Ezenwa v. Director of Revenue, State of Mo., WD

• Decision Date: 22 May 1990
• Docket Number: No. WD,WD
• Parties: Donatus EZENWA, Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Appellant. 42502.
• Court: Missouri Court of Appeals

Page 854

791 S.W.2d 854

Donatus EZENWA, Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Appellant.

No. WD 42502.

Missouri Court of Appeals Western District.

May 22, 1990.

William L. Webster, Atty. Gen., Jatha B. Sadowski, Sp. Asst. Atty. Gen., Jefferson City, for appellant.

Gerald L. Thompson, Kansas City, for respondent.

Before SHANGLER, P.J., and CLARK and BERREY, JJ.

SHANGLER, Presiding Judge.

This is an appeal from a judgment of the circuit court in favor of the petition brought by Donatus Ezenwa, a holder of a Kansas driver's license. The petition was in two counts.

The first count was for review [presumably under § 302.311] of an order of revocation of the license to operate a motor vehicle in Missouri entered by the director of revenue. The revocation was the consequence of the refusal by Ezenwa to submit to a chemical test to determine the alcohol content of his blood after arrest for driving a motor vehicle on the thoroughfares of this state. § 577.041, RSMo Supp.1989. The count for review pleaded that Ezenwa did not knowingly refuse to take the chemical test on the date alleged. It pleaded also that Ezenwa received no notification of the revocation, but became aware of that official action only after he was stopped for a traffic offense and was then charged with driving while the license was revoked. Ezenwa sought to be relieved of that order of suspension.

The second count was an application for a hardship driving privilege under § 302.309.3, RSMo Supp.1989. The pleading, confirmed by an appended affidavit, asserted that Ezenwa was not ineligible for the hardship privilege for any of the reasons delineated in § 302.309.3(5). That section precludes the hardship driving privilege to a person who has more than once within the period of five years before the application refused to submit to the chemical test. § 302.309.3(5)(d). In fact, as the evidence adduced by the certified records of the director shows, Ezenwa refused to submit to a breath analysis twice, on August 11, 1987, and on June 18, 1988. Thus, the remedy the second count invoked was precluded to Ezenwa by the literal text of § 302.309.3(5)(d). ¹ Ezenwa nevertheless sought the order of the circuit court to allow him the privilege to operate his motor vehicle to the place of employment and schooling, and return.

The petition named the director of revenue as the defendant, and the county prosecutor appeared as counsel.

The director moved to dismiss the first count as an untimely petition for review under § 302.311. That section confers on one whose license is revoked by the director the status of aggrieved party and the right of review to the circuit court within thirty days after notice of the administrative revocation. The motion to dismiss by the director assumes that the first count seeks review of the earlier incident of revocation--that of August, 1987--and addresses that order. Indeed, the petition for review as pleaded by Ezenwa gives that understanding, and the answer to the petition by the director allows no other understanding. The associate circuit judge sustained the motion and ordered the petition for review and the adjunct application for hardship driving privilege dismissed. ²

Thereafter, Ezenwa moved the court to reconsider the order of dismissal. There was appended to the motion an affidavit by the legal assistant to counsel for the petitioner that Ezenwa was "having trouble receiving his mail." ³ The cause was taken up by a different associate circuit judge, who entertained the proceeding. Counsel for Ezenwa then asserted to the court--and for the first time--that the petition for review addressed the second incident of revocation, that of June, 1988. It was as to that revocation that notice by the director failed because Ezenwa was "having trouble receiving his mail." The verbal declarations of counsel were the only support for the substance of the petition for review as well as for its timeliness as an appeal from the order of the director under § 302.311. The prosecutor was present, but tacit.

This indistinctiveness of pleading, procedure and proof pervaded the proceedings, and they came to nothing. The order of the associate circuit judge notwithstanding, the grant of relief on the petition for review so to enable the adjunct application for the hardship privilege was a non-adjudication. It is from this judgment as formulated that the director of revenue appeals.

A review to the circuit court of a motor vehicle license revocation is de novo and proceeds in the manner provided by chapter 536. § 302.311. The decision of the director to revoke the Ezenwa license upon the affidavit of the officer that he refused to take the chemical tests is in a noncontested case, and so is governed by the procedures of § 536.150 and Rule 100.01. See § 536.010(2).

In the "review" of such an administrative decision, the circuit court "does not review evidence but determines evidence, and on the facts as found adjudges the validity of the agency decision." Phipps v. School Dist. of Kansas City, 645 S.W.2d 91, 95 (Mo.App.1982). In short, under the procedures of § 536.150 the circuit court conducts a hearing as on an original action and on the facts as found determines post hoc whether the administrative decision was lawful. Id. That determination is expressed as an original judgment, and it is the judgment of the circuit court--and not the action of the administrative agency--that comes for review in the court of appeals. Id. at 96. The scope of our review is as defined in Rule 73.01 and explained in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976); State ex rel. Clark v. Board of Trustees, Kansas City Employees' Retirement System, 728 S.W.2d 562, 564 (Mo.App.1987). It is also within our power of disposition upon the completion of review to "give such judgment as the court ought to give." Rule 84.14; Loomstein v. Medicare Pharmacies, Inc., 750 S.W.2d 106, 115 (Mo.App.1988).

The proceeding before the associate circuit judge on the petition for review the record reports does not resemble the judicial trial de novo § 302.311 accords to a licensee aggrieved by the decision of the director to revoke or that § 536.150 contemplates. The rule of the court on "judicial review" of a noncontested case under § 536.150 is to hear evidence on the merits of the case, to find the facts, and to make a record. Phipps v. School Dist. of Kansas City, 645 S.W.2d at 94-5; A. Neely and D. Shinn, 20 Missouri Practice, Administrative Practice and Procedure, § 12.02 (1986). It is akin to the adjudicative function in a jury waived case. ⁴ Long v. Bates County Memorial Hosp., Bd. of Directors, 667 S.W.2d 419, 422[2, 3] (Mo.App.1983). These fundaments of adjudication, however, were not observed. The result is a judgment in form only.

The first count of the Ezenwa petition is for judicial review of the decision of the director of revenue to revoke the Ezenwa driver's license for refusal to submit to the chemical test. The decision to revoke under § 577.041 rests on three findings; (1) that the licensee was arrested; (2) that the arresting officer had reasonable grounds to believe that the licensee was driving a motor vehicle while in an intoxicated condition; and (3) that the licensee refused to submit to the chemical test. A presumption of validity attends an administrative determination, and the proponent of a petition for judicial review of the decision bears the burden to overcome the presumption. Gamble v. Hoffman, 732 S.W.2d 890, 892 (Mo. banc 1987). In the context of a trial de novo of this noncontested case under § 302.311, the burden falls upon the petitioner to show that "in view of the facts as they appear to the court, [the decision to revoke] was unconstitutional, unlawful, unreasonable, arbitrary, or capricious or involves an abuse of discretion." § 536.150.1. The presentation by counsel for Ezenwa to the associate circuit court impugns only the third premise of the revocation under § 577.041--that Ezenwa refused to take the breathalyzer test.

In the posture of this petition for review of a revocation filed more than one year after the revocation order was entered by the director of revenue, Ezenwa bore the additional burden to prove that the appeal was taken "within thirty days after notice" of the revocation. § 302.311. Scanlon v. Kansas City, 325 Mo. 125, 28 S.W.2d 84, 92 (banc 1930); Romans v. Director of Revenue, 783 S.W.2d 894, 896 (Mo. banc 1990). That limitation of time is jurisdictional. Palazzolo v. Director of Revenue, 760 S.W.2d 190, 191 (Mo.App.1988).

The judgment entered by the associate circuit judge on the petition does not adjudicate the separate count that pleading alleges--to reinstate the license revoked by the director under § 577.041 and to grant a hardship driving privilege under § 302.309.3. The judgment, rather, collapses the two causes of action with the findings that Ezenwa did not receive notice of the agency revocation of his driving privilege based on a refusal to take the chemical test, that Ezenwa made a timely request for review, and that Ezenwa did not knowingly refuse to take a chemical test on June 18, 1988--and so is not ineligible for the hardship driving privilege. The formal judgment orders only the grant of the privilege to Ezenwa.

None of the "findings" rest on probative evidence, thus the ground on which the order of grant of privilege implicitly rests--the "judgment" to reinstate the license--does not support that adjunctive proceeding.

It is of consequence that all of the "findings", the premises of the "judgment" and order, were as to contested issues. The answer of the director--as did the motion to dismiss--put into issue the untimely pleading for review of the review of the revocation of the license, reasserted that Ezenwa refused the chemical test, and reasserted that Ezenwa received notice of the revocation in contention. ⁵ The representation of counsel for Ezenwa on oral...