Session v. Dir. Revenue

• Decision Date: 28 January 2014
• Docket Number: No. WD 76415.,WD 76415.
• Citation: 417 S.W.3d 898
• Parties: Darnay SESSION, Appellant, v. DIRECTOR OF REVENUE, Respondent.
• Court: Missouri Court of Appeals

417 S.W.3d 898

Darnay SESSION, Appellant,

v.DIRECTOR OF REVENUE, Respondent.

No. WD 76415.

Missouri Court of Appeals, Western District.

Jan. 28, 2014.

James Robert Layton, Jefferson City, for Appellant.

Darnay Session, Kansas City, Appellant Acting Pro Se.

Before Division One: ALOK AHUJA, P.J., THOMAS H. NEWTON, ANTHONY REX GABBERT, JJ.

ANTHONY REX GABBERT, Judge.

Darnay L. Session, Sr., pro se, appeals the circuit court's judgment dismissing his petition contesting the final decision of the Director of Revenue which suspended his driver's license after an evidentiary hearing for failure to maintain financial responsibility on his vehicle. Session asserts two points on appeal.¹ First, Session contends that the circuit court erred in finding that he failed to timely file his petition pursuant to Section 303.290.2, RSMo 2000, because the decision was against the weight of the evidence and the court failed to apply Section 302.515.2, RSMo 2000, which provides for an exception to the time limitations if notice of license suspension or revocation is returned by postal authorities. Second, Session argues that the court erred in finding that he failed to timely file his petition for review because the Director's obligations pursuant to Section 32.030, RSMo 2000, require the Director to take additional reasonable steps to notify a driver, prior to suspending a driver's license, when certified mail is returned unclaimed. We affirm.²

On December 2, 2011, the Director upheld a suspension of Session's driving privileges for noncompliance with the mandatory insurance provisions of Section 303.025, RSMo Cum.Supp.2010. The Director also upheld a decision pursuant to Section 303.030, RSMo 2000, requiring Session to post $1,894 bond or pursue other remedies set forth by the court. Notice of the decision was mailed to Session via certified mail on December 2, 2011. There is no dispute that the notice was sent to Session's accurate address. Session filed with this court a copy of the envelope which contained that notice.³ The envelopecontains a postal meter label indicating that the notice was sent certified mail on December 2, 2011. The envelope contains the dates “12/5/11,” “12/19,” and “12/25” handwritten underneath the letters “NL.” The envelope also contains a “Return to Sender, Unclaimed, Unable to Forward” sticker. Finally, the envelope has a handwritten notation of “Remailed reg. 1st class 1–3–12” with initials below it.

On January 11, 2011, Session filed a petition with the circuit court seeking relief from the Director's decision. On February 3, 2012, the Director filed a motion to dismiss Session's petition alleging that Session failed to timely file his petition. On May 6, 2013, the circuit court concluded that it lacked jurisdiction to entertain the petition because Session failed to comply with the requirements of Section 303.290.2.⁴ The court dismissed Session's case and Session appeals that dismissal.

“The proper standard of review for a trial court's grant of a motion to dismiss a petition is de novo.” In re Estate of Austin, 389 S.W.3d 168, 171 (Mo. banc 2013). In determining the appropriateness of the dismissal, we review the grounds raised in the motion to dismiss. Id. Here, the director moved to dismiss Session's petition because it was untimely filed pursuant to Section 303.290.2. Section 303.290.2 provides in part:

Any decision, finding or order of the director, under the provisions of this chapter shall be subject to review by appeal to the circuit court of the county of the residence of the licensee, at the instance of any party in interest, in the manner provided by chapter 536, at any time within thirty days after notice is given the licensee of such decision, finding or order.

Our Eastern District has held that under Section 303.290.2 “[t]he date notice is given is the date of the mailing of the administrative decision.” Kalb v. Director of Revenue, State of Mo., 32 S.W.3d 126, 128 (Mo.App.2000). “The phrase ‘within thirty days' has been interpreted to mean that the appeal must be filed on or before the thirtieth day.” Id. Session concedes these points. In Session's case, the administrative decision was mailed on December 2, 2011. The thirtieth day thereafter would have been January 1, 2012. Pursuant to Rule 44.01(a), because January 1st was a legal holiday which fell on a Sunday, and January 2nd was recognized as the legal holiday, Session's due date for filing his petition would have been January 3, 2012. Session filed his petition on January 11, 2012. The circuit court dismissed the petition as having failed to comply with the requirements of Section 303.290.2.

In his first point on appeal, Session contends that the circuit court erred in finding that he failed to timely file his petition pursuant to Section 303.290.2 because the decision was against the weight of the evidence and the court failed to apply Section 302.515.2 which provides for an exception to the time limitations if notice of license suspension or revocation is returned by postal authorities. Section 302.515.2 states that “notice is deemed received three days after mailing, unless returned by postal authorities.” Session argues that because his notice was first returned to postal authorities, Section 302.515.2 means that he cannot be held to have received notice when it was sent because it was thereafter returned. We find Section 302.515 inapplicable to Section 303.290.2.⁵

Section 302.515 regards the notice of license suspension or revocation that is given by the Department of Revenue after making a determination pursuant to Section 302.505. Section 302.505 is a statute that authorizes the suspension or revocation of a driver's license where it is determined that a person “was arrested upon probable cause to believe such person was driving a motor vehicle while the alcohol concentration in the person's blood, breath, or urine” exceeded statutorily prescribed limits. Session's license was suspended for his alleged failure to maintain insurance coverage on his vehicle pursuant to Section 303.025, not for an alcohol related offense pursuant to Section 302.505. Chapter 303 of the Revised Statutes of Missouri, titled “The Motor Vehicle Financial Responsibility Law,” governs the failure to maintain insurance coverage on a vehicle. Section 303.041, RSMo Cum.Supp.2001, governs the process by which initial notice of a suspension pursuant to the Motor Vehicle Financial Responsibility Law is given.

Section 303.041 states:

If the director determines that as a result of a verification sample or accident report that the owner of a motor vehicle has not maintained financial responsibility, or if the director determines as a result of an order of supervision that the operator of a motor vehicle has not maintained the financial responsibility as required in this chapter, the director shall thirty-three days after mailing notice, suspend the driving privilege of the owner or operator and/or the registration of the vehicle failing to meet such requirement. The notice of suspension shall be mailed to the person at the last known address shown on the department's records. The notice of suspension is deemed received three days after mailing. The notice of the suspension shall clearly specify the reason and statutory grounds for the suspension and the effective date of the suspension, the right of the person to request a hearing, the procedure for requesting a hearing, and the date by which that request for a hearing must be made....

Thus, while Section 302.515 makes an explicit exception to the general rule that notice by mail is deemed received within three days, Section 303.041 does not, stating simply and without qualification that “[t]he notice of suspension is deemed received three days after mailing.” The different wording of the two statutes is a strong indication that the legislature did not intend to limit the “notice deemed received” rule in the present case. Cf. State v. Moore, 303 S.W.3d 515, 520 (Mo. banc 2010) (“The legislature's use of different terms in different subsections of the same statute is presumed to be intentional and for a particular purpose.”); MC Dev. Co., LLC v. Cent. R–3 School Dist. of St. Francois Cnty., 299 S.W.3d 600, 605 (Mo. banc 2009) (“ ‘When different statutory terms are used in different subsections of a statute, appellate courts presume that the legislature intended the terms to have different meaning and effect.’ ” (citation omitted)). Here, there is no dispute that Section 303.041 was complied with and that Session received his initial notice of a pending license suspension.

The record reflects that Session was involved in an automobile accident on February 25, 2011. Session was alleged, at the time of the accident, to be in noncompliance with the “mandatory insurance” provisions of Section 303.025. Session received his initial notice of license suspension pursuant to Section 303.041 on or about August 25, 2011. Pursuant to that notice, Session filed a request for a hearing on September 26, 2011. An administrative hearing was held before the Department of Revenue on October 19, 2011. The final decision of the Director regarding the suspension of Session's license was mailed to Session via certified mail on December 2,2011.

The statute governing Session's appeal of the Director's decision is Section 303.290.2, set forth above, which provides that the final decision of the Director may be appealed, “in the manner provided by chapter 536, RSMo,” within thirty days after notice is given. Chapter 536 provides that proceedings for review may be instituted by the filing of a petition within thirty days “after the mailing or delivery of the notice of the agency's final decision.” Section 536.110.1, RSMo Cum.Supp.2003. Unlike Section 302.515, ‘Section 536.110 does not provide for any exception to the thirty-day requirement for filing a petition for review’; the thirty-day period begins to run on...