Union Manor, A Sole Proprietorship v. Missouri Department of Health and Senior Services

In the
Missouri Court of Appeals
Western District

UNION MANOR, A SOLE 
PROPRIETORSHIP,  WD82776
Respondent,  OPINION FILED:

v.  March 31, 2020

MISSOURI DEPARTMENT OF 
HEALTH AND SENIOR SERVICES, 

Appellant. 
Appeal from the Circuit Court of Cole County, Missouri
The Honorable Daniel Richard Green, Judge
Before Division One:
Thomas N. Chapman, P.J., Mark D. Pfeiffer, and Anthony Rex Gabbert, JJ.
The Missouri Department of Health and Human Services (Department) appeals from a
summary judgment entered in favor of Union Manor, A Sole Proprietorship (Union Manor) by
the Circuit Court of Cole County, Missouri. The Department contends that Union Manor (a long
term care facility) is obligated to comply with a regulatory requirement that its bedrooms provide
70 square feet of floor space per resident. The circuit court ruled that Union Manor is entitled to
take advantage of a “grandfather clause” set forth in the same regulatory provision, allowing
older facilities to meet a lower minimum floor space requirement of 60 square feet per resident in
private (single) and multiple occupancy bedrooms. Because Union Manor is entitled to the
exemption with respect to its multiple occupancy bedrooms, but not with respect to its private
bedrooms, we affirm in part, reverse in part, and remand for further proceedings.
Facts & Procedural Background
Union Manor was licensed as a residential care facility I (RCF I) in January 1985. In
December 2001, Union Manor applied to the Department for licensure as a residential care
facility II (RCF II) (residential care facilities II are now referred to as “assisted living
facilities”).1 Upon receiving Union Manor’s application, the Department conducted a
consultation visit at Union Manor’s facility to determine whether it would grant the application
for RCF II licensure. In July 2002, Union Manor was notified that, pursuant to standards
promulgated by the Department, the facility’s bedrooms needed to provide floor space of 70
square feet for each resident living in the room. See 19 CSR 30-86.012(6). The letter stated
further that several of the bedrooms were “a few square feet short of meeting requirements” and
that Union Manor could be licensed as an RCF II for a maximum of 35 residents. The
Department advised Union Manor that it “may want to consider requesting an exception for these
rooms” if it intended to increase its capacity above 35 residents.
In an April 2004 letter, Union Manor requested an exception to the regulatory
requirement that it provide each of its residents with 70 square feet of bedroom space and allow
the facility to operate as an RCF II while accommodating 52 residents. Following an inspection,
the Department granted Union Manor’s request for an exception on the condition that the facility
provide basement “storage lockers or wardrobe units” for several of the bedrooms that did not
meet the square footage requirement. The exception was valid for a period of three years and
subject to renewal thereafter. Union Manor was then licensed as an RCF II in June 2004.
1
See § 198.005. Statutory references are to RSMo 2016 as supplemented.
2
In 2010, Union Manor requested an exception to the square footage requirement “to
allow smaller resident rooms.” In an October 2010 letter, the Department granted the exception
request for a period of two years. The Department stated that Union Manor could obtain a two-
year renewal of the exception in October 2012, provided it “made progress toward reducing its
census during the initial exception period[.]” No further exceptions would be granted after
October 2012. The Department further advised that by October 2014, Union Manor would be
required to reduce its census to 32 residents or renovate its bedrooms as necessary to comply
with the requirement that it provide each resident with 70 square feet of floor space.
Union Manor requested an extension to its square footage exception in September 2012;
the exception was granted in May 2013. In August 2016, Union Manor applied to the
Department for a change of owner/operator. In December 2016, the Department sent Union
Manor a letter explaining that the facility was only permitted to house 32 residents due to square
footage limitations. At the time, 40 individuals were residing at the facility. Thus, the letter
advised Union Manor to again apply for an exception to the 70 square feet per resident
requirement. Union Manor’s administrator emailed the Department indicating the facility was
not required to procure an exception to the square footage requirement and that it would not be
doing so.
In May 2017, Union Manor filed a petition for declaratory judgment seeking a
determination that it was “exempt from the floor space requirement as it was in existence prior to
the adoption of the policy and applicable regulations [the Department sought] to enforce.” In its
petition, Union Manor relied upon a “grandfather” provision set forth in 19 CSR 30-86.012(6)
which permitted certain older facilities to meet a lower minimum floor space requirement of 60
square feet per resident. The Department counterclaimed, seeking to enjoin Union Manor from
3
admitting new residents until (1) it had performed construction necessary to expand the smaller
bedrooms to comply with the square footage requirement or (2) reduce its occupancy to 32
residents. The parties filed cross-motions for summary judgment. In April 2019, the circuit court
entered judgment in favor of Union Manor and against the Department, finding that the facility
was exempt from the 70 square feet per resident requirement. This appeal follows.2
Discussion
In reviewing a circuit court’s grant of summary judgment, we construe the record in the
light most favorable to the party against whom judgment was entered. ITT Commercial Fin.
Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). “Our review is
essentially de novo[,]” and “[t]he propriety of summary judgment is purely an issue of law.” Id.
2
We note that the prayer for relief in Union Manor’s petition for declaratory judgment contained a request for
reasonable attorney’s fees and costs. The circuit court’s judgment does not dispose of this request, which “can
arrest the finality of the judgment,” and implicate this Court’s jurisdiction to hear the appeal. Ruby v. Troupe, 580
S.W.3d 112, 114 (Mo. App. W.D. 2019). However, a circuit court’s failure to address an attorneys’ fees issue will
impact the finality of the judgment only when the claim is properly pleaded and pursued by the requesting party. Id.
at 114-16. Under the first step, “a party must plead a basis for an award of fees, in addition to simply including a
request for attorney’s fees in its prayer for relief.” Id. at 115 (emphasis added). Union Manor’s petition states only
a bare request for attorney’s fees and costs without citing any statutory, factual, or other authority for such an award;
thus, the request for attorney’s fees was not properly pleaded. Id. Nor does it appear that Union Manor pursued its
request for attorney’s fees beyond merely mentioning it in the petition. Id. at 116. Under Ruby, this is an additional
and independent reason for deeming the circuit court’s judgment final and appealable, notwithstanding its failure to
address the issue of attorneys’ fees.
We also observe that the circuit court’s judgment does not expressly dispose of the parties’ dueling requests for
injunctive relief. “A judgment's silence on an issue should not be deemed a disposition of that issue except where a
ruling on one issue necessarily constitutes a ruling on the other.” In re Carl McDonald Revocable Tr. of Oct., 1979,
899 S.W.2d 138, 139 (Mo. App. S.D. 1995); see also Long v. Sterling Real Estate Acquisitions, LLC., 554 S.W.3d
455, 458 (Mo. App. W.D. 2018) (“Where [a] decision on other issues in the case effectively disposes of the issue not
specifically adjudged, the judgment is final and appealable.”) (citation omitted). Here, the circuit court’s judgment
indicates that Union Manor is exempt from 19 CSR 30-86.012(6)’s 70 square feet per resident requirement. This
determination effectively disposes of Union Manor’s request for an injunction, in which the facility sought to
prevent the Department from enforcing 19 CSR 30-86.012(6)’s floor space requirements against Union Manor. It
also effectively disposes of the Department’s request for injunctive relief, in which it sought an order precluding
Union Manor from admitting additional residents until it took steps to substantially comply with the 70 square feet
per resident requirement.
The Court is satisfied that the instant judgment is final and appealable, and we therefore proceed to review.
4
Summary judgment is properly granted “if there is no genuine issue as to any material fact and ...
the moving party is entitled to judgment as a matter of law.” Hargis v. JLB Corp., 357 S.W.3d
574, 577 (Mo. banc 2011) (citation and quotation marks omitted).
Union Manor and other long term care facilities are licensed under the Missouri Omnibus
Nursing Home Act. See § 198.003, et seq. Section 198.009 states that “[t]he provisions of [the
Act] shall be administered by the Department.” It further authorizes the Department to
promulgate rules and regulations necessary to administer the Act. In the instant matter, both
parties rely upon a specific regulation promulgated by the Department, which provides as
follows:
Facilities whose plans were approved after December 31, 1987, shall provide a
minimum of seventy (70) square feet per resident in private and multiple
occupancy bedrooms. This square footage calculation shall include the floor space
used for closets and built-in furniture and equipment if these are for resident use
and the closet space does not exceed five (5) square feet per resident. Private bed-
rooms in existing facilities that are required to comply with the requirements of
19 CSR 30-86.043 or 19 CSR 30-86.047, and multiple occupancy bedrooms in
facilities licensed between November 13, 1980 and December 31, 1987, shall
have a minimum of sixty (60) square feet of floor space per resident.
19 CSR 30-86.012(6).3
3
At the time Union Manor applied to be licensed as an RCF II, this provision was located in a different subdivision
and employed slightly different language:
Residential care facilities I and II whose plans were approved or which were initially licensed after
December 31, 1987, shall provide a minimum of seventy (70) square feet per resident in private
and multiple occupancy bedrooms. This square footage calculation shall include the floor space
used for closets and built-in furniture and equipment if these are for resident use and the closet
space does not exceed five (5) square feet per resident. Private bedrooms in existing residential
care facilities II and multiple occupancy bedrooms in residential care facilities I and II licensed
between November 13, 1980 and December 31, 1987, shall have a minimum of sixty (60) square
feet of floor space per resident.
19 CSR 30-86.012(5) (2001).
5
The Department contends that this regulation required Union Manor to provide 70 square
feet of floor space to each of its residents in single and multiple occupancy bedrooms. Because
some of the bedrooms did not comply with regulatory minimum, the Department argues that the
circuit court erred in granting judgment in favor of Union Manor and in impliedly denying the
Department’s petition to enjoin the facility from admitting additional residents. On the other
hand, Union Manor argues that because it was licensed in 1985, it is exempt from the 70 square
feet requirement.
For simplicity and ease of analysis, we address the Department’s points out of order
(particularly since our holding with respect to the Department’s fourth point bears directly upon
our discussion of its other points on appeal). In its fourth point, the Department argues that
construing 19 CSR 30-86.012(6) together with other regulations in pari materia supports its
position that Union Manor is subject to the 70 square feet requirement and is not “grandfathered”
in as a facility licensed between November 13, 1980, and December 31, 1987. In support, the
Department notes that although Union Manor was initially licensed as an RCF I in 1985, it
became licensed as an RCF II in 2004. The Department asserts that Union Manor’s change from
an RCF I to an RCF II was not simply an upgrade from one class to the next, but actually
constitutes licensure as a new facility. Because Union Manor was not licensed as an RCF II until
2004 (several years after the expiration of the “grandfathering” period), the Department contends
that it must provide bedrooms with 70 square feet of floor space for each resident.
“Statutory and regulatory interpretation is an issue of law that this court reviews de
novo.” Davis v. Dir. of Revenue, 481 S.W.3d 880, 884 (Mo. App. S.D. 2016). We apply the
same principles of interpretation to regulations promulgated by state agencies that we do to
statutes enacted by the General Assembly. Marquart v. Dir. of Revenue, 549 S.W.3d 56, 59
6
(Mo. App. E.D. 2018). “Our goal is to ascertain the agency’s intent and give effect thereto by
considering the plain meaning of the words used in the regulation.” Id. (citation omitted). When
a regulation’s meaning is plain and unambiguous, “there is nothing to construe and we will give
effect to the language as written without resorting to rules of statutory construction.” Doe v. St.
Louis Cmty. Coll., 526 S.W.3d 329, 336 (Mo. App. E.D. 2017). The in pari materia doctrine
instructs that where a regulation’s language is unclear, we may attempt to discern its meaning by
considering it in light of other regulations on the same or related subject matter. See Jefferson ex
rel. Jefferson v. Missouri Baptist Med. Ctr., 447 S.W.3d 701, 707 (Mo. App. E.D. 2014).
The “grandfather clause” that Union Manor seeks to enforce is divided in its application
between private bedrooms and multiple occupancy bedrooms.4 With respect to private
bedrooms, it provides as follows:
Private bedrooms in existing facilities that are required to comply with the
requirements of 19 CSR 30-86.043 or 19 CSR 30-86.047… shall have a minimum
of sixty (60) square feet of floor space per resident.
19 CSR 30-86.043 prescribes the administrative, personnel, and residential care requirements for
level II residential care facilities, while 19 CSR 30-86.047 outlines the requirements for assisted
living facilities. In its brief, Union Manor argues that “19 CSR 30-86.012(6) designates only
‘existing facilities’ and makes no further distinction as to class of facility, nor does it introduce
any other circumstance in establishing the exemption as to bedroom square footage.”
4
19 CSR 30-85.012(38) similarly allows “intermediate care” and “skilled nursing facilities” to meet a lower
minimum floor space requirement in in “multiple bed resident rooms” (80 square feet) than in “one (1)-bed resident
rooms” (100 square feet). Regulations in other states also distinguish between multiple occupancy and private
(single) bedrooms in prescribing minimum floor space requirements. See, e.g., 105 Mass. Code Regs. 150.320 (“For
[hospital-based long term care facilities], the floor area of resident bedrooms … shall not be less than 100-square
feet for single occupancy rooms and 80-square feet per bed for multiple occupancy rooms.); Wis. Admin. Code HS
§ 83.54 (providing that in certain community-based residential facilities, “single occupancy bedrooms shall have a
minimum of 80 square feet per resident and 60 square feet per resident in multiple occupancy bedrooms.”).
7
We do not agree that the regulation is so broad. Existing or existing licensed facilities are
defined in 19 CSR 30-83.010(16) as follows:
Existing or existing licensed facility— Shall mean a long-term care facility which
was licensed and in operation or one whose plans were approved prior to June 10,
1981 for a skilled or intermediate care facility or prior to November 13, 1980 for
residential care facilities and assisted living facilities except as otherwise
indicated in 19 CSR 30- 86.012, 19 CSR 30-86.022 and 19 CSR 30- 86.032.
(Emphasis added). The uncontroverted facts contained in the summary judgment record indicate
that Union Manor was initially licensed as an RCF I in 1985. Accordingly, it is not an “existing
facility” as that phrase is defined in the regulations promulgated by the Department. See
Johnson v. Missouri Dep't of Health & Senior Servs., 174 S.W.3d 568, 581 (Mo. App. W.D.
2005) (“If a statute defines a term or phrase, that definition must be used.”). Because Union
Manor is not an “existing facility” under the Department’s regulations, its private bedrooms do
not qualify for the limited exemption described in 19 CSR 30-86.012(6).
We reach the opposite conclusion with respect to Union Manor’s multiple occupancy
bedrooms. In this regard, 19 CSR 30-86.012(6) states that “multiple occupancy bedrooms in
facilities licensed between November 13, 1980 and December 31, 1987, shall have a minimum
of sixty (60) square feet of floor space per resident.” Again, it is uncontroverted that Union
Manor was initially licensed in 1985. It is therefore entitled to take advantage of the regulation’s
“grandfather clause” with respect to its multiple occupancy bedrooms. In those bedrooms,
Union Manor need not comply with the regulation’s 70 square feet requirement and instead may
comply with the regulation by providing floor space of 60 square feet per resident.
The Department contends, however, that for purposes of applying 19 CSR 30-86.012(6)’s
“grandfather clause,” Union Manor’s 1985 licensure as an RCF I is immaterial. Instead, the
Department asserts that when Union Manor applied to be licensed as an RCF II in April 2004, it
8
was seeking licensure as a new facility subject to all of the regulatory requirements then in
existence, which included the mandate that it provide its residents with 70 square feet of
bedroom floor space. Essentially, the Department argues that when Union Manor sought to
upgrade its license status from RCF I to RCF II, it held the same position as an applicant that had
never been licensed at all.
In support, the Department relies chiefly upon two other state regulations. 19 CSR 30-
82.010(2)(B) states as follows:
If the facility changes from a residential care facility to any other level or if an
assisted living facility changes to an intermediate care or skilled nursing facility,
the facility shall comply with construction, fire safety and physical plant rules
applicable to a new or newly licensed facility as defined in 19 CSR 30-83.010.
(Emphasis added). 19 CSR 30-83.010(33) prescribes the following definition for the terms “new
or newly licensed facility”:
New or newly licensed facility--Shall mean a long-term care facility whose plans
are approved or which is licensed after June 10, 1981 for a skilled nursing or
intermediate care facility or after November 13, 1980 for residential care facility
or assisted living facility except as otherwise indicated in 19 CSR 30-86.012, 19
CSR 30-86.022, and 19 CSR 30-86.032
Nothing in this definition supports the proposition that an already-licensed residential
care facility forfeits its claim to 19 CSR 30-86.012(6)’s square footage exemption when it seeks
to upgrade its license status. Indeed, reading the two provisions together, 19 CSR 30-83.010(33)
indicates that a residential care facility seeking to change from one level to another should be
treated as a newly licensed facility “except as otherwise indicated in 19 CSR 30-86.012.” As
noted above, 19 CSR 30-86.012(6) affords an exemption to the 70 square feet requirement (in
multiple occupancy bedrooms) to facilities which, like Union Manor, obtained their licensure
between November 13, 1980, and December 31, 1987. By using the phrase “except as otherwise
9
indicated in 19 CSR 30-86.012,” the Department clearly signaled its intent to exclude long term
care providers like Union Manor from its general rule that facilities which change their licensure
status should be treated as new or newly licensed facilities. Had the Department intended to
limit the application of 19 CSR 30-86.012(6)’s “grandfather clause” to facilities that do not
change their license class, it would have included express language to that effect when it initially
promulgated the regulation. See Peoples v. Med. Protective Co., 584 S.W.3d 339, 345 (Mo.
App. W.D. 2019).
Union Manor obtained licensure as an RCF I in 1985. It was therefore not an “existing
facility” and is not entitled to an exemption from 19 CSR 30-86.012(6)’s 70 square feet
requirement in its private bedrooms. It is, however, exempted from the 70 square feet
requirement in its multiple occupancy bedrooms. As a facility licensed between November 30,
1980, and December 31, 1987, it is not required to provide 70 square feet of floor space in
multiple occupancy bedrooms, and may comply with the Department’s regulations by furnishing
60 square feet of floor space per resident in such rooms.
The circuit court’s judgment suggests that Union Manor may take advantage of 19 CSR
30-86.012(6)’s square footage exemption with respect to both categories of bedrooms:
WHEREFORE, the Court has considered the evidence and arguments of
the parties and now orders, adjudges, and decrees as follows:
A. Judgment is entered in favor of [Union Manor] and against [the
Department], the Court finding that [Union Manor] is exempt from the 70 square
feet minimum by reason of 19 CSR 30-012(6) [sic], having been licensed between
November 13, 1980 and December 31, 1987 as stated in the regulation[.]
As we have explained more fully above, this is only true as applied to Union Manor’s multiple
occupancy bedrooms. Thus, the Department’s Point IV is granted in part and denied in part.
10
In its second point on appeal, the Department argues that the circuit court erred in ruling
that the Department was equitably estopped from applying the 70 square feet per resident
requirement to Union Manor. In its grant of summary judgment, the circuit court found that
Union Manor “should be entitled to the doctrine [of equitable estoppel] as [the Department]
knew or should have known that [Union Manor] was in no position to make improvements once
[Union Manor] became a residential care facility II.”
A party asserting the bar of equitable estoppel must demonstrate the existence of the
following elements: “(1) an admission, statement, or act inconsistent with the claim afterwards
asserted and sued upon; (2) action by the other party on the faith of the admission, statement, or
act; and (3) injury to such other party, resulting from allowing the first party to contradict or
repudiate the admission, statement, or act.” Ryan v. Ford, 16 S.W.3d 644, 651 (Mo. App. W.D.
2000) (citation omitted). However, this defense is seldom applied against a government entity:
“Equitable estoppel may run against the state, but only where there are
exceptional circumstances and a manifest injustice will result.” “Equitable
estoppel is not applicable if it will interfere with the proper discharge of
governmental duties, curtail the exercise of the state's police power or thwart
public policy, and is limited to those situations where public rights have to yield
when private parties have greater equitable rights.”
Gosal v. City of Sedalia, 291 S.W.3d 822, 828–29 (Mo. App. W.D. 2009) (internal citations
omitted).
In this case, the Department maintained from its initial response to Union Manor’s
application for RCF II licensure that a number of its bedrooms fell short of the 70 square feet per
resident requirement set forth in 19 CSR 30-86.012(6) (and former subdivision (5)). It granted
Union Manor multiple exceptions to this requirement to allow the facility more time to bring
itself into compliance with the Department’s standards. To comply with the square footage
11
requirement, Union Manor would need to either reduce its census or renovate the offending
private bedrooms to provide more floor space.5 We do not believe that, as a matter of law, either
of these consequences constitutes an “exceptional circumstance” or “manifest injustice” so as to
apply the bar of equitable estoppel against the Department. Furthermore, application of the
doctrine would interfere with the Department’s governmental duty of ensuring that appropriate
standards are observed in long term care facilities for the safety and comfort of residents of such
facilities. See Gosal, 291 S.W.3d at 828–29.
Accordingly, the circuit court erred in granting summary judgment in favor of Union
Manor on the ground that the Department was equitably estopped from requiring the facility to
comply with the regulation’s square footage requirement. Point II is granted.
In its third point on appeal, the Department contends that the circuit court erred in ruling
that 19 CSR 30-86.012(6) constituted an impermissible retrospective law as applied to Union
Manor. Retrospective or retroactive laws are specifically proscribed by Article I, Section 13 of
the Missouri Constitution:
That no ex post facto law, nor law impairing the obligation of contracts, or
retrospective in its operation, or making any irrevocable grant of special
privileges or immunities, can be enacted.
“Retrospective or retroactive laws are those which take away or impair vested rights acquired
under existing laws, or create a new obligation, impose a new duty, or attach a new disability in
respect to transactions or considerations already past.” Garozzo v. Missouri Dep't of Ins., Fin.
Institutions & Prof'l Registration, Div. of Fin., 389 S.W.3d 660, 665 (Mo. banc 2013) (citation
and internal quotation marks omitted). Missouri appellate courts have instructed that “[t]his test
5
This burden is particularly light considering the summary judgment record indicates that only one of Union
Manor’s private bedrooms provides less than 70 square feet of floor space.
12
is disjunctive”—that is, a law may be retroactive in operation if it impairs a vested right or
imposes a new duty or obligation with respect to past transactions. Four Seasons Racquet &
Country Club Prop. Owners Ass'n, Inc. v. Butler, 539 S.W.3d 122, 129 (Mo. App. S.D. 2018).
Here, the circuit court found that Union Manor was licensed in 1985 as an RCF I.
Because 19 CSR 30-86.012(6) was promulgated after the facility’s initial licensure, it ruled that
the square footage requirement could not be applied to Union Manor. In this regard the court
concluded that “[a] statute cannot be construed to effect [sic] rights vested at the time of
enactment of the statute.” This conclusion was erroneous because a license to operate a business
is not a “vested right,” but rather a privilege. Missouri Real Estate Comm'n v. Rayford, 307
S.W.3d 686, 691 (Mo. App. W.D. 2010).
“[T]he license remains subject to the laws and regulations which authorized its
issuance in the first place, which is the antithesis of a vested right. Those laws and
regulations may impose criteria for eligibility, both initially or following
licensure, may require annual or other renewals, and may impose conditions on a
license's continued viability tied to standards of conduct.”
Id. (emphasis added). In short, because a license is no more than a “revocable grant of
permission,” it is not a vested right, and 19 CSR 30-86.012(6) does not run afoul of the first
prong of the retrospectivity analysis. Id. at 692.
To the extent Union Manor may be arguing that 19 CSR 30-86.012(6) imposes a “new
obligation, duty or disability with respect to past transactions,” our cases have addressed this
prong of the retrospectivity test as well. Union Manor’s rights under Article I, Section 13 of the
Missouri Constitution are not impaired by the Department’s imposition of a new criterion for
eligibility (the 70 square feet per resident requirement) because it has no right to expect the
regulations governing its continued licensure as a residential care facility will remain unchanged.
See State v. Young, 362 S.W.3d 386, 391 (Mo. banc 2012); Rayford, 307 S.W.3d at 696 (“[A]n
13
applicant has no entitlement to believe that the law with respect to eligibility requirements for
licensure will always remain the same.”). Indeed, Rayford specifically found that Article I,
Section 13 does not prohibit the application of new legal requirements to a first-time applicant
for professional licensure or “to license renewals, if the license expires following a defined
period of time with no reasonable assurance the license will be summarily renewed subject only
to timely re-application and/or payment of a required fee.” 307 S.W.3d at 695; see also §
198.015.3 (indicating that a license to operate a residential care facility will be effective for a
maximum of two years).
The circuit court erred when it determined that Article I, Section 13 prohibited the
Department from requiring Union Manor to provide its residents with 70 square feet of floor
space in single and multiple occupancy bedrooms. Point III is granted.
We turn finally to the Department’s first point on appeal, in which it argues that the
circuit court erred in failing to grant it summary judgment on its counterclaim seeking to enjoin
Union Manor from accepting new residents until the facility achieved substantial compliance
with 19 CSR 30-86.012(6). “It is well established in Missouri law that the [d]enial of a motion
for summary judgment is not subject to appellate review, even when an appeal is taken from a
final judgment and not [solely] from the denial of a motion for summary judgment.” Energy
Creates Energy, LLC v. Heritage Grp., 504 S.W.3d 142, 150 (Mo. App. W.D. 2016) (citation and
internal quotation marks omitted). Point I is therefore dismissed.
As previously noted,6 the circuit court’s judgment had the effect of denying, as a matter
of necessity, the parties' competing requests for injunctive relief. However, because we have
6
See footnote 1, supra.
14
determined that the trial court erroneously interpreted applicable regulations, it now remains to
be determined whether the Department is entitled to the injunctive relief it requested in light of
our opinion and modified judgment.
Conclusion
Under Rule 84.14, this Court may “award a new trial or partial new trial, reverse or
affirm the judgment or order of the trial court, in whole or in part, or give such judgment as the
court ought to give.” (Emphasis added). Union Manor’s claim for declaratory relief involves
the purely legal issue of whether and how 19 CSR 30-86.012(6)’s “grandfather clause” should be
applied to Union Manor. Thus, while we reverse the declaratory judgment in part, further
proceedings in the circuit court are not necessary on the declaratory relief sought. We exercise
our discretion under Rule 84.14 to enter the declaratory judgment that the circuit court should
have given respecting the proper application of 19 CSR 30-86.012(6), and the circuit court’s
declaratory judgment is accordingly modified to provide as follows:
A. Union Manor’s petition for declaratory judgment is granted in part and
denied in part, the Court finding that Union Manor is exempt from the 70 square
feet minimum by reason of 19 CSR 30-86.012(6) with respect to its multiple
occupancy bedrooms, but is fully subject to the 70 square feet minimum with
respect to its private bedrooms. In multiple occupancy bedrooms, Union Manor
is required to provide 60 square feet of floor space per resident.
We remand the case to the circuit court to conduct further proceedings in accordance with this
opinion. On remand, the circuit court will have the power to determine what (if any) injunctive
relief the Department may be entitled to given our declaration regarding the proper application of
19 CSR 30-86.012(6).
/s/Thomas N. Chapman
Thomas N. Chapman, Presiding Judge
All concur.
15