both because travelers was not required to appeal the decision of the determinations review board and also because even if exhaustion did apply and travelers did have to appeal that decision it's the exhausted argument is no longer a part of the subject matter jurisdiction now and it's brief the apple e can you just the microphone certainly in its brief the apple e jet midwest made two important concessions and i'd like to start there because i think they really narrow  crystallize the issues on this appeal number one jet midwest agrees that missouri law does not require exhaustion unless there is a statute that provides a right for a formal hearing if there is not then exhaustion is not required and the district court's opinion needs to be reversed secondly just midwest it concedes and agrees now that exhaustion is not a requirement for the court subject matter jurisdiction despite the district court's ruling to the contrary so right at the outset we have the apple leave making two tacit admission that in two fundamental respects the district court misapplied missouri law now with that in mind i will begin with point one which is that travelers was not required to appeal the board's decision now the district court reasoned that we did have to appeal the decision even though that we admittedly had no right to a hearing on that that ruling by the district court runs directly counter to the holdings of the missouri supreme court in the hamby versus city of liberty case instead jette midwest position on the appeal is that travelers did in fact have a right to a formal hearing that would make this case a contested case under mr law and trigger the right or the requirement of exhaustion jet midwest is simply wrong on  law on that point number one the missouri department of insurance itself that's the very body that chapman west says we should be deferring to and the courts should be deferring to they have weighed in on this precise question and they express liguori with travelers and express disagree with jet midwest according to the department the review board conducts a non contested hearing and i'm reading from an order from the department the review board conducts a non contested hearing pursuant to section two eighty seven three thirty five in that the statute does not require a formal hearing and then here's the key line appeals of review board decisions are authorized and will be reviewed by the department as non contested cases where the hearing itself at the determinations review board is a non contested matter but that that according to the department which reviews those those decisions that is also a non contested matter and that's how they do their review you mean the directors review correct correct so that alone ott to resolve this inquiry because this is the very board to whom jet midwest claims we should all be deferring they disagree with jet midwest and they disagree with the district court they express they say it's a non contested case secondly as the department recognized in the order i just read from and as the district court recognized nothing in our operative statute which is two eighty seven three thirty five requires or even alludes to a hearing at all not to mention a hearing with the trappings of formality that is required by the city of valley park versus anderson case out of missouri those trappings of formality would include sworn testimony cross examination of witnesses the application of rules of evidence an evidentiary record and written findings of fact and conclusions of law none of that is required or indeed even mentioned in section two eighty seven three thirty five or in the regulation promulgated there under in missouri they make no reference to that now in an effort to find some basis for a hearing requirement with which to to hook and anchor their their opinion or their position in the appeal jet midwest points to one source and it's a different regulation from a different chapter of the code is chapter one of division eight hundred by its terms on a plain reading of that of that regulation it does not apply to matters arising out of chapter two eighty seven it's limited to actions by the director to impose civil penalties or enforce forfeit for violation of the state insurance laws and that is not what we have here by contrast the regulation that we cite is specific not just to disputes about workers compensation insurance which is what this dispute is it's specific to disputes about the residual market for workers compensation insurance and going further it's specific to disputes about the classification codes in the residual market for workers compensation insurance so in other words the regulation that we are we rely on  all respects to the issue we have here and it does not provide a right to a hearing formal or otherwise it simply refers back to the governing statute no court has ever held that section two eighty seven three thirty five requires exhaustion by jeff midwest it talks about you know the fact that there may be premature or maybe potentially unnecessary for the court to intervene in a state administrative matter well none of that is the case here this board decision that the hearing was in august of fifteen the decision came in september of twenty fifteen where here almost three years later the board decision itself says that appeals have to be made within thirty days here in this case there is nothing left for the court to nothing left for the board rather to do or the director of the department of insurance to do so there's no there's no basis for deferring to that process or letting that process play out there is no further process similarly you know at this point the relief the administrative remedy is unavailable or futile  discussed in the prior case counsel question for clarification the operative compliant in the district court in my career that it when did the exhausted june administrative limit the issue when was that injected into the district court recently so the defendant sought leave to amend its answer to plead our failure to exhaust administrative remedies and then filed a motion for partial summary judgment on that basis and that's really important that the defendant did not ask for the case to be dismissed because of the jurisdictional issue on exhaustion because they recognize no matter how you look at it in tramways view was their money was there still money owed that is correct your honor so our auditor did the calculations and there page sixteen of the addendum to our opening brief and you can see them that if you take because the board did not calculate money the board calculated allocation of payroll if you take exactly what the board found the allocation of payroll and you and you multiply it by the class code the percentages and you do the math what you find is that it's uncontrover that the defendant owes an additional two hundred forty one thousand eight hundred seventy dollars and sixty seven cents and policy to someone explain this to judge smith it's in the briefing it's again they should dismiss all our jurisdiction wasn't wasn't brief because it wasn't that this is not a jurisdictional issue then that means the court has no choice but to look at what effect the board's decision has on the case even if this court believes that exhaustion was required that travelers had to do it and failed to do it then the next question becomes how does that affect the case if anything the board's finding that judgment west should have had payroll in that higher class code that five zero three seven code what that means is that  breached the insurance policy by not paying the premium the travelers billed so you know if anything the board's decision if it's going to be applied both sides had issues with it both sides had problems with it it rejected the position in fact at the hearing they argued that only the fifth of the portion of the payroll where their employees were physically about thirty feet ought to be put in this class code for painting over thirty feet so on a per plane basis you could say well i was up on a forklift for our i was up on a ladder for you know for two hours so the only that time with the board expressly rejected that and said no you can't do that so in your view how should this case have played out of the disk recorder so number one we don't think exhaustion was required at all of the board's decision on that but number in your in your in your mind in your view the complaint was filed it should have gone forward at some point  plaintiff would be required to come forward with its proof and i assume at that point the board decision would certainly would be relevant right i think that's going to determine how much money as and that's the five thirty eight that used to that you read in the complaint then in response on the same day the defendant filed a motion for partial summary judgment saying you know we're stuck with what the board found and we ought to be barred from challenging t well that's correct and the part of the practical it would be so well and the practical issue here is that both sides have bones to pick with what the board found it accepted and rejected arguments of both sides so as a practical matter as to why didn't come up sooner it people had you know people disputed the board in different aspects both sides dead and then so you know you could take the position that it's simply out of the case and it's not relevant we spend a great deal of time in discovery for example trying to determine what did the board decide and who took what position before the board this is why the don exhaustion issue is important because they're not contested case where there is no formal record for us to look at our or sworn testimony or cross examination or all going back after the fact trying to figure out what the board said and we could have a whole trial on that you know and so that's why exhaustion is not required because it doesn't give a good a good source of review for the good record for this quarter for any court to review but in a court here it doesn't provide any record you know so if this was a and action for administrative review for example we'd be looking at would be doing it to novo review at the trial court the district court because there'd be no record from which to look at from which that you know  came out of this all we have is this or as this you know decision made by the board to which nobody can agree what it means quickly one one question on the other issue which is that you argue that summary judgment should be granted is that actually before us or is that beyond the scope of this appeal so let me acknowledge first of all that the district court denied the cross motions as moot so this court could absolutely reverse and remand from the district court's consideration of those motions it could absolutely do that however i don't i do think it's before this court if the court what wants to look at it and that's because you know the case to say if the record is clear enough at this court this court has the power to enter in an order or to instruct the district court to enter an order that ought to be granted based on the clear record so our position is that the record is clear that you could give full summary judgment for the full amount of it or alternatively enter a summary judgment on liability and leave the damages issue because  submitted a number of different scenarios of how those of what the payroll might be traveler showed that in each scenario they owed additional premium because shipment west never calculated the premium they just changed the allocation of the payroll if you have to convert the payroll to premium only travelers in this case did that and our auditor did it in their in written calculations and all of that is uncontroverted so it's for that reason that we believe that the court can go does not have to but could go a step further and actually award summary judgment or instruct the district court to enter summary judgment for travelers thank you very well thank you for your argument mr gasper will hear from you  good morning your honour's and made it please the court my name is adam gaspar i am here on behalf of jet midwest techni the order of the district court dismissing without prejudice travellers claims for breach of contract and four counts stated should be affirmed the problem with this case is what travelers wants to do and in both of their claims revolving on is totally disregarding what occurred in administrative process this was this part of this dispute was brought before the determinations review board which made a decision about how to calculate and allocate certain of jet midwest paypal among certain classification codes that then go into a calculation as to how much premium is owed the two claims filed the one for breach  contract and the one for account stated both rely on the fact that they sent us a bill for the right amount which never occurred because instead of doing what the determinations review board said to do they just ignored it and filed a lawsuit and the problem is that the determinations review board ruling gave them gave travelers an opportunity to appeal to the department of insurance if they didn't like the they didn't do that now they want to say well we didn't have to do that because the original proceeding before the determinations review board was in a contested case and we didn't get to put on evidence etc counsel how was it contest mean what aspects there are certain requirements for it to be cast and what i'm wondering is is how you how that administrative proceeding meets those requirements it did not the procedure for the workers determinations are really stick with the microphone there because these are recorded these proceedings thank you thank you your honor the proceedings for the determinations of your board were not a contested case they didn't meet the requirements for a contested case but that's not the end of the inquiry the court has to then look at what other procedures were available because under missouri law if there are available administrative appeals those have to be pursued if the administrative decision is to be challenged and that's for a contested or american test case and here missouri law is clear that there were available administrative appeals specifically section three seventy well first of all the statutes that govern the residual marketplace which provide for the hearing before the terminations review board provide specifically for a an appeal to the director of the department of insurance and then if such an appeal is made it would be governed under the statutes governing the department of insurance in those statutes include section three seventy four or fifty five which provides that any interested person aggrieved by any order of the director shall be entitled to a hearing before the director in accordance with the present provision of chapter five thirty six chapter five thirty six of course then being the review in the review of a non contested decision the circuit court hears evidence terms facts and a judge has the validity of the agency decision conducting such a hearing as an original action which indicates that there you know the circuit court and  the state court trial court gets to start over as if the initial proceeding never happened what do you make of that statute is not relevant here i think that it is a different situation than we have here the situation we have here is not a direct attack on the administrative determination at all it's sort of a roundabout way of attacking it but they're not attempting to attack the findings of the administrative body they're simply trying to ignore them entirely and in a situation like this where they haven't actually exhausted their administrative appeals they're bound by the decision in the not contested case is that what the statute contemplates though if in a non contested case the district court gets to start over that's exactly what they're trying to do they're is that if there is an administrative process including an appeals process that that has that process has to be exhausted and where that process and is not exhausted the determination is binding and cannot be attacked in a in a circuit court proceeding the circuit courts of missouri do not have authority to review anything but it to review a and administrative decision where there hasn't  final order suppose they took it all the way up and down and the door and the commissioner the director makes a decision and now they want to now they want to have a they want to start this thing and they'll is that acceptable or unacceptable in your view except well it depends on whether and in what stage of the proceedings you're talking about ok the way i view this this statutory scheme is that when the workers determinations review board makes a decision like it did here then they get to go to the director of the department of insurance and the director of the department of insurance then it is under the statute they have a right to a hearing if they don't like with the director of the department of insurance sets which tension now three some four zero five five know well now that statute seems to a numerate certain chapters of the code to which it applies does your honor but that's after saying any interested person agreed by any order of the director under the laws of the state relating to insurance in this chapter which includes chapter three seventy four which is the chapter that provides for this revenge procedure and also the chapter which go no it's an order of the director relating to insurance in this chapter do you think that i mean i thought your your order was under chapter two eighty seven chapter two eighty seven is the determinations review board order but the order that would be two eighty seven also gives the right to appeal to the director of insurance which then would be implementing in the or under the statutory scheme that governs the director of the department of insurance which is chapter three seventy four i see so you think this chapter covers what the director would do on review yes i understand and then this that and three seventy four zero fifty five also contemplate its language that there is potentially they've tried to submit in a reply brief and in conjunction with their reply brief things that were an include in the record below before the days and things that weren't even included in the original briefing with this  data and that is specifically some materials that they claim are orders that are issued under this three seventy four hundred fifty five where the director is reviewing the workers compensation of you boards he and i would submit to the court that even if the court considers those even though it's not required to give in the way they were submitted and are in the record properly even if the court considers those those seem to reflect exactly what the statute contemplates which is that perhaps the director of the department of insurance originally holds a non contested or another hearing to review the determinations of you can work but how does one statute says i was just asking to go back to my original question before we got into the specifics of the statute at what point does this dyno both start over review happen that's recognized by missouri statute what has to happen for the circuit court to be able to to to to employ this procedure i think there needs to be final order which is what the missouri constitution requires and what the administrative procedure act also requires in which if there is a contested case and if there's going to be a challenge that's handled under one provision of the coleman case and both are fairly recent missouri supreme court or excuse me missouri court of appeals decisions discussing exactly this in the interplay of what happens if you have a situation where you have available administrative appeals that aren't pursued does that mean you just get to ignore the whole process and pretend it never happened and then bring a case in circuit court in missouri or are you bound by what happened in the administrat process if you don't follow your and exhaust your ministry of appeals in both of those cases say that if you don't exhaust the administrative appeals process you're bound by what happened in the administrative proceeding if you didn't appeal it appropriately under the statutes and what if what if say this situation travelers had just acknowledged that it stuck with the district court's dismissal without prejudice of its claims what it ought to do which is a predicate to its claims to send us a bill which it's required to do under the insurance contract for the right amount and they've admitted and it's uncontroverted that the way they are attempting to bill us and the way they are attempting to charge premium does not implement what the determinations review board does ok so that's that's my point the compliant doesn't speak in terms of that board decision it doesn't speak in terms of the risk apportionment that that the board determined on these various employment positions it's a lawsuit for dollars and  wouldn't that be the recourse if there's a dispute over money after a board decision like this even if the parties are content to just accept the board decision at some point it's got to be converted into dollars so wouldn't this be the appropriate remedy of the parties cannot agree on the amount of dollars that should change hands if when i grew the judge that at some point it all boils down to whether or not if money is owed is it paid but i don't agree that the first step is to forgo all administrative processes and go straight to court regardless of what may have occurred and i also think that the sending of a bill there are additional disputes among the parties about how they travelers has implemented the regulations how it's applied codes etc and all of those things are sort of credit subsequent to determining how those issues play out how this other issue with the administrative review review board and how that decision is implemented if at all and so the whole case and all of the claims are sort of inextricably intertwined with this problem that they're trying to ignore an administr process that they were required to follow and what should happen is they should go back and implement the board's decision and do in the first place what they should have done and send us a bill for what they claim to be owed under that administrative decision and if anybody in that if you or your client disagrees with that then i think there was it's possible there are additional depending on how the bill is implemented and what it purports to reflect there may be additional there may be additional resort to the missouri department of insurance or the workers and germination review board and we're just not there yet and so where were the parties are now with  dismissal without prejudice nothing has been determined that's somehow controlling or were determinative of travellers claims other than that they should have but that they're bound by what the workers are terminations review board determined about certain of the pay roll in the classifications and now they need to implement that and send us a bill they're trying to put the cart before the horse and you're ours just briefly in my remaining time i'd like to say there are numerous disputes in the record below on the factual on the facts and the summary judgment record and so i don't think this court has jurisdiction at all to even start to wade into that summary judgment record there isn't a situation where in some instances this court has recognized that if there's motions for summary judgment and one is granted one is not and there's no dispute as to certain facts the legal meaning of those may be taken up in the court may reverse a summary judgment or implement a summary judgment order in the other way this is a totally different scenario where the district court made no fact findings on the summary judgment wreckers made simple findings on the fact that there is an administrative order out there that clearly provided a right to appeal and there's absolutely no dispute that there was never an appeal and so they should be at the very least traveler should be stuck with that and this court should not review the summary judgment record from