dissenting.
Summary judgment is a drastic remedy, strictly dependent on a finding that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Rule 74.-04(c). The principal opinion effectively denies the appellants the right to judicial review of the administrative valuation of the improvements the appellants have made to the armory property. In holding that they are barred from asserting their maximum claims on procedural grounds, the opinion effectively rules factual equitable issues as though they were questions of law. I do not believe that the case is ripe for summary determination.
Part I of the principal opinion accurately states the facts. I also agree with the holding of Part III that the provision for the American Red Cross does not render the entire statute unconstitutional. My dissent is directed at Part II.
Three things are clear from the governing statute, Senate Bill 782, 83rd General Assembly, Second Session, 1986, as follows: (1) the lessees are to receiv.e “credit ... for any improvements which have been constructed by the lessees in or on the property ...;” (2) the lessees are entitled to use this credit in bidding on the property; (3) the lessees are entitled to aggregate their entitlements in bidding, (“make the lessees the top bidder”). The principal opinion, in affirming the trial court’s finding that respondent Sterling Lacquer Manufacturing Company’s bid of $250,100 was the high bid, effectively deprived the appellants of the opportunity to establish their entitlement to their claim of $710,690.41 as the value of the improvements. Although *407the opinion recognizes that the statute does not give the office of administration the authority to make a conclusive determination of the value of the improvements, it relegates the appellants to the difference between the commission’s value of $212,-500, and the sale price of $250,100. Thus appellants, to realize on claims amounting to nearly $500,000, have recourse only to a fund of $37,600.
The record shows that there is a genuine issue of fact as to the valuation of the improvements. The appellants charge that the commissioner disallowed claims which, in his opinion, did not serve to “maintain the structural integrity of the building.” It is suggested that this limitation goes beyond the language of the statute. The commissioner, by the appellants’ submissions, excluded labor costs for donated labor, but the statute refers to “improvements constructed” and does not limit the allowance for improvements to the cost. It is also alleged that the commissioner refused to recognize “improvements in the form of a bar” and “improvements to the firing range.” For purposes of the motion for summary judgment the appellants’ allegations as shown in the file of the circuit court must be taken as true. These allegations show a real dispute between the lessees and the office of administration. The circuit court may reject all or part of the appellant’s claims on the merits, but they are entitled to be heard.
The commissioner, after drastically limiting the appellants’ claims, then proceeded to advertise the property for bidding. He made it clear that the lessees could use only $212,500 for their own bidding without committing themselves to a cash outlay. The principal opinion faults the lessees because they did not “submit either the combined or individual improvements as a bid for the property.” This they could have done only by a cash exposure which the legislature did not require.
I do not believe that, in law and equity, they were obliged to expose their cash position to preserve their valuation claims. By our established procedures they were entitled to seek judicial review of the commissioner’s decision so that they would be fully aware of their entitlement before bidding commenced. Nor should it be held that appellant Armory Facilities, Inc. prejudiced its position or those of the other appellants by tendering the allowed figure of $212,500 as a bid. This amounts simply to saying that the lessees would take the property if no bid were received in excess of the amount the commissioner agreed was due to the lessees. The principal opinion presents no further rationale for holding that the lessees have no means of realizing upon the major portion of their claim. Nor do any of the arguments submitted by the commissioner and the successful bidder support the grant of summary judgment in the face of this real and live controversy.
The commissioner argues, first, that the appellants are not “lessees” because the formalities for leasing state property were not complied with, and so are not entitled to compensation under the language of the statute. It is suggested that they are at the most licensees or privilege holders, and that their rights do not rise to the dignity of interests in land. On remand the appellants could introduce evidence as to the origin of their interests, as an aid in determining the legislature’s intent in using the term “lessee.” We must assume that the legislature knew who were in possession of the property and that improvements had been made which it felt should be compensated. The legislators no doubt were more concerned with facts than with the niceties of legal nomenclature.
The commissioner argues, not too loudly, that the statute gives him the sole authority to determine the value of the improvements on the armory property. This argument flies in the face of our entire legal tradition, which does not allow bureaucrats to make decisions affecting property rights which the persons affected may not question in court.
Both the commissioner and the purchaser argue that the appellants did not take proper steps under the Administrative Procedure Act to challenge the commissioner’s decision on the valuation. The purchaser is clearly wrong in asserting that the lessees are barred by the thirty day provisions of § 536.110, RSMo 1986, because the commissioner’s decision is not a “contested case” in which the administrative agency *408acts following notice and formal hearing. The commissioner is neither a judge nor a quasi-judicial officer. See Long v. Bates County Mem. Hosp., 667 S.W.2d 419, 421 (Mo.App.1983). The commissioner argues that there was no effort to obtain review under § 536.150, but this section is a general provision, designed to facilitate review of administrative decisions rather than to limit access to the courts. The section is not exclusive of other procedures such as the declaratory judgment action the appellants resorted to. The present suit, indeed, would be an appropriate action within the contemplation of that section. No time limit is expressed § 536.150. So the present action is properly commenced to review the commissioner’s valuations.
The respondents claim, essentially, that the appellants were guilty of laches in not bringing suit until the commissioner had rejected the greater part of their claims and advertised the property for sealed bidding. Laches, and related defenses sometimes referred to as “waiver” or “estop-pel,” are equitable defenses which simply cannot be ruled on summary judgment. Application of laches would depend on a finding that the appellants had been guilty of unconscionable delay in waiting until the bids had been received and the property sold, and only then undertaking to challenge the sale. It might be said in support of a contrary position that the lessees did not know, before the bids were received, that the accepted bid would fall far short of their claims. At least one bidder thought that the property was worth $1,500,000. Had that bidder been financially responsible, the resulting sale would have provided sufficient funds to pay whatever value the appellants could establish for their improvements, with a surplus for the state. On remand the court below will be able to weigh the equities of the appellants and of the purchaser, who now stands to get the property for much less than at least one bidder thought it was worth. Perhaps, if the trial court found the commissioner’s valuation of the improvements inadequate, the bidder would raise its figure so as to make the lessees whole.
The commissioner’s decision as to valuation was transmitted January 28, 1987. The bidding was first advertised March 18, 1987 and bids were opened April 14, 1987. On May 4, 1987 the highest bid was rejected for financial irresponsibility and respondent Sterling was declared the high bidder. The suits now on appeal were filed July 16 and 17, 1987 and summary judgment was entered November 12,1987. These circumstances do not indicate any undue delay. The amount of the accepted bid is small, by the state’s standards, but a substantial amount for individuals or nonprofit organizations. There is no need for undue haste in closing, at the expense of elemental due process for the appellants’ unresolved claims.
The appellants have stated claims of equitable cognizance. The court below is a court of equity, possessed of the full powers of chancery. If the case were terminated by summary judgment the appellants would be deprived of the opportunity to litigate their claims and would be prejudiced by the unilateral decision of the commissioner of administration. This we should not countenance.
I would reverse the judgment and remand the case for further proceedings consistent with my opinion.