Hinton v. Director of Revenue
| Decision Date | 27 June 2000 |
| Citation | 21 S.W.3d 109 |
| Parties | (Mo.App. W.D. 2000) Robert Hinton, Respondent, v. Director of Revenue, Appellant. WD57589 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Clay County, Hon. A. Rex Gabbert
Opinion Summary: The Director of Revenue appeals from the trial court's award of attorney's fees and costs to Robert Hinton. The Director's sole point on appeal is that the trial court erred in awarding Hinton attorney's fees and costs because no statute authorizes such an award in a case involving revocation of a license due to the driver's refusal to take a chemical test.
REVERSED.
Division III holds:
Section 302.535.1 permits recovery of attorney's fees and costs only in cases falling under section 302.505, which concerns the suspension or revocation of a license because the driver had an excessive blood alcohol content. Hinton properly filed his petition for relief and received a hearing pursuant to section 577.041, which governs the situation in this case, where the driver's license was revoked for refusing to take a chemical test. The legislature has made no provision for the recovery of attorney's fees and costs when an action is brought under section 577.041. Therefore, the trial court did not have the authority to make such an award in this case.
The Director of Revenue appeals from the trial court's award of attorney's fees and costs to Robert Hinton. The Director's sole point on appeal is that the trial court erred in awarding Hinton attorney's fees and costs because no statute authorizes such an award in a case involving revocation of a license due to the driver's refusal to take a chemical test.
We reverse.
On June 16, 1998, Robert Hinton received notice from the Director that his driving privilege was revoked for one year beginning July 1, 1998, for refusing to submit to a chemical test. On July 1, 1998, Hinton filed a petition for hearing under section 577.041,1 contesting the Director's revocation of his driving privilege. The trial court entered a judgment upholding the Director's revocation of Hinton's driving privilege, and Hinton appealed. While the appeal was pending, Hinton filed a petition for attorney's fees and costs on appeal under section 302.536, in the event that this court reversed the trial court's judgment.
In Hinton v. Director of Revenue, 990 S.W.2d 207, 208-09 (Mo.App. W.D. 1999) (Hinton I), this court held that evidence indicating that Hinton did not receive warnings required by the implied consent statute, section 577.041, until after he had refused to take a breath alcohol test required reversal of the revocation of his driving privileges for failure to take the test. We remanded to the trial court with directions to enter a new judgment setting aside the Director's revocation of Hinton's driver's license. Hinton, 990 S.W.2d at 209. We also entered a separate order remanding to the trial court to "determine [Hinton's] Petition for Attorney's Fees on Appeal pursuant to section 302.536." We cited Devine v. Director of Revenue, 961 S.W.2d 87 (Mo.App. E.D. 1997).2
The trial court subsequently entered a judgment setting aside the Director's revocation of Hinton's driving privilege. The trial court also entered another judgment awarding Hinton $8,765.50 in attorney's fees and $226.16 in costs under section 302.536, the Devine case, and this court's mandate. The Director appeals from the trial court's judgment awarding Hinton attorney's fees and costs.
Our review of the trial court's award of attorney's fees and costs to Hinton is limited to determining whether the trial court's determination was arbitrary and capricious, unreasonable, unsupported by competent and substantial evidence, made contrary to law or in excess of the court's jurisdiction. State ex rel. Div. of Transp. v. Sure-Way Transp., Inc., 948 S.W.2d 651, 655 (Mo. App. W.D. 1997). Id.
The Director's sole point on appeal is that the trial court did not have jurisdiction to award Hinton attorney's fees and costs under section 302.536 because that statute applies only when an appellate court reverses a trial court's judgment entered under section 302.535.1, in which the trial court upholds the revocation or suspension of a license under section 302.505, for driving with an excessive blood alcohol content. The Director argues that the trial court's judgment in Hinton's case was not entered under section 302.535.1, but under section 577.041 and section 302.311, by which it sustained the Director's revocation of Hinton's license for refusing a chemical test.
Generally, with regard to awards of attorney's fees and costs, Missouri courts adhere to the "American rule," which provides that each litigant should bear his or her own expenses. Laubinger v. Laubinger, 5 S.W.3d 166, 181 (Mo.App. W.D. 1999). However, a trial court may order one party to pay the other's attorney's fees and costs where a statute authorizes such an award. Id. "Costs cannot be assessed against state agencies or state officials absent express statutory authority." Missouri Hosp. Ass'n v. Air Conservation Comm'n of State of Mo., 900 S.W.2d 263, 267 (Mo. App. W.D. 1995); accord Richardson v. State Highway & Transp. Comm'n, 863 S.W.2d 876, 882 (Mo. banc 1993). Waivers of sovereign immunity, such as statutes allowing recovery of attorney's fees and costs against the State, are strictly construed. Richardson, 863 S.W.2d at 882.
Because Hinton is seeking attorney's fees and costs from a state official, we must determine whether there is statutory authority for such an award. Section 302.536 provides as follows:
If the judge upholds the department's ruling to suspend or revoke a person's license after a hearing conducted pursuant to subsection 1 of section 302.535, and the person appeals such ruling, the department shall pay any court costs and attorney fees the person incurs pursuant to such appeal if the court reverses the department's ruling to suspend or revoke such person's license.
Section 302.535.1 provides as follows:
Any person aggrieved by a decision of the department may file a petition for trial de novo by the circuit court. The burden of proof shall be on the state to adduce the evidence. Such trial shall be conducted pursuant to the Missouri rules of civil procedure and not as an appeal of an administrative decision pursuant to chapter 536, RSMo. The petition shall be filed in the circuit court of the county where the arrest occurred. The case shall be decided by the judge sitting without a jury. The presiding judge of the circuit court may assign a traffic judge, pursuant to section 479.500, RSMo 1994, a circuit judge or an associate circuit judge to hear such petition.
Section 302.535 is contained in a grouping of statutes relating to the suspension of driving privileges because the driver had an excessive blood alcohol content. Section 302.505 requires that the department suspend or revoke the license of anyone arrested with probable cause to believe such person was driving with an alcohol concentration of ten-hundredths of one percent or more by weight. Section 302.530 provides for administrative review of such a suspension or revocation, with the sole issue at the hearing being "whether by the preponderance of the evidence the person was driving a vehicle pursuant to the circumstances set out in section 302.505." Section 302.530.4. The section also provides that the administrative decision is final unless an appeal is filed for judicial review pursuant to section 302.535. Section 302.530.7. Section 302.536 provides for the potential recovery of attorney's fees and costs only for hearings conducted pursuant to section 302.535.1.
Section 302.535.1 permits the recovery of fees and costs only in cases falling under section 302.505, which concerns the suspension or revocation of a license because the driver had an excessive blood alcohol content. Section 577.041, which deals with license revocations for refusing to take a chemical test, governs...
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