Jason A. Prescott v. Missouri Department of Social Services

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
JASON A. PRESCOTT, )
Appellant, )
)
v. ) WD77389
)
MISSOURI DEPARTMENT OF ) FILED: June 30, 2015
SOCIAL SERVICES, )
Respondent. )

Appeal from the Circuit Court of Cole County
The Honorable Jon E. Beetem, Judge

Before Division Four: Alok Ahuja, C.J., Lisa White Hardwick,, J. and
Robert M. Clayton, III, Sp.J.

Jason Prescott is a professional counselor who specializes in treating Medicaid-eligible

mentally ill children. Following an audit, the Department of Social Services determined that

Prescott had submitted unsubstantiated claims, and had been overpaid. The Administrative

Hearing Commission (the “AHC”) dismissed Prescott’s petition for review of the Department’s

decision, finding that his application was untimely. The circuit court affirmed the AHC’s

decision, and Prescott now appeals to this Court. We affirm.

Factual Background

Prescott’s primary source of compensation for his counseling services is through the

State-administered Medicaid program. In the Fall of 2011, the Department’s Medicaid Audit

and Compliance Unit audited Prescott. Prescott was unable to provide auditors with any

supporting documentation for his claims for services performed in 2010, because of a computer
failure. As a result, the Department sent a decision letter to Prescott by certified mail on October

31, 2011, finding that he had submitted false claims in the amount of $41,296 (“Decision

Letter”). The disallowed claims constituted all of the funds Prescott had received from the

Medicaid program in 2010.

Prescott alleges that he did not receive the Decision Letter until November 23, 2011. On

that date, Prescott asserts that he found a postal slip in the bushes in front of his home, notifying

him that the Postal Service had attempted to deliver a certified letter from the Department.

Prescott contacted Toni Davis at the Department, whose name appeared on the slip, and asked

her whether the Decision Letter was still available. Davis contacted the Post Office and

confirmed that the letter was still available for pickup at Prescott’s local post office. Davis

called Prescott back, and informed him that the letter was available. Prescott retrieved the letter

later on November 23, 2011.

As required by § 621.055,1 the Decision Letter advised Prescott of his appeal rights. In

relevant part, the letter stated:

This is a final decision regarding administration of the medical assistance
program in Missouri. Missouri Statute, Section 208.156, RSMo (2000) provides
for appeal of this decision.

If you were adversely affected by this decision, you may appeal this
decision to the Administrative Hearing Commission. To appeal, you must file a
petition within 30 days from the date of mailing or delivery of this decision,
whichever is earlier . . . . If any such petition is sent by registered mail or
certified mail, the petition will be deemed filed on the date it is mailed.

The date on which Prescott received the Decision Letter (November 23, 2011) was the

day before Thanksgiving. Prescott had a pre-arranged, non-refundable vacation trip scheduled to

begin on Thanksgiving Day. Prescott alleges that Davis told him that, “while she could not give
1
Unless otherwise indicated, statutory citations refer to the 2000 edition of the Revised
Statutes of Missouri, as updated through the 2014 Cumulative Supplement. The relevant statutory
provisions have not been amended since the time of the Department’s Decision Letter in 2011.

2
him legal advice, [Prescott] would have 30 days from the date he received; i.e. picked up, the

October 31 letter in which to file an appeal.” By affidavit, Davis denied that she said this to

Prescott.

Upon return from his vacation, Prescott sent a letter to the Department on December 6,

2011, notifying it of his intention to seek AHC review. He then filed his petition for review with

the AHC on December 12, 2011.

At some point following his receipt of the Decision Letter, Prescott asserts that he had his

computer repaired, and was able to provide the Department with documentation supporting

$35,032 of the claims which the Department had disallowed in the Decision Letter.

The Department filed a motion for involuntary dismissal of Prescott’s administrative

appeal, alleging that it was untimely under § 208.156.8. The AHC granted the Department’s

motion. It found that the Decision Letter was sent by certified mail on October 31, 2011, but that

Prescott did not receive it until November 23, 2011. Prescott did not file his petition to appeal

with the AHC until December 12, 2011, more than 30 days after the mailing of the Decision

Letter. The AHC determined that, under § 208.156.8, it only had jurisdiction to hear appeals of

Department decisions if the appeal was commenced within thirty days from the date of mailing

of the Department’s decision. As a result, the AHC determined that Prescott’s petition for

review was untimely, and it ordered the petition dismissed.

Prescott filed a petition for judicial review in the Circuit Court of Cole County. The

circuit court affirmed the AHC’s decision. Prescott now appeals to this Court.

Standard of Review

On appeal from a circuit court’s review of an AHC decision, this Court reviews the

AHC’s decision, not the judgment of the circuit court. Psychare Mgmt., Inc. v. Dep’t of Social

Servs., 980 S.W.2d 311, 312 (Mo. banc 1998). “In reviewing the commission’s decision, the

3
Court may not determine the weight of the evidence or substitute its discretion for that of the

administrative body; the Court’s function is to determine primarily whether competent and

substantial evidence upon the whole record supports the decision, whether the decision is

arbitrary, capricious, or unreasonable, and whether the commission abused its discretion.” Id.

Questions of law, however, are reviewed by this Court de novo. Albanna v. State Bd. of

Registration for Healing Arts, 293 S.W.3d 423, 428 (Mo. banc 2009).

Discussion

I.

Prescott’s first Point raises an issue of statutory interpretation: he argues that the AHC

erred in concluding that his appeal was untimely under § 208.156.8.

Section 208.156.8 states in pertinent part that a person providing services for which

benefit payments are authorized under the Medicaid program

shall have thirty days from the date of mailing or delivery of a decision of the
department of social services . . . in which to file his petition for review with the
administrative hearing commission . . . .

(Emphasis added.) As a general proposition, “[t]he failure to comply with the statutory time

limitations for appeal from an administrative agency decision, whether to another administrative

body or to a circuit court, results in the lapse of subject matter jurisdiction and the loss of right of

appeal.” Fayette No. 1, Inc. v. Mo. Dep’t of Social Servs., 853 S.W.2d 393, 396 (Mo. App. W.D.

1993) (citing Cmty. Fed. Sav. & Loan Ass’n v. Dir. of Revenue, 752 S.W.2d 794, 799 (Mo. banc

1988)).

Prescott makes two interrelated arguments to support his claim that his petition for

review was timely under § 208.156.8. He argues: (1) that the Department’s use of certified mail

to send the Decision Letter to him did not constitute “mailing,” but instead “delivery,” of the

letter; and (2) even if the use of certified mail constituted “mailing,” that his petition for review

4
was timely so long as it was filed either within thirty days of the date of mailing, or within thirty

days of the date of delivery, of the letter. We conclude, to the contrary, that the Department’s

use of certified mail constituted a “mailing” of the Decision Letter within the meaning of

§ 208.156.8, and that the statute required Prescott to petition for review within thirty days of that

mailing, not within thirty days of his receipt of the letter. The Decision Letter was mailed to

Prescott on October 31, 2011 by certified mail, but he did not file his petition for review with the

AHC until December 12, 2011; his petition was accordingly untimely under the statute.

A.

We first address Prescott’s contention that the Department’s use of certified mail to send

him the Decision Letter did not constitute the “mailing” contemplated by § 208.156.8.

As the Supreme Court of the United States has recognized, use of certified mail for

official notices may have significant benefits for governmental agencies, because “[u]sing

certified mail provides the State with documentation of personal delivery and protection against

false claims that notice was never received.” Jones v. Flowers, 547 U.S. 220, 237 (2006). At the

same time, however, “the use of certified mail might make actual notice less likely in some cases

– the letter cannot be left like regular mail to be examined at the end of the day, and it can only

be retrieved from the post office for a specified period of time.” Id. at 235. Postal rules provide

that pieces of certified mail “may not be opened or given to the recipient before the recipient

signs and legibly prints his or her name on the delivery receipt (and return receipt, if applicable)

and returns the receipt(s) to the USPS employee.” United States Postal Service, DOMESTIC MAIL

MANUAL § 508.1.1.7.b (May 31, 2015). Thus, if the intended recipient of certified mail is not

available at the time a mail carrier attempts to deliver it, a notice of attempted delivery is left at

the recipient’s address, the mail is returned to the post office, and the recipient has a limited

5
period of time in which to retrieve the certified mail from the post office before it is returned to

the sender.

Because of these restrictions on the delivery of certified mail, courts in other jurisdictions

have held that where a statute or insurance policy requires that notice of cancellation of the

policy be “mailed,” notice sent by certified mail does not comply with the “mailing”

requirement, but instead constitutes an attempt at actual delivery which is effective only upon

receipt.2

Under the statute at issue in this case, however, the certified mail sent to Prescott

constituted “mailing” of the Decision Letter. We reach this conclusion based on several

considerations. First, although § 208.156.8 specifies the time within which an aggrieved party

must petition for review of a decision of the Department, a separate statute – § 621.055.3 –

specifies the notice of appeal rights which the Department’s decisions must contain. We must

consider § 621.055.3 in interpreting the provisions of § 208.156.8.

“[C]onsistent statutes relating to the same subject . . . are construed together as
though constituting one act, whether adopted at different dates or separated by
2
See, e.g., Certification from U.S. Court of Appeals for Ninth Circuit v. Kachman, 198
P.3d 505, 508-09 (Wash. banc 2008) (state statute provides that notice of cancellation of policy “must be
actually delivered or mailed to the named insured”; “Since certified mail requires more of the insured to
effect delivery of a notice of cancellation, it does not satisfy the ‘mailed’ prong of the statute. Certified
mail, as a request of the United States post office to actually deliver a letter to the insured, falls under the
‘actually delivered’ prong of [the statute].”); Fidelity & Cas. Co. of N.Y. v. Riley, 178 A. 250, 253 (Md.
1935) (holding that where a policy’s cancellation clause allowed for “written notice [to be either]
delivered to the insured or mailed to his last address,” sending cancellation notices by registered mail
constituted an attempt at actual delivery, which “failed of its purpose” when notice was not received, and
so was not effective to cancel the policy); Cornhusker Cas. Ins. Co. v. Kachman, 514 F.3d 982, 987-88
(9th Cir. 2008) (“[A] majority of other jurisdictions that have considered whether certified mail qualifies
as mail for purposes of notice of insurance cancellation have held that notice sent by certified mail, when
not actually received, is insufficient to effect cancellation.”); see generally 43 AM.JUR.2D INSURANCE
§ 414, at 488-89 (2013); but see Gerard v. Mass. Bonding & Ins. Co., 203 A.2d 279, 286 (N.H. 1964)
(“The fact that [notice of policy cancellation] was sent by registered mail, which is ordinarily considered
a safer method than ordinary mail, should not militate against it.”); Westmoreland v. Gen. Accid. Fire &
Life Assur. Corp., 129 A.2d 623, 626-27 (Conn. 1957) (“When the provision in a policy is that notice by
mail is sufficient, that provision is broad enough to cover all the kinds of mail which are commonly used
to convey messages. Registered mail is just as much mail as ordinary mail.”).

6
 long or short intervals.” The rule “proceeds upon the supposition that the statutes
in question are intended to be read consistently and harmoniously in their several
parts and provisions.”

Page v. Scavuzzo, 412 S.W.3d 263, 269 (Mo. App. W.D. 2013) (quoting State ex rel. Rothermich

v. Gallagher, 816 S.W.2d 194, 200 (Mo. banc 1991)); see also Farmers’ Elec. Co-op, Inc. v. Mo.

Dep’t of Corrections, 977 S.W.2d 266, 270 (Mo. banc 1998).3

Among other things, the notice of appeal rights required by § 621.055.3 – which was

contained in the Decision Letter – provides that “[i]f any such petition [for AHC review] is sent

by registered mail or certified mail, the petition will be deemed filed on the date it is mailed.”

§ 621.055.3 (emphasis added). Thus § 621.055.3 specifically refers to the “mail[ing]” of a

document by “certified mail.” This reflects the legislature’s understanding that documents

transmitted by certified mail are “mailed” within the meaning of the statutes.

Second, references to the “mailing” of documents by certified mail appear throughout

Missouri statutes and Supreme Court Rules. Most significantly, two statutes which specify time

limits for seeking AHC review of administrative agency decisions specifically refer to the

“mailing” of an agency decision by certified mail, and distinguish the “mailing” of a decision by

certified mail from the “delivery” of the decision. Thus, § 324.038.2 provides that, if a board

within the Division of Professional Registration issues a probated license, “the applicant may

file, within thirty days of the date of delivery or mailing by certified mail of written notice of

probation, a written complaint with the administrative hearing commission seeking review of the

board’s determination.” (Emphasis added.) Similarly, § 621.120 provides that, if certain

licensing agencies refuse to permit an applicant to be examined for licensure, or refuse to issue
3
Subsection 3 was added to § 621.055 in 2001. See H.B. 693, 2001 Mo. Laws 739, 743.
Section 208.156.8, on the other hand, has remained unchanged since 1982. Prescott argues that, in these
circumstances, it makes no sense to rely on § 621.055.3 to give meaning to a statute enacted almost thirty
years earlier. As the quotation in the text reflects, however, the statutes must be read together, although
adopted at different times.

7
or renew a license, “such applicant may file, within thirty days after the delivery or mailing by

certified mail of written notice of such refusal to the applicant, a complaint with the

administrative hearing commission.” (Emphasis added.) These statutes clearly state that

certified mail is dispatched by “mailing,” and that the sending of a notice by certified mail is

distinct from the “delivery” of the notice.4 Numerous other Missouri statutes refer to the

“mailing” of certified mail.5 Supreme Court Rules similarly refer to the service of various court

filings by “mailing” the documents by certified mail. See Rules 54.12(b)(2), 54.15(b), 90.09(a),

142.02. If we were to adopt Prescott’s argument, we would be interpreting the term “mailing” in

4
These other statutes specify that a filing deadline is triggered by “mailing by certified
mail.” The specification of “certified mail” apparently excludes other types of mailings from triggering
the filing deadlines, such as regular (unrestricted-delivery) mail. Be that as it may, the statutes plainly
recognize certified mailing as a species of “mailing,” and something distinct from “delivery.”
5
See, e.g., § 67.820.1 (providing that clerk “shall mail by certified mail with return receipt
a copy of each published notice in regard to the formation of any special taxing district”); § 99.879.2
(providing that agency “shall serve notice to each owner . . . by mailing to the owner by certified mail to
the last known address of such owner,” that owner’s property has been deemed abandoned); § 210.245.2,
.4 (providing that parties disputing actions concerning licensing of day care centers shall respond “within
[specified number of] days of the delivery or mailing by certified mail of the notice”); § 276.401.3
(providing that transfer of title to certain commodities shall occur upon “mailing of documents, if
required, by certified mail”); § 375.261.1 (following substituted service of process on Department of
Insurance, “[t]he director shall forthwith mail by certified mail, with return receipt requested, one of the
copies of the summons, with petition thereto attached, to the defendant”); § 393.145.5 (following entry of
default judgment placing utility in receivership, “the court shall mail to the defendant at its last known
address by certified mail with a request for return receipt and with directions to deliver to the addressee
only, a notice informing the defendant of the judgment and the date it was entered”); § 407.040.4(3), (4)
(providing that attorney general’s civil investigative demands or subpoenas may be served by “[m]ailing
by registered or certified mail”); § 407.581.6 (providing that if auto dealer fails to provide purchaser with
vehicle title, “the director [of revenue] shall mail by certified mail, return receipt requested, a notice to the
dealer at the last address given to the department by that dealer”); § 416.091.4(2) (providing that attorney
general’s demands to produce documents may be served by “[m]ailing by certified mail, return receipt
requested”); § 441.065(3) (where tenant abandons property in leased premises, requiring that landlord
“mail[ ] to the last known address of the tenant by both first class mail and certified mail, return receipt
requested, a notice of the landlord's belief of abandonment”); § 454.519.2 (providing that “[n]o such lien
[for delinquent child support, against a cause of action for personal injury,] shall be effective unless and
until a written notice is mailed by certified mail, return receipt requested” to the tort-feasor); § 482.350
(providing for service of summons in small claims division of the circuit court “by mailing a copy of the
summons and the complaint to the defendant at his last known address by certified mail, return receipt
requested, delivery restricted to the addressee”).

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§§ 208.156.8 and 621.055.3 in a manner which is inconsistent with the usage in these numerous

other Missouri statutes and rules.

Finally, a recent decision of this Court held that a governmental notice sent by certified

mail constituted a “mailing,” rather than a “delivery,” of the notice, and that the date of mailing

triggered an aggrieved party’s time to seek judicial review. In Session v. Dir. of Revenue, 417

S.W.3d 898 (Mo. App. W.D. 2014), Session petitioned for judicial review of a decision of the

Director of Revenue suspending his driver’s license. The notice of suspension was initially

mailed to Session, at his accurate home address, by certified mail on December 2, 2011. Id. at

900. Despite apparent delivery attempts on December 5, 19, and 25, the notice was returned to

the Department of Revenue with the notation “Return to Sender, Unclaimed, Unable to

Forward.” Id. at 901. The Department resent the notice to the same address, by regular mail, on

January 3, 2012. Id. Session then filed his petition for judicial review in the circuit court on

January 11, 2012. Id.

The governing statute at issue in Session, § 536.110.1, required that Session petition for

judicial review within thirty days “after the mailing or delivery of the notice of the agency’s final

decision.” We held that his petition was untimely, because it was not filed within thirty days of

the initial mailing by certified mail on December 2, 2011, even though that initial mailing proved

to be unsuccessful. We emphasized that “the thirty-day period begins to run on the date of

mailing, not the date of receipt.” Id. at 903. We also rejected Session’s contention that the initial

mailing by certified mail failed to satisfy the requirement that he receive notice by first class

mail: “[c]ertified mail is a form of first class mail and, therefore, Session received notice by first

9
class mail” when the initial notice of suspension was sent to him by certified mail on December

2, 2011. Id.6

We reject Prescott’s argument that the Department’s use of certified mail did not

constitute a “mailing” within the meaning of §§ 208.156.8 and 621.055.3.

B.

Prescott also argues that, even if the Decision Letter was “mail[ed]” to him within the

meaning of § 208.156.8, the plain language of the statute gave him either thirty days from the

date of the letter’s mailing, or thirty days from its delivery, within which to seek AHC review.

Relying on the date of “delivery” of the letter, Prescott contends that his petition for review was

timely, because he received the Department’s Decision Letter on November 23, 2011, and filed

his petition for review on December 12, 2011, less than thirty days later.

In R.B. Industries, Inc. v. Goldberg, 601 S.W.2d 5 (Mo. banc 1980), the Missouri

Supreme Court rejected an argument identical to Prescott’s. Goldberg involved § 536.110.1,

which provides that petitions for judicial review of agency decisions in contested cases must be

filed in the circuit court “within thirty days after the mailing or delivery of the notice of the

agency’s final decision.” In Goldberg, the agency decision was mailed on January 23, 1979, and

received by the aggrieved party on January 27, 1979. Id. at 6. The aggrieved party filed its

petition for judicial review on February 23, 1979, 31 days after the decision was mailed, but only

27 days after the aggrieved party received the decision. Id. Thus, the aggrieved party’s petition

6
Consistent with Jones v. Flowers, 547 U.S. 220 (2006), which is discussed below in § II,
Session also concluded that the driver in that case had not been denied due process by virtue of the
Department of Revenue’s failed attempt at sending the notice by certified mail. Session, 417 S.W.3d at
904. Session emphasized that “due process does not require that a property owner receive actual notice,”
but only that the government engage in notification efforts which are “reasonably calculated, under all the
circumstances, to apprise interested parties.” Id. at 905 (citations and internal quotation marks omitted).
We also observed that “the State did send Session notice via regular first class mail after the certified mail
was returned,” and there was “no evidence in the record that the State unreasonably delayed delivery or
acted with ‘malfeasance’ in its manner of providing notice.” Id. at 904.

10
for review would have been considered timely if it was permitted to file “within thirty days after

the . . . delivery of the notice.” The Supreme Court held, however, that “the thirty-day period

began to run on January 23, 1979, the date of mailing.” Id. The Court explained that “[t]o hold

otherwise would be . . . to render the use of the word ‘mailing’ [in § 536.110.1] meaningless . . .

.” Id.

This Court described the rule announced in Goldberg as follows:

A rule or statute . . . which requires an action within a number of days of the
mailing or delivery of a notice of decision describes two modes for the service of
notice: by mail or by other delivery – and when notice is by mail, the computation
of time to perform the action commences on the date of the mailing.

Cardinal Glennon Mem. Hosp. Coffee Shop v. Dir. of Revenue, 624 S.W.2d 115, 118 (Mo. App.

W.D. 1981) (emphasis added; applying § 161.273); see also Gleason v. Pub. Safety Comm’n,

601 S.W.2d 4, 5 (Mo. banc 1980) (companion case to Goldberg, also applying § 536.110.1);

Daly v. Warner-Jenkinson Mfg. Co., 92 S.W.3d 319, 321-22 (Mo. App. E.D. 2002) (applying

§ 138.432, which permits a party to seek administrative review “within thirty days following the

date of notification or mailing”); City of St. Louis v. Dir. of Revenue, 654 S.W.2d 118, 121-22

(Mo. App. W.D. 1983) (applying § 161.273).

The Goldberg rule is fully applicable here. As Goldberg recognizes, adoption of

Prescott’s argument would render § 208.156.8’s reference to “the date of mailing” completely

superfluous. Every piece of mail – whether regular first-class mail, registered mail, or certified

mail – is ultimately “delivered” to the addressee. And, in every case, the date of delivery is on or

after the date on which the item is mailed. Therefore, if an aggrieved party could rely on the date

of “delivery,” even in cases in which an agency decision was mailed, the aggrieved party would

have an equal or longer period in which to seek review by reliance on the date of delivery in

every case. This would make the reference to “the date of mailing” in § 208.156.8 unnecessary.

11
Under Goldberg and § 208.156.8, Prescott was required to file his petition for AHC review

within “thirty days from the date of mailing” of the Department’s Decision Letter.

An additional consideration requires that the date of mailing, rather than the date of

delivery, control the timeliness of Prescott’s petition. As noted above, § 621.055.3 specifies the

notice of appeal rights which the Department’s decisions must contain; § 208.156.8 must be

interpreted consistently with, and in light of, § 621.055.3. Section 621.055.3 provides in relevant

part that the Department’s decisions must contain this notification:

If you were adversely affected by this decision, you may appeal this
decision to the administrative hearing commission. To appeal, you must file a
petition with the administrative hearing commission within thirty days from the
date of mailing or delivery of this decision, whichever is earlier . . . .

§ 621.055.3 (emphasis added). As noted above, the Decision Letter contained this statutorily

required language. Separate and apart from the Goldberg rule, the emphasized language in

§ 621.055.3 confirms that an aggrieved party has thirty days from the earlier of the date of

mailing or delivery of a decision of the Department in which to seek AHC review.

Because the Decision Letter was “mail[ed]” to Prescott, he had thirty days from the date

of that mailing – October 31, 2011 – in which to petition for administrative review. He failed to

do so, and his petition was therefore untimely under § 208.156.8. Prescott’s first Point is denied.

II.

In his second Point Prescott argues that the AHC’s dismissal of his petition for review

should be reversed because the Department’s attempt to notify him of its decision was

insufficient to satisfy due process requirements. Prescott argues that the Department violated

due process principles because it made no further efforts to contact him subsequent to mailing

the Decision Letter on October 31, 2011, until he called Toni Davis at the Department on

November 23, 2001.

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 Due process principles generally require that prior to depriving a person of property, a

governmental agency must provide “‘notice reasonably calculated, under all the circumstances,

to apprise interested parties of the pendency of the action and afford them the opportunity to

present their objections.’” Jones v. Flowers, 547 U.S. 220, 226 (2006) (quoting Mullane v.

Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). The Court in Jones explained,

however, that “[d]ue process does not require that a property owner receive actual notice before

the government may take his property,” id., and that “the failure of notice in a specific case does

not establish the inadequacy of the attempted notice.” Id. at 231; see also, e.g., Dusenberry v.

United States, 534 U.S. 161, 170 (2002) (prior due-process cases “do[ ] not say that the State

must provide actual notice, but that it must attempt to provide actual notice”).

Jones involved a notice of a real-estate tax delinquency sent to a property owner by

certified mail, which was returned to the sending agency as “unclaimed.” 547 U.S. at 223-24.

“In response to the returned form suggesting that Jones had not received notice . . . , the State did

– nothing.” Id. at 234. Jones did not question the reasonableness of the agency’s initial decision

to send notice by certified mail. It held, however, that “the government’s knowledge that notice

pursuant to the normal procedure was ineffective triggered an obligation on the government’s

part to take additional steps to effect notice.” Id. at 230. The Court suggested that “additional

reasonable steps” which the government could have taken to satisfy its due-process obligations

included re-sending the notice by regular mail (either addressed to the owner or to “occupant”),

or posting notice on the property itself. Id. at 234-35. Multiple Missouri state-court decisions

have discussed and applied Jones’ holding. See, e.g., In re Foreclosures of Liens for Delinquent

Land Taxes by Action in Rem (Lewis Mitchell Co. v. Bhatti), 334 S.W.3d 444 (Mo. banc 2011);

Schlereth v. Hardy, 280 S.W.3d 47, 50-52 (Mo. banc 2009); In re Foreclosure of Liens for

13
Delinquent Land Taxes by Action in Rem (Collector of Revenue v. Holton), 428 S.W.3d 670,

677-83 (Mo. App. W.D. 2014); Session v. Dir. of Revenue, 417 S.W.3d 898, 904 (Mo. App.

W.D. 2014).

Prescott does not dispute that the Department’s initial decision to send notice by certified

mail satisfied due process principles. Given that the Department was aware of Prescott’s

address, its initial effort to send notice by certified mail was plainly reasonably calculated to

inform him of the decision, and of his right to review of the decision. SeeDusenberry v. United

States, 534 U.S. 161, 169 (2002) (“Petitioner does not seriously contest the FBI’s use of the

postal service to send the certified letter to him, a method our cases have recognized as adequate

for known addressees . . . .”); Schlereth, 280 S.W3d at 51 (“[S]ending certified mail to Hardy’s

known and actual residence . . . seems reasonably calculated to notify Hardy of her redemption

rights – until the sender learns that the notice was unclaimed.”); Session, 417 S.W.3d at 904

(Jones “expressed no disfavor with certified mail”).

Rather than attacking the Department’s initial certified mailing, Prescott argues that the

Department violated his due process rights by failing to do anything further to notify him after

the initial mailing, and prior to November 23, 2011. Thus, Prescott suggests that the Department

should have followed the certified mailing by also sending the Decision Letter to him by regular

mail, or that it should have affirmatively monitored whether the Decision Letter had been

delivered by periodically calling the Post Office, or by tracking the mailing on the internet.

Prescott’s argument ignores an important limitation on Jones’ holding. Jones held only

that the government had an obligation to take reasonable additional steps to notify an aggrieved

party when it had “knowledge that notice pursuant to the normal procedure was ineffective.”

547 U.S. at 230. Without actual or constructive knowledge that an otherwise-reasonable method

14
of notification has failed, the government has no obligation to engage in additional notification

efforts.

The Missouri Supreme Court made this clear in Bhatti, 334 S.W.3d 444. In Bhatti, the

Sheriff of the City of St. Louis notified a real-property owner of an impending tax sale by first-

class mail addressed to the property which was the subject of the foreclosure. Id. at 446. The

property owner testified that he did not receive the notice, because he did not live at the tax-

delinquent property. Id. Although the circuit court believed the property owner’s testimony, it

nevertheless held that the mailing of notice to the address contained in the land records satisfied

due process principles. Id. at 446-47. On appeal, the property owner argued “that the sheriff had

reasonable, additional options for notifying him of the pending tax sale,” and that the sheriff’s

reliance solely on a regular-mail notice addressed to the property violated due process. Id. at

447. The Missouri Supreme Court disagreed, and affirmed the circuit court’s judgment. It held

that, “[w]ithout knowledge that the notice [sent by regular mail] was not reasonably calculated

under these circumstances to apprise Owner, the sheriff was not required to take any further steps

to notify Owner.” Id. at 449. The Court went on to explain:

The issue here is whether the sheriff knew or had reason to know that the notice
he sent to Owner was ineffective, and if so, whether the sheriff took reasonable,
additional steps to notify Owner of the potential taking of the property. The circuit
court found that, despite believing that Owner did not receive the notice, there
was no due process violation as Owner failed to present evidence that the sheriff
knew or should have known that the notice of the tax sale was ineffective. Under
these facts, Flowers does not require the sheriff to take any additional steps to
notify the owner.

Id. at 450 (emphasis added; citation omitted); see also, Holton, 428 S.W.3d at 679 (“Both Jones

and Schlereth relied on the fact that the notifying party knew that the notice attempts had failed . .

. .”); Sieg v. Int’l Envtl. Mgmt., Inc., 375 S.W.3d 145, 156 (Mo. App. W.D. 2012) (“the crucial

15
point” of the Jones decision was “that the plaintiff had been informed that service failed to reach

the defendant”).

In this case, the Department’s first notice that Prescott had not received the Decision

Letter came on November 23, 2011, when Prescott called Toni Davis and asked her if the

Decision Letter was still available. Davis responded promptly to Prescott’s call: she contacted

the post office to determine whether the letter was still available for pick-up, and then called

Prescott back to inform him that he could retrieve the Decision Letter from the post office.

Prescott picked up the letter the same day, when eight days remained within which to file a

petition for AHC review. Prescott does not argue that the Department should have taken

additional steps to notify him of the Decision Letter after being notified on November 23, 2011,

that he had not received it; indeed, it is arguable that Davis’ response to Prescott’s November 23

phone call went beyond what was required by due process principles. Be that as it may, under

the caselaw discussed above, the Department had no obligation to take further action before

November 23. See Session, 417 S.W.3d at 904 (finding no due process violation under Jones

where Department of Revenue initially sent notice of driver’s license suspension by certified

mail, but did not re-send the notice by regular mail until after the thirty-day period to petition for

judicial review had expired; the Department promptly re-sent the notice after being advised that

the certified mailing had been unsuccessful).

Prescott’s second Point is denied.7

7
Prescott’s Point Relied On asserts that a due process violation is established, among other
things, by the fact that only eight days remained within which to file a petition for review when he
actually received the Decision Letter. He does not cite authority, however, to support an argument that
having eight days to file a petition for review violated his due process rights, separate and apart from the
adequacy of the Department’s efforts to notify him of its decision. We therefore do not address the issue.
See, e.g., Blanks v. Fluor Corp., 450 S.W.3d 308, 384 (Mo. App. E.D. 2014) (“a party on appeal must
develop the issue raised in its point relied on in the argument portion of their brief. Failure to support a

16
 III.

Prescott’s third Point asks that we apply principles of equitable estoppel to toll his time to

petition for review. In an affidavit he filed before the AHC, Prescott claimed that Davis “told

[him] that while she could not give him legal advice, [Prescott] would have 30 days from the

date he received; i.e. picked up, the October 31 [letter] in which to file an appeal.” (Davis denied

making this statement.) Prescott claims that he was entitled to rely on Davis’ statement, and that

his filing of his petition for review on December 12, 2011 should therefore be considered

timely.8

As a general rule, the AHC has no authority to hear claims filed outside of the statutory

time limit. Springfield Park Cent. Hosp. v. Dir. of Revenue, 643 S.W.2d 599, 600 (Mo. 1983).

“Failure to comply with statutory time for appeal in an administrative proceeding results in a

lapse of jurisdiction and loss of [the] right of appeal.” Community Fed. Sav.& Loan Assoc. v.

Dir. of Revenue, 752 S.W.2d 794, 799 (Mo. banc 1988).

“Equitable estoppel is normally not applicable against a governmental entity.” Fraternal

Order of Police Lodge #2 v. City of St. Joseph, 8 S.W.3d 257, 263 (Mo. App. W.D. 1999).

“[T]he ‘doctrine of equitable estoppel is rarely applied in cases involving a governmental entity,

and then only to avoid manifest injustice.’” Lalani v. Dir. of Revenue, 452 S.W.3d 147, 149 (Mo.

banc 2014) (citation omitted). To invoke the doctrine, “the governmental conduct complained of

must amount to affirmative misconduct.” Twelve Oaks Motor Inn, Inc. v. Strahan, 110 S.W.3d

point with relevant legal authority or argument beyond conclusory statements preserves nothing for
appeal. In such instances, we will deem the issue abandoned.” (citations omitted)).
8
Prescott acknowledges that the AHC itself had no authority to extend or toll the statutory
time limitations of § 208.156.8 based on equitable principles. The Department argues that, because we
generally address only those issues presented to and decided by the AHC, we cannot consider Prescott’s
equitable arguments where he concedes that the AHC lacked authority to address them. Given our
disposition, we need not resolve this issue.

17
404, 408 (Mo. App. S.D. 2003) (citation omitted); see also Adams v. Div. of Emp’t Sec., 353

S.W.3d 668, 673 (Mo. App. E.D. 2011) (“The doctrine of equitable tolling permits a plaintiff to

toll a statute of limitations where ‘the defendant has actively misled the plaintiff respecting the

cause of action, or where the plaintiff has in some extraordinary way been prevented from

asserting his rights . . .” (citation omitted)).

In Horizons West Properties v. Leachman, 548 S.W.2d 550 (Mo. banc 1977), the

Supreme Court rejected an estoppel argument where a real-property owner contended that an

employee of the tax assessor informed the taxpayer “that the assessor would review the

assessment, would reduce it substantially, and plaintiff would be notified in time to appeal to the

Board of Equalization.” Id. at 554. Contrary to this claimed representation, the assessor’s

employee ultimately informed the taxpayer that the assessment would not be altered, after the

time to seek Board of Equalization review had passed. Id. at 552. The Supreme Court held that,

on these allegations, the circuit court had not erred in rejecting the taxpayer’s estoppel argument.

Plaintiff's theory is, in a nutshell, based on the premise that it had a right to
rely on statements of the assessor's agent and therefore had no obligation to
follow the statutes providing for review by the Board or the procedures by which
to seek that review. The premise is false. Plaintiff had no legal right so to rely
and had the obligation to follow the statutes. The court did not err in dismissing
Count II.

Id. at 554; see also In re Tort Victims Compensation Fund, 139 S.W.3d 593, 594-95 (Mo. App.

E.D. 2004) (filing of petition for review of AHC decision after the twenty-day statutory limit

required dismissal, notwithstanding that the Commission in its notice of final decision

“voluntarily but erroneously, informed Claimant . . . that he had the right to appeal . . . within

thirty days of the date of decision”); compare Twelve Oaks, 110 S.W.3d at 408-09 (finding that

equitable estoppel prevented State Tax Commission from dismissing administrative appeal of

18
property valuation as untimely, where Commission’s written instructions to taxpayers explicitly

provided incorrect date for appeal).

Under this caselaw, Prescott was not entitled to invoke equitable principles to exempt

himself from the filing deadlines in § 208.156.8. The Department’s Decision Letter accurately

and unambiguously informed Prescott, in the language mandated by § 621.055.3, that he had

“thirty days from the date of mailing or delivery of this decision, whichever is earlier,” within

which to file his petition for review. Moreover, even according to Prescott’s affidavit, Davis’

statement concerning the time period in which he could petition for review was prefaced by the

caveat that “she could not give him legal advice.” The time period within which a petition for

AHC review must be filed is a legal issue. Davis’ statement – if she in fact made it – is thus best

understood as a statement of her personal belief, or a suggestion. It does not constitute the sort

of “affirmative misconduct” which could justify the extraordinary action of estopping the State

from relying on the explicit filing deadline contained in §§ 208.156.8 and 621.055.3.

We deny Prescott’s third Point.9

Conclusion

We affirm the judgment of the circuit court, which affirmed the Administrative Hearing

Commission’s dismissal of Prescott’s petition for review.

Alok Ahuja, Chief Judge
All concur.

9
Prescott’s fourth and final Point argues that the AHC erred in entering a summary
disposition because genuine disputes existed as to a material issue of fact; namely, whether Davis in fact
told Prescott that he had thirty days from his receipt of the Decision Letter within which to petition for
review. We have resolved Prescott’s third Point, however, on the assumption that his version of events is
accurate. Although the parties dispute whether Davis made the statement Prescott attributes to her, that
dispute does not involve a material factual issue, because resolution of the factual dispute in Prescott’s
favor would not alter the outcome.

19