Stellwagon v. Director of Revenue

• Decision Date: 19 March 2002
• Docket Number: 24421
• Parties: Kenneth Stellwagon, Respondent, v. Director of Revenue, State of Missouri, Appellant. 24421 Missouri Court of Appeals Southern District 0
• Court: Missouri Court of Appeals

Kenneth Stellwagon, Respondent v Director of Revenue, State of Missouri, Appellant

24421

Missouri Court of Appeals Southern District

03/19/2002

Appeal From: Circuit Court of Greene County, Hon. Mark Fitzsimmons

Counsel for Appellant: L. Anne Wickliffe

Counsel for Respondent: Michael Baker

Opinion Summary: None

Shrum, P.J., and Montgomery, J., concur.

Robert S. Barney, Chief Judge

The Director of Revenue ("Director") appeals from the judgment of the Circuit Court of Greene County which set aside Director's one year revocation and five-year denial of the driving privileges of Kenneth Stellwagon ("Respondent"). Director raises one point of error discussed below. We affirm.

On March 14, 2000, Director sent Respondent two letters. The first letter advised Respondent that his driving privileges were revoked for one year because of an accumulation of points on his driving record. See 302.304.¹ The second letter advised Respondent that his driving privileges were denied for five years because of a second conviction for driving while intoxicated within a five year period. See 302.060(10).

Respondent filed a timely "Appeal of Loss of Driving Privileges," pursuant to section 302.311, contesting his one year revocation and five year denial of driving privileges in the Circuit Court of Greene County.

Director answered Respondent's petition and attached an exhibit that included a certified copy of Respondent's "Missouri Driver Record." In particular, this administrative record revealed that Respondent had two convictions for driving while intoxicated: the first conviction occurred on April 29, 1997, in Greene County Circuit Court, Municipal Division; the second conviction occurred in Greene County Circuit Court on February 25, 2000.

Also included within Director's answer were copies of purported original court records of Respondent's two convictions. In our review, we observe that both copies are very unclear and illegible, thus difficult to interpret. The first page reveals a fuzzy "Missouri Uniform Complaint and Summons" form, wherein an "x" has been placed next to a recital of "Municipal Court of Springfield, Missouri." It contains Respondent's name on its face and makes reference to a charge of driving while intoxicated. The accompanying page is even more fuzzy and illegible. It appears to be the back of the foregoing summons, and shows a date of 4/29/97; the figure "350" and "1090ak" and also shows the following recital: "$150 fine & 30 days jail SES/." It further recites that "The Judge In This Case Is an Attorney Bar # 35549." No reference is made as to representation of counsel or waiver of counsel.

Additionally, a third page apparently shows the same type of summons form but it is only half legible. The fourth page has several numerical recitals and includes recitals of "350," "48 hrs" and "SATOP." Otherwise, the writing is totally fuzzy and illegible.

The docket sheet shows that on May 23, 2001, at the hearing on Respondent's "Appeal of Loss of Driving Privileges," both parties appeared by their respective attorneys. There is a recital: "Trial By Record."² Thereafter, the trial court entered its judgment, which set out: "Having reviewed the evidence, the Court finds the Department of Revenue has failed to carry its burden of proof. Judgment for [Respondent]."

On appeal to this Court, Director posits trial court error in setting aside the one-year revocation and the five-year denial of Respondent's driving privileges. Director maintains she met her burden of proof because the certified records of the Department of Revenue established that Respondent had been convicted twice within a five-year period of violating a state and a municipal ordinance relating to driving while intoxicated.

Respondent counters, however, that Director failed to prove that in the Springfield Municipal DWI conviction Respondent "either was represented by an attorney or waived his right to an attorney in writing" as required by section 302.060(10).³

"When a trial court reinstates a driver's license following a suspension or revocation, the judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law." Wampler v. Director of Revenue, 48 S.W.3d 32, 34 (Mo. banc 2001); Endsley v. Director of Revenue, 6 S.W.3d 153, 157 (Mo.App. 1999); see Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). "This court reviews the judgment of the circuit court rather than the Director's decision." Justis v. Wilson, 18 S.W.3d 606, 609 (Mo.App. 2000). "We view the evidence in the light most favorable to the judgment." Knipp v. Director of Revenue, 984 S.W.2d 147, 150 (Mo.App. 1998); see Hackmann v. Director of Revenue, 991 S.W.2d 751, 752 (Mo.App. 1999). "The trial court's judgment is to be affirmed if it is correct under any reasonable theory supported by the evidence." Callahan v. Director of Revenue, 878 S.W.2d 826, 827 (Mo.App. 1993). "If the parties do not request findings of fact and the court makes no finding on a specific issue, we assume that such determination of fact was made consistent with the judgment entered by the trial court." Stuart v. Director of Revenue, 761 S.W.2d 234, 235 (Mo.App. 1988).

In the trial below, Respondent bore the burden of persuasion. Kinzenbaw v. Director of Revenue, 62 S.W.3d 49, 54 (Mo. banc 2001). As such, Respondent initially bore the burden of producing evidence that he was entitled to a license. Id.⁴

Attached to Director's answer were two certified copies of letters addressed to Respondent regarding "License Number 523-60-2260." Each letter recited that Respondent's privilege to drive a motor vehicle would, respectively, "be revoked" for one year, and "denied for 5 years." As Kinzenbaw teaches, Director's answer satisfied Respondent's initial burden to produce evidence showing his entitlement to a license. Id. Then it was incumbent upon Director to offer her evidence. Id. Generally, the "director's burden is satisfied by the introduction of the administrative record . . . ." Id.

Director pled and put at issue the reasons for the revocation and denial of Respondent's driving privilege. As previously set out, at trial Director placed a certified copy of Respondent's driving record together with original copies of each of Respondent's prior convictions before the trial court. "Where written exhibits are introduced into evidence, the entire contents of the exhibits are in evidence and may be considered absent a proper objection." Stuart, 761 S.W.2d at 238.

However, both certified copies of Respondent's original court convictions were largely illegible and did not adequately reflect the disposition of each case against R...