author: MICHAEL A. WOLFF, Judge.

text:
    In re Carl SMITH, Petitioner, v. Sheriff Raymond PACE and the Honorable Gary Witt, Respondents.
    No. SC 90425.
    Supreme Court of Missouri, En Banc.
    May 11, 2010.

      Bruce Galloway, Daniel Brogdon, Bruce Galloway LLC, Ozark, for Petitioner.
    Timothy Anderson, Jefferson City, Thomas W. Cline, Gainesville, for respondents.
    Talmage E. Newton IV, Evans & Dixon LLC, St. Louis, for Missouri Association of Criminal Defense Lawyers.
    Anthony E. Rothert, St. Louis, for ACLU of Eastern Missouri.
    Stephen D. Bonney, Kansas City, for ACLU of Kansas and Western Missouri.
   MICHAEL A. WOLFF, Judge.

Introduction

The prosecution of a lawyer for criminal contempt of court for words the lawyer wrote in a writ pleading is a difficult and untidy business, as this case shows: The lawyer’s duty of zealous advocacy and freedom of speech may clash with the courts’ inherent power to protect its proceedings.

At the outset, it should be noted that this habeas corpus proceeding reviews a judgment based on the court’s inherent power to punish for criminal contempt, where a jury found the accused attorney, Carl Smith, guilty beyond a reasonable doubt of indirect criminal contempt of court. The result of this proceeding has no bearing on any disciplinary measures that may result from the attorney’s conduct.

Smith was prosecuted for criminal contempt of court for strong words he used in petitioning the court of appeals for a writ seeking to quash a subpoena issued for a grand jury in Douglas County. Referring to the prosecuting attorney and the judge overseeing the grand jury, Smith wrote: “Their participating in the convening, overseeing, and handling the [sic] proceedings of this grand jury are, in the least, an appearance of impropriety and, at most, a conspiracy by these officers of the court to threaten, instill fear and imprison innocent persons to cover-up and chill public awareness of their own apparent misconduct using the power of their positions to do so.”

Strong words, indeed. Smith says his words are protected by the First Amendment. The state, on behalf of the respondent judge and sheriff, says they are not.

The jury was instructed to determine— in the curious language of earlier Missouri cases — whether Smith’s “statements degraded and made impotent the authority of [the court] and impeded and embarrassed the administration of justice.” See State ex rel. Chassaing v. Mummert, 887 S.W.2d 573, 578 (Mo. banc 1994). The jury found Smith guilty of criminal contempt. Following the verdict, the court entered an order of commitment for criminal contempt sending Smith to jail for 120 days. Smith petitioned for a writ of habeas corpus, challenging the lawfulness of his conviction and incarceration. This Court issued a writ of habeas corpus and stayed the remainder of Smith’s jail commitment pending the outcome of this writ proceeding.

Facts and Procedural History

Smith, the petitioner in this habeas case, appeared in March 2008 before Judge R. Craig Carter of Douglas County, who had been assigned to oversee the conduct of a Douglas County grand jury that just had been convened. On behalf of one of his clients and Smith’s secretary, Smith filed a motion to quash the subpoena and a motion for continuance. Judge Carter overruled Smith’s motion to quash but gave him seven days to file a writ in the court of appeals challenging the judge’s decision. Smith then filed such a petition.

On the basis of two paragraphs of Smith’s petition filed in the court of appeals, Judge Carter cited Smith for criminal contempt. The two paragraphs of Smith’s writ petition said:

1. The attached exhibits reflect the personal interest, bias and purported criminal conduct of Respondent [Judge Carter], Prosecuting Attorney Christopher Wade, and others [sic] members in the judicial system in the Forty-Fourth Judicial Circuit. Their participating in the convening, overseeing, and handling the [sic] proceedings of this grand jury are, in the least, an appearance of impropriety and, at most, a conspiracy by these officers of the court to threaten, instill fear and imprison innocent persons to cover-up and chill public awareness of their own apparent misconduct using the power of their positions to do so.
2. When Relators [Smith’s client and Smith’s secretary] on March 31, 2008 asked Respondent [Judge Carter] and the prosecuting attorney who were the targets of this grand jury, Relators’ assertion that the targets were Relators and their counsel [Smith] was met with tacit admission of silence. This grand jury, as in the last grand jury in Douglas County, is being used by those in power in the judicial system as a covert tool to threaten, intimidate and silence any opposition to their personal control-not the laudable common law and statutory purposes for which the grand jury system was created.

Smith’s “attached exhibits” included affidavits, deposition transcripts, letters and court filings in which Smith and others made allegations against Douglas County prosecuting attorney Christopher Wade and the presiding circuit judge of the 44th Judicial Circuit, claiming that these officials had committed criminal offenses and that the attorney general and members of his staff and other attorneys practicing in the 44th Judicial Circuit had acted unlawfully. The two paragraphs quoted here name only Judge Carter and the prosecutor.

Following receipt of a copy of Smith’s court of appeals writ petition in April 2008, Judge Carter issued an order of contempt setting forth the above-referenced paragraphs from Smith’s writ petition. Thereafter, Judge Gary Witt, respondent here, was assigned to preside over Smith’s jury trial for criminal contempt.

The state presented the two paragraphs cited in Judge Carter’s order as well as testimony from Judge Carter in which he testified that the facts in the two paragraphs are false. Judge Carter also testified that he did not believe the two paragraphs were proper “argument” and that a writ petition was an improper avenue for an attorney who believes a judge has committed, or is committing, wrongdoing. Judge Carter stated the proper avenue was for Smith to file a complaint with the Commission on Retirement, Removal and Discipline. Prior to trial, respondent Judge Witt noted in a docket entry that “[pjlaintiff [the state] stipulates that the actions of the defendant [Smith] did not interfere w/grand [sic] jury and that Judge Carter did not rule differently, or fail to take any action with regard to the grand jury based on actions of defendant....” The jury received this portion of the docket entry as evidence.

Although Smith objected to the state’s proposed verdict-directing instruction on the grounds that it failed to list the essential elements of criminal contempt, either as a statutory crime or a contempt citation by a judge as at common law, the trial court gave the state’s proposed verdict-directing instruction:

If you find and believe from the evidence beyond a reasonable doubt:
First, that on or about April 3, 2008, in the County of Douglas, State of Missouri, the defendant served upon R. Craig Carter a Petition for Writ of Prohibition against R. Craig Carter, and
Second, that R. Craig Carter was the Judge of the Circuit Court of Douglas County, Associate Circuit Division, Forty-fourth Judicial Circuit, and
Third, that in his Petition for Writ of Prohibition the defendant stated that R. Craig Carter in his position as Judge, used a grand jury to threaten, install fear and imprison innocent persons to cover-up and chill public awareness of apparent misconduct using the power of his position to do so, and
Fourth, that in his Petition for Writ of Prohibition the defendant stated that R. Craig Carter in his position as Judge, handled a grand jury as a tool to threaten, intimidate and silence any opposition to his personal control, and
Fifth, the defendant’s statements degraded and made impotent the authority of the Circuit Court of Douglas County, Associate Circuit Division and impeded and embarrassed the administration of justice, then you will find the defendant guilty of contempt of court.
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of contempt of court.

The jury found Smith guilty of criminal contempt based on this instruction. After hearing evidence on sentencing in September 2009, the respondent judge committed Smith to 120 days in jail. Smith then sought a writ of habeas corpus. This Court issued a stay in October 2009 directing Sheriff Raymond Pace, respondent, to release Smith pending review by this Court as provided in Rule 91.

Standard of Review

There is no right of appeal from a judgment of criminal contempt. Ex parte Clark, 208 Mo. 121, 106 S.W. 990, 997 (1907). The only remedy available is to file a writ of habeas corpus. Id.; Rule 91.01(b) (A person may seek a writ of habeas corpus when the person is “restrained of liberty within this state [in order] to inquire into the cause of such restraint”).

When this Court issues a writ of habeas corpus, as the Court did in November 2009, the petitioner, Smith, is permitted to brief and argue his grounds for relief so that the court may “inquire into the cause of [petitioner’s] restraint,” Rule 91.01(b), and determine whether a release from custody is warranted. State ex rel. Zinna v. Steele, 301 S.W.3d 510, 513 (Mo. banc 2010). The decision whether to grant relief is “limited to determining the facial validity of confinement, which is based on the record of the proceeding that resulted in the confinement.” State ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 214 (Mo. banc 2001). The habeas court may grant relief by ordering the petitioner discharged from unlawful restraint or deny relief by permitting the petitioner to remain in custody. Rule 91.18; Rule 91.20; Zinna, 301 S.W.3d at 513.

Missouri courts have both an inherent power under the constitution to punish for contempt as well as authority to try contempt-of-court cases under the statutory crime of contempt, section 476.110, RSMo 2000. Osborne v. Purdome, 244 S.W.2d 1005,1012 (Mo. banc 1952).

Missouri’s contempt statute, section 476.110, provides for a finding of contempt only where the actions being punished are committed in the court’s presence, the actions actually interrupt the court’s proceedings or a person disobeys an order of the court. The contempt statute, however, does not limit the power of the courts to punish for contempt as at common law. Osborne, 244 S.W.2d at 1012 (“It is settled law that every constitutional court of common-law jurisdiction has the inherent power to punish for contempt, and cannot be shorn of such power by statute.”). The courts’ inherent power includes “those incidental powers [that] are necessary and proper to [ensure] the performance” of the courts’ judicial function under the constitution — “the trying and determining of cases in controversy.” Coleman, 152 S.W.2d at 646. “The power to punish for contempt should be used sparingly, wisely, temperately and with judicial self-restraint.” In re Estate of Dothage, 727 5.W.2d 925, 928 (Mo.App.1987).

“[T]here are two classes of contempt — civil and criminal, each class having two subcategories — direct and indirect.” Chassaing, 887 S.W.2d at 578. Criminal and civil contempt are distinguished by the content of the judgment. Id. “Criminal contempt is punitive in nature and acts to protect, preserve, and vindicate the authority and dignity of the judicial system and to deter future defiance.” Id. Civil contempt is intended to benefit a party for whom relief has been granted by coercing compliance with the relief granted. Id. In this case, Judge Carter sought to punish Smith by criminal contempt for the language he had used in his writ petition.

“A direct contempt occurs in the immediate presence of the court or so near as to interrupt its proceedings.” Id. The judge may punish a direct contempt summarily if the judge saw the conduct constituting contempt. Id.; Rule 36.01(a). However, an indirect, or “constructive,” contempt “arises from an act outside the court that tends to degrade or make impotent the authority of the court or to impede or embarrass the administration of justice.” Chassaing, 887 S.W.2d at 578. Acts of indirect contempt require that the defendant be given notice and a hearing as set out in Rule 86.01(b). Id. at 379. In this case, the criminal contempt alleged was indirect.

Analysis

Criminal Contempt and “Degrading” Speech

Despite its origins deep in the common law, the elements of criminal contempt are not well developed. Reported cases of jury trials are hard to find; only in relatively recent years has the United States Supreme Court held that persons cited for contempt where “serious punishment” is sought must be afforded the right of trial by jury. Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968). For purposes of determining whether the constitution requires a right to a jury trial, “serious punishment” means incarceration in excess of six months. Lewis v. United States, 518 U.S. 322, 325-26, 116 S.Ct. 2163, 135 L.Ed.2d 590 (1996). Criminal contempt proceedings with no incarceration or incarceration of fewer than six months are considered “petty crimes,” and no right to jury trial exists. Id. In criminal contempt cases where there is no specified maximum punishment, courts may use the penalty actually imposed to determine the character of the offense and whether the right to jury trial existed. Bloom, 391 U.S. at 211, 88 S.Ct. 1477. Examining whether there is a right to a jury after the case is tried, however, seems awkward; a trial court needs to know before trial whether a jury is needed. The answer is that if the prosecution seeks a commitment exceeding six months, a jury constitutionally is required — regardless of the penalty actually imposed after trial. See Right to Jury Trial — Under Particular Circumstances, 7A Fed. Proc., L. Ed. sec. 17:17 (2010) (citing cases). If a court conducts a contempt hearing without a jury, Bloom limits the incarceration time to six months. Id.

The First Amendment has been held to trump restrictions on lawyers’ speech. Gentile v. State, 501 U.S. 1030, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991). This Court does not accept the proposition that First Amendment rights bar punishment of contemptuous speech, but does recognize that the values and limits of the constitutional right must inform the development of the elements of criminal contempt. This is especially true of cases of indirect contempt, which do not take place in the court’s presence,

The state, on behalf of the respondents Judge Witt and Sheriff Pace, argues that it is sufficient to sustain Smith’s conviction for contempt because a jury found that Smith’s “statements degraded and made impotent the authority of the Circuit Court of Douglas County, Associate Circuit Division and impeded and embarrassed the administration of justice.” Smith argues that his statements are protected by the First Amendment to the United States Constitution and, therefore, a judgment of contempt for these statements is improper. The parties cite no Missouri reported case, nor can the Court find one, where a contempt-of-court charge was tried to a jury. In fairness to the parties, the law of indirect contempt as applied to lawyers is confusing and unclear both in this state and throughout the nation.

Criticism by non-lawyers

Comments regarding pending court cases — when made by non-lawyers— are protected by the First Amendment. In Bridges v. California, the United States Supreme Court established that the First Amendment requires there to be “a clear and present danger” of a substantive evil before newspaper publishers can be charged with contempt for publishing criticism of a judge regarding a pending case. 314 U.S. 252, 268, 62 S.Ct. 190, 86 L.Ed. 192 (1941). Moreover, the evil itself must be “extremely serious” and the imminence of danger “extremely high before utter-anees can be punished.” Id. In holding the publishers could not be charged with contempt, the Supreme Court said it was not enough for the published statements to have either an “inherent tendency” or a “reasonable tendency” to affect the administration of justice. Id. at 273.

Following Bridges, the Supreme Court examined what protection should be given to comments in a newspaper that directly criticized a specific judge. Craig v. Harney, 331 U.S. 367, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947). The Supreme Court first noted its earlier holding that although “ ‘[c]ourts must have power to protect the interests of ... litigants before them from unseemly efforts to pervert judicial action. In the borderline instances where it is difficult to say upon which side the alleged offense falls, we think the specific freedom of public comment should weigh heavily against a possible tendency to influence pending cases.’ ” Id. at 373, 67 S.Ct. 1249 (quoting Pennekamp v. Florida, 328 U.S. 331, 347, 66 S.Ct. 1029, 90 L.Ed. 1295 (1946)). The Supreme Court then examined the specific language the newspaper had used to criticize the judge. See Harney, 331 U.S. at 375-76, 67 S.Ct. 1249. The Supreme Court stated that the editorial contained “strong language, intemperate language, and [was], we assume, an unfair criticism.” Id. at 376, 67 S.Ct. 1249. Nevertheless, the Court reasoned that:

a judge may not hold in contempt one “who ventures to publish anything that tends to make him unpopular or to belittle him.... ” The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil.

Id. at 376, 67 S.Ct. 1249 (quoting Craig v. Hecht, 263 U.S. 255, 281, 44 S.Ct. 103, 68 L.Ed. 293 (1923) (Holmes, J., dissenting)) (omission in original). The Supreme Court held that although the editorial’s language may lower the judge’s standing in the eyes of the public, it did not “create an imminent and serious threat to the ability of the court to give fair consideration to the motion for rehearing” at issue. Harney, 331 U.S. at 377-78, 67 S.Ct. 1249.

The Missouri appeals court applied the Supreme Court’s standard in McMilian v. Rennau, in which McMilian was charged with indirect criminal contempt for his statements about a judge regarding a pending case. 619 S.W.2d 848, 850 (Mo.App.1981). McMilian had telephoned the court and asked to speak to Judge Gant about criminal charges that were pending involving McMilian’s son. Id. When the bailiff informed him that the judge would not engage in ex parte discussions regarding a pending case, McMilian told the bailiff: “ ‘Tell Judge Gant that all judges are full of sh*t and tell Judge Gant to stick it up his risking *ss.’ ” Id. The court echoed the Supreme Court’s decisions and held that a contempt conviction requires “a demonstrated impediment to the judicial process, real, threatened and imminent.” Id. at 853. The court noted that although McMilian’s remarks were “offensive and boorish, [they] were far less egregious than the widely published statements in Bridges, Pennekamvp and other cited cases.” Id.

These cases make it clear that statements about pending cases by non-lawyers are protected by the First Amendment under a “clear and present danger” standard.

Criticism by lawyers

With respect to lawyers, however, it is not nearly as clear what protection the First Amendment provides. The United States Supreme Court held that states may use a lesser standard than that applied to non-lawyers to decide if a lawyer should be disciplined for his or her speech. Gentile, 501 U.S. 1030, 111 S.Ct. 2720. Gentile, a Nevada attorney, held a news conference upon the indictment of one of his clients and allegedly violated a Nevada Supreme Court rule prohibiting attorneys from making extrajudicial statements that had a “substantial likelihood of materially prejudicing an adjudicative proceeding.” Id. at 1033, 111 S.Ct. 2720. Although the Supreme Court struck down the Nevada rule on other grounds, the Court endorsed Nevada’s “substantial likelihood” standard as sufficient under the First Amendment for the discipline of attorneys who had made extrajudicial statements concerning pending cases. Id. at 1048-49,1072, 111 S.Ct. 2720.

Since Gentile, numerous state courts have considered the regulation of lawyer speech. Almost all of these cases, however, have involved situations in which a lawyer is disciplined under his or her state’s ethics rules. See, e.g., In re Comfort, 284 Kan. 183, 159 P.3d 1011 (2007) (citing cases). In In re Westfall, decided shortly before Gentile, this Court held that a lawyer who made a derogatory statement about a judge could be disciplined if he made the statement “with knowledge of its falsity or in reckless disregard” for the truth. 808 S.W.2d 829, 887 (Mo. banc 1991). The Court reasoned that lawyers who were subjected to discipline for their speech could be held to a higher standard than those who were subject to “civil or criminal sanctions” because lawyers were admitted to the bar “to protect the public and the administration of justice.” Id. This Court distinguished Garrison v. Louisiana, which held that a district attorney who had been charged with defamation for disparaging the judicial conduct of eight judges could “be the subject of either civil or criminal sanctions” only if the statements were made “with [a] high degree of awareness of their probable falsity.” 879 U.S. 64, 74, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964). The scrutiny of a state’s interest in regulating lawyer speech may be significantly higher today than when this Court decided Westfall. See, e.g., Republican Party of Minnesota v. White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002).

In any event, cases involving lawyers’ statements require some knowledge of falsity or, at the very least, a reckless disregard for whether the false statement was true or false. The disciplinary process may be a more suitable forum than a contempt proceeding for ascertaining a lawyer’s knowledge as to the truth or falsity of the lawyer’s statements. Monetary sanctions pursuant to Rule 55.03(c) rather than incarceration also may be more suitable.

The Truth May Set Him Free; Falsehoods May Get Him Jail

There can be no doubt that the First Amendment protects truthful statements made in judicial proceedings. It is essential, therefore, to prove that the lawyer’s statements were false and that he either knew the statements were false or that he acted with reckless disregard of whether these statements were true or false. In this case, there was no mental state (mens rea) requirement in the jury instruction. The instruction did not require the jury to find that Smith knew his statements were false or that Smith showed reckless disregard for the truth. The only contested issue the instruction asked the jury to find was whether Smith’s written statements to the court of appeals “degraded and made impotent the authority of the Circuit Court of Douglas County, Associate Circuit Division and impeded and embarrassed the administration of justice.” Although this language is present in the scant case law available — as a sole basis for a finding of criminal contempt and the resulting order of commitment to incarceration — it does not comport with the constitutional protections of free speech in United States Supreme Court precedents.

Under this instruction, the assistant attorney general prosecuting the case was able to argue, in effect, that it did not matter whether Smith’s statements about Judge Carter were true or false or whether Smith thought they were true or false. The attorney told the jury that if Smith thought Judge Carter was a crook, the “legal thing” to do is to file a complaint with the disciplinary authorities. “... [Y]ou can’t call the judge a crook. I ask you to read these instructions carefully and ask you to find Carl Smith guilty for contempt of court.”

Even in disciplinary cases, this Court and the United States Supreme Court have recognized that lawyers have First Amendment rights. A lawyer’s duty to the client requires that the lawyer represent the client zealously within the bounds of the law. Rule 4, Preamble: A Lawyer’s Responsibilities; Sprung v. Negwer Materials, Inc., 727 S.W.2d 883, 893 (Mo. banc 1987) (Rendlen, J., concurring). Before a lawyer can be found guilty of criminal contempt for what is written in his or her pleadings, there must be some finding that the lawyer’s statements were made with actual knowledge of their falsity or that the statements were in fact false and were made with reckless disregard of whether they were true or false.

The only witness in this case was Judge Carter, the complainant. He testified that Smith’s written statements were false. But the jury was not asked to find that Smith’s statements were false, that Smith knew they were false or that he made the statements with reckless disregard of whether they were true or false. There simply was no evidence from which the jurors could find the requisite state of Smith’s mind regarding the falsity of the statements, nor were they asked to do so.

Statements That Degrade and Make Impotent the Court’s Authority?

With due respect to this Court’s earlier description of contempt as “statements [that] degraded and made impotent the authority of the [the court] and impeded and embarrassed the administration of justice,” words that degrade or make impotent or impede or embarrass, by themselves, are not enough to support a finding of criminal contempt under United States Supreme Court precedents. In a case involving direct contempt, the United States Supreme Court said: “[wjhile we appreciate the necessity for a judge to have the power to protect himself from actual obstruction in the courtroom, or even from conduct so near to the court as actually to obstruct justice, it is also essential to a fair administration of justice that lawyers be able to make honest good-faith efforts to present their clients’ cases.” In re McConnell, 370 U.S. 230, 236, 82 S.Ct. 1288, 8 L.Ed.2d 434 (1962).

The First Amendment requires that the threat to the court’s authority must be real; the lawyer’s statements and attendant conduct actually must have interfered with or posed an imminent threat of interfering with the administration of justice. See, e.g., In re Jefferson, 283 Ga. 216, 657 S.E.2d 830, 833 (2008). While this is the standard in cases of direct contempt — that is, in incidents occurring in the court’s presence or vicinity — there is no logical reason to have a more relaxed standard for contempt of court for written pleadings.

In this case, the state stipulated that the defendant’s actions did not interfere with the grand jury and “that Judge Carter did not rule differently, or fail to take any action with regard to the grand jury based on actions of defendant....” If that is true, as the state agrees, was the threat to the court’s authority real? There is no evidence that Smith’s written statements interfered with or posed an imminent threat of interfering with the administration of justice.

Conclusion

In a prosecution for indirect criminal contempt of court, initiated by a judge who cites a lawyer for contempt for the lawyer’s statements, the essential elements are:

(1) The lawyer’s statements were false;
(2) The lawyer knew the statements were false or acted with reckless disregard for whether the statements were true or false;
(3) The effect of the statements constituted an actual or imminent impediment or threat to the administration of justice.

Limiting cases of indirect criminal contempt to those where these elements are proved will satisfy constitutional protections for lawyer speech and will help to ensure that the courts of this state will use contempt powers “sparingly, wisely, temperately and with judicial self-restraint.” In re Estate of Dothage, 727 S.W.2d at 928.

In addition to the deficient jury instruction and the lack of evidence as to the essential elements of indirect criminal contempt, the trial court’s judgment fails to recite any findings of fact as to the three essential elements listed above. In contempt proceedings “the facts and circumstances constituting the offense, not mere legal conclusions, must be recited in both the judgment of contempt and the order of commitment.” Ex parte Brown, 530 S.W.2d 228, 230 (Mo. banc 1975); see section 476.140, RSMo 2000. Neither the judgment of contempt nor the order of commitment contained the necessary factual findings.

Smith is ordered discharged.

All concur.

      . Smith contended that production of the documents requested pursuant to the grand jury's subpoena was improper for a variety of reasons. He also suggested that the handwriting on the subpoena was not the prosecuting attorney’s and that the grand jury had been called in retribution for his client's filing of a motion to disqualify the prosecuting attorney in a pending criminal case.

      .Judge Carter's order also said:
      Mr. Smith’s Petition continues on to defame the elected Douglas County Prosecuting Attorney, several members of the local bar, and even goes so far as to question actions of the Office of the Chief Disciplinary Counsel's actions [sic]. Additionally, the affidavits and exhibits attached to Mr. Smith's Petition are the most scurrilous, defamatory, venomous attack on the Judicial System the Court has ever witnessed. Indeed, Mr. Smith's writing "tends to degrade or make impotent the authority of the court or to impede or embarrass the administration of justice.” Curtis v. Tozer, 374 S.W.2d 557, 568 (Mo.App.1964).
      However, the state chose not to pursue any action on this part of his order.

      . Despite the interchangeable use in common parlance of the words "attorney" and "lawyer,” it is technically precise to use the word "lawyer” to denote a person who is a member of the legal profession (the occupation) and "attorney” as one who represents the interests of a client (the role). See definitions in Webster's New Third International Dictionary (1993).

      . See State ex inf. Crow v. Shepherd, 177 Mo. 205, 76 S.W. 79 (1903), for a discussion of contempt at common law. See also State ex rel. Pulitzer Pub. Co. v. Coleman, 347 Mo. 1238, 152 S.W.2d 640, 646 (1941); State ex rel. Burrell-El v. Autrey, 752 S.W.2d 895 (Mo.App.1988); and Mechanic v. Gruensfelder, 461 S.W.2d 298 (Mo.App.1970).

      . Smith initially was sentenced to confinement in the Douglas County jail, but he immediately was transferred to the Ozark County jail. Sheriff Raymond Pace, respondent, is the sheriff of Ozark County.

      . Section 476.110 provides:
      Every court of record shall have power to punish as for criminal contempt persons guilty of:
      (1) Disorderly, contemptuous or insolent behavior committed during its session, in its immediate view and presence, and directly tending to interrupt its proceeding or to impair the respect due to its authority:
      (2) Any breach of the peace, noise or other disturbance directly tending to interrupt its proceedings;
      (3) Willful disobedience of any process or order lawfully issued or made by it;
      (4) Resistance willfully offered by any person to the lawful order or process of the court;
      (5) The contumacious and unlawful refusal of any person to be sworn as a witness, or, when so sworn, to refuse to answer any legal and proper interrogatory.

      . The respondent judge here argues the contempt was sought under Rule 36.01(b). However, a rule, such as Rule 36.01(b), does not provide the right to seek a cause of action, but merely the procedure to do so. The court's inherent power, not the rule, is the source of the court’s power to punish for contempt.

      . Although the legislature has chosen to specify five acts as contemptuous, a court could choose to find these acts contemptuous under its inherent powers as well. The courts’ inherent powers are neither expanded nor infringed upon by the statutory contempt power. See Osborne, 244 S.W.2d at 1012.

      .This Court has held that at common law there was no right to trial by jury for contempt. Pulitzer Pub. Co., 152 S.W.2d at 645-46. But cf. Earl C. Dudley, Jr., Getting Beyond the Civil/Criminal Distinction: A New Approach to the Regulation of Indirect Con-tempts, 79 Va. L.Rev. 1025, 1939 n. 14 (1993) ("From the 14th century onward, English common law distinguished between con-tempts committed in facie curiae and those committed outside the presence of the court. Prior to the 18th century, out-of-court con-tempts by nonparties to litigation were generally treated as ordinary criminal offenses and tried before juries. Contempts in facie curiae ■ and out-of-court contempts by parties (generally disobedience to court orders) were apparently dealt with by summary procedures, or at least without the intervention of juries. By the late 18th century, all contempts were dealt with by summary procedures at common law.”) (internal citations omitted). These precedents must give way to the United States Supreme Court’s 1968 decision in Bloom, discussed above in the text, which held that where a serious penalty is imposed, such as more than six months imprisonment, an alleged contemnor is guaranteed the right to trial by jury under the Sixth Amendment. 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522.

      . In Missouri, "[p]unishment for contempt may be by fine or imprisonment ... in the discretion of the court.” Section 476.120, RSMo 2000.

      . The question here is similar to the question of a court's need to know whether the state seeks incarceration to determine whether the court must appoint counsel for an indigent defendant. See State ex rel. Missouri Pub. Defender Comm’n v. Pratte, 298 S.W.3d 870, 887 (Mo. banc 2009).

      . See, e.g., Shepherd, 76 S.W. at 79-80. The Court in Shepherd found a newspaper publisher in contempt of court for publishing harsh criticism of this Court, which harkens to the olden days when judges of this Court were elected in partisan elections. The newspaper, published in Warrensburg, said:
      When a citizen of Missouri stops long enough to think of the condition of affairs in his state, it is enough to chill his blood.... [T]he Supreme Court has, at the whipcrack of the Missouri Pacific Railroad, sold its soul to the corporations, and allowed Rube Oglesby to drag his wrecked frame through this life without even the pitiful remuneration of a few paltry dollars. Learned men of the law say that Rube Oglesby had the best damage suit against a corporation ever taken to the Supreme Court. This very tribunal, after reading the evidence and hearing the arguments of the attorneys, rendered a decision sustaining the judgment of the lower court, which decision was concurred in by six of the seven members of the court. This is usually the end of such cases, and the decision of a Supreme Court, once made, usually stands. But not so in the Oglesby case. Three times was this case, at the request of the railway attorneys, opened for rehearing, and three times was the judgment of the lower court sustained. But during this time, which extended over a period of several years, the legal department of this great corporation was not the only department which was busy in circumventing the defeat of the Oglesby case. The political department was very, very busy. Each election has seen the hoisting of a railway attorney to the Supreme Bench, and, when that body was to the satisfaction of the Missouri Pacific, the onslaught to kill the Oglesby case began. A motion for a rehearing was granted, and at the hearing of the case it was reversed on an error in record of the trial court, and was sent back for retrial. That was in the early part of the year 1902. The case was tried in Sedalia before Circuit Judge Longan, one of the ablest jurists in the state, and we have been informed that no error was allowed to creep into the record at the second trial. Again the jury rendered judgment in favor of Oglesby for $15,000, and again the case was appealed to the Supreme Court. An election was coming on, and the railroad needed yet another man to beat the Oglesby case. The Democratic nominating convention was kind, and furnished him, in the person of Fox. The railroad, backed by four judges on the bench, allowed the case to come up for final hearing, and Monday the decision was handed down, reversed and not remanded for retrial. The victory of the railroad has been complete, and the corruption of the Supreme Court has been thorough. It has reversed and stultified itself in this case until no sane man can have any other opinion but that the judges who concurred in the opinion dismissing the Ogles-by case have been bought in the interest of the railroad. What hope have the ordinary citizens of Missouri for justice and equitable laws in bodies where such open venality is practiced? And how long will they stand it? The corporations have long owned the Legislature, now they own the Supreme Court, and the citizen who applies to either for justice against the corporation gets nothing. Rube Oglesby and his attorney, Mr. O.L. Houts, have made a strong fight for justice. They have not got it. The quivering limb that Rube left beneath the rotton [sic] freight car on Independence Hill, and his blood that stained the right of way of the soulless corporation, have been buried beneath the wise legal verbiage of a venal court, and the wheels of the Juggernaut will continue to grind out men’s lives, and a crooked court will continue to refuse them and their relatives damages, until the time comes when Missourians, irrespective of politics, rise up in their might and slay at the ballot box the corporation-bought lawmakers of the state.

        Id. The Court's ability to punish by contempt for such language in the current era would be constrained by the First Amendment.

      . See, e.g., Louis S. Raveson, Advocacy and Contempt: Constitutional Limitations on the Judicial Contempt Power, Part One: The Conflict Between Advocacy and Contempt, 65 Wash L.Rev. 477, 482 (1990) ("Presently, the standards governing both the limits of acceptable advocacy and the scope of the contempt power are haphazard and imprecise.”); Dudley, Getting Beyond the Civil/Criminal Distinction, at 1025 ("The literature on contempt of court is unanimous on one point: the law is a mess.”).

      . According to the Court, the offensive language in the editorial was as follows:
      It called the judge's refusal to hear both sides "high handed,” a "travesty of justice,” and the reason that public opinion was "outraged.” It said that his ruling properly "brought down the wrath of public opinion upon his head” since a service man “seems to be getting a raw deal." The fact that there was no appeal from his decision to a "judge who is familiar with proper procedure and able to interpret and weigh motions and arguments by opposing counsel and to make his decisions accordingly” was a "tragedy.” It deplored the fact that the judge was a "layman” and not a "competent attorney." It concluded that the “first rule of justice” was to give both sides an opportunity to be heard and when that rule was "repudiated,” there was "no way of knowing whether justice was done."

        Harney, 331 U.S. at 375-76, 67 S.Ct. 1249.

      . Geoffrey C. Hazard, Jr. & W. William Hodes commented about the contrast between Westfall and the United States Supreme Court decision In re Snyder, 472 U.S. 634, 105 S.Ct. 2874, 86 L.Ed.2d 504 (1985): ‘‘[T]he case of In re Westfall ... is troubling indeed.... [T]he Westfall court did not conscientiously assess the reasonableness of the lawyer’s state of mind in making his statements, but appeared to be judging the reasonableness of what was said. Moreover, the court's findings as to the 'falseness' of what was said were themselves highly questionable." The Law of Lawyering 63-14, 63-18 (3d. ed. Supp. 2009) (emphasis in original).

      . See In re Snyder, 472 U.S. at 646-47, 105 S.Ct. 2874, in which the United States Supreme Court held that a lawyer’s letter criticizing the Eighth Circuit court of appeals’ administration of the Criminal Justice Act was not sufficient to suspend the lawyer from the practice of law, because his concerns had "merit” and “a single incident of rudeness or lack of professional courtesy-in this context-does not support a finding of contemptuous or contumacious conduct....”

      . Rule 55.03(c) applies to civil proceedings. The alleged contemptuous statements in this case were made in writ proceedings, which are civil proceedings.

      . "A crime generally consists of two elements: the physical, wrongful deed (the actus reus) and the guilty mind that produces the act (the mens rea)." State v. Roberts, 948 S.W.2d 577, 587 (Mo. banc 1997).

      . The bounds of the law do not permit the lawyer to make false statements with reckless disregard for their falsity, nor do the bounds of law permit a lawyer to make statements the lawyer knows to be false. Rule 4-8.2(a).

      . See Holt v. Virginia, 381 U.S. 131, 85 S.Ct. 1375, 14 L.Ed.2d 290 .(1965). In Holt, attorneys were charged with contempt for the language used alleging bias in motions to change venue and for disqualification of the judge. Id. at 134-35. The Supreme Court said:
      [the state’s] apparent contention [is] that the contempt convictions should be sustained on the ground that petitioners' charges of bias were false. The truth or falsity of these charges was not heard, the trial court choosing instead to convict and sentence petitioners for having done nothing more than making the charges. Even if failure to prove their allegations of bias could under any circumstances ever be made part of the basis of a contempt charge against petitioners, these convictions cannot rest on any such unproven assumption.
      Our conclusion is that these petitioners have been punished by [the state] for doing nothing more than exercising the constitutional right of an accused and his counsel in contempt cases such as this to defend against the charges made.

        Id. at 137-38, 85 S.Ct. 1375.


source: Caselaw Access Project

author: JAMES EDWARD WELSH, Judge.

license: Public Domain

text:
    Harold KRUTZ, et al., Appellants, v. Steven Van METER, An Individual and as Personal Representative, et al., Respondents.
    No. WD 71360.
    Missouri Court of Appeals, Western District.
    May 4, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 29, 2010.
    Richard W. Martin, Jr., Olathe, KS, for Appellants.
    Gretchen M. Gold, Kansas City, MO, for Respondent.
    Before THOMAS H. NEWTON, C.J., JAMES EDWARD WELSH, and GARY D. WITT, JJ.
   JAMES EDWARD WELSH, Judge.

Harold Krutz and Michael Krutz (“the Krutzes”) appeal the circuit court’s judgment dismissing their action for an accounting against Steven Van Meter, individually and in his capacity as personal representative for decedent Walter Mulva-nia, and against Mulvania’s heirs. The circuit court dismissed the action on the basis that it was barred by the statute of limitations. We affirm.

When the circuit court has dismissed an action as untimely filed, we review to determine whether the face of the petition clearly established that the action was barred by the applicable statute of limitations. Dupree v. Zenith Goldline Pharm., Inc., 63 S.W.3d 220, 221 (Mo. banc 2002); Duncan v. Estate of Booker, 816 S.W.2d 705, 708-09 (Mo.App.1991). The applicable statute of limitations in this case is found in section 461.300, RSMo Cum.Supp.2009. This statute creates a procedure for a creditor, deemed a “qualified claimant” under section 461.300.10(3), to pursue an action for an accounting. Section 461.300.1 provides that, where claims remain unpaid after the application of the decedent’s probate estate, recipients of recoverable non-probate transfers of the decedent’s property shall be liable for a pro rata share of the value of the property that they received to satisfy such claims. To enforce this obligation, the decedent’s personal representative or a qualified claimant may bring an action for an accounting. Section 461.300.2. The action for an accounting must be commenced within eighteen months after the decedent’s death. Id.

The Krutzes filed their action for an accounting as claimants against Mulvania’s estate on March 18, 2009. They acknowledge that they filed their action almost twenty months after Mulvania died on July 24, 2007, and that the filing was outside of section 461.300.2’s time limitation. They argue, however, that the delay in filing their action for an accounting was due to the personal representative’s misconduct, in particular, his failing to file the probate estate’s inventory statement on time and his deliberately failing to send them a copy of the inventory statement once it was filed. The Krutzes assert that, under these circumstances, it would be unjust to apply section 461.300.2’s time limitation to bar them from proceeding with their action for an accounting.

Statutes of limitation are favored in the law. White v. Zubres, 222 S.W.3d 272, 276 (Mo. banc 2007). Parties cannot avoid the application of statutes of limitation unless they bring themselves strictly within a specific exception. Id. Exceptions that suspend or toll the running of a limitations period are enacted by the legislature. Shelter Mut. Ins. Co. v. Dir. of Revenue, 107 S.W.3d 919, 923 (Mo. banc 2003). Courts must strictly construe any statutory exceptions to statutes of limitation and are not permitted to enlarge those exceptions, even “upon consideration of apparent hardship.” Butler v. Mitchell-Hugeback, Inc., 895 S.W.2d 15, 19-20 (Mo. banc 1995).

Section 461.300.2 contains only one exception to the eighteen-month statute of limitations for commencing an action for an accounting. The exception applies when the personal representative has received a written demand for an accounting, from a qualified claimant, within sixteen months following the decedent’s death and fails to commence an action for an accounting within thirty days after receipt of the demand. Section 461.300.2. If the personal representative then further fails to provide qualified claimants with the identity of any recipient of a recoverable transfer, the statute of limitations is tolled for that recoverable transfer until the personal representative provides the required information. Id. This exception does not apply to the Krutzes’ action.

Section 461.300.2 does not provide for tolling the eighteen-month limitations period in the event that the personal representative fails to file the probate estate’s inventory statement on time. Indeed, the filing of the inventory statement is not mentioned at all in section 461.300. If the legislature intended for the timing of the filing of the inventory statement to toll or otherwise affect the statute of limitations for commencing an action for an accounting, it would have said so. It did not, and we cannot now carve out an exception based upon the Krutzes’ alleged hardship. See In re Hoffman, 23 S.W.3d 646, 650 (Mo.App.2000).

We, therefore, affirm the circuit court’s judgment dismissing the Krutzes’ action for an accounting as untimely filed.

All concur.

      . Mulvania's heirs are Eva Jo Van Meter, Doug Van Meter, Mary Van Meter, Judson Van Meter, Kim Fulkerson, Will Fulkerson, and Isabel Fulkerson.

      . The record indicates that, almost one year after Mulvania died, the Krutzes filed claims against his estate in which they alleged that they were the victims of attorney malpractice at Mulvania's hands, and that Mulvania’s alleged malpractice cost them over $325,000.

      . The record indicates that, when the personal representative failed to file the inventory statement on or before its original due date of December 26, 2008, the circuit court, on its own motion, continued the time for filing the inventory statement to January 20, 2009. The personal representative filed the inventory statement on that date.


author: DON E. BURRELL, Judge.

text:
    In the Estate of: Stanley STRASZYNSKI, Deceased, Respondent, v. Connie J. CLARK, Appellant.
    No. SD 29903.
    Missouri Court of Appeals, Southern District, Division One.
    May 11, 2010.

      Connie J. Clark, Osage Beach, MO., for Appellant.
    Matthew P. Hamner, Camdenton, MO., for Respondent.
   DON E. BURRELL, Judge.

Connie Clark (“Ms. Clark”), an attorney who represented Cathy Bailey (“Ms. Bailey”), the initial personal representative of the Estate of Stanley Straszynski (“the Estate”), appeals a decision by the Probate Division of the Circuit Court (“the probate division”) that: 1) denied her request for attorney fees; and 2) ordered her to repay the Estate $16,881.59. Because Ms. Clark’s notice of appeal was untimely filed, we must dismiss her appeal.

Factual and Procedural Background

This is the second time Ms. Clark has attempted to appeal the probate division’s denial of her request for attorney fees. For a complete discussion of the issues that led to the dismissal of Ms. Clark’s first appeal, see In re Straszynski, 265 S.W.3d 394 (Mo.App. S.D.2008). Portions of our summary of the relevant facts are drawn from that opinion without further attribution.

During the course of her representation of Ms. Bailey, Ms. Clark paid herself a total of $16,881.59 in attorney fees from Estate funds without first seeking or receiving approval from the court to do so. On March 15, 2007, Ms. Clark filed a proposed final settlement, along with a petition seeking retroactive court approval of the attorney fees she had previously paid herself, plus an additional $1,860.50 in fees. A hearing on Ms. Clark’s petition was held on June 15, 2007. On June 22, 2007, the probate division entered an order that: 1) denied Ms. Clark’s fee petition; 2) modified the proposed final settlement by removing her requested fees from the listing of Estate expenses; and 3) required Ms. Clark to repay the Estate the $16,881.59 in attorney fees she had previously paid herself without the court’s authorization. This order was the subject of Ms. Clark’s first untimely appeal.

On January 15, 2009, the successor Personal Representative filed a “Petition for Instructions Regarding the Payment of Costs and Expenses of Administration,” along with the “Pro Rata Payment of Other Classes of Claims in an Insolvent Estate.” This Petition requested that the court authorize the payment of the expenses of administration and a pro-rata payment of creditors of the Estate in accordance with various exhibits attached to the petition. None of the attorney fees sought by Ms. Clark were included in that request.

On February 13, 2009, the probate division entered its “Order of Instruction Regarding the Payment of Costs and Expenses of Administration and the Pro Rata Payment of Other Classes of Claims in an Insolvent Estate.” This order approved the final payment of costs and expenses of the administration of the estate as requested by the successor Personal Representative, along with the payment of all other estate claims on a pro-rata basis. This order did not authorize the payment of any attorney fees to Ms. Clark and constituted the probate division’s final order of distribution. Ninety-eight days later, on June 22, 2009, Ms. Clark filed her notice of appeal.

Analysis

The Estate argues in its brief that Ms. Clark’s appeal must be dismissed as untimely because her notice of appeal was not filed within ten days of the entry of the probate division’s February 13, 2009 order. Although the time period in which Ms. Clark could timely have filed her notice exceeded the ten day period asserted by the Estate, the Estate is nonetheless correct in claiming that Ms. Clark’s notice of appeal was filed too late.

Probate division “[a]ppeals are purely statutory, and must be taken within the time and in the manner provided by statute.” Lucitt v. Toohey’s Estate, 338 Mo. 343, 89 S.W.2d 662, 664 (1935). “Courts may not enlarge the statutory period within which an appeal may be taken....” In re Forhan, 149 S.W.3d 537, 541 (Mo.App. S.D.2004) (quoting In re Interest of T-G-, 455 S.W.2d 3, 9 (Mo.App.St.L.D. 1970)).

Chapter 472 of the Revised Statutes of Missouri contains general provisions relating to probate matters. “Section 472.180 provides that ‘[a]ll appeals shall be taken within the time prescribed by the rules of civil procedure relating to appeals.’ ” In re Standley, 204 S.W.3d 745, 748 (Mo.App. S.D.2006). Section 472.210 likewise states, “[a]ppeals shall be taken in accordance with the rules of civil procedure relating to appeals.” Id. Rule 81.04 governs how and when an appeal must be taken.

(a) Filing The Notice of Appeal. When an appeal is permitted by law from a trial court, a party may appeal from a judgment or order by filing -with the clerk of the trial court a notice of appeal. No such appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final.

Rule 81.04(a) (emphasis added). Whether Ms. Clark’s notice of appeal was timely filed depends on when the probate division’s ultimate denial of her request for attorney fees became final.

“The administration of a decedent’s estate is deemed one proceeding for purposes of jurisdiction!;] that is concluded by the entry of a decree of final distribution.” Straszynski, 265 S.W.3d at 395. “Aggrieved parties have the right to appeal from that final decree.” Id.; see In re Givens, 234 S.W.3d 519, 521 (Mo.App. E.D.2007).

In this case, the decree of final distribution of the Estate (which did not authorize the payment of any fees to Ms. Clark) was entered on February 13, 2009. That decree of final distribution became final for purposes of appeal thirty days after it was entered. See Rule 81.05(a)(1). Appellant then had ten days from the date that order became final to file her notice of appeal. Rule 84.04(a). Ms. Clark’s notice of appeal was not filed until June 22, 2009, more than three months after the probate division’s decree of final distribution was entered.

Because Appellant’s notice of appeal was untimely, this Court lacks any authority to address the merits of the case and hereby dismisses the appeal.

BARNEY, J., and BATES, P.J., concur.

      . After failing to exercise her duties and appear in court as directed, the probate division revoked Ms. Bailey's letters and appointed the Public Administrator as successor Personal Representative. The successor Personal Representative sought legal counsel elsewhere.

      . The "judgment” referred to in Ms. Clark's notice of appeal is not the probate division’s final order of distribution entered February 13, 2009, but the same interlocutory order entitled “Judgment modifying final settlement and denying motion to ratify attorney fees” that was the subject of Ms. Clark's first untimely appeal.

      . The ten day period asserted by the Estate did apply to Ms. Clark’s attempt to bring her permissive appeal of the probate division's initial interlocutory order denying her request for attorney fees, but the time allowed is longer when appealing from a final order of distribution. See In re Straszynski, supra.

        . Unless otherwise indicated, all statutory references are to RSMo 2000.

      . Unless otherwise indicated, all references to rules are to Missouri Court Rules (2009).

      . Although our previous cases often used the term "jurisdiction” when analyzing our ability to determine an appeal, they are still instructive on the issue of whether this court has the necessary statutory authority to do so. See J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249, 254 (Mo. banc 2009).


author: ALOKAHUJA, Judge.

text:
    STATE ex rel. Chris KOSTER, Attorney General, Respondent, v. William E. WALLS, Appellant.
    No. WD 70845.
    Missouri Court of Appeals, Western District.
    May 18, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 29, 2010.

      William E. Walls, Licking, pro se.
    Laura E. Elsbury, Esq., Jefferson City, MO, for respondent.
    Before: LISA WHITE HARDWICK, P.J., and JAMES M. SMART, JR. and ALOKAHUJA, JJ.
   ALOKAHUJA, Judge.

Appellant William E. Walls is currently incarcerated in the Department of Corrections. On February 3, 2004, the State filed a petition against Walls in the Circuit Court of Cole County, seeking reimbursement for the costs of his incarceration pursuant to the Missouri Incarceration Reimbursement Act, §§ 217.825 to 217.841, RSMo (“MIRA”). (Speaking generally, MIRA authorizes the State to seek reimbursement from a current or former inmate for all or part of the costs associated with the inmate’s incarceration in a state correctional facility.) On June 29, 2004, the circuit court granted summary judgment in the State’s favor. Walls appealed to this Court. We affirmed in a summary order pursuant to Rule 84.16(b). State ex rel. Nixon v. Walls, 167 S.W.3d 809 (Mo.App. W.D.2005).

On January 15, 2009, Walls filed a motion to set aside the circuit court’s June 29, 2004 judgment under Supreme Court Rule 74.06(b), arguing that the judgment was “void.” The trial court denied the motion on January 26, 2009. Walls appeals. We affirm.

Analysis

Walls argues that the 2004 judgment was void “in that the court that rendered the judgment lacked jurisdiction of the parties, or the subject matter, or acted in a manner inconsistent with due process of law ... because the Attorney General did not have good cause to believe that the reimbursement action would yield a certain recovery.”

Walls moved to set aside the circuit court’s 2004 judgment pursuant to Rule 74.06(b)(4), which provides in relevant part that “the court may relieve a party ... from a final judgment or order ... [if] the judgment is void.”

Litigants can request relief from a void judgment pursuant to Rule 74.06(b) at any time. A judgment is “void” under Rule 74.06 only if the court that rendered it lacked jurisdiction of the parties or the subject matter or acted in a manner inconsistent with due process of law. Hence, the circuit court could set aside its [prior] judgment only if, when it entered the judgment, it lacked personal or subject matter jurisdiction or acted in such a way as to deprive the movant of due process.

Franken v. Franken, 191 S.W.3d 700, 702 (Mo.App. W.D.2006) (citations and internal quotation marks omitted). “The concept of a ‘void’ judgment is ... narrowly restricted”; in particular, “[a] judgment is not void simply because it is erroneous, or based on precedent later determined to be incorrect or unconstitutional.” Baxi v. United Techs. Auto. Corp., 122 S.W.3d 92, 95-96 (Mo.App. E.D.2003).

Here, Walls argues that the circuit court lacked jurisdiction “because the attorney general, as a condition precedent to the filing of the reimbursement petition, did not have good cause to file the petition, in accordance with § 217.831.3.”

The procedure that the Attorney General follows regarding a petition for reimbursement is set forth at section 217.831. Pursuant to this section, the Attorney General receives a report on an offender containing a completed asset disclosure form, together with all other information available on the offender’s assets, and an estimate of the total cost of care for that offender. Section 217.831.1; see also section 217.829. The Attorney General, “may investigate or cause to be investigated” such report, including “seeking information from any source that may have relevant information concerning an offender’s assets.” Section 217.831.2. Upon completing the investigation, the Attorney General may file a petition seeking reimbursement against an offender if the Attorney General has
“good cause to believe that an offender ... has sufficient assets to recover not less than ten percent of the estimated cost of care of the offender or ten percent of the estimated cost of care of the offender for two years, whichever is less, or has a stream of income sufficient to pay such amounts within a five-year period.... ”
Section 217.831.3. The good cause provision is a condition precedent that the Attorney General must satisfy before filing the petition. If the condition is not met, the Attorney General is without authority to proceed in seeking reimbursement.

State ex rel Nixon v. Griffin, 291 S.W.3d 817, 820 (Mo.App. W.D.2009) (other citations omitted).

In State ex rel. Nixon v. Peterson, 253 S.W.3d 77 (Mo. banc 2008), the Supreme Court explained that

The purpose of this [good cause] requirement is not to provide a defense for offenders to a petition for reimbursement, but is intended as a cost-effective limitation on the attorney general’s authority [to file a MIRA action].... If the offender raises a factual issue as to the existence of sufficient assets, the offender is entitled to an evidentiary hearing on whether or not good cause exists.

Id. at 83-84 (citations omitted); see also, e.g., State ex rel. Nixon v. Hughes, 281 S.W.3d 902, 907-08, 910-12 (Mo.App. W.D. 2009); State ex rel. Nixon v. Smith, 280 S.W.3d 761, 766-69 (Mo.App. W.D.2009); State ex rel. Nixon v. Houston, 249 S.W.3d 210, 212 (Mo.App. W.D.2008). Because § 217.831.3 specifies only a “condition precedent” to the State’s filing of a reimbursement action, “the State does not have to plead and prove good cause to recover.” Houston, 249 S.W.3d at 214; State ex rel. Nixon v. Koonce, 173 S.W.3d 277, 284-85 (Mo.App. W.D.2005). Instead, the issue need only be resolved if the defendant challenges the existence of good cause; once the issue is raised, the burden falls on the State to establish that good cause in fact exists. See Griffin, 291 S.W.3d at 821; Smith, 280 S.W.3d at 766.

Thus, if Walls had raised the “good cause” issue prior to the entry of the 2004 judgment, the issue could have been litigated and decided by the trial court. But Walls’ failure to raise the “good cause” issue prior to the entry of the 2004 judgment does not present the sort of “jurisdictional” defect or due process violation which could justify reopening the proceedings more than four years later. Indeed, in Peterson the Supreme Court expressly held that the existence of “good cause” was not a jurisdictional prerequisite to the grant of relief on a MIRA petition: “Although the Court agrees with [.Houston’s ] conclusion that an offender may challenge the attorney general’s finding of good cause, the Court rejects the assertion that this challenge is related to the jurisdiction of the court to hear the case. Rather, it is a condition precedent which must be met for the attorney general to proceed with the action.” 253 S.W.3d at 83-84 n. 6.

Walls suggests that Peterson and Houston represented a change in the law, and that he should therefore be excused from his failure to challenge whether “good cause” existed under § 217.831.3 prior to the entry of the 2004 judgment. Even assuming that a change in the law could justify Rule 74.06(b) relief, however, § 217.831.3 has existed in its current form since 1995. Moreover, at least one inmate who was a defendant in a MIRA case at the same time as Walls challenged the existence of “good cause,” including on appeal to this Court. Koonce, 173 S.W.3d 277. Walls essentially acknowledges that the law on which his current arguments are based existed at the time of the 2004 judgment, since he argues in his Reply Brief that he “is not seeking any retroactive application of any MIRA case decided after his”; instead, Walls argues that “the MIRA cases decided after the 2004 judgment in this case only made appellant more determined to have the 2004 judgment voided.” While Peterson, Houston, and other post-2004 decisions may have clarified the specific manner in which a challenge to the existence of “good cause” should be raised and resolved, they did not “change the law” in existence at the time the judgment against Walls was entered.

Walls’ briefing also suggests that the 2004 judgment was entered in a manner that deprived him of due process. However, we note that Walls in fact fully participated in the 2004 litigation, filing numerous papers in the circuit court prior to its entry of judgment, and prosecuting an appeal to this Court. Walls contends that his appeal ‘Vas denied on or about January, 2005, for failure to timely prosecute the appeal after prison officials interfered with the process.” However, this was not the basis of this Court’s ultimate disposition of Walls’ appeal. While we issued a dismissal order in Walls’ appeal on January 6, 2005, based on his failure to prosecute, we later granted Walls’ motion to reconsider, reinstated his appeal, and granted him leave to file an amended brief. Walls’ appeal was then decided on the merits on August 2, 2005. 167 S.W.3d 809.

In these circumstances, Walls has simply failed to establish circumstances which would justify reopening a judgment more than four years after its entry. Walls’ belief that the judgment entered against him in 2004 is inconsistent with § 217.831.3’s “good cause” requirement is not the sort of defect Rule 74.06(b) is intended to rectify. We rejected a similar claim in Love v. Board of Police Commissioners, 943 S.W.2d 862 (Mo.App. E.D. 1997), where a litigant contended that an earlier judgment was entered due to the prevailing party having “urged upon the court an erroneous limitation period.” Id. at 863. The Eastern District made clear that this sort of alleged legal error could not justify belated relief from a final judgment:

Rule 74.06 is not intended as an alternative to a timely appeal. Relief from a trial court judgment, which may have been available by appeal, is not necessarily available by a Rule 74.06 proceeding....
... [The grounds asserted to justify setting aside the judgment] involve an alleged misinterpretation or misapplication of the law by the court. Rule 74.06 is not directed to mistakes of law. Those “mistakes” are to be corrected on direct appeal.... A party acting pro se is bound by the same rules and procedures as other litigants and receives no “indulgence” for failing to retain counsel. Love’s status as a layman does not support a claim of “surprise” concerning the status of the law. The court was not justified in setting aside the judgment under the circumstances here.

Id. (citations omitted).

Conclusion

The circuit court’s denial of Walls’ motion to set aside the 2004 judgment is affirmed.

All concur.

      . Walls does not argue that he is entitled to relief based on any of the other grounds for setting aside a judgment listed in Rule 74.06(b).


author: CYNTHIA L. MARTIN, Judge.

text:
    Stephen M. COLEMAN, et al., Appellants, v. MISSOURI SECRETARY OF STATE, Commissioner of Securities, Respondent.
    No. WD 71390.
    Missouri Court of Appeals, Western District.
    May 25, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 29, 2010.

      Larry D. Coleman, Raytown, MO, for appellants
    J. Scott Stacey, Jefferson City, MO, for respondent.
    Before Division One: KAREN KING MITCHELL, Presiding Judge, LISA WHITE HARDWICK, Judge and CYNTHIA L. MARTIN, Judge.
   CYNTHIA L. MARTIN, Judge.

Stephen Coleman, Daedalus Capital, LLC, Chicken Little Fund Group, Daedalus Alpha, Inc., and Alpha Strategy Fund, L.P. (collectively, “Coleman”) appeal from the trial court’s judgment dismissing then-petition for review due to Coleman’s failure to exhaust administrative remedies. Coleman claims that the trial court erred in: (1) holding that it lacked subject matter jurisdiction to determine the propriety of the “final order” entered by the Commissioner of Securities (“Commissioner”); (2) holding that Coleman failed to exhaust administrative remedies; and (3) failing to hold that the Commissioner failed to discharge his duties as required by law. We affirm.

Factual and Procedural History

On October 17, 2007, the Securities Division (the “Division”) of the Office of Secretary of State filed a Petition for an Order to Cease and Desist, to Show Cause why Civil Penalties and Costs Should not be Imposed (“Petition”), and to refer the matter to the administrative hearing commission for revocation of registration against Coleman individually, and two of the entities he controlled. The Petition alleged that Coleman violated multiple securities regulations in an effort to defraud.

On October 25, 2007, the Commissioner of Securities (“Commissioner”) entered a corresponding Order that Coleman Cease and Desist and Show Cause why the Commissioner should not impose Civil Penalties and Costs (“Cease and Desist Order”) against Coleman. The Cease and Desist Order informed Coleman that pursuant to sections 409.6-604(d) and 409.4-412(c) of the Missouri Securities Act, the Commissioner would determine whether to grant the Division’s Petition and to impose civil penalties in a Final Order unless Coleman requested a hearing and showed cause why penalties should not be imposed. Coleman also received a separate pleading entitled “Notice.” In the Notice, Coleman was again informed of his right to request a hearing within thirty days. Although the legal file does not include a copy of Coleman’s request for a hearing, it appears uncontested as evidenced by the parties’ briefs that a timely request for a hearing was made by Coleman.

On January 17, 2008, a pre-hearing conference was held. Coleman appeared by counsel. Both Coleman and the Division requested that a preliminary date scheduled for the hearing requested by Coleman be continued to permit discovery. The hearing was continued to March 27, 2008. On March 26, 2008, the hearing was again continued, on the Division’s request, to May 15, 2008. On May 13, 2008, the Commissioner ruled on various pending motions and once again continued the hearing to June 26, 2008. On June 17, 2008, the Division requested a continuance to complete additional discovery and to permit the Division to file an Amended Petition. On June 25, 2008, the Commissioner continued the hearing to August 21, 2008. On July 25, 2008, the Division filed an Amended Petition adding two other entities Stephen Coleman controlled and adding additional counts.

On August 18, 2008, another pre-hearing conference was held. Coleman appeared by counsel. The hearing was once again continued to October 23, 2008. On August 27, 2008, the Commissioner entered an amended order (“Amended Cease and Desist Order”), which corresponded to the Division’s Amended Petition. The Commissioner stated that all issues raised by the Amended Cease and Desist Order would be addressed at the hearing scheduled on October 23 and 24, 2008, and that if any party wished to do so, a separate hearing could be requested and would be thereafter scheduled.

On October 17, 2008, Coleman filed a motion to enforce discovery and a motion for continuance of the hearing. On October 21, 2008, the Division filed objections to both motions and a status conference was held. The hearing was again continued to December 1, 2008.

On November 13, 2008, Coleman sent a notice to take a deposition to the Division. Five days later, Coleman sent an email to the Division cancelling the deposition and stating that he was uncertain whether he would appear for the hearing. On November 19, 2008, a status conference was held to discuss Coleman’s appearance at the hearing. On November 21, 2008, Coleman submitted a Notice of Withdrawal of Hearing Request (“Withdrawal Notice”). The Withdrawal Notice stated that Coleman and all of his related entities were “withdrawing their hearing request for the hearing currently set for December 1, 2008 and December 2, 2008, owing to Fifth Amendment issues.” As a result, the Commissioner did not conduct a hearing on December 1, 2008.

Although not included in the legal file, it appears the Division filed a Petition for Final Order on December 12, 2008. Though not entirely clear from the record, it appears the Petition for Final Order requested specific penalties against Coleman. On January 30, 2009, the Commissioner entered its Final Order to Cease and Desist and Order “Imposing Civil Penalties and Costs as to all Respondents” (“Final Order”). In the Final Order, the Commissioner found that Coleman did not submit a response to the Petition for Final Order. The Commissioner found that Coleman’s withdrawal of a hearing request, coupled with the Petition for Final Order to which Coleman did not respond, eliminated the need for a hearing. The Final Order declared that the Cease and Desist Order and the Amended Cease and Desist Order were final. The Final Order also directed Coleman to pay certain penalties as had been specified in the Division’s Petition for Final Order.

On February 25, 2009, Coleman filed a petition for review with the trial court. Coleman argued that the Commissioner failed to afford a hearing, that there was no factual or legal basis for the adjudication, that the Commissioner acted outside of his jurisdiction, and that he was denied due process. The Commissioner filed a motion to dismiss Coleman’s petition for review. The trial court sustained the motion to dismiss. The trial court entered its Judgment dismissing Coleman’s petition for review finding that it was without subject matter jurisdiction to entertain Coleman’s petition for review because of Coleman’s failure to exhaust administrative remedies. Coleman appeals.

Standard of Review

Our review of the trial court’s dismissal of a petition for lack of subject matter jurisdiction presents a question of law which is reviewed de novo. Oanh Thile Huynh v. King, 269 S.W.3d 540, 542 (Mo.App. W.D.2008). Our review of dismissal of a case for failure to state a claim upon which relief can be granted is also de novo. Hamid v. Kansas City Club, 293 S.W.3d 123,125 (Mo.App. W.D.2009).

Analysis

Rule 84.04 violations

Preliminarily, we note Coleman’s brief is deficient in several respects. The legal file submitted by Coleman fails to include the Petition or the Amended Petition, the Petition for Final Order, the Cease and Desist Order, or the Amended Cease and Desist Order. Although the Commissioner submitted a supplemental legal file which contained some of these documents, Coleman’s failure to provide this court with the documents necessary for appellate review is a basis for dismissal of his appeal. Lewis v. Allstate Ins. Co., 131 S.W.3d 451, 453 (Mo.App. W.D.2004). “Rule 81.12(a) specifically requires the legal file to include ‘the pleadings upon which the action was tried, the verdict, the findings of the court or jury, the judgment or order appealed from, motions and orders after judgment, and the notice of appeal.Id. Coleman failed to satisfy his duty under Rule 81.12(c) to prepare and provide this court with an adequate legal file.

Coleman’s statement of facts fails to comply with Rule 84.04(f), which requires that all statements of fact and argument shall have specific page references to the legal file. Coleman provides one cite to the legal file at the end of each paragraph. This is insufficient. The requirement that all statements of fact and argument in an appellate brief have specific page references to the legal file or the transcript is mandatory and essential for the effective functioning of appellate courts because courts cannot spend time searching the record to determine if factual assertions in the brief are supported by the record; to do so would effectively require the court to act as an advocate for the noncomplying party. Lueker v. Mo. W. State Univ., 241 S.W.3d 865, 868 (Mo.App. W.D. 2008).

Coleman’s statement of facts is also grossly deficient as it fails to advise this court of any of the facts preceding the entry of the Final Order by the Commissioner, though one of Coleman’s issues on appeal relates to whether the trial court erroneously dismissed Coleman’s petition for review for failing to exhaust administrative remedies. Rule 84.04(c) requires a statement of facts to be a “fair and concise statement of the facts relevant to the questions presented for determination.” But for the Commissioner’s legal file, this court would have been completely unable to discern the factual and procedural history preceding the Commissioner’s entry of the Final Order as to permit it to evaluate the merit of Coleman’s claim of improper dismissal of his petition for review.

Coleman also fails to comply with Rule 84.04(d)(5), which provides that immediately following each point relied on, the appellant shall include a list of cases and the constitutional, statutory, and regulatory provisions or other authority principally relied on. In addition, Coleman fails to include a concise statement of the applicable standard of review in the argument portion of each claim of error as required by Rule 84.04(e). Further, Coleman fails to comply with Rule 84.04(h), which requires that Coleman’s appendix contain the judgment in question, and which requires that the pages in the appendix be numbered consecutively beginning with page Al.

Finally, Coleman fails to comply with Rule 84.04(e) which requires that the argument be limited to those errors included in the point relied on. Stickley v. Auto Credit, Inc., 53 S.W.3d 560, 563 (Mo.App. W.D. 2001). Coleman raises several issues in the argument portion of his brief that were not included in his point relied on. As such, the arguments have not been preserved for appellate review. These arguments include that: (1) the Final Order did not include findings of fact and conclusions of law per chapters 536 or 409 and was, therefore, a “void” order; (2) the Commissioner’s determination that the Withdrawal Notice request coupled with the Petition for Final Order eliminated the need for hearing was improper; (3) section 536.100 affords an independent right to file a petition for review because the Final Order was void; and (4) the Commissioner violated section 536.070(4) which requires that all proceedings and hearings be suitably recorded and preserved.

Coleman’s numerous material failures to comply with Rule 84.04 result in the preservation of nothing for appellate review. Dewitt v. Mitchell, 938 S.W.2d 805, 307 (Mo.App. W.D.1997). Coleman’s failures to comply with Rule 84.04 would be a sufficient basis standing alone to dismiss this appeal. Moreland v. Div. of Employment Sec., 273 S.W.3d 39, 41 (Mo.App. W.D.2008). However, we offer our analysis of the points raised on appeal ex gratia, excluding, however, any discussion of those issues raised in the argument portion of Coleman’s brief but not adequately referenced in Coleman’s points relied on.

Points I and II

In Point I, Coleman makes the bare assertion that because sections 409.6-609(a) and 536.110.1 afforded him the right to file a petition for review in the trial court from the Final Order, the trial court was obliged to review the petition on the merits. In Point II, Coleman argues that the trial court erred in holding that Coleman failed to exhaust all administrative remedies because he was under no duty to attend a final hearing pursuant to Mo. Code Regs. Ann. tit. 15, section 30-55.060 (2010). Because the trial court never reached the merits of Coleman’s petition for review because the trial court found Coleman failed to exhaust his administrative remedies, we will combine points one and two for discussion.

Section 409.6-609(a) provides:

Except as otherwise provided in this act, any interested person aggrieved by any order of the commissioner under any provision of this act, or by any refusal or failure of the commissioner to make an order pursuant to any of said provisions, shall be entitled to a hearing before the commissioner in accordance with the provisions of chapter 536, RSMo. A final order issued by the commissioner under this act is subject to judicial review in accordance with the provisions of chapter 536, RSMo, in the circuit court of Cole County.

(Emphasis added.) Section 536.110.1 provides that “[proceedings for review may be instituted by filing a petition in the circuit court of the county of proper venue within thirty days after the mailing or delivery of the notice of agency’s final decision” as reflected in the record.

The Commissioner entered the Final Order. Coleman thus claims that he is absolutely entitled by section 409.6-609 and section 536.110.1 to file a petition for review of the Final Order in Cole County and to have that petition reviewed on the merits. Coleman’s argument is defective in several respects. Section 536.110.1 speaks only of the right to file a petition for review, and is silent on the subject of the trial court’s authority to act on the petition for review or to reach the merits of the petition for review. Though section 409.6-609 provides that a final order is subject to judicial review, it also expressly notes that the right of review must be “in accordance with the provisions of chapter 536.” (Emphasis added.)

Section 536.100 provides that: “Any person who has exhausted all administrative remedies provided by law and who is aggrieved by a final decision in a contested case, whether such decision is affirmative or negative in form, shall be entitled to judicial review thereof as provided in sections 536.100 to 536.410.” (Emphasis added.) The right to file a petition for review described in Section 536.110.1 is thus constrained by the conditions to the right to file a petition for review described in section 536.100. Those conditions are clear: (1) exhaustion of all administrative remedies provided by law, and (2) being aggrieved by a final decision in a contested contest. Section 536.100; see Kunzie v. City of Olivette, 184 S.W.3d 570, 572 (Mo. banc 2006). Thus, if the trial court correctly concluded that Coleman failed to exhaust his administrative remedies, then the trial court correctly dismissed Coleman’s petition for review, as Coleman would have failed to establish one of two conditions precedent to any right to seek judicial review of the Final Order.

The exhaustion of administrative remedies doctrine has traditionally been characterized as a jurisdictional requirement. King, 269 S.W.3d at 544. As previously noted, however, the concept of subject matter jurisdiction is no longer applicable to evaluation of the effect of one’s failure to exhaust administrative remedies. As a result of Webb, a trial court can no longer be said to lack subject matter jurisdiction over unexhausted claims, but rather should be said to lack authority to review those claims as a result of the statutory exhaustion requirement. Alhalabi v. Mo. Dep’t of Natural Res., 300 S.W.3d 518, 524 n. 1 (Mo.App. E.D.2009) (citing Webb ex rel. J.C.W. v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009)).

The purpose of the exhaustion of remedies doctrine is to preserve the efficiency in the relationships between agencies and the courts. Premium, Standard Farms, Inc. v. Lincoln Twp., 946 S.W.2d 234, 237 (Mo. banc 1997). Agencies have a special expertise. Id. A factual record can be more fully developed by pursuing the designated channels for relief with the agency, or a matter may be resolved by the agency, rendering review by the court unnecessary. Id. In addition, the exhaustion of remedies doctrine is rooted in policy considerations designed to encourage agencies to correct their own errors and to compile the record for purposes of judicial review. Farm Bureau Toum & Country Ins. Co. of Mo. v. Angoff, 909 S.W.2d 348, 352 (Mo. banc 1995).

In this case, section 409.6-604 provides:

(a) If the commissioner determines that a person has engaged, is engaging, or is about to engage in an act, practice, or course of business constituting a violation of this act or a rule adopted or order issued under this act or that a person has materially aided, is materially aiding, or is about to materially aid an act, practice, or course of business constituting a violation of this act or a rule adopted or order issued under this act, the commissioner may:
(1) Issue an order directing the person to cease and desist from engaging in the act, practice, or course of business or to take other action necessary or appropriate to comply with this act;
(b) An order under subsection (a) is effective on the date of issuance. Upon issuance of the order, the commissioner shall promptly serve each person subject to the order with a copy of the order and a notice that the order has been entered. The order must include a statement whether the commissioner will seek a civil penalty or costs of the investigation, a statement of the reasons for the order, and notice that, within fifteen days after receipt of a request in a record from the person, the matter will be scheduled for a hearing. If a person subject to the order does not request a hearing and none is ordered by the commissioner within thirty days after the date of service of the order, the order becomes final as to that person by operation of law. If a hearing is requested or ordered, the commissioner, after notice of and opportunity for hearing to each person subject to the order, may modify or vacate the order or extend it until final determination.
(c) If a hearing is requested or ordered pursuant to subsection (b), a hearing before the commissioner must be provided. A final order may not be issued unless the commissioner makes findings of fact and conclusions of law in a record in accordance with the provisions of chapter 536, RSMo, and procedural rules promulgated by the commissioner. The final order may make final, vacate, or modify the order issued under subsection (a).

(Emphasis added.) Sections 409.6-604(a) and (b) thus permitted the Commissioner to issue the Cease and Desist Order and the Amended Cease and Desist Order. Section 409.6-604(b) permitted Coleman thirty days to request a hearing to address the issues raised by the Cease and Desist Order. Coleman was advised, however, that if no hearing was requested, the Cease and Desist Order would become final by operation of law.

Here, Coleman requested a hearing. Pursuant to section 409.6-604(c), because Coleman requested a hearing, the Commissioner was obliged to provide Coleman a hearing. A hearing was preliminarily scheduled, presumably within the fifteen days required by section 409.6-604(b). The hearing was thereafter continued numerous times to a final continued date of December 1, 2008.

On November 21, 2008, Coleman submitted the Withdrawal Notice and thus withdrew his request for a hearing. When the Division thereafter filed its Petition for Final Order outlining the specific penalties it sought for Coleman’s various securities violations, Coleman did not respond. The Final Order was issued on January 30, 2009. The Commissioner noted Coleman’s failure to respond to the Petition for Final Order and concluded the Withdrawal Notice and the unaddressed Petition for Final Order warranted the entry of the Final Order without a hearing.

The trial court found that Coleman’s Withdrawal Notice and his failure to respond to the Petition for Final Order amounted to a failure to exhaust administrative remedies. The trial court relied on Lewis v. Roskin, 823 S.W.2d 152 (Mo.App. E.D.1992).

In Lewis, the Division of Child Support Enforcement (“DCSE”) entered an administrative order on an existing order setting the child support amounts that Father was required to pay. Father requested an administrative hearing to contest the administrative order. Id. at 153. On the date of the hearing, Father withdrew his request. Id. DCSE caused the administrative order to be docketed with the trial court. Id. Father filed a petition and motion to modify with the trial court. Id. Father sought a declaratory judgment from the trial court to declare that the administrative order was a judgment of the trial court and that he had right to a modification of the order. Id. The trial court dismissed Father’s petition and motion due to Father’s failure to exhaust all administrative remedies. Id. The Eastern District affirmed stating that “[i]t is well settled that administrative procedures must be exhausted before other relief may be granted.” Id. at 154. The applicable statute provided that Father may request a hearing. Id. The Eastern District held that “Father requested a hearing, but on the date of the hearing he withdrew his request. Without the hearing, this court has no way of determining whether Father would have been limited in his defenses or if the limitation would have made the remedy inadequate.” Id. The court concluded that Father’s failure to follow all available administrative procedures for review was fatal. Id. The court further noted that Father’s pleadings for declaratory judgment would have properly been before the trial court under a petition for judicial review of an administrative order, and the trial court could have heard his grievances had he pursued the proper process. Id.

Lewis has subsequently been relied on in other cases involving similar circumstances. See State ex rel. State of Mich, v. Branch, 929 S.W.2d 875, 881 (Mo.App. S.D.1996) (where Father failed to exhaust administrative remedies by failing to timely request an administrative hearing regarding his child support order); Britz v. Reynolds, 895 S.W.2d 645, 647-48 (Mo.App. W.D.1995) (where Father had a hearing to contest order of child support arrearage, but he never sought judicial review and thus failed to exhaust administrative remedies).

Similarly, Coleman was permitted a hearing if he so desired. In the absence of a request for a hearing, the Commissioner was authorized to enter a final order without a hearing. Coleman requested, and then withdrew his request for, a hearing. By withdrawing his request for a hearing, Coleman deprived the Commissioner of an opportunity to employ the Commissioner’s expertise to evaluate the merits of the Cease and Desist Order and the Amended Cease and Desist Order, and of an opportunity to evaluate Coleman’s defenses. As was the outcome in Lewis, Coleman has failed to exhaust available procedures for administrative review. Coleman’s withdrawal of his request for a hearing was qualitatively identical to never having requested a hearing in the first place. Thus, pursuant to section 409.6-604(b), the Commissioner was free to take action to enter the Final Order without conducting a hearing or otherwise complying with the requirements of section 409.6-604(c). That Final Order is not, however, subject to judicial review because Coleman failed to satisfy one of the express conditions precedent to his right to review specified in section 536.100-the exhaustion of all available administrative remedies.

Curiously, Coleman never squarely addresses his Withdrawal Notice. Instead of focusing on the fact the Withdrawal notice expressly withdrew his request for a hearing, Coleman craftily argues that because Mo.Code Regs. Ann. tit. 15, section 30-55.060 (2010) permitted, but did not require, him to attend a final hearing, that the trial court’s finding that he failed to exhaust administrative remedies erroneously imposed an attendance obligation upon him inconsistent with the law. Coleman’s argument is disingenuous and borders on frivolous. Coleman’s argument presumes a hearing he could elect to attend was required. Here, no hearing was required, as the right to request a hearing, though exercised, was withdrawn. The right to attend (or to not attend) a hearing is immaterial when no hearing is required to be conducted.

Moreover, we disagree with Coleman’s interpretation of Mo.Code Regs. Ann. tit. 15, section 30-55.060 (2010). That regulation provides, in relevant part, that: “[A]ll hearings shall be open to the public. All parties have a right to be present and to be represented by counsel, if they so desire.” Even presuming the modifier “if they so desire” can be read to modify both a person’s right to be present at a hearing and the right to be represented by counsel at a hearing, 15 C.S.R. 30-55.060 is silent with respect to the import of non-attendance on a subsequent determination of whether a party has exhausted administrative remedies. In Marquart v. Director of Revenue, 896 S.W.2d 716, 717 (Mo.App. E.D.1995), a party requested an administrative hearing but failed to appear. The court held that the failure to appear constituted a failure to exhaust administrative remedies, noting that merely requiring a request for a hearing, without thereafter requiring attendance, is contradictory to the doctrine of exhaustion. Id. at 717. The court noted that the exhaustion doctrine does not require the mere initiation of available procedures, but the exhaustion of those procedures. Id. at 718. The court reasoned:

If simply requesting an administrative hearing and sustaining a default exhausts the administrative remedy ... the effectiveness of the Department of Revenue will be weakened as licensees pay lip service to its administrative procedures but avoid a review on the merits. Further, Director will be deprived of an opportunity to correct her own errors.

Id. at 718. See also Doody v. State, 993 S.W.2d 563 (Mo.App. W.D.1999) (Father failed to exhaust administrative remedies in proceeding to modify child support where Father requested hearing but failed to appear, noting that the purpose of exhaustion is to prevent premature interference with agency processes so that the agency may have the opportunity to correct its own errors and to compile an adequate record for judicial review).

Here, whether by virtue of Coleman’s withdrawal of his request for a hearing, or by virtue of his failure to attend a hearing that was never conducted, Coleman failed to exhaust his available administrative remedies, and thus failed to satisfy a necessary precursor to the right to judicial review under section 536.100. This failing was not excused by Coleman’s reliance on his assertion of the Fifth Amendment as the basis for his Withdrawal Notice. In an administrative proceeding, the invocation of the Fifth Amendment does not negate the requirement to exhaust administrative remedies. See e.g., Johnson v. Mo. Bd. of Nursing Adm’rs, 130 S.W.3d 619 (Mo.App. W.D.2004) (Johnson invoked her privilege against self-incrimination but appeared by counsel at disciplinary hearing). As in Johnson, Coleman could have attended the hearing he requested, and he could have invoked his privilege against self-incrimination. Though the invocation of the privilege may well have permitted a negative inference, the agency would nonetheless have been afforded the opportunity to develop a full record, and to make findings of fact and conclusions of law based on that record.

We conclude that Coleman failed to exhaust his administrative remedies when he withdrew his request for a hearing. His failure to exhaust administrative remedies prevents him from obtaining judicial review of the Final Order. The trial court thus lacked the authority to take any action on Coleman’s petition for review other than to dismiss the petition for review. The trial court’s judgment is affirmed. Points one and two are denied.

Point III

In point three, Coleman asserts that the trial court erred in failing to find that the Commissioner failed to discharge his duties and that had the trial court reached the merits, it would have found that the Commissioner’s decision was not supported by competent and substantial evidence or that it was erroneous. We need not address this point in light of our determination that the trial court properly dismissed Coleman’s petition for review because Coleman failed to exhaust his administrative remedies. The trial court did not reach the merits of Coleman’s petition for review because it lacked the authority to do so. It is axiomatic that a review of the merits is thus beyond the proper scope of this appeal.

Conclusion

We affirm the trial court’s judgment dismissing Coleman’s petition for judicial review due to his failure to exhaust administrative remedies.

All concur.

      . Stephen Coleman is the organizer and chief investment officer of Daedalus Capital, LLC. Coleman also organized Chicken Little Fund Group. Daedalus Capital, LLC was the controlling shareholder of Chicken Little Fund Group. Coleman later organized Daedalus Alpha Fund, Inc. of which he was the controlling shareholder. And, then Coleman organized Alpha Strategy Fund, L.P.

      . Due to Coleman’s non-compliance with Rule 84.04, discussed, infra, the factual and procedural history is derived almost entirely from the supplemental legal file provided by the Commissioner.

      . All statutory references are to RSMo 2000 as supplemented unless otherwise indicated.

      . The trial court's dismissal of Coleman’s petition for review is more appropriately couched in terms of Coleman’s failure to state a claim on which relief could be granted. Ladd v. Mo. Bd. of Prob. & Parole, 299 S.W.3d 33, 41-42 (Mo.App. W.D.2009). After our Supreme Court’s decisions in Webb ex rel. J.C.W. v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009), and McCracken v. Wal-Mart Stores E., L.P., 298 S.W.3d 473 (Mo. banc 2009), the present dismissal is based on the trial court’s lack of statutory or common law authority to grant relief in Coleman's particular case, rather than on a lack of subject matter jurisdiction to do so. The distinction is without a difference and has no impact on the result of Coleman’s appeal as the issue of the trial court’s authority to grant the relief requested by Coleman was clearly raised by the Commissioner and ruled by the trial court.

      . Pursuant to section 536.100, the obligation to exhaust administrative remedies applies only to "contested cases.” A "contested case” is defined by section 536.010(4) as "a proceeding before an agency in which legal rights, duties or privileges of specified parties are required by law to be determined after hearing." Section 409.6-604 requires a hearing upon request. If a hearing is requested, the Chapter 536 procedural formalities associated with adversarial proceedings (including a record and findings of fact and conclusions of law) are obligatory. Section 409.6-604(c). Though Coleman waived his right to a hearing by virtue of his Withdrawal Notice, that did not change the quality of this case from a contested to an uncontested case. See State ex rel. Leggett v. Jensen, 318 S.W.2d 353, 356 (Mo. banc 1958) (case is contested where hearing is required of which a record must be made unless waived); Schlientz v. Rock Twp. Ambulance Dist., 146 S.W.3d 404, 405 (Mo. App. E.D.2004) (relevant inquiry is not whether a hearing is ultimately conducted but, rather, whether one was required). Certainly, Coleman has proceeded on the assumption that this was a contested case as he claims he was entitled to certain procedural protections associated with contested matters such as the taking of testimony under oath, a record, and findings of fact and conclusions of law. Conversely, Coleman does not contend that this was a non-contested matter requiring automatic de novo review of the merits of the Final Order pursuant to section 536.150.1. With rare exceptions, a party is held on appeal to the theory adopted below. Kopper Kettle Rests., Inc. v. City of St. Robert, 439 S.W.2d 1, 4 (Mo.App.1969).

      . Commissioner filed a motion to dismiss this appeal based on Coleman's failure to exhaust administrative remedies. Given our Opinion, we need not rule on the Commissioner’s Motion.