Opinion
WD 57301
OPINION FILED: August 29, 2000 MODIFIED: October 3, 2000
APPEAL FROM THE CIRCUIT COURT OF ANDREW COUNTY, MISSOURI, HONORABLE BILL ROBERTS, JUDGE.
Evan J. Buchheim for appellant.
Daniel L Radke for respondent.
Before: Ellis and Stith, JJ., concur.
The Director of Revenue appeals from the trial court's judgment setting aside the Director's one-year revocation of Dwight R. Wampler's driving privilege and its ten-year denial of his driving privilege, and reinstating his driving privilege. The Director's sole point on appeal is that the trial court erred in setting aside its actions because it was not required to present any evidence during the hearing to prove the grounds for its actions in that the court was required to review the administrative record filed with it several months before the hearing, which established that Wampler had accumulated enough points to earn a one-year revocation and that he had been convicted of driving while intoxicated on three separate occasions requiring the ten-year denial of his driving privilege, and Wampler presented no contrary evidence during the hearing.
We affirm.
Facts
On February 10, 1999, the Director of Revenue issued a notice to Dwight R. Wampler revoking his driving privilege for one year, effective March 14, 1999, because of an accumulation of points resulting from two traffic convictions for speeding and driving while intoxicated. The Director's notice stated that the Department received and processed the speeding conviction on March 21, 1997, and the DWI conviction on February 9, 1999.
Also on February 10, 1999, the Director issued a ten-year denial of Wampler's driving privilege, effective March 14, 1999, pursuant to § 302.060(9), because he had three convictions for driving while intoxicated. Wampler was convicted for driving while intoxicated on January 13, 1999, in the City of Savannah municipal court, and on December 21, 1988 and October 19, 1983, in Andrew County Circuit Court.
All statutory references are to RSMo 1994, unless otherwise indicated.
On March 12, 1999, Wampler filed a petition for review in Andrew County Circuit Court contesting the Director's action, under § 302.311. The Director's counsel filed an answer to that petition on April 1, 1999. Along with the answer, a certified copy of the Director's administrative records, which included Wampler's Missouri Driver Record and court records relating to Wampler's three DWI convictions, was filed with the trial court. Wampler filed a response/answer, in which he requested that the Director's allegations regarding his alleged DWI history be stricken "because said allegations are conclusions of law and/or are not in proper form."
Section 302.311 provides as follows:
In the event an application for a license is denied or withheld, or in the event that a license is suspended or revoked by the director, the applicant or licensee so aggrieved may appeal to the circuit court of the county of his residence in the manner provided by chapter 536, RSMo, for the review of administrative decisions at any time within thirty days after notice that a license is denied or withheld or that a license is suspended or revoked. Upon such appeal the cause shall be heard de novo and the circuit court may order the director to grant such license, sustain the suspension or revocation by the director, set aside or modify the same, or revoke such license. Appeals from the judgment of the circuit court may be taken as in civil cases. The prosecuting attorney of the county where such appeal is taken, shall appear in behalf of the director, and prosecute or defend, as the case may require.
These pleadings and filings were never introduced into evidence.
On April 26, 1999, the trial court held a hearing on Wampler's petition for review. Although the assistant prosecuting attorney, who is required to represent the Director in actions under § 302.311, appeared at the hearing, he presented no evidence on behalf of the Director. Wampler offered no evidence of his own and his attorney merely asked the court to enter an order setting aside the Director's actions. The trial court indicated that it would grant Wampler's request because it believed that the Director was under an obligation to "go forward," but was unable to do so. The trial court advised Wampler that he had "dodged the bullet" and that he had prevailed only because the Director had not presented any evidence at the hearing. The trial court also told Wampler that it was required to "turn [him] loose," but that the court would not have done so if there had been any evidence, and it again reminded Wampler that he had "dodged the bullet." The trial court later entered a written judgment setting aside the Director's actions against Wampler's driving privilege because the Director had failed to present any evidence during the hearing. The trial court ordered the Director to reinstate Wampler's driving privilege. Subsequently, the Director reinstated Wampler's driving privilege. This appeal follows.
Standard of Review
When a trial court reinstates a driver's license following a suspension or revocation under § 302.505 for DWI, we will affirm the judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Smith v. Director of Revenue, 13 S.W.3d 700, 704-05 (Mo.App.W.D. 2000).
Argument I. Acquiescence
We initially address Wampler's contention that the Director's appeal should be dismissed because the Director acquiesced in the judgment by reinstating his driving privilege and allowing him to reapply for and receive his driver's license. In support of his argument, Wampler cites Lacy v. Director of Revenue, 9 S.W.3d 1 (Mo.App.S.D. 2000). In Lacy, the Director of Revenue appealed the trial court's judgment reinstating Lacy's driver's license, which had been suspended by the Director following Lacy's arrest for driving while intoxicated. Lacy, 9 S.W.3d at 1. The trial court ordered the Director to reinstate Lacy's driving privilege and further ordered that the administrative suspension or revocation be removed from his driving record. Id. Subsequently, the Department of Revenue returned Lacy's license and notified him by letter that the suspension that was the subject of that action had been removed from his record. Id. at 1-2. The Director then filed her notice of appeal. Id. at 2. Lacy filed a motion to dismiss the appeal, contending that the Director had fully complied with the judgment, thereby acquiescing in it. Id. The southern district of this court granted Lacy's motion and dismissed the appeal. Id. Citing the rule that "a party who accepts the benefits of a favorable judgment or who acquiesces in an adverse judgment waives the right to have the judgment reviewed on appeal," the court held that the Department's removal of the suspension from Lacy's record and the return of his license in compliance with the trial court's judgment "was an obvious acquiescence in that judgment." Id.; see also Lawrence v. Director of Revenue, 13 S.W.3d 683, 683-84 (Mo.App.S.D. 2000).
We decline to follow Lacy and Lawrence. In support of the general rule concerning acquiescence in judgments, the court cites Schulte v. Schulte, 949 S.W.2d 225, 227 (Mo.App.E.D. 1997); Two Pershing Square, L.P. v. Boley, 981 S.W.2d 635, 638 (Mo.App.W.D. 1998); and Steen v. Colombo, 799 S.W.2d 169, 174 (Mo.App.S.D. 1990).
In McGill v. Director of Revenue, 17 S.W.3d 912 (Mo.App.W.D. 2000), the Director appealed the trial court's ruling setting aside the revocation of the respondent's driving privilege after a trial de novo. The respondent filed a motion to dismiss on the ground that the Director acquiesced in the judgment. The respondent cited Lacy in support of its motion. The Director did not provide any analysis or criticism of Lacy and did not contest the motion to dismiss. Accordingly, this court dismissed the appeal. We note that McGill should not be viewed as approval of Lacy by this court. In this case, the State did dispute Wampler's contention that Lacy should apply. Therefore, this is the first occasion where the western district has analyzed the holding of Lacy.
This opinion has been reviewed and approved by order of the court en banc.
In Schulte, 949 S.W.2d 225, 226 (Mo.App.E.D. 1997), the appellant alleged on appeal that the trial court erred in supplying additional terms to the original dissolution of marriage settlement agreement regarding the sale of a business. The additional terms concerned the method utilized in the sale and transfer of the stock to enable one party to be sole owner of the business. Id. Following trial, the appellant executed a stock redemption agreement, accepted an unsecured note, and surrendered his stock certificates to the respondent in accordance with the terms in the settlement agreement. Id. The court held that when the appellant voluntarily executed the stock redemption agreement, surrendered his stock certificates to the respondent, and accepted the benefits of the sale, he was procedurally estopped from continuing his appeal regarding the terms of the settlement agreement of the dissolution decree. Id. at 227. The court noted that "[w]hen an event occurs which makes a decision on appeal unnecessary or which makes it impossible for this court to grant effectual relief, the appeal is moot." Id. at 226-27.
In Two Pershing Square, 981 S.W.2d 635, 638 (Mo.App.W.D. 1998), the respondent alleged in its motion to dismiss that the appeal was rendered moot when Jackson County voluntarily refunded to it the taxes paid on an abatement, thereby satisfying the judgment entered against the appellants. This court found that the payment of the judgment was involuntary because it was made to prevent the accrual of statutory interest of nine percent per annum on the judgment as ordered by the trial court. Id. at 638-39.
In Steen, 799 S.W.2d 169, 175 (Mo.App.S.D. 1990), the trial court's judgment directed the defendants to convey real property to the plaintiffs and directed the plaintiffs to pay the defendants the sum of $32,000. The defendants' deed and the plaintiffs' check were delivered before the trial court's judgment became final and before the notice of appeal was filed. Id. at 174-75. The court cited the rule that when the judgment is a judgment for possession of a tract of land, voluntary surrender of the land effectively concedes the correctness of the judgment, thereby rendering the appeal moot. Id. at 175.
We do not find these cases particularly helpful in analyzing the fact situation in the present case. This case is more akin to the situation in James v. Amrine, 140 P.2d 362 (Kan. 1943), which involved a habeas corpus proceeding where the trial court ordered the warden to release a prisoner. He did so and then promptly appealed. James, 140 P.2d at 363-64. The court found that the warden was not foreclosed on appeal because he acquiesced to the judgment, reasoning that the warden had no election because he was under a mandate to release the prisoner. Id. at 366. The court stated that "[t]he right to appeal is not waived by acts which appellant was under a duty to perform." Id. (Citations omitted.) The trial court further stated that "in order to be a bar of the right of appeal on the ground of acquiescence . . . the acts relied on . . . must be such as to clearly and unmistakably show an inconsistent course of conduct or an unconditional, voluntary, and absolute acquiescence." Id. (Citation omitted.) The court found no such situation barring appeal. Id.
Likewise, we do not see the Director's return of the driver's license as voluntary. The Director was under a mandate by the trial court to set aside the revocation and restore Wampler's driving privilege "forthwith." Such order ought to be complied with.
In our case, effectual relief can still be granted, even though Wampler's driver's license has been returned. The suspension or revocation could be upheld. Additionally, the Director receives no benefit by complying with the trial court's judgment pending appeal.
Also, the Director does not have the option of staying proceedings by filing a bond as was available to the appellants in Steen and Schulte. Because a driver's license does not have a tangible monetary value, requiring the Director to post a supersedeas bond in cases such as this would be difficult and the amount of the bond would be arbitrary. If the Director does not return the driver's license pending appeal, he risks being in contempt of court. We cannot fathom that it would be the legislature's intent to require that the Director risk being held in contempt of court in order to preserve his right to appeal in cases such as the one at bar.
Furthermore, not allowing the Director to return the driver's license pending appeal could be detrimental to persons whose licenses are suspended or revoked, particularly in cases where the suspension is for a relatively short period of time. If the Director withheld licenses to avoid "acquiescence" in the judgment, the licensee would be without driving privileges between the date of the trial court's judgment and the time the appeal was completed instead of having his or her license and a restored driving record pending appeal. The cases of those whose licenses are suspended or revoked for a short period would often become moot through the passage of time and the expiration of the suspension or revocation before the completion of their appeal. Alternatively, the driver is faced with the unhandy and expensive prospect of swiftly pursuing a contempt action.
At oral argument, the Director stated that, since Lacy, court orders are not being complied with and drivers' licenses are being withheld pending appeal. On a couple of occasions, the driver has filed a contempt action, and upon issuance of a show-cause order the Director has then returned the license as originally ordered.
These cases are somewhat unique. The Director is forced to choose between withholding the license of a driver who has possibly been wrongfully suspended, thereby risking contempt, or returning a potentially dangerous driver to the streets waiving any right to appeal. Given this scenario, we do not find that complying with the court's order is a voluntary act. Consequently, we find that the Director did not acquiesce in the trial court's judgment.
II. Consideration of Administrative Record
Turning to the merits of the case, the Director's sole point on appeal is that the trial court erred in setting aside the Director's one-year revocation and ten-year denial of Wampler's driving privilege. The Director alleges he was not required to present any evidence during the hearing to prove the grounds for these actions, because the only requirement for the trial court to uphold the Director's revocation and denial was that it review the administrative record filed with it several months before the hearing. The Director asserts the administrative record sufficiently established that Wampler had accumulated enough points to earn a one-year revocation and that he had been convicted of driving while intoxicated on three separate occasions requiring the ten-year denial of his driving privilege. Because Wampler presented no contrary evidence during the hearing, the Director maintains that the revocation and denial were proper actions.
The Director contends that when a trial court reviews a case under § 302.311, it must consider the administrative record filed with the court, citing Lane v. Director of Revenue, 996 S.W.2d 117, 118 (Mo.App.E.D. 1999). In Lane, the Director of Revenue denied Lane's driving privilege for being convicted more than twice of driving while intoxicated. Lane appealed the decision to the circuit court by filing a petition for review pursuant to § 302.311. Lane, 996 S.W.2d at 118. The Director filed an answer affirmatively pleading that Lane had more than two DWI convictions and attached a certified copy of the Department's records indicating that Lane had three prior DWI convictions. Id. A de novo hearing was held on Lane's petition, at which Lane and his counsel appeared, but the Director did not appear. Id. The circuit court set aside the Director's denial of Lane's driving privilege, and the Director appealed. Id. at 119. On appeal, Lane argued that there was no evidence adduced at the hearing to show that he had any DWI convictions, because the Director failed to appear at the hearing and offered no evidence. Id. The court held that the administrative records filed by the Director and not disputed by Lane were sufficient to establish Lane's convictions, although those records were never formally introduced into evidence at the hearing. Id. at 120.
Lane cites Eaton v. Director of Revenue, 929 S.W.2d 282 (Mo.App.S.D. 1996), which involved the statutory interpretation of § 302.060(9). In Eaton, the parties engaged in a debate over whether the statute requires the Director to present evidence that in every State conviction relied on to deny reinstatement, the driver was represented by an attorney or waived the right, and the judge was an attorney. The court concluded that the statute did not require such proof. Eaton, 929 S.W.2d at 284. We view the Lane holding to be broader. To the extent Lane finds that records filed by the Director are sufficient to carry the day although the records are never introduced into evidence, we disagree with and decline to follow it.
Section 302.060(9) provides:
The director shall not issue any license and shall immediately deny any driving privilege:
. . .
(9) To any person who has been convicted more than twice of violating state law, or a county or municipal ordinance where the judge in such cases was an attorney and the defendant was represented by or waived the right to an attorney in writing, relating to driving while intoxicated; except that, after the expiration of ten years from the date of conviction of the last offense of violating such law or ordinance relating to driving while intoxicated, a person who was so convicted may petition the circuit court of the county in which such last conviction was rendered and the court shall review the person's habits and conduct since such conviction. If the court finds that the petitioner has not been convicted of any offense related to alcohol, controlled substances or drugs during the preceding ten years and that the petitioner's habits and conduct show such petitioner to no longer pose a threat to the public safety of this state, the court may order the director to issue a license to the petitioner if the petitioner is otherwise qualified pursuant to the provisions of sections 302.010 to 302.540. No person may obtain a license pursuant to the provisions of this subdivision through court action more than one time.
This opinion has been reviewed and approved by order of the court en banc.
In our case, the Director relies on § 302.312(1) RSMo Cum. Supp. 1997, which provides that Department of Revenue records, when properly certified, "shall be admissible as evidence in all courts of this state and in all administrative proceedings." However, just because a document or record is "admissible" does not mean it is automatically admitted into evidence merely because it has been filed in a case or attached to a pleading. While § 302.311 allows an appeal to be filed "in the manner provided by chapter 536, RSMo," the cause is to be heard "de novo." The Director is required, as are proponents in other de novo civil cases, to put into evidence that which he desires to have considered by the fact finder. The judge should not be required to leaf through a file to determine what should be used as evidence.
"De novo trial" has been defined as "[t]rying a matter anew; the same as if it had not been heard before and as if no decision had been previously rendered." Black's Law Dictionary 435 (6th ed. 1990).
Merely filing a document "does not put it before the court as evidence." Hopkins v. Hopkins, 664 S.W.2d 273, 274 (Mo.App.E.D. 1984). For example, "the filing of a statement of income and expenses does not put it before the court as evidence." Halupa v. Halupa, 943 S.W.2d 272, 277 (Mo.App.E.D. 1997).
The trial judge was correct. The Director presented no evidence and declined the court's invitation to request a continuance. As the judge stated, the attorney for the Director was called into court "at the last minute with no ammunition, maybe no gun even." Regardless, the Director fired no shots. Point II is denied.
The judgment of the trial court is affirmed.