative agencies) or of the threatened applications thereof by them within the meaning and fair intendment of the so-called Administrative Procedure and Review Act, then venue of said action does not lie ... [outside Cole] County. In other words, the plaintiffs in said action may not by mere allegation in their petition that venue lies ... [outside Cole] County under [section] 586.050 subject relators to the special (and onerous) venue provisions thereof.

Id. (parentheticals in original). This holding has not changed.

Pharmacal cannot generate venue under section 536.050.1 “by mere allegation” that the board’s letter was sent pursuant to an administrative rule. It must plead and establish specific facts that a promulgated rule was the basis of the board’s action. The specific authority relied upon by the board for its action here, however, was not a rule, but a state statute. Pharmacal has pleaded no facts that show that the threatened action against it was pursuant to any promulgated rule. Section 536.050.1 cannot provide venue in the absence of an application of a rule or on the mere allegation of such an application.

III. Conclusion

“Venue is determined solely by statute.” State ex rel. BJC Health Sys. v. Neill, 121 S.W.3d 528, 529 (Mo. banc 2003). “An action brought in a court where venue is improper shall be transferred to a court where venue is proper if a motion for such transfer is timely filed.” Rule 51.045. Accordingly, the judgment is reversed and the case is remanded to the Circuit Court of Buchanan County, which is instructed to transfer to the Circuit Court for Cole County. Sec. 508.010; State ex rel. Mo. Dept. of Natural Res. v. Roper, 824 S.W.2d 901, 903-04 (Mo. banc 1992).

WOLF, STITH, and RUSSELL, JJ., concur.

WHITE, C.J., concurs in separate opinion filed.

TEITELMAN and LIMBAUGH, JJ., concur in opinion of WHITE, C. J.

RONNIE L. WHITE, Chief Justice,

concurring.

I concur with the principal opinion’s determination that United Pharmacal Company of Missouri, Inc. (Pharmacal) lacked standing to pursue its claim challenging the validity of the Missouri Board of Pharmacy’s (Board) rule. I write separately because the principal opinion’s analysis strays from what the legislature has clearly defined as being an administrative rule, and it blurs the distinction between the proper forums for challenges to the rule-making process.

Section 536.053 provides that: “Any person who is or may be aggrieved by any rule promulgated by a state agency shall have standing to challenge any rule promulgated by a state agency and may bring such an action pursuant to the provisions of section 536.050.” The standing statute allows a party to bring a court action any time it is “or may be aggrieved by” any promulgated, or procedurally valid, rule. No threatened enforcement action is required by an agency for an entity to have standing to initiate a lawsuit. All that is required is that an entity might be aggrieved by a promulgated rule. The standing issue in this case hinges totally on whether there was a promulgated rule that could aggrieve Pharmacal.

“Agency rulemaking occurs with the formulation, or repeal, of a ‘statement of general applicability that implements, interprets or prescribes law or policy, or that describes the organization, procedure, or practice requirements of any agency.’ ” The Board’s statement in its FAQ meets the statutory definition of a rule because it interprets and prescribes law or policy, and application of this rule would impact the “substantive or procedural rights” of the public. The Board’s newly created and announced policy of treating a business selling veterinary “legend drugs” as a “pharmacy” confirms the Board’s intention to change its statewide policy.

It is not the act of promulgation; however, that converts an agency statement into a rule, rather it is the act of promulgation that conveys procedural validity to the rule allowing an agency to propose, adopt, amend or rescind it. The principal opinion errs when it holds that the Board’s rule was void ab initio for not having been promulgated. Once a rule is formulated it requires a judicial or quasi-judicial declaration to render it void or invalid.

The Board’s FAQ statement is a rule, albeit a procedurally invalid one because it was not properly promulgated pursuant to sections 536.021 and 536.024. However, because the rule was not promulgated, Pharmacal lacked standing to bring its action to the circuit court pursuant to section 536.053. The proper forum for a challenge to a rule’s procedural validity for not having been promulgated is the Administrative Hearing Commission, whereas a challenge to a rule’s substantive validity, deciding legal rights, is a judicial function. The trial court erred in this case by not dismissing Pharmacal’s claim concerning the rule’s procedural validity.

      . All further statutory references are to RSMo 2000 unless otherwise indicated.

      . Section 508.010 is the general venue statute for Missouri. It states: “Suits instituted by summons shall ... be brought: (1) ... either in the county within which the defendant resides, or in the county within which the plaintiff resides, and the defendant may be found....” Sec. 508.010. As an executive agency, the board of pharmacy, part of the Missouri Division of Professional Registration has its offices in Jefferson City, Cole County. Mo. Const, art. IV, sec. 20. The board of pharmacy maintains its registered offices in Jefferson City and cannot be “found” in Buchanan County. Therefore, the general venue statute requires that suit, where only the board is sued, be brought in Cole County.

      . It has been noted that "MAPA’s definition of a ‘rule’ is of little assistance because it is ‘broad enough to encompass virtually any statement an agency might make in any context.’ ” Christopher R. Pieper, Note, No Harm, No Rule: The Muddy Waters of Agency Policy Statements and Judicial Review Under the Missouri Administrative Procedure Act, 69 Mo. L.Rev. 731, 738-39 (2004) (citations omitted).

      . Greenbriar Hills Country Club v. Director of Revenue, 47 S.W.3d 346, 357 (Mo. banc 2001); Section 536.010(6).

      . Section 536.010(6); Baugus v. Director of Revenue, 878 S.W.2d 39, 42 (Mo. banc 1994). “Changes in statewide policy are rules." NME Hospitals, Inc. v. Department of Social Services, 850 S.W.2d 71, 74 (Mo. banc 1993).

      . The fact that the FAQ was in a question and answer format is irrelevant. See Univ. of Iowa Hosp. & Clinics v. Shalala, 180 F.3d 943, 951 (8th Cir. 1999).

      . Section 338.350. Nowhere in the statutory definition of a rule, section 536.010(6), is the requirement that it be promulgated. Section 536.014 defines the scope of substantive validity challenges to rules. The general assembly made a determination that procedural challenges to rule adoption could and should be initially made administratively. Once a rule is validly adopted procedurally, its substantive validity is only subject to challenge in court. This is why the administrative exhaustion exception was re-enacted in section 536.050.2 in 1996. See the history of section 536.050 in Kansas Ass'n of Private Investigators v. Mulvihill, 35 S.W.3d 425, 432 (FNs 10-13)(Mo.App.W.D.2000). See also State Tax Comm’n v. Administrative Hearing Comm’n, 641 S.W.2d 69, 75-77 (Mo. banc 1982). See also section 536.021 specifically addressing the availability of attorneys fees when procedural validity challenges are raised with the AHC.

      . "Standing is a jurisdictional matter antecedent to the right to relief.” Farmer v. Kinder, 89 S.W.3d 447, 451 (Mo. banc 2002). If a party lacks standing, the court must dismiss the case because it does not have jurisdiction of the substantive issues presented. Id.; Rule 55.27(g)(3). "Lack of standing cannot be waived.” Id. “[I]f a party lacks standing, the court must dismiss the case because it does not have jurisdiction of the substantive issues presented.” Id.

      . NME, 850 S.W.2d at 74 (Mo. banc 1993); R.E.J., Inc. v. City of Sikeston, 142 S.W.3d 744, 745-46 (Mo. banc 2004). See also footnote 6.

      . Sections 338.055, 338.140, 338.350, 536.010(4), 536.021, 536.024, 536.041, 536.050.2(1), 536.063, 621.045; Missouri Board of Pharmacy v. John M. Finney, 2001 WL 34064270, Mo. Admin. Hrg. Comm., 00-0899 PH (Aug. 29 2001); Missouri Board of Pharmacy v. Sylvan Cohen, 2000 WL 33965955, Mo. Admin. Hrg. Comm., 98-2093 PH (Mar. 22 2000). The Administrative Hearing Commission decides procedural validity challenges to rules on a routine basis. See St. Anthony’s Medical Center v. Dept. of Social Services, Div. Of Medical Services, 2004 WL 1109578, Mo. Admin. Hrg. Comm., 3-0661 SP (Apr. 6, 2004); Charlotte V. Ijei, LPC v. Dept. of Social Services, Div. Of Medical Services, 2004 WL 3192712, Mo. Admin. Hrg. Comm., 3-1957 SP (Dec. 20 2004). See also Missourians for Separation of Church and State v. Robertson, 592 S.W.2d 825, 841 (Mo. App.1979). "The power to formulate rules to effect a policy of statute is legislative. The power to decide legal rights is judicial.” Id.


source: Caselaw Access Project

author: ROBERT G. ULRICH, Judge.

license: Public Domain

text:
    Larry L. McCORD, Sr. and Edith Ereline Mccord, Respondents, v. Stephen Jewell GATES and Patricia L. Lloyd, Appellants, Pete L. Phipps and Carrie Phipps, Respondents.
    No. WD 63319.
    Missouri Court of Appeals, Western District.
    Aug. 31, 2004.
    Rehearing Denied May 3, 2005.

      Christopher C. Fink, Cameron, MO, for appellants.
    Larry L. McCord, Jr., Cameron, MO, for respondents, McCord.
    Dawn R. Harpster, Cameron, MO, for respondents, Phipps.
    Before VICTOR C. HOWARD, P.J., ROBERT G. ULRICH and PATRICIA.A. BRECKENRIDGE, JJ.
   ROBERT G. ULRICH, Judge.

Stephen L. Gates and Patricia L. Lloyd (now Patricia L. Gates), husband and wife, appeal the August 18, 2003, judgment quieting and confirming title to certain real property in Larry L. McCord, Sr. and Edith Ereline McCord, husband and wife, as against the Gates’ claim to the property. The Gates also appeal the portion of the judgment in this court-tried case quieting and confirming title to certain other real property in Pete L. Phipps and Carrie Phipps, husband and wife, third-party defendants, against any claim of the Gates in this property. The portion of the judgment finding in favor of the McCords and awarding them tract B of the disputed property is affirmed. The portion of the judgment finding in favor of the Phipps and awarding them tract A of the disputed property is reversed. The case is remanded with directions.

Procedure and Facts

Larry and Edith McCord filed suit to quiet title to certain real property naming Stephen Gates and Patricia Lloyd as defendants. This disputed property is a rectangle and measures approximately thirty feet wide by one hundred thirty-seven feet long and is referred to herein as tract B. The McCords’ amended petition asserted that they acquired ownership of a larger area of real property in Clinton County by warranty deed on June 4,1974. Tract B is located within the legal description of the property thus acquired. The McCords alleged that tract B has been in their and their ancestors’ exclusive possession by virtue of a warranty deed dated November 1, 1916, and recorded in the Recorder of Deeds Office, Clinton County. Mr. McCord testified that he obtained the property in 1987 from his father who had obtained the property in 1914 from his father. The McCords further asserted that they have been in open, notorious and hostile possession of the described disputed property since November 1, 1916, apparently referring to their actual possession and that of their ancestors. Mr. McCord claimed to have resided on the property for fifty years. The McCords sought the trial court’s judgment awarding them exclusive ownership and the right of possession in tract B.

Stephen Gates and Patricia Lloyd responded to the McCord petition by filing their answer, a counter-claim, and an action in ejectment asserting their ownership and right to possession in property that includes the disputed tract B. They claim to have received a warranty deed to the property on February 14,1997.

The Gates also filed their third-party claim, naming as third-party defendants Pete and Carrie Phipps, asserting that the Phippses are wrongly in possession of certain other property that the Gates hold by warranty deed. This property is referred to as tract A. The total property in dispute, tract A and most of tract B, all of which is claimed by the Gates, forms a rectangle measuring ninety feet by two hundred thirty-one feet. Thus, tract B references the portion of the total disputed property the McCords claimed to occupy and for which they sought the court’s judgment declaring them the rightful owners. Tract A references the portion of the disputed property that the Gates claimed the Phippses wrongfully occupy and for which they sought declaration of rightful ownership. The Phipps answered the cross-claim and were represented at trial. No dispute regarding real property exists between the McCords and the Phippses.

Thus, this is a boundary line dispute between contiguous neighbors. The Gates claim property interests against both the McCords (tract B) and the Phippses (tract A). Mr. McCord testified that a fence once marked what he believed to be the eastern boundary separating the McCord property from what is now the Gates property. The fence was torn down years ago leaving a furrow or ditch that traced the old fence line. A portion of the shallow ditch remains today. Mr. McCord testified that he observed Mr. Gates attempt to fill in the furrow. A large white post remains along the fence line at the end of the McCord property line indicating the location of the boundary line. Mr. McCord planted an annual garden on the disputed property (tract B) before the Gates moved to their present property, and he continues to plant the annual garden. Mr. McCord testified that he has manifested his claim of ownership and possession of the disputed tract B by planting a garden on the disputed tract B since at least 1987 and by openly asserting ownership of the property, excluding all others from the property except by his exclusive permission, for more than ten years.

Gerald Barnes, a licensed land surveyor with thirty-one years of experience, testified in behalf of the McCords. He surveyed the north/south boundary of the east side of the McCord property, also constituting the west side of the Gates property. He made a drawing reflecting the results of his survey, and it was introduced as Exhibit A without objection. Exhibit A demonstrated a rectangular property 28.54 feet by 137 feet. Mr. Barnes stated that Exhibit A reflects the property disputed between the McCords and the Gates (tract B). Mr. Barnes also stated that the beginning point of the property fine is accurately reflected on Exhibit A.

The Gates called Floyd Hayes to testify. He, too, is a licensed surveyor who was hired by the Gates to conduct a survey in the year 2000. He surveyed the disputed property, first examining the deeds that conveyed the Gates property to them, deeds of previous conveyances, and conveyances of adjacent property to both the east and to the west of the Gates property. Tract B of the disputed property is to the west of the Gates property and contiguous to it. The portion of the McCords’ property that is not disputed and that is not a part of this suit is south of the Phipps’ undisputed property and contiguous to it. Mr. Hayes stated the confusion is in part attributable to the beginning point referenced in the McCord deed and the beginning point of a 1970 survey of the Cooper Villa plat (then proposed lots and streets for residential construction), developed to the north and east of tracts A and B and not contiguous to them. The beginning points used in the two descriptions is not the same. Mr. Hayes stated that the 1970 survey was errant. The legal description appearing in the Gates 1997 deed is based on the 1970 Cooper Villa plat survey. The legal description in the McCord deed is the same legal description appearing in the 1916 deed transferring title to the McCord property to Mr. McCord’s father and describes the real property by referencing its location to and within sections. The Cooper Villa subdivision was platted by the 1970 survey and did not exist when the 1916 McCord deed was recorded. Mr. Hayes said that Walnut Street, a north-south street referenced on the west side of the Copper Villa plat and to the west of the Gates property, which is located both to the south of a portion of the plat and to the west of a portion of the plat, includes a portion of the Phipps and McCord undisputed properties on their west and northwest respectively. He testified the Cooper Villa plat shows that Walnut Street includes the approximately thirty additional feet claimed by the Gates and that the McCord legal description actually includes thirty feet to the west of the property they now occupy and not the approximately thirty feet to the east of the property that they now occupy and claim as tract B. The confusion is due to the errant 1970 survey and other errors, including the establishment of a section boundary by survey of greater length than that of a standard section boundary. Mr. Hayes attributes these errors for the approximately thirty foot conflict between the parties’ property claims to the east of the Phipps and McCord properties and to the west of the Gates property. The Gates legal description makes no references to sections, as does the McCord legal description. It references the Cooper Villa, and, thus, the errant 1970 survey represented by the Cooper Villa plat of record. Mr. Hayes’ conclusion was that, although the McCord legal description is the same as that of the 1916 deed, the deed does not encompass any of the disputed property, and particularly tract A, because the location of the deed description was errantly identified on the ground. The Gates legal description as stated in their 1997 deed includes the disputed tracts A and virtually all of B.

Mrs. Gates testified that she and her husband claim the disputed property identified as tract A and virtually all of tract B, which are to the west of the Gates undisputed property. She claims ownership and the right to possession of the property described in the legal description of the property that she acquired in 1997, which she claims includes the disputed tracts A and B. She also stated that the disputed property identified as tract A was land upon which she and her husband maintain a garden. A shed had been on the property, but she and her husband tore it down when tenants that lived in the Phipps’ home before they acquired it put trash in the building.

The Phipps did not testify and did not offer any other evidence.

Following presentation of the evidence, the trial court awarded the legal rights appurtenant to ownership of tract B as specifically identified by Mr. Hayes’ survey to the McCords, finding that they acquired that portion of the disputed property by adverse possession by their open, notorious and undisputed tenancy of the property for a period in excess of seventy-five years prior to the institution of the suit and that they have continuously paid the taxes and assessments levied against the lands during that time.

The court also determined that the Phipps had acquired the portion of the disputed property referenced as tract A by adverse possession, finding that they, too, had held undisputed possession of the contested property openly and notoriously for a period of seventy-five years prior to the institution of the suit and that they had paid the taxes and assessments levied against such lands during that time.

The Gates appeal the court’s judgment.

Standard of Review

“The standard of review for court-tried quiet title actions is the same as in other court tried cases.... ” Shoemaker v. Houchen, 994 S.W.2d 40, 44 (Mo.App.W.D.1999). The standard of review in a court tried case provides that “the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

When determining whether the evidence is sufficient to support the judgment, appellate courts review the evidence and all reasonable inferences from such evidence in the light most favorable to the trial court’s judgment. T.B.G. v. C.A.G., 772 S.W.2d 653, 654 (Mo. banc 1989). Any evidence contrary to the decision is disregarded. Id. Due regard shall be given to the opportunity of the trial court to have judged the credibility of witnesses upon appellate review of a case tried without a jury. Rule 84.13(d)(2). The trial court is vested with the discretion to believe or disbelieve all, part, or none of any witness’ testimony. T.B.G., 772 S.W.2d at 654.

Point 1

The Gates assert as their first point that the trial court erred in holding that the Phipps are vested with title to certain real property with dimensions of 28.54 feet by 94.00 feet because the Phipps neither alleged in pleadings nor established by evidence that they are entitled to the real property granted by the trial court.

The real property (tract A) is identified in the court’s judgment as follows:

A tract of land in the Northeast Quarter of the Northwest Quarter of Section 26, Township 57 North, Range 30 West, Clinton County, Missouri described as follows: Beginning at the Southeast corner of said Northeast Quarter of the Northwest Quarter of said Section 26; thence N89 26'11"W, along the south line of said Northeast Quarter, 336.36 feet; thence N00 08'38"W, 137.00 feet; to the True Point of Beginning. Thence N89 26'11"W, 28.54 feet, thence N00 08'38"W, 94.00 feet; thence S89 26'11"E, 28.54 feet; thence S00 08'38"E, 94.00 feet to the point of beginning. And being subject to any roads, easements or restrictions of record.
The court further noted in its judgment that
the property involved in this action, is improved and devoted to residential purposes; that the Third-Party Defendants, Pete L. Phipps and Carrie Phipps, through their tenant and through tacking of the occupiers of the land before them, have held open, notorious, and undisturbed possession of said lands for a period in excess of Seventy-Five (75) years-prior to the institution of this suit and have continuously paid the taxes and assessments levied against such lands during that time.

Normally, the remedy for a boundary dispute between neighbors is not a quiet title action but an action in ejectment. Moss v. Moss, 706 S.W.2d 884, 888 (Mo.App. W.D.1986). However, because neither party admitted the title of the other and the evidence demonstrated a lack of mutual acknowledgement by the parties of the title source and legal description of the other’s ownership, a quiet title action and the form of the trial court’s judgment is appropriate here. See Mass. Gen. Life Ins. Co. v. Sellers, 835 S.W.2d 475, 482 (Mo.App. S.D.1992)(although ejectment is normally proper remedy in boundary dispute, where neither party admitted title of the other and pleadings and evidence demonstrated lack of mutual acknowledgement by parties of title source and legal description of other’s ownership, quiet title action appropriate). “In a quiet title action, where each party is claiming title against the other party, the burden of proof is upon each party to prove better title than that of his adversary. The claimant must rely upon the strength of his own title and not upon the weaknesses in the title of his opponent.” Shuffit v. Wade, 13 S.W.3d 329, 332-33 (Mo.App. S.D.2000)(quoting Ortmeyer v. Bruemmer, 680 S.W.2d 384, 395 (Mo.App. W.D.1984)). A suit to quiet title is a special statutory action to adjudge the respective estates, titles and interests of several claimants to land. Moss, 706 S.W.2d at 887. In order to prevail in a quiet title action, it is not necessary that plaintiffs establish an indefeasible title against the whole world, but only that their title is good as against the defendants. Id. Plaintiffs in a quiet title suit must succeed on the strength of their own title and if they fail to prove, prima facie, that they hold record title, their cause must fail. Id. In a quiet title suit, it is not necessary that there be any evidence to support a defendant’s verdict. Id.

No evidence, neither testimony nor documentation, was introduced to support a proposition that the Phipps own or possess tract A. The only evidence regarding the ownership and possession of disputed tract A was the testimony of Land Surveyor Troy Hayes and supporting exhibits regarding the entire disputed property, both tracts A and B, and Mrs. Gates’ testimony. Nothing in the testimony of either witness or in any exhibits supports the position that the Phipps own or possess the disputed tract A or that they have adversely possessed the said property for ten or more years. The portion of the judgment awarding the disputed tract A to the Phipps is reversed.

Point 2

The Gates claim as point two that the trial court erred in finding that the McCords acquired title to tract B of the disputed property by adverse possession, claiming that the evidence was insufficient to establish the required elements of adverse possession and that the McCords failed to properly plead a right to the property the court awarded to them. The Gates do not argue that any one of the elements required to establish a right to property by adverse possession was not met. They argue only that the description stated in the McCord petition was not the legal description of the property awarded them by the court. They also acknowledge that the legal description of the disputed tract B contained in the court’s judgment is correct.

The Gates are correct that the legal description stated in the McCords’ petition is not the description of the property awarded by the court. The property awarded by the court to the McCords was the property referenced and identified by Mr. Hayes during his testimony and in Defendant’s Exhibit 6, the drawing prepared by him of the results of his survey specifically identifying the disputed tracts A and B. Additionally, Mr. Barnes’ testimony and his drawing of the disputed tract B, considered with Mr. Hayes’ drawing, conclusively establish the correct property contested between the McCords and the Gates. Mr. McCord testified to facts that demonstrated his occupancy of tract B since at least 1987 was open and hostile possession, for more that ten years, having annually planted a garden on the tract and having during the time of his possession openly claimed ownership, controlling access to the property to the exclusion of all others.

Generally, relief granted by a judgment is limited to that sought in the pleadings. State ex rel. Mohart v. Romano, 924 S.W.2d 537, 540 (Mo.App. W.D.1996). To the extent a judgment goes beyond the issues presented and raised by the pleadings, it is void. Id. The McCords claim, however, that Rule 55.33(b) applies, which provides that issues not raised in the pleadings but which are tried by either express or implied consent of the parties are treated as having been properly pleaded. Shoemaker v. Houchen, 994 S.W.2d 40, 46 (Mo.App. W.D.1999). “Failure to timely and specifically object to evidence beyond the scope of the pleadings constitutes implied consent for determination of the issues raised.” Conduff v. Stone, 968 S.W.2d 200, 205 (Mo.App. S.D.1998)(quoting Rice v. James, 844 S.W.2d 64, 67 (Mo. App. E.D.1992)). A court should be liberal in permitting amendments to conform to the evidence, but the matter is primarily within the sound discretion of the trial judge whose ruling will not be disturbed absent obvious abuse of that discretion. Cremer v. Hollymatic Corp., 12 S.W.3d 363, 369 (Mo.App. W.D.2000). “The implied consent rule applies only where the evidence presented bears solely on the un-pleaded issue and not upon issues already in the case,” however. Mohart, 924 S.W.2d at 540 (quoting Mo. Dental Bd. v. Cohen, 867 S.W.2d 295, 297 (Mo.App. W.D.1993)). See also Coleman v. Mantia, 25 S.W.3d 675, 677 (Mo.App. E.D.2000)(where issue of comparative fault was not pled in pleadings and not tried by implied consent); Conduff, 968 S.W.2d at 205(where plaintiffs failed to plead boundary acquiescence and it was not tried by implication in action to quiet title); and Rice, 844 S.W.2d at 67 (where issue of illegality of agreement was not pled as required but was tried by implied consent).

The doctrine expressed by the rule is not applicable when the evidence presented addresses an issue raised by the pleadings. The issue addressed by the pleadings and the evidence during the trial in this case is the same: who owns the property and is entitled to possession of the disputed tract B. The correct legal description demonstrated by the evidence varied from that stated in the petition, but the variance was not fatal to the proceedings. The evidence revealed the correct legal description of the property, introduced by the Gates through Mr. Hayes, and the evidence applied to the necessary elements to prove a claim of adverse possession of the actual piece of ground contested. A party claiming title by adverse possession must show that possession of the property was actual, hostile and under a claim of right, open and notorious, exclusive and continuous for ten years. Crowe v. Horizon Homes, Inc., 116 S.W.3d 618, 621 (Mo.App. E.D.2003). Mr. McCord’s testimony, the testimony of Mr. Hayes and Mr. Barnes, and the exhibits further identifying and describing the contested tract B was sufficient for the court to find the elements of adverse possession as to the McCords’ claim to tract B.

The portion of the judgment quieting and confirming title of that portion of the disputed property described in Larry L. McCord, Sr. and Edith Ereline McCord is affirmed. That portion of the judgment quieting and confirming title of the portion of the disputed property described in Pete L. Phipps and Carrie Phipps is reversed. The case is remanded with directions that the trial court enter judgment consistent with Stephen J. Gates and Patricia L. Lloyd (Gates) having prevailed on their quiet title action against the Phippses and on their petition for ejectment against Pete L. Phipps and Carrie Phipps.

HOWARD, P.J., and BRECKENRIDGE, J., concur.


author: PAUL M. SPINDEN, Judge.

text:
    STATE ex rel. MISSISSIPPI LIME COMPANY, Relator/Appellant, v. MISSOURI AIR CONSERVATION COMMISSION, Respondent.
    No. WD 63827.
    Missouri Court of Appeals, Western District.
    Nov. 30, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 1, 2005.
    Application for Transfer Denied April 26, 2005.

      Byron Edward Francis, James Kent Lowry and Cynthia Ann Sciuto, St. Louis, for Appellant.
    Marshall Wilson, Robert Wilkinson and Colleen Michuda, Jefferson City, for Respondent.
   PAUL M. SPINDEN, Judge.

Mississippi Lime Company appeals the circuit court’s judgment quashing its preliminary writ of prohibition and denying its request for a writ of prohibition. Mississippi Lime asked the circuit court to prohibit the Missouri Air Conservation Commission from enforcing its order directing Mississippi Lime to respond to discovery requests propounded by its competitor, Chemical Lime Company, in this action in which Mississippi Lime seeks a permit to construct two new kilns. We affirm the circuit court’s judgment.

This dispute grows out of the Department of Natural Resources’ issuance of a permit on December 13, 2002, authorizing Mississippi Lime to construct the kilns at its manufacturing plant near Ste. Genevieve. On January 10, 2003, pursuant to § 643.075.6, RSMo 2000, Chemical Lime petitioned the commission to review the department’s permit. The commission appointed Karen Winn, commissioner for the Administrative Hearing Commission, to serve as hearing officer in this case. The commission also delegated to Winn the authority to rule on all motions.

During proceedings before Winn, Mississippi Lime and Chemical Lime began quarrelling over Chemical Lime’s discovery request. Chemical Lime requested all information that Mississippi Lime submitted to the department in connection with its application for the permit, including the information that, pursuant to 10 CSR 10-6.210, the department had concluded was entitled to protection as confidential. Chemical Lime also sought discovery of information in Mississippi Lime’s possession that the department had neither requested nor reviewed in determining whether to issue the permit. Mississippi Lime objected to Chemical Lime’s discovery requests on the grounds that Chemical Lime sought confidential business information and sought information that was not relevant to any issue raised by Chemical Lime’s petition for review. Chemical Lime filed motions requesting Winn to compel the department and Mississippi Lime to respond to its discovery requests. Mississippi Lime and the department responded, and Mississippi Lime filed a motion for a protective order to safeguard the confidentiality of the discovery produced to Chemical Lime should Winn overrule Mississippi Lime’s objections.

At a hearing on the motions on October 6, 2003, Mississippi Lime requested that, if Winn overruled its objections, Winn conduct an in camera review of the documents deemed confidential so she could determine the relevancy of the requested information and whether or not the documents should be protected as confidential. On October 16, 2003, Winn substantially overruled Mississippi Lime’s objections but granted its request for a protective order. She declined Mississippi Lime’s request for an in camera review of the documents and concluded that Mississippi Lime was adequately protected by her protective order.

Mississippi Lime asked the commission to hold a hearing to consider Winn’s rulings. It asserted that the commission, and not Winn acting unilaterally, should determine the threshold issue of whether or not confidential business information that Chemical Lime requested was relevant to Chemical Lime’s petition for review. Mississippi Lime further argued that the confidentiality of its business information had to be preserved until a court or other tribunal of competent jurisdiction finally determined whether or not the information was entitled to protection as confidential. The commission denied Mississippi Lime’s motion and ordered Mississippi Lime to respond to Chemical Lime’s discovery requests.

Mississippi Lime then filed this petition for a writ of prohibition. It alleged that Winn had exceeded her authority by ordering it to produce information that the department had determined was confidential. It asserted that.the commission was required to review the requested information and to make a confidentiality determination before ordering Mississippi Lime to produce the information. Mississippi Lime requested the circuit court to issue a writ of prohibition prohibiting the commission from enforcing its order compelling Mississippi Lime to respond to Chemical Lime’s discovery requests.

The circuit court issued a preliminary writ of prohibition on December 1, 2003. On January 12, 2004, the circuit court entered judgment quashing its preliminary writ and denying Mississippi Lime’s petition for a writ of prohibition. The circuit court found that Winn had not abused her discretion in compelling Mississippi Lime to produce its confidential business information subject to a protective order and in determining that the information Chemical Lime sought was reasonably calculated to lead to the discovery of admissible evidence. Mississippi Lime appeals.

1. Jurisdiction

Article V, § 18, of Missouri’s constitution says that, unless a statute or other law provides to the contrary, the Supreme Court shall provide rules directing how the judiciary is to review final administrative decisions, findings, rules and orders. In Rule 100.01, the Supreme Court has directed that “[t]he provisions of sections 536.100 through 536.150, RSMo, shall govern procedure in circuit courts for judicial review of actions of administrative agencies unless the statute governing a particular agency contains different provisions for such review.”

The General Assembly created the Air Conservation Commission in statutes codified in Chapter 643 of the Revised Statutes and directed that the commission’s “final orders or determinations” be reviewable pursuant to the Administrative Procedure Act. Section 643.130, RSMo 2000. Orders and determinations are “final” when they terminate the commission’s involvement in a ease and completely resolve the issues presented. Dore and Associates Contracting, Inc. v. Missouri Department of Labor and Industrial Relations Commission, 810 S.W.2d 72, 75-76 (Mo.App.1990).

This case does not involve a final order or final determination. Mississippi Lime sought the circuit court’s review of the commission’s discovery order.

“An important exception,” however, “to the constitutional and statutory constraints placed on judicial review of administrative action is the power of the courts to issue and determine original remedial writs against administrative officers and bodies.” I Mo. AdministRAtive Law § 7.1 (MoBar 3rd ed.2000). Indeed, Article V, § 4.1, of Missouri’s constitution grants to the Supreme Court and to this court the power to “issue and determine original remedial writs.” The same provision grants “superintending control over ... tribunals” to the Supreme Court and to this court.

The Air Conservation Commission is not a court. “ ‘[A]n administrative body or even a quasi-judicial body is not and cannot be a court in a Constitutional sense.’ ” State Tax Commission v. Administrative Hearing Commission, 641 S.W.2d 69, 75 (Mo. banc 1982) (citation omitted). Although not defined, “tribunals” would seemingly include “administrative tribunals.” Hence, the commission is a tribunal over which the Supreme Court and this court have superintending control.

We question, however, whether circuit courts have superintending control over tribunals. Article V, § 14, of Missouri’s constitution says, “The circuit courts shall have original jurisdiction over all cases and matters, civil and criminal” and authorizes the circuit courts to “issue and determine original remedial writs[.]” Unlike § 4.1 of Article V, this provision does not appear to grant the circuit court superintending control over administrative tribunals for the purpose of issuing original remedial writs. When a court has jurisdiction of the subject matter, it has the power to issue a writ to any inferior court over which it exercises superintending control. Howard v. Pierce, 38 Mo. 296, 301 (1866); see also State ex rel. Spencer v. Anderson, 101 S.W.2d 530, 533 (Mo.App.1937).

The Supreme Court, however, in State ex rel. Riverside Joint Venture v. Missouri Gaming Commission, 969 S.W.2d 218 (Mo. banc 1998), seemingly — we can only surmise because the issue was not addressed — approves of the circuit court’s jurisdiction to issue a writ of prohibition directed to an administrative agency. In that case, the Supreme Court quashed the circuit court’s writ because “[t]he trial court’s decision to employ prohibition to pretermit the Commission’s consideration of the issues before it on due process grounds falls outside the recognized purposes for a writ of prohibition.” Id. at 222.

Although the Supreme Court did not address the issue of the circuit court’s jurisdiction to issue a writ of prohibition directed to an administrative agency, it has declared that, in all appeals, “[i]t is required to examine its jurisdiction sua sponte.” Riverside-Quindaro Bend Levee District v. Intercontinental Engineering Manufacturing Corporation, 121 S.W.3d 531, 533 (Mo. banc 2003). Hence, we must assume that it examined its jurisdiction in Missouri Gaming Commission and concluded, without noting the issue, that the circuit court had jurisdiction to issue a writ of prohibition directed to an administrative agency although no basis for jurisdiction is apparent to us. Had the circuit court lacked jurisdiction, the Supreme Court also would have lacked jurisdiction because a judgment entered in excess of, or beyond, jurisdiction of the circuit court is void and deprives the appellate court of jurisdiction to review the merits. Two Pershing Square, L.P. v. Boley, 981 S.W.2d 635, 639 (Mo.App.1998).

We are bound to follow the last controlling decision of the Supreme Court. Mo. Const, art. V, § 2 (1945). Hence, we conclude that the circuit court had jurisdiction to consider Mississippi Lime’s petition for a writ of prohibition directed to the Air Conservation Commission.

Assuming, therefore, that the circuit court had jurisdiction, an order quashing a preliminary writ is an appeal-able, final judgment. Missouri Department of Social Services v. Administrative Hearing Commission, 826 S.W.2d 871, 872 (Mo.App.1992). A writ of prohibition does not issue as a matter of right. Id. It is an extraordinary remedy and is to be used “with great caution and forbearance and only in cases of extreme necessity.” State ex rel. Douglas Toyota III, Inc. v. Keeter, 804 S.W.2d 750, 752 (Mo. banc 1991). For a writ to have issued, Mississippi Lime bore the burden of establishing that the commission exceeded its jurisdiction and that Mississippi Lime did not have available the remedy of appeal. Missouri Department of Social Services, 826 S.W.2d at 872-73; see also State ex rel. Atkins v. Missouri State Board of Accountancy, 351 S.W.2d 483, 489 (Mo.App.1961).

“The general rule is that, if a court is entitled to exercise discretion in the matter before it, a writ of prohibition cannot prevent or control the manner of its exercise, so long as the exercise is within the jurisdiction of the court.” State ex rel. K-Mart Corporation v. Holliger, 986 S.W.2d 165, 169 (Mo. banc 1999). According to the Holliger court:

In Missouri, prohibition will not lie to control administrative or ministerial functions, discretionary actions, or legislative powers. However, if abuse of that discretion is so great as to be an act in excess of jurisdiction and is such as to create injury which cannot be remedied on appeal, prohibition may be appropriate.

Id. (citation omitted).

2. Abuse of discretion.

Mississippi Lime contends that the circuit court erred in quashing its preliminary writ and denying its petition for a writ of prohibition. It asserts that the commission abused its discretion in ordering Mississippi Lime to respond to Chemical Lime’s discovery request for confidential information that Mississippi Lime submitted to the department in connection with its application for a permit. We disagree.

Mississippi Lime submitted information in support of its application for a permit to the department. Pursuant to 10 CSR 10-6.210, Mississippi Lime asked the department to treat certain information as confidential, and the department granted Mississippi Lime’s request. Mississippi Lime asserts that neither the commission nor the hearing officer had the authority to require it to produce this confidential information.

In regard to confidential information before the commission, § 643.050.5, RSMo 2000, says, “Any information relating to secret processes or methods of manufacture or production discovered through any communication required under this section shall be kept confidential.” In its regulations, the commission defines “confidential business information” as:

Secret processes, secret methods of manufacture or production, trade secrets and other information possessed by a business that, under existing legal concepts, the business has a right to preserve as confidential, and to limit its use by not disclosing it to others in order that the business may obtain or retain business advantages it derives from its rights in the information[.]

10 CSR 10-6.210(3)(B)1. The commission’s regulations also provide that confidential business information will be “kept confidential by the commission and employees and agents of the Department of Natural Resources if a timely request for confidentiality is made by the person submitting the information.” 10 CSR 10-6.210(2). Regulation 10 CSR 10-6.210(4) sets forth the procedures for requesting and obtaining a confidentiality determination and also sets forth the procedures for judicial review of the confidentiality determination.

Moreover, 10 CSR 10-6.210(5) sets forth conditions under which confidential information may be disclosed. In particular, 10 CSR 10-6-210(5)(F) provides:

Subpoenas for Confidential Information. The director shall respond to subpoenas and discovery requests for information submitted under a claim of confidentiality, if the claim has not been finally denied, in a manner that is designed to preserve the claim of confidentiality until a confidentiality determination is made by a court or other tribunal of competent jurisdiction.

In this case, the hearing officer was given the authority by the commission to preside over a hearing, hear all the evidence, rule on the admissibility of evidence, and issue subpoenas. Section 643.100. Moreover, § 643.100.2 instructs, “The rules of discovery that apply to any civil case apply to hearings held by the commission.” As such, the hearing officer had broad discretion to control discovery and to rule on the admissibility of evidence, and the hearing officer’s discovery rulings cannot be disturbed in the absence of a showing of abuse of discretion. See Giddens v. Kansas City Southern Railway Company, 29 S.W.3d 813, 819 (Mo. banc 2000), cert. denied, 532 U.S. 990, 121 S.Ct. 1644, 149 L.Ed.2d 502 (2001); State ex rel. Crowden v. Dandurand, 970 S.W.2d 340, 343 (Mo. banc 1998). To establish an abuse of discretion, the ruling must be clearly against the logic of the circumstances and so arbitrary and unreasonable as to shock one’s sense of justice. Giddens, 29 S.W.3d at 819.

The hearing officer concluded that the confidential information that Chemical Lime sought from Mississippi Lime was relevant to the issues raised in Chemical Lime’s petition for review. The hearing officer further concluded that Mississippi Lime should disclose that confidential information but that the confidential information would be adequately preserved by its protective order. Rule 56.01(c)(7) provides that a protective order may provide “that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way[.]” This is what the hearing officer did in this case: She ordered that the confidential information be disclosed in a designated way as spelled out in the protective order. Pursuant to 10 CSR 10-6-210(5)(F), she responded to Chemical Lime’s discovery request in a manner that was designed to preserve the claim of confidentiality until a confidentiality determination is made by a court or other tribunal of competent jurisdiction.

The circuit court concluded that the hearing officer did not abuse her discretion in ordering the release of the confidential information subject to the protective order. The circuit court found that the protective order sufficiently protected Mississippi Lime’s confidentiality claims but allowed the parties to use the information as necessary in the underlying action. The hearing officer acted within her discretion in controlling discovery, and her actions were not clearly against the logic of the circumstances and so arbitrary and unreasonable as to shock one’s sense of justice.

Mississippi Lime also contends that the commission abused its discretion in ordering Mississippi Lime to respond to Chemical Lime’s discovery request for information in Mississippi Lime’s possession that the department had neither requested nor reviewed in determining whether to issue the permit. Mississippi Lime asserts that Chemical Lime’s request for information that was not submitted to the department sought information that was not relevant to the issues raised in its petition and was not reasonably likely to lead to the discovery of relevant, admissible evidence. We disagree.

The commission’s review of the department’s actions in issuing the permit is de novo. See Lederer v. Department of Social Services, 825 S.W.2d 858, 864 (Mo.App.1992). As such, the commission’s review is not limited to the record before the department at the time Mississippi Lime’s permit was issued. Indeed, § 643.100 authorizes the commission to issue subpoenas and to rule on the admissibility of evidence—acts that would be unnecessary were the commission’s review limited to the department’s record. Hence, information that was not submitted or reviewed by the department in determining whether to issue Mississippi Lime’s permit was not per se irrelevant.

Moreover, in its petition seeking review of the department’s decision to issue a permit to Mississippi Lime, Chemical Lime alleges that Mississippi Lime failed to follow the correct procedures for determining the “net emissions increase” of the proposed changes for its facility and that it improperly omitted emissions data from its application for a permit. Mississippi Lime even recognizes that Chemical Lime’s petition alleges that the department “should not have issued a permit to Mississippi Lime because Mississippi Lime’s data and analyses were incomplete or flawed.” An allegation of “incomplete data” establishes the need for discovering information that was not submitted to the department with the permit application. Although Mississippi Lime disagrees, such information is related to the issues raised in Chemical Lime’s petition.

The circuit court concluded that the hearing officer did not abuse her discretion in concluding that Chemical Lime’s request for information that was not submitted to the department was reasonably calculated to lead to the discovery of admissible evidence. As previously noted, the hearing officer has broad discretion over discovery matters, and her discovery rulings cannot be disturbed absent an abuse of discretion. See Giddens, 29 S.W.3d at 819. The hearing officer acted within her discretion in controlling discovery, and her actions were not clearly against the logic of the circumstances and so arbitrary and unreasonable as to shock one’s sense of justice.

Mississippi Lime also contends that the commission should have conducted an in camera review of the confidential information submitted to the department and of the information not submitted to the department because it contained confidential information. Such decision, however, was within the hearing officer’s discretion. That the hearing officer entered a protective order evidences the hearing officer’s intent that the information should remain confidential. Mississippi Lime asserts that a better way to protect that confidentiality would have been for the commission to inspect the information in camera. That reasonable people can dispute the propriety of a hearing officer’s action belies an abuse of discretion. Newman v. Ford Motor Company, 975 S.W.2d 147, 151 (Mo. banc 1998). Were it an abuse of discretion, a reasonable person would be unable to defend it.

The circuit court, therefore, did not abuse its discretion in quashing its preliminary writ and denying Mississippi Lime’s petition for writ of prohibition. We affirm the circuit court’s judgment.

EDWIN H. SMITH, Chief Judge, and ROBERT G. ULRICH, Judge, concur.

      . Section 643.100.3(2), RSMo 2000, provides that the hearing officer shall “hear all evidence and rule on the admissibility of evidence” and "shall make recommended findings of fact and may make recommended conclusions of law to the commission.”

      . Chemical Lime included Winn’s protective order in an appendix to its brief but did not include it in this court’s record. The mere inclusion of documents in an appendix to a brief does not make it part of the record on appeal. Denny's, Inc. v. Avesta Enters., Ltd., 884 S.W.2d 281, 289 n. 5 (Mo.App.1994). We will not consider documents that are not included in the record. The parties asserted at oral argument that Winn ordered that the information be revealed only to Mississippi Lime’s attorneys and experts in this case.

      . Mo. Const, art V, § 4, also grants the Supreme Court authority to supervise "all courts” and to delegate its supervisory authority over "all courts.” It does not, however, seemingly grant the Supreme Court the authority to delegate its supervisory authority over "tribunals.”

      . Mo. Const, art. V, § 5, gives authority to the Supreme Court to "establish rules relating to practice, procedure and pleading for ... administrative tribunals.” (We added the emphasis.)

      .Section 530.020, RSMo 2000, says, "The supreme court, and each division thereof, the court of appeals and the circuit courts, within their several jurisdictions, and also the judges of the supreme court and court of appeals and circuit judges to the extent herein provided in this chapter, shall have power to hear and determine proceedings in prohibition.” Section 478.070, RSMo 2000, says, "The circuit courts shall have original jurisdiction over all cases and matters, civil and criminal. Such courts may issue and determine original remedial writs.”

      . Article V, § 4, and article V, § 14, were amended on August 3, 1976. Before those amendments, Article V, § 4, said, “The supreme court, court of appeals, and circuit courts shall have a general superintending control over all inferior courts and tribunals in their jurisdiction, and may issue and determine original remedial writs.’' Article V, § 14, said, "The circuit courts shall have jurisdiction over all criminal cases not otherwise provided- for by law, exclusive original jurisdiction in all civil cases not otherwise provided for, and concurrent and appellate jurisdiction as provided by law.” Hence, before the 1976 amendments, the circuit court had superintending control over tribunals in its jurisdiction and could issue and determine original remedial writs. See State ex rel. Meyer v. Woodbury, 321 Mo. 275, 10 S.W.2d 524, 526 (1928).

      . Moreover, although Rule 84.22(a) says that “[n]o original remedial writ shall be issued by an appellate court in any case wherein adequate relief can be afforded by an appeal or by application for such writ to a lower court[,]" we question whether it would even apply to this case. If the circuit court did not have superintending control over the Air Conservation Commission, it could not provide “adequate relief.”

      . Without addressing the issue at all, numerous cases from the appellate courts seemingly approve of the circuit court’s jurisdiction to issue a writ of prohibition directed to an administrative agency. See e.g. State ex rel. AG Processing, Inc. v. Thompson, 100 S.W.3d 915 (Mo.App.2003); State ex rel. Maloney v. Allen, 26 S.W.3d 244 (Mo.App.2000); Craven v. State ex rel. Premium Std. Farms, Inc., 19 S.W.3d 160 (Mo.App.2000); State ex rel. Nat'l Super Mkts., Inc. v. Dowd, 1 S.W.3d 595 (Mo.App.1999); State ex rel. J.E. Dunn Constr. Co. v. Fairness in Constr. Bd. of City of K.C., 960 S.W.2d 507 (Mo.App.1997); State ex rel. Lohman v. Personnel Advisory Bd., 948 S.W.2d 701 (Mo.App.1997); Barber v. Jackson County Ethics Comm’n, 935 S.W.2d 62 (Mo.App.1996); State ex rel. Arnett v. Greer, 921 S.W.2d 128 (Mo.App.1996); State ex rel. Marler v. State Bd. of Optometry, 898 S.W.2d 559 (Mo.App.1994); Air Evac EMS, Inc. v. Mo. State Bd. of Health, 896 S.W.2d 640 (Mo.App.1995); State ex rel. Lakeman v. Siedlik, 872 S.W.2d 503 (Mo.App. 1994); Scott County Reorganized R-6 Sch. Dist. v. Mo. Comm’n on Human Rights, 872 S.W.2d 892 (Mo.App.1994); Southwestern Bell Tel. Co. v. Mo. Comm’n on Human Rights, 863 S.W.2d 682 (Mo.App.1993); State ex rel. Shea v. Bossola, 827 S.W.2d 722 (Mo.App.1992); State ex rel. 401 North Lindbergh Assocs. v. Ciarleglio, 807 S.W.2d 100 (Mo.App.1990); Bd. of Registration for Healing Arts v. Spinden, 798 S.W.2d 472 (Mo.App.1990); State ex rel. Mo. Dir. of Rev. v. Deutsch, 751 S.W.2d 132 (Mo.App.1988); State ex rel. St. Louis Reg’l Health Care Corp. v. Wamser, 735 S.W.2d 741 (Mo.App.1987).

      . Regulation. 10 CSR 10-6.210(1) specifically says, however, that emission data is not enti-tied to confidential treatment.

      . Mississippi Lime filed a motion to strike Chemical Lime’s appendix to its brief and also portions of its statement of facts and arguments relying on the appendix in its brief. Mississippi Lime alleges that the appendix contains uncertified documents that were not submitted to the circuit court and were not a part of the record on appeal. We will not consider documents that are not included in the record. The mere inclusion of documents in an appendix to a brief does not make it part of the record on appeal. Denny’s, 884 S.W.2d at 289 n. 5. Thus, we did not consider Chemical Lime’s appendix or references to the appendix in this appeal.


text:
    STATE of Missouri, Respondent, v. Brandon P. MESSICK, Appellant.
    No. WD 63460.
    Missouri Court of Appeals, Western District.
    Dec. 21, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 1, 2005.
    Application for Transfer Denied April 26, 2005.
    Laurie Schear Ward and Steven Andrew Fritz, James G. Spangler, Sedalia, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Deborah Daniels, Office of Attorney General, Jefferson City, for respondent.
    Before THOMAS H. NEWTON, Presiding Judge, HAROLD L. LOWENSTEIN, Judge, and RONALD R. HOLLIGER, Judge.
   ORDER

Brandon Messick appeals his convictions of burglary in the first degree, Section 569.160, RSMo 2000, and false imprisonment, Section 565.130, RSMo 2000. He raises four points on appeal. In his first two points, he challenges the sufficiency of the evidence to support the convictions and trial court error in denying a motion to suppress evidence. In his remaining two points, he claims instructional error related to the submission of the State’s verdict director and the court’s refusal to submit his alibi instruction.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. A written opinion reciting the detailed facts and restating the applicable principles of law would have no prec-edential or jurisprudential value. The parties, however, 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 Rule 30.25(b).