State ex rel. Manchester Bank West County v. Enright

584 S.W.2d 416, 1979 Mo. App. LEXIS 3116
CourtMissouri Court of Appeals
DecidedJune 12, 1979
DocketNo. 40426
StatusPublished
Cited by6 cases

This text of 584 S.W.2d 416 (State ex rel. Manchester Bank West County v. Enright) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Manchester Bank West County v. Enright, 584 S.W.2d 416, 1979 Mo. App. LEXIS 3116 (Mo. Ct. App. 1979).

Opinion

STEPHAN, Presiding Judge.

Relators seek to prohibit respondent from reinstating an order, stayed during the pendency of these proceedings. The order would remand to the State Banking Board the appeal of the Plaza Bank of West Port from the granting of a charter to the Manchester Bank West County. For reasons hereinafter stated, we make permanent the preliminary writ.

On April 8, 1976, five individual organizers filed an application with the director of finance1 to incorporate the proposed Manchester Bank. Pursuant to § 362.030, RSMo 1969, the director thereafter conducted an investigation based on the criteria specified in that statute to consider the viability, reputability and necessity of the proposed bank. As part of that examination, the director sought the views of competitor banks in the service area of the proposed bank. Having requested and received an extension of time in which to respond, Plaza Bank of West Port answered a questionnaire from the director and submitted various documents to the director in opposition to the issuance of the charter to Manchester Bank. On September 17, 1976, the director granted the charter, posting notice of such action on that date on the public bulletin board in the office of the Division of Finance in Jefferson City as required by § 361.110. In addition, notice of the director’s order granting the charter was mailed, on that same date, to a number of affected parties; in the case of Plaza Bank, such notice was sent directly to the bank president, Mr. S. Dale Boughton.

On October 5, 1976, eighteen days after the issuance of the charter, Plaza Bank submitted an appeal of that order of the director. As grounds for reversal, Plaza Bank therein alleged that an additional bank was unnecessary to provide for the convenience and needs of the community in the proposed service area and that the volume of business in the area was not such as to ensure the solvency of Plaza Bank and an additional bank. The appeal was rejected by the director on the grounds that he lacked authority to accept an appeal filed after the ten-day limit prescribed in § 361.-[418]*418094. Plaza Bank appealed that decision to the State Banking Board. The board similarly dismissed the appeal and denied Plaza Bank’s request for a hearing on the matter, declaring itself without authority to hear the appeal because it had been untimely filed.

There then followed a series of appeals to the circuit courts of this state. Plaza Bank initially petitioned the Circuit Court of Cole County for a review of the board’s decision, requesting a remand for a hearing before the board on the merits of its appeal. Plaza Bank contended that the board had wrongly ruled on the issue of its jurisdiction to hear the appeal and that, furthermore, the decision had been rendered without a public meeting, thereby violating Chapter 610, RSMo, the “Sunshine Law.” The circuit court remanded the ease to the board for a hearing, ruling that any determination as to the sufficiency of Plaza Bank’s appeal had to be made at a meeting which complied with Chapter 610. Pursuant to that order of the circuit court, the board held such a public meeting on April 4, 1977, and again determined that it lacked jurisdiction to hear Plaza Bank’s appeal of the issuance of the charter to Manchester Bank.

Plaza Bank then petitioned the Circuit Court of St. Louis County for review of the board’s decision of April 4, alleging that that order was void because notice of the meeting was unreasonable, because Plaza Bank’s attorney was not allowed to participate and because the order was not accompanied by findings of fact and conclusions of law. Plaza Bank again requested a hearing on the merits of its appeal. Judge Orville Richardson again remanded to the board for a hearing “as required by law” on the issue of the board’s jurisdiction to hear the appeal, and for a hearing on the merits should the board determine that it had such jurisdiction. This order of the court was issued with the consent of all involved parties, which at this point included Manchester Bank as intervenor. On September 1, 1977, the board held the hearing mandated by the order, and on September 15, it issued an order, accompanied by findings of fact and conclusions of law, in which it again ruled that it lacked jurisdiction in the matter because of the untimeliness of the original appeal.

Plaza Bank then petitioned the St. Louis County Circuit Court for judicial review of the board’s ruling of September 15. After overruling motions to dismiss filed by Manchester Bank, the board and the director, and Manchester Bank’s motion for judgment on the pleadings, respondent Judge Richard T. Enright remanded the cause to the board for a full hearing of all the issues on their merits. Judge Enright thereafter set aside that order provisionally for ten days to allow the parties to apply to this court for a writ of prohibition. Manchester Bank did so within the time prescribed by Judge Enright; the director of finance and the State Banking Board appear herein as intervenors.

Plaza Bank’s counsel did not file a brief on behalf of the respondent judge, as is the custom in connection with writs of prohibition. However, in examining the voluminous pleadings in the underlying action, as well as the transcript of the September 1, 1977, hearing, we observe that Plaza Bank has attempted to inject issues into the case other than the timeliness, vel non, of the notice of appeal to the board. For example, Plaza Bank contends that the five incorporators of Manchester Bank were in fact straw parties for Manchester Financial Corporation (MFC) and, as such, lacked capacity to act as incorporators under Chapter 362, RSMo. Two recent cases, Mark Twain Cape Girardeau Bank v. State Banking Board, 528 S.W.2d 443 (Mo.App.1975), and Mark Twain Bancshares, Inc. v. Kostman, 541 S.W.2d 1 (Mo.App.1975), have held that a bank holding company could not act as an incorporator of a bank. However, if it was error for the director to issue the charter under the precise facts leading up to the filing of the application, Plaza Bank forfeited its right to develop those facts before the State Banking Board by its failure to file an appeal within ten days as required by § 361.094.

[419]*419The board correctly held that it was without jurisdiction to entertain the appeal because of the untimeliness of its filing. As with judicial review, where the time for filing an appeal is dictated by statute, “timely notice is a prerequisite to jurisdiction.” Lafayette Federal Savings and Loan Association v. Koontz, 516 S.W.2d 502, 504 (Mo.App.1974). See also Hagen v. Perryville Board of Aldermen, 550 S.W.2d 797, 799 (Mo.App.1977). An ineffective notice of appeal to an administrative agency from a decision of a subordinate presents nothing to the administrative agency to review. State ex rel. Johnson v. Burks, 463 S.W.2d 586, 588 (Mo.App.1971).

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Bluebook (online)
584 S.W.2d 416, 1979 Mo. App. LEXIS 3116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-manchester-bank-west-county-v-enright-moctapp-1979.