Pavlica v. Director of Revenue

• Decision Date: 19 March 2002
• Docket Number: No. WD 59790.,WD 59790.
• Parties: Adam C. PAVLICA, Appellant, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Respondent.
• Court: Missouri Court of Appeals

71 S.W.3d 186

Adam C. PAVLICA, Appellant, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Respondent.

No. WD 59790.

Missouri Court of Appeals, Western District.

March 19, 2002.

Robert H. Schnieders, Oak Grove, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., James H. Klahr, Asst. Atty. Gen., Jefferson City, for Respondent.

Before SPINDEN, C.J., and EDWIN H. SMITH and NEWTON, JJ.

EDWIN H. SMITH, Judge.

Adam C. Pavlica appeals from the trial court's denial of his application for attorney's fees and costs on appeal, as authorized by § 302.536.¹ The appellant sought attorney's fees and costs incurred as a result of an appeal by the Director of Revenue (the Director) of the trial court's reinstatement of his driver's license, after a trial de novo, as authorized by § 302.535. The appellant's driver's license had been suspended pursuant to § 302.505, RSMo. 1994, for his arrest upon probable cause to believe that he was driving a motor vehicle with a blood alcohol concentration (BAC) of ten-hundredths of one percent or more by weight.

The appellant raises two points on appeal. In Point I, he claims that the trial court erred in denying his application for attorney's fees and costs on appeal because the trial court erroneously declared and applied § 302.536 in that, contrary to the interpretation given that section by the trial court in denying his application for attorney's fees and costs, it should be interpreted as applying to both an unsuccessful appeal by the Director from a ruling reinstating the driver's license, as well as a successful appeal by the driver from a ruling upholding the suspension or revocation by the Director. In Point II, he claims in the alternative, that even if we find in Point I that § 302.536 should be interpreted as only applying to a successful appeal by the driver from a ruling by the trial court upholding the Director's suspension or revocation of his or her license, the court still erred in denying his application for attorney's fees and costs because such an interpretation of § 302.536 would result in an equal protection violation.

We affirm.

Facts

As a result of his arrest for driving while intoxicated, the appellant had his driver's license suspended pursuant to § 302.505. Having exhausted his administrative remedies to reinstate his license, he sought judicial review by way of trial de novo, as authorized by § 302.535. Accordingly, a trial de novo was conducted on May 19, 1999, at the conclusion of which, the appellant's license was ordered reinstated. The Director appealed the reinstatement to this court. We affirmed the trial court's ruling in an unpublished opinion, Pavlica v. Dir. of Revenue, WD 57438, 39 S.W.3d 920 (Mo.App.2000).

On September 20, 2000, the appellant filed an application for attorney's fees and costs in the Circuit Court of Lafayette County, pursuant to § 302.536. The application was heard on January 17, 2001, and taken under advisement. On February 14, 2001, the trial court entered its judgment denying the appellant's application, finding that "[b]y the clear language of § 302.536 R.S.Mo., it does not apply to a driver who wins his trial de novo and incurs expense defending an appeal brought by the Department of Revenue."

This appeal follows.

I.

In Point I, the appellant claims that the trial court erred in denying his application for attorney's fees and costs on appeal by the Director from the reinstatement of his license because the trial court erroneously declared and applied § 302.536 in that, contrary to the interpretation given that section by the trial court in denying his application, it should be interpreted as applying to both an unsuccessful appeal by the Director from a ruling reinstating the driver's license, as well as a successful appeal by the driver from a ruling upholding the suspension or revocation by the Director. Thus, the issue is the proper interpretation to be given to § 302.536.

We will affirm the trial court's denial of the appellant's § 302.536 application for attorney's fees and costs on appeal, unless it was not supported by substantial evidence, was against the weight of the evidence, or the court erroneously declared or applied the law. Wellner v. Dir. of Revenue, 16 S.W.3d 352, 354 (Mo. App.2000). Where, as here, the issue presented is one of statutory interpretation, a question of law, our review is de novo. Hunter v. County of Morgan, 12 S.W.3d 749, 755 (Mo.App.2000).

In interpreting statutes, we are to ascertain the intent of the legislature. Habjan v. Earnest, 2 S.W.3d 875, 881 (Mo. App.1999). In doing so, we are to give the language used its plain and ordinary meaning. Id. Where the legislative intent is made evident by giving the language employed in the statute its plain and ordinary meaning, we are without authority to read into the statute an intent, which is contrary thereto. Id. "When the legislative intent cannot be ascertained from the language of the statute, by giving it its plain and ordinary meaning, the statute is considered ambiguous and only then can the rules of statutory construction be applied." Id. (citing Bosworth v. Sewell, 918 S.W.2d 773, 777 (Mo. banc 1996)).

There is no dispute that the only authority for an award of attorney's fees and costs in this case would be in accordance with § 302.536. The dispute arises over the interpretation to be given to that section in determining its reach. While the appellant contends that it ought to apply not only to a successful appeal by a driver who loses the trial de novo provided by § 302.535.1, but to an unsuccessful appeal by the Director, after the Director loses the trial de novo. The Director contends that the section can be read as only applying to the former, but not the latter. We agree.

Section 302.536 reads:

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.

Giving the language of this section its plain and ordinary meaning, it is crystal clear that the legislature intended that the payment of court costs and attorney fees by the Department of Revenue occur only where three conditions are met: (1) the trial court, at the trial de novo stage, upholds the suspension or revocation; (2) the trial court's ruling is appealed by the driver; and (3) on appeal, the ruling is reversed. These three conditions are made obvious by the use in the statute of the terms "judge upholds," "person appeals," and "court reverses," respectively.

The appellant essentially concedes that when read alone § 302.536 only provides for an award of attorney's fees and costs where the driver is unsuccessful at the trial de novo stage and successfully appeals. However, he argues that § 302.536 must be read in pari materia with § 536.087, and when it is, that the interpretation for which he argues becomes the correct one. Under the statutory construction of in pari materia, statutes that relate to the same subject matter are to be read together to determine their meaning. KC Motorcycle Escorts, L.L.C. v. Easley, 53 S.W.3d 184, 187 (Mo.App. 2001). The problem with the appellant's argument is that driver's license proceedings have been expressly excluded from the reach of § 536.087 by § 536.085.1. Atkins v. Dir. of Revenue, 6 S.W.3d 428 (Mo.App.1999). Logically, we cannot be guided in interpreting one statute by reading it together with another statute, which expressly excludes the subject matter of the statute that we are interpreting.

The appellant further contends, in support of his interpretation of the statute, that despite the clear language of the statute the legislature could not have intended what they said in that it would be inequitable to allow the recovery of attorney's fees and costs where the driver is unsuccessful at the trial de novo stage and successful on appeal, but not where the driver is successful both at the trial de novo stage and on appeal. This contention, however, ignores the oft-stated principle in statutory interpretation that it "is not the Court's province...