Wellner v. Director of Revenue

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Patricia Breckenridge; Spinden and Smart
• Citation: 16 S.W.3d 352
• Parties: (Mo.App. W.D. 2000) Gary P. Wellner, Respondent, v. Director of Revenue, Appellant. WD56295 0
• Decision Date: 25 April 2000

16 S.W.3d 352 (Mo.App. W.D. 2000) Gary P. Wellner, Respondent,
v.
Director of Revenue, Appellant. WD56295 Missouri Court of Appeals Western District 04/25/2000

Appeal From: Circuit Court of Jackson County, Hon. Richard E. Standridge

Counsel for Appellant: Evan J. Buchheim

Counsel for Respondent: Michael C. McIntosh

Opinion Summary: The Director of Revenue appeals the trial court's judgment awarding Gary P. Wellner attorney fees and costs pursuant to section 302.536, RSMo Cum. Supp. 1996. The attorney fees and costs were requested and granted after this court reversed the trial court's judgment upholding the Director's suspension of Mr. Wellner's driving privilege.

Division Four holds: The trial court erred in applying section 302.536, RSMo Cum. Supp. 1996 retrospectively to award Mr. Wellner attorney fees and costs. Section 302.536, RSMo Cum. Supp. 1996, is substantive in nature because it created a new obligation or imposed a new duty upon the State to pay attorney fees in certain cases. Thus, the application of the statute to Mr. Wellner's case constituted an improper retrospective application of a substantive law because the statute increased the penalty after the conduct to be penalized had already occurred.

Patricia Breckenridge, Chief Judge

The Director of Revenue appeals the trial court's judgment awarding Gary P. Wellner attorney fees and costs pursuant to section 302.536, RSMo Cum. Supp. 1996.¹ The attorney fees and costs were requested and granted after this court reversed the trial court's judgment upholding the Director's suspension of Mr. Wellner's driving privilege. Because the trial judge erroneously applied section 302.536 retrospectively, the trial court's judgment is reversed.

Factual and Procedural Background

On October 27, 1995, the Director notified Mr. Wellner that his driving privilege was suspended under section 302.505, RSMo 1994, for driving with a blood alcohol content of at least .10 percent by weight. Thereafter, Mr. Wellner filed a petition for a trial de novo in the Circuit Court of Jackson County, Missouri, to contest the Director's determination. After hearing the matter, the trial court issued its findings of fact, conclusions of law, and judgment upholding the Director's suspension of Mr. Wellner's driving privilege on June 3, 1996. Mr. Wellner appealed to this court, which reversed the trial court's judgment and remanded the case with instructions that the trial court order reinstatement of Mr. Wellner's driving privilege. Wellner v. Director of Revenue, 949 S.W.2d 683, 684-85 (Mo. App. 1997).

While Mr. Wellner's appeal was pending, section 302.536 became effective. 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.

After this court's reversal, Mr. Wellner filed a motion in the circuit court requesting attorney fees and costs under section 302.536. On July 20, 1998, the trial court entered a judgment awarding $2,868.51 to Mr. Wellner for attorney fees and costs. The Director filed this appeal.

Standard of Review

This court will affirm the trial court's judgment unless it was not supported by substantial evidence, was against the weight of the evidence, or the trial court erroneously declared or applied the law. Devine v. Director of Revenue, 961 S.W.2d 87, 88 (Mo. App. 1997). If the trial court erroneously declared or applied the law, the trial court's judgment will be given no deference. Knipp v. Director of Revenue, 984 S.W.2d 147, 151 (Mo. App. 1998).

Erroneous Retrospective Application of section 302.536

The Director contends that section 302.536 did not apply to Mr. Wellner's case because Mr. Wellner appealed before the statute's effective date; hence, the trial court's enforcing the statute constituted an erroneous retrospective application of the statute. Article 1, Section 13 of the Missouri Constitution states "[t]hat no ex post facto law, nor law . . . retrospective in its operation, . . . can be enacted." A retrospective law is one that "takes away or impairs vested or substantial rights acquired under existing laws, or imposes new...