Carter v. Dir. of Revenue
| Decision Date | 23 September 2019 |
| Docket Number | No. SD 35818,SD 35818 |
| Citation | 584 S.W.3d 811 |
| Parties | Bobby J. CARTER, Petitioner-Appellant, v. DIRECTOR OF REVENUE, State of Missouri, Respondent-Respondent. |
| Court | Missouri Court of Appeals |
Appellant’s Attorney: James M. McClellan, of Sikeston, Missouri.
Respondent’s Attorneys: Eric S. Schmitt, Attorney General, and Daniel N. McPherson, Assistant Attorney General, of Jefferson City, Missouri.
Bobby J. Carter ("Carter") appeals the judgment of the trial court dismissing his "Petition for Review of Suspension of Driving Privilege" in one point relied on. Finding no merit to Carter’s point, we deny the same and affirm the judgment of the trial court.
On February 14, 2018, Carter was arrested for driving while intoxicated (along with multiple other charges). A blood sample showed Carter’s blood alcohol content at 0.166 percent. Thereafter, Carter received notice from the Director of Revenue (the "DOR") that his commercial driver’s license ("CDL") and base driving privileges would be suspended. He requested an administrative hearing before the DOR, pursuant to section 302.530,1 which was conducted on September 4, 2018.
The hearing officer sustained the suspension. On September 5, 2018, the DOR mailed to Carter, and his attorney, a notice reflecting the hearing officer’s decision.2 The notice contained a "FINAL ORDER COVER SHEET ," which, in relevant part, recites:
The hearing officer’s "Findings of Fact and Conclusions of Law" (also mailed to Carter and his attorney as part of the notice), directed in relevant part that Carter’s "privilege to drive in the state of Missouri is hereby suspended as authorized and required by Sections 302.5053 and 302.525[.]"4 Following directly after and on the same page, the hearing officer indicated that the "Date of Mailing to Petitioner" was September 5, 2018, and that the "Date of Suspension" was "September 20, 2018." A "NOTICE " at the bottom of the same page stated:
The notice also contained a "Notice of Disqualification of Your Driving Privilege From Operating Class A, B and/or C Commercial Motor Vehicle ," which indicated, in relevant part, as follows:
On September 21, 2018, Carter filed a "Petition for Review of Suspension of Driving Privilege" in the Circuit Court of Mississippi County, Associate Division. Carter’s petition asserted that his "privilege to drive a motor vehicle in Missouri will be suspended effective October 7, 2018," and that "pursuant to Section 302.311,5 ... [Carter] requests an appeal of the suspension of his driving privilege." The Director filed an answer, denying Carter’s latter averment. Thereafter, the Director filed a motion to dismiss Carter’s petition arguing Carter "did not file a petition for trial de novo within fifteen days as required by § 302.530.6," and therefore "failed to exhaust his administrative remedies in the manner expressly provided by the review procedures of Mo. Rev. Stat. §§ 302.500 - 302.5406 and is therefore precluded from judicial review."
The trial court heard arguments on the DOR’s motion to dismiss on November 27, 2018, and granted the motion. This appeal followed.
On appeal, our standard of review is well-settled. We must affirm the trial court’s judgment unless: (1) there is no substantial evidence to support it; (2) it is against the weight of the evidence; (3) the trial court erroneously declared the law; or (4) the trial court erroneously applied the law.
Owen v. Dir. of Revenue , 256 S.W.3d 605, 608 (Mo.App. S.D. 2008).
In his point relied on, Carter argues as follows:
The trial court erred by dismissing appellant’s trial de novo right to hearing because section 302.311, RSMo. and/or Section 302.530.7, RSMo. were controlling[,] not section 302.530.6, RSMo. as the notice was conflicting and therefore appellant’s due process rights were denied.
Carter’s argument section essentially bifurcates his claim as follows: (1) sections 302.530.6 & .7 conflict, section 302.530.6 controls, and the trial court was therefore in error when it dismissed his petition; and (2) "the Department’s Notice is conflicting" because it includes language to the effect that the deadline for Carter’s appeal for trial de novo was "30 days from September 05, 2018" but also "by the effective date of your suspension/revocation," and is defective because "no where [sic] does the NOTICE state Driver has fifteen (15) days to appeal."
Carter’s first argument presumes a conflict, asserts the outcome of applying subsection 6 would be "unreasonable or absurd," and thereby concludes that "the logical construction is for subsection 7 which gives the Driver 15 days from ‘receipt of the decision to appeal’ and, thus, assures delays in mail do not denigrate or destroy his due process rights." The contested portion of section 302.530 states:
(Emphasis added).
We need not engage in a lengthy due process analysis,7 policy discussion, or even delve into statutory interpretation—this is not an issue of first impression (as Carter impliedly presumes), but rather of stare decisis. Our Supreme Court explicitly delineates how subsections .6 and .7 are to be read together: Strup v. Dir. of Revenue , 311 S.W.3d 793, 797 n.4 (Mo. banc 2010).8
To that end, our Supreme Court recently clarified—in plain terms—that complaints as to the particulars of DOR notices are not a panacea for unfavorable outcomes:
While a notice cannot mislead, parties are held to a knowledge of the law. Notice required by the Due Process Clause simply must ensure that the opportunity for a hearing is meaningful, so that once informed of an administrative action, the person can turn to public sources to learn about the remedial procedures available to him.[9 ] ... [D]ue process does not require notice that some particular step must be taken or that certain procedure be followed; the opportunity afforded is to make a choice of whether to appear or default, acquiesce or contest. The director had no obligation to act as counsel to the driver[.]
Carvalho v. Director of Revenue , SC97394, ––– S.W.3d ––––, ––––, 2019 WL 1247086, *8 (Mo. banc Mar. 19, 2019) (internal quotations and citations omitted). Carter’s argument in this vein must fail.
We proceed to Carter’s notice challenges—i.e. , that Carter is entitled to relief because (1) "no where [sic] does the NOTICE state Driver...
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