Bass v. Director of Revenue

793 S.W.2d 923, 1990 Mo. App. LEXIS 1292, 1990 WL 121814
CourtMissouri Court of Appeals
DecidedAugust 23, 1990
DocketNo. 16821
StatusPublished
Cited by1 cases

This text of 793 S.W.2d 923 (Bass v. Director of Revenue) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bass v. Director of Revenue, 793 S.W.2d 923, 1990 Mo. App. LEXIS 1292, 1990 WL 121814 (Mo. Ct. App. 1990).

Opinion

MAUS, Judge.

Upon a Petition for Review, the circuit court entered a default judgment ordering the Director of Revenue to reinstate the driver’s license of respondent William Kim Bass. The Director has appealed from that default judgment. The following is an outline of the facts alleged in the petition and established by the record.

On October 20, 1988, respondent pled guilty in the Associate Division of the Circuit Court of Greene County to driving with a suspended driver’s license. § 302.321. His sentence is not disclosed by the record. However, the court told the respondent his driver’s license was from that date suspended for one year. The respondent did not drive a motor vehicle for one year thereafter.

The Director did not receive notice of the respondent’s conviction until October 3, 1989, almost one year after the conviction. On October 17, 1989, the Director notified the respondent that because of that conviction 12 points would be assessed against him and his license would be revoked for one year beginning November 16, 1989. The respondent filed his Petition for Review on November 16, 1989. That petition alleged the fact of his plea and conviction, the judge’s suspension and his compliance by not driving a motor vehicle for one year. It further alleged that the revocation of respondent’s license, by reason of his conviction, was effective on the date of that conviction, October 20, 1988, and for one year thereafter. It prayed the court to set aside the Director’s revocation of his license beginning November 16, 1989, and the assessment of 12 points by reason of the October 20, 1988, conviction.

An appropriate summons and a copy of the petition was served upon the Director by certified mail. The return receipt was filed in the circuit court on November 21, 1989. The Director does not question the sufficiency of service. § 506.150.4. On January 2, 1990, upon respondent’s appearance, the circuit court entered an interlocutory order of default and set a hearing on that order for January 5,1990. Rule 74.05. On that day the respondent appeared, the Director did not and the circuit court entered a judgment against the Director. That judgment ordered the Director to reinstate respondent’s license upon the payment of the reinstatement fee and the filing of proof of financial security. A certified copy of the judgment was sent to the Director by certified mail on January 9, 1990. On February 9, 1990, the Director filed a notice of appeal from the default judgment.

The Director contends the trial court erred because only the Director can assess points and suspend or revoke a driver’s license and respondent’s license had not been suspended or revoked upon his plea of guilty. The respondent first contends the Director did not file a motion to set aside the default judgment and therefore cannot [925]*925appeal from that judgment. The Director responds that he is not barred under the rule announced in Vonsmith v. Vonsmith, 666 S.W.2d 424 (Mo. banc 1984) and Barney v. Suggs, 688 S.W.2d 356 (Mo. banc 1985) because the Associate Division of the Circuit Court had no jurisdiction to order the reinstatement of respondent’s driver’s license.

To support his right to appeal, if the circuit court had no jurisdiction, the Director cites Financial Design Consultants v. McCarver, 712 S.W.2d 738 (Mo.App. 1986). In that case, the court held a circuit court had no subject matter jurisdiction to impose a mechanic’s lien in the absence of the pleading and proof of the statutory notice required by § 429.012. Judgments rendered by a court without subject matter jurisdiction, as distinguished from the misconstruction of a statute, may be attacked in a variety of ways. Crouch v. Crouch, 641 S.W.2d 86 (Mo. banc 1982); In re Marriage of Mitchell, 756 S.W.2d 949 (Mo.App.1988). It is not clear that such a failure in pleading and proof deprives a court of general jurisdiction of subject matter jurisdiction. See State ex rel. Morasch v. Kimberlin, 654 S.W.2d 889 (Mo. banc 1983). Nor is it clear that the bar to appeal of Von-smith and Barney admits of such an exception. See Niemann v. Kasch, 740 S.W.2d 706 (Mo.App.1987). Also see Laughrey, Default Judgments in Missouri, 50 Mo.L.Rev. 841 (1985).

However, for the purpose of this case, it will be assumed the Director may appeal from the default judgment if the circuit court had no jurisdiction to order the reinstatement of respondent’s driver’s license. The Director contends the circuit court had no jurisdiction because § 302.304.6 made the revocation beginning November 16, 1989, mandatory because the Director did not assess 12 points for the guilty plea until October 17, 1989. The Director cites Brown v. Director of Revenue, 772 S.W.2d 398 (Mo.App.1989). In that case, the circuit court found that Brown could not be subject to a period of revocation for refusal to take a breathalyzer test and a separate and successive period of revocation for driving while intoxicated when both periods resulted from the same incident. To prevent Brown from being subject to more than one period of revocation, the circuit court ordered that part of the time of the first (breathalyzer) revocation be credited against the second (DWI) revocation, which the Director ordered upon Brown’s belated conviction. The appellate court found the imposition of two periods of revocation did not deny Brown equal protection. The Director’s assessment of 12 points was unquestioned and the appellate court, on direct appeal, found the circuit court improperly interfered with a revocation the statutes made mandatory upon assessment of 12 points. In so holding, the appellate court found that in acting contrary to statute, the circuit court acted without jurisdiction. That language could be understood to mean the circuit court acted erroneously. However, in all events Brown does not aid the Director. In this case, respondent did attack the belated assessment of points and revocation. The circuit court found the belated assessment of points to be contrary to the statutes. The Director, by appeal, attempts to establish the circuit court had no jurisdiction to construe the statutes.

The respondent’s petition is based upon the proposition that under a proper construction of the statutes the revocation of his license was effective upon his plea of guilty. Therefore, he argues the Director had no authority to assess 12 points almost a year later and again revoke respondent’s license. The issue before the circuit court was whether that construction of the stair utes was correct. The applicable statutes are not a model of clarity. Respondent’s construction of the statutes is not without some foundation.

The relevant portion of the section upon which the Director relies provides:

“The director shall revoke the license and driving privileges of any person when his driving record shows he has [926]*926accumulated

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Related

Allen v. Director of Revenue
59 S.W.3d 636 (Missouri Court of Appeals, 2001)

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Bluebook (online)
793 S.W.2d 923, 1990 Mo. App. LEXIS 1292, 1990 WL 121814, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bass-v-director-of-revenue-moctapp-1990.