Brinkerhoff v. Schwendiman
| Decision Date | 09 April 1990 |
| Docket Number | No. 890499-CA,890499-CA |
| Citation | 790 P.2d 587 |
| Parties | Verdon C. BRINKERHOFF, Plaintiff and Appellee, v. Fred C. SCHWENDIMAN, Director; and the Office of Driver License Services, State of Utah, Defendants and Appellants. |
| Court | Utah Court of Appeals |
R. Paul Van Dam, Atty. Gen., Richard D. Wyss, Asst. Atty. Gen. (argued), Salt Lake City, for defendants and appellants.
William R. Russell (argued), Salt Lake City, for plaintiff and appellee.
Before DAVIDSON, BENCH and BILLINGS, JJ.
The Division of Driver License Services, Department of Public Safety of the State of Utah ("DLS") appeals a Third District Court order reinstating Verdon C. Brinkerhoff's ("Brinkerhoff") driver's license. We reverse and remand to the district court to reinstate DLS's order suspending Brinkerhoff's driving privileges. We find any procedural errors that occurred at the informal DLS hearing were either waived or were cured by the trial de novo on the merits at the district court as provided for by the Utah Administrative Procedures Act ("UAPA"), Utah Code Ann. §§ 63-46b-1 to -22 (1989).
Brinkerhoff was arrested for driving under the influence of alcohol on October 26, 1988. After an informal hearing, DLS suspended Brinkerhoff's driving privileges for a period of ninety days. After a trial de novo, the district court found that Brinkerhoff was driving in violation of Utah Code Ann. § 41-6-44 (1988). The court stated at the trial de novo, 1 The district court nevertheless reinstated Brinkerhoff's license because DLS had failed to comply with certain provisions of the UAPA. Thus, the issue before this court is whether the Third District Court properly reinstated Brinkerhoff's driver's license because of DLS's alleged violations of the UAPA.
Brinkerhoff, at the district court trial de novo, complained that DLS violated section 63-46b-3 because the original notice of hearing sent to him did not designate whether the hearing would be formal or informal. Brinkerhoff also claims DLS violated section 63-46b-5 because the administrative order that suspended his license did not give a sufficient explanation of the reasons for the decision. 2 The trial court accepted Brinkerhoff's legal arguments and reinstated Brinkerhoff's driving privileges even though the trial de novo confirmed that Brinkerhoff had violated section 41-6-44.
Our review of this case is limited to an examination of the district court's legal conclusion that DLS's violations of the UAPA required reinstatement of Brinkerhoff's driving privileges. Therefore, we review the trial court's conclusions of law under a correction-of-error standard. Scharf v. BMG Corp., 700 P.2d 1068, 1070 (Utah 1985); Stewart v. Coffman, 748 P.2d 579, 580-81 (Utah Ct.App.1988).
NOTICE UNDER SECTION 63-46b-3(2)(a)(v)
The first question before us is whether the administrative suspension of Brinkerhoff's driver's license should have been reversed because of DLS's failure to include in its notice of hearing whether the DLS license revocation hearing was formal or informal pursuant to Utah Code Ann. § 63-46b-3(2)(a)(v) (1989). Section 63-46b-3(2)(a) states:
The notice of agency action shall be in writing, signed by a presiding officer, and shall include:
....
(v) a statement of whether the adjudicative proceeding is to be conducted informally according to the provisions of rules adopted under Sections 63-46b-4 and 63-46b-5, or formally according to the provisions of Sections 63-46b-6 to 63-46b-11....
It is axiomatic in our adversary system that a party must raise an objection in an earlier proceeding or waive its right to litigate the issue in subsequent proceedings. Lopez v. Schwendiman, 720 P.2d 778, 781 (Utah 1986) (); Condas v. Condas, 618 P.2d 491, 495 n. 8 (Utah 1980) () (citing Dugger v. Cox, 564 P.2d 300 (Utah 1977)); Sanders v. Cassity, 586 P.2d 423, 427 (Utah 1978).
This principle is not limited to the trial court setting, but applies equally to administrative hearings. State ex rel. M.S., 781 P.2d 1289, 1290 (Utah Ct.App.1989); Paul v. City of Manhattan, 212 Kan. 381, 511 P.2d 244, 249 (1973) (); Dry v. Pauls Valley Health Care Facility, 771 P.2d 238, 239-40 (Okla.1989) (); In re Adoption of D.M.J., 741 P.2d 1386, 1389 (Okla.1985) ().
Both parties agree that the notice of hearing sent to Brinkerhoff did not advise him whether the hearing was to be formal or informal. Brinkerhoff first learned that the hearing would be informal when, at the beginning of the hearing, Brinkerhoff's attorney asked the hearing officer whether the hearing would be formal or informal. The hearing officer informed Brinkerhoff that the hearing would be informal. Brinkerhoff did not object at this time either to the notice he had received of the hearing or to an informal proceeding. Furthermore, Brinkerhoff never requested a continuance of the hearing because of this allegedly inadequate notice. In fact, the record shows that Brinkerhoff was present at the hearing ready to proceed and fully participated in the informal hearing. Brinkerhoff first complained of inadequate notice during his attorney's closing argument.
Brinkerhoff's failure to object to the manner of notice or type of hearing at the beginning of the suspension hearing when he was clearly informed that the proceeding would be conducted informally precludes him from claiming error in this appeal. 3
Further, in viewing all the facts in the light most favorable to Brinkerhoff, we can find no prejudice. Harris v. Utah Transit Auth., 671 P.2d 217, 222-23 (Utah 1983); Moore v. Burton Lumber & Hardware Co., 631 P.2d 865, 868 (Utah 1981). Brinkerhoff neither below nor on appeal articulates how he was prejudiced by DLS's failure to notify him in the notice of hearing that the hearing was going to be informal. It seems clear that no prejudice would ordinarily occur when an informal hearing is held under the UAPA because the litigant has an absolute right to a trial de novo before the district court. In this trial de novo, Brinkerhoff was able to present his entire case before a new tribunal for an independent...
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