371 S.W.3d 824 (Mo.App. W.D. 2012), WD 72606, Harvey v. Director of Revenue

Docket NºWD 72606.
Citation371 S.W.3d 824
Opinion JudgeJOSEPH M. ELLIS, Judge.
Party NameNick R. HARVEY, Respondent, v. DIRECTOR OF REVENUE, Appellant.
AttorneyJonathan H. Hale, for Appellant. Laurie Ward, for Respondent.
Judge PanelBefore Court En Banc: LISA WHITE HARDWICK, Chief Judge, JAMES M. SMART, Judge, JOSEPH M. ELLIS, Judge, VICTOR C. HOWARD, Judge, THOMAS H. NEWTON, Judge, JAMES E. WELSH, Judge, ALOK AHUJA, Judge, MARK D. PFEIFFER, Judge, KAREN KING MITCHELL, Judge, CYNTHIA A. MARTIN, Judge and GARY D. WITT, Judge....
Case DateMay 09, 2012
CourtCourt of Appeals of Missouri

Page 824

371 S.W.3d 824 (Mo.App. W.D. 2012)

Nick R. HARVEY, Respondent,

v.

DIRECTOR OF REVENUE, Appellant.

No. WD 72606.

Court of Appeals of Missouri, Western District.

May 9, 2012

Motion for Rehearing and/or Transfer to Supreme Court Denied June 26, 2012.

Application for Transfer Denied Aug. 14, 2012.

Appellate courts should not become advocates for an appellant by speculating about facts and arguments that have not been made.

Page 825

Jonathan H. Hale, for Appellant.

Laurie Ward, for Respondent.

Before Court En Banc: LISA WHITE HARDWICK, Chief Judge, JAMES M. SMART, Judge, JOSEPH M. ELLIS, Judge, VICTOR C. HOWARD, Judge, THOMAS H. NEWTON, Judge, JAMES E. WELSH, Judge, ALOK AHUJA, Judge, MARK D. PFEIFFER, Judge, KAREN KING MITCHELL, Judge, CYNTHIA A. MARTIN, Judge and GARY D. WITT, Judge.

JOSEPH M. ELLIS, Judge.

The Director of Revenue (" Director" ) appeals from a judgment entered in the Circuit Court of Johnson County, Missouri reinstating the driving privileges of Nick R. Harvey. For the following reasons, the judgment is affirmed.

On August 16, 2009, at approximately 11:45 p.m., Harvey was stopped while driving an automobile in Johnson County, Missouri and, upon probable cause, was arrested for driving while intoxicated, § 577.010.1 Harvey was taken to the police station, where he submitted to a breath test of his blood alcohol level at 1:03 a.m. Harvey had whiskey-soaked chewing tobacco in his mouth when he was arrested, where it remained while the test was performed.2 The test indicated that Harvey had a blood alcohol concentration of .090 percent. Following the test, the arresting officer, Brian Daniel, seized Harvey's driver's license and informed him that his driving privileges would be suspended pursuant to § 302.505.

Harvey challenged the suspension of his driver's license, and the Director sustained the suspension following an administrative hearing. Harvey then requested de novo

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review of that decision by the circuit court. At trial, Harvey challenged the admission of the blood alcohol test results into evidence 3 and the validity of those test results in light of the fact that he had whiskey-soaked chewing tobacco in his mouth when the test was conducted. Following trial, the circuit court entered its judgment reinstating Harvey's driving privileges, stating, " The Court having heard the evidence and arguments of counsel, and being fully advised upon the law and facts, finds the issue(s) in favor of [Harvey] and against [the Director]." The Director appeals from that judgment.

As in any court-tried civil case, in a driver's license suspension case, this Court must affirm the trial court's 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." Zahner v. Director of Revenue, 348 S.W.3d 97, 100 (Mo.App. W.D.2011) (citing White v. Director of Revenue, 321 S.W.3d 298, 307 (Mo. banc 2010)). " We view the evidence in the light most favorable to the judgment and where the facts relevant to an issue are contested, deference is given to the circuit court's assessment of that evidence." Bieker v. Director of Revenue, 345 S.W.3d 254, 255 (Mo.App. S.D.2010).

In her sole point on appeal, the Director contends that the circuit court erred as a matter of law in following Hurt v. Director of Revenue, 291 S.W.3d 251 (Mo.App. S.D.2009), which the Director argues was improperly decided. The Director makes this claim based upon oral comments made by the circuit court following closing argument indicating that the circuit court thought Hurt to be controlling. However, the trial court made no reference to Hurt in its written judgment, and our review is ordinarily limited to the written judgment and does not extend to oral comments made by the trial court, which are not part of the judgment. Saunders v. Bowersox, 179 S.W.3d 288, 294 (Mo.App. S.D.2005). While an appellate court may consider oral comments made by the trial court to aid in interpreting an ambiguous judgment, " [w]here the language of the judgment is plain and unambiguous, we do not look outside the four corners of the judgment for its interpretation." Id. (internal quotation omitted).

We recognize that in Gholson v. Director of Revenue, 215 S.W.3d 229, 234-35 (Mo.App. W.D.2007), in a 6-5 decision, this Court considered oral statements made by the trial court in assessing the reasoning for the trial court's judgment and declining to affirm on an alternative basis not referenced in the judgment, despite the fact that no findings of fact and conclusions of law had been requested by the parties. In so doing, Gholson relied on prior cases that had stated that " a trial judge's oral comments, although not part of the court's judgment, may be considered as an explanation of the judgment." Id. at 234 (emphasis added and internal quotation omitted).

In Gholson, the trial court court's written judgment offered a single, specific reason for its decision:

The Court, having considered the evidence adduced, finds the matter in favor of Petitioner Steven D. Gholson and against Respondent Missouri Department of Revenue, in that Gholson rebutted the director's prima facie case by showing that Gholson was not observed at all times during the 15-minute observation period prior to the administration of a Blood Alcohol Content Test and that Gholson had an opportunity to place

Page 827

chewing gum in his mouth during that period. The Court finds the provisions of Missouri Department of Health Regulation 19 CSR 25.30.060 were not strictly followed as required by Carr v. Director of Revenue, 95 S.W.3d 121 (Mo.App. W.D.2002).

Id. at 231. Subsequent to the entry of judgment, the Director requested that the trial court amend its judgment and enter a specific finding related to whether it believed that Gholson had actually placed gum in his mouth during the observation period. Id. At the conclusion of the hearing on the Director's request, in the process of denying the request, the trial court stated that it had indeed based its judgment entirely on Carr and the officer's failure to observe the defendant for the entire observation period. Id. at 231-32. The trial court made clear that it had not made a factual finding that Gholson had placed gum in his mouth during the observation period. Id. Based upon the language of the judgment and the trial court's oral comments, this Court decided that it would not assume a finding on the part of the trial court that Gholson had placed gum in his mouth during the observation period. As a result, the majority reversed the trial court's judgment reinstating Gholson's license. Id. at 235. In so doing, the Gholson majority noted that the Missouri Supreme Court, in Graves v. Stewart, 642 S.W.2d 649, 651 (Mo. banc 1982), had held that gratuitous findings and conclusions contained in a written judgment form a proper basis for assigning error and should be reviewed.4 Id. at 234.

In the case at bar, the trial court did not offer a specific reason or reasons for its decision in its written judgment, simply stating, " The Court having heard the evidence and arguments of counsel, and being fully advised upon the law and facts, finds the issue(s) in favor of [Harvey] and against [the Director]." Thus, unlike Gholson, nothing in the written judgment reflects a specific reason or reasons for ruling in Harvey's favor or could be read, expressly or by implication, to rule out any reason or reasons therefore. There is no ambiguity to be resolved from this simple, general judgment. The conditions that caused this Court to disregard the usual rule and to consider the trial court's oral statements in Gholson are simply not present in this case. In fact, Matter of Fulton, 863 S.W.2d 931, 933 (Mo.App. W.D.1993), relied upon by Gholson in justifying consideration of the trial court's oral comments, makes clear that oral comments should not be considered where findings of fact and conclusions of law have not been requested but are gratuitously provided by the trial court:

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We typically disregard a trial court's oral statements made in ruling on an issue. Such statements are not part of the trial court's order or judgment and may be considered only as an explanation of the order or judgment. However, if neither party requests that the court make specific findings of fact or conclusions of law, we must resolve all factual issues in accordance with the result reached and must affirm the judgment under any reasonable theory supported by the evidence.

(Citations omitted). Because no findings or conclusions had been requested and the trial court had merely entered general findings of incapacity and the suitability of the individual appointed to be the guardian and conservator, this Court in Fulton disregarded the trial court's oral statements and viewed the evidence in the light most favorable to the trial court's general findings and sought to affirm under any reasonable basis. Id. at 933-34.

While a handful of appellate cases have taken the liberty of reviewing gratuitous oral comments made by the trial court in limiting the bases upon which an unambiguous, general judgment in favor of a party could be affirmed, even those cases have stated their position in discretionary terms, allowing that an appellate court may consider the oral comments. See Hudson v. Director of Revenue, 216 S.W.3d 216, 225 (Mo.App. W.D.2007) (" oral comments may be considered" ); Estate of Rogers v. Battista, 125 S.W.3d 334, 341 (Mo.App. E.D.2004) (" oral statements ... may be considered" ); In re Benson, 124 S.W.3d 79, 84 n. 2 (Mo.App. S.D.2004) (" [oral] statements ... may, nevertheless be considered" ); Milligan v. Wilson, 78...

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22 practice notes
  • 386 S.W.3d 858 (Mo.App. W.D. 2012), WD 74939, Green v. Director of Revenue
    • United States
    • Missouri Court of Appeals of Missouri
    • November 6, 2012
    ...findings are made shall be considered as having been found in accordance with the result reached." See Harvey v. Dir. of Revenue, 371 S.W.3d 824, 828 (Mo.App. W.D.2012) (en banc). [4] The Alcohol Influence Report prepared by Trooper Dunfee states: " I contacted Steve Fuller for Gr......
  • 462 S.W.3d 756 (Mo.App. E.D. 2015), ED101785, State v. Selvy
    • United States
    • Missouri Court of Appeals of Missouri
    • April 7, 2015
    ...Court entirely unless there is an ambiguity in the language of the written judgment or order" ); see also Harvey v. Dir. of Rev., 371 S.W.3d 824, 828 (Mo. App. W.D. 2012)(noting " we typically disregard a trial court's oral statements made in ruling on an issue. Such statements ar......
  • 456 S.W.3d 120 (Mo.App. W.D. 2015), WD77476, Noble v. Noble
    • United States
    • Missouri Court of Appeals of Missouri
    • March 10, 2015
    ...and does not extend to oral comments made by the trial court, which are not part of the judgment." Harvey v. Dir. of Revenue, 371 S.W.3d 824, 826 (Mo. App. W.D. 2012). Such comments, however, " may be considered . . . as an explanation of the order or judgment." In re Fulton,......
  • Holm v. Wells Fargo Home Mortgage Inc., 041916 MOCAW, WD78666
    • United States
    • Missouri Court of Appeals of Missouri
    • April 19, 2016
    ...accordance with the result reached and will affirm the trial court on any basis supported by the record. Hervey v. Director of Revenue, 371 S.W.3d 824, 828 (Mo. App. W.D. 2012). Wells Fargo claims that the Holms' wrongful foreclosure claim rested on three theories and that the Holms failed ......
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22 cases
  • 386 S.W.3d 858 (Mo.App. W.D. 2012), WD 74939, Green v. Director of Revenue
    • United States
    • Missouri Court of Appeals of Missouri
    • November 6, 2012
    ...findings are made shall be considered as having been found in accordance with the result reached." See Harvey v. Dir. of Revenue, 371 S.W.3d 824, 828 (Mo.App. W.D.2012) (en banc). [4] The Alcohol Influence Report prepared by Trooper Dunfee states: " I contacted Steve Fuller for Gr......
  • 462 S.W.3d 756 (Mo.App. E.D. 2015), ED101785, State v. Selvy
    • United States
    • Missouri Court of Appeals of Missouri
    • April 7, 2015
    ...Court entirely unless there is an ambiguity in the language of the written judgment or order" ); see also Harvey v. Dir. of Rev., 371 S.W.3d 824, 828 (Mo. App. W.D. 2012)(noting " we typically disregard a trial court's oral statements made in ruling on an issue. Such statements ar......
  • 456 S.W.3d 120 (Mo.App. W.D. 2015), WD77476, Noble v. Noble
    • United States
    • Missouri Court of Appeals of Missouri
    • March 10, 2015
    ...and does not extend to oral comments made by the trial court, which are not part of the judgment." Harvey v. Dir. of Revenue, 371 S.W.3d 824, 826 (Mo. App. W.D. 2012). Such comments, however, " may be considered . . . as an explanation of the order or judgment." In re Fulton,......
  • Holm v. Wells Fargo Home Mortgage Inc., 041916 MOCAW, WD78666
    • United States
    • Missouri Court of Appeals of Missouri
    • April 19, 2016
    ...accordance with the result reached and will affirm the trial court on any basis supported by the record. Hervey v. Director of Revenue, 371 S.W.3d 824, 828 (Mo. App. W.D. 2012). Wells Fargo claims that the Holms' wrongful foreclosure claim rested on three theories and that the Holms failed ......
  • Request a trial to view additional results