Belleville v. Director of Revenue, State of Mo., 74361
| Decision Date | 24 March 1992 |
| Docket Number | No. 74361,74361 |
| Citation | 825 S.W.2d 623 |
| Parties | Walter L. BELLEVILLE, Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Appellant. |
| Court | Missouri Supreme Court |
William L. Webster, Atty. Gen., Jatha B. Sadowski, Van M. Pounds, Sp. Asst. Attys. Gen., Jefferson City, for appellant.
Bernard Edelman, Clayton, for respondent.
The Director of Revenue administratively suspended Walter L. Belleville's driver's license. § 302.505. 1 Belleville petitioned the Circuit Court of St. Louis County for a trial de novo to review the suspension. § 302.535. The trial court reinstated Belleville's driver's license. Following an opinion by the Missouri Court of Appeals, Eastern District, the case was transferred to this Court pursuant to Rule 83.02. The judgment is reversed.
On appeal, the Director argues that blood alcohol content may be established by a written "test report" admitted as a business record under § 490.680. As intriguing as that question is, the record presented on appeal is so sparse and contradictory that it is impossible to make a disposition on the merits of the Director's claim.
A fundamental contradiction exists between the verbatim transcript of the record and the pre-printed form used by the trial judge to record what purports to be his order. In the transcript, the case was called by the trial judge. Belleville, his attorney, and the Director's attorney were present. The Director called the police officer who had arrested Belleville to the witness stand and had the witness sworn. At that point Belleville's lawyer interrupted, stating that he would be objecting to any attempts to introduce business records. After a colloquy with the trial judge, he stated, "[I]f they do not have the breath test operator present, then I would move to dismiss for failure to prosecute." After confirming that the breath test operator was not present, the trial judge stated, "I'll grant your motion."
The trial judge apparently uses a pre-printed form to enter orders relating to hearings under § 302.535. The form has a number of blocks or squares. Next to each block is a statement indicating some court action. In this case, three blocks were marked with an "X." The first block marked indicated that This is the first conflict with the written transcript. The second block marked was next to a statement that was partly pre-printed and partly handwritten indicating, "Respondent confesses petitioner's petition for review for the reason that an essential witness fails to appear [the remainder was written by hand] and state is denied calling a custodian of a business record to establish the breath test of petitioner." That statement also is inconsistent with the transcript. The Director's attorney did not confess any allegations in Belleville's petition. There is a final block containing an "X" next to which is a printed statement indicating that the petitioner's driver's license is reinstated.
At the outset, a question arises as to what weight the Court is to accord the trial judge's written findings. As previously noted, the written findings are in conflict with the verbatim transcript. In particular, the findings that the Director's lawyer announced "not ready" and that the Director's lawyer confessed allegations of Belleville's petition are unsupported by the transcript. Because those findings are not supported by substantial evidence in the record, they must be disregarded. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The justification for refusing to accept the written findings is reinforced by the fact that they appear as part of a pre-printed form. Printed forms are often useful, but slavish devotion to forms occasionally leads to an exercise in forcing round pegs into square holes. That may have occurred here.
The real basis for the trial court's judgment was a dismissal for failure to prosecute. 2 Dismissal for failure to prosecute is a matter within the trial court's discretion which will be reversed only upon an abuse of discretion. State ex rel. Webster v. Lehndorff Geneva, Inc., 744 S.W.2d 801, 804 (Mo. banc 1988). Judicial discretion is abused when a trial court's ruling is clearly against the logic of the circumstances then before the court and is so...
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