In re Driving Privileges of Mundhenke

99 P.3d 1141, 33 Kan. App. 2d 237, 2004 Kan. App. LEXIS 1133, 2004 WL 2480383
CourtCourt of Appeals of Kansas
DecidedNovember 5, 2004
DocketNo. 91,373
StatusPublished

This text of 99 P.3d 1141 (In re Driving Privileges of Mundhenke) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Driving Privileges of Mundhenke, 99 P.3d 1141, 33 Kan. App. 2d 237, 2004 Kan. App. LEXIS 1133, 2004 WL 2480383 (kanctapp 2004).

Opinion

Rulon, C.J.:

Respondent Kansas Department of Revenue appeals the district court’s dismissal of the administrative suspension of petitioner G.L. Mundhenke’s driver’s license. We reverse.

On August 16, 2002, the petitioner was stopped at a driving under the influence (DUI) checkpoint at 4th Street and Ford in Hutchinson, Kansas. The petitioner exhibited bloodshot eyes, smelled of alcohol, and acknowledged that he had recently consumed alcohol. Additionally, the petitioner failed the field sobriety tests and the preliminaiy breath test. Consequently, petitioner was arrested and subsequently tested on the Intoxilyzer 5000, which indicated an alcohol concentration of .094.

On August 21, 2002, the respondent received the petitioner’s written request for an administrative hearing. Eventually, an administrative hearing was held, after which the hearing officer affirmed the suspension of driving privileges. The written order, dated October 10, 2002, clearly designated that any petition for judicial review must be served upon the Secretary of Revenue, although the notice only mentioned service of a copy of the petition, not a summons as well.

[238]*238On October 15, 2002, the petitioner filed his petition for judicial review and forwarded a copy to the Kansas Department of Revenue, Division of Vehicles, Driver Control Bureau, P. O. Box 2744, Topeka, KS 66601-2744, which was the designation printed on the letterhead of the administrative hearing order. The petitioner alleged that because he had waived the right to cross-examine the certifying officer as a condition of his diversion agreement in the criminal prosecution, he did not understand that he could call the officer to testify at the administrative hearing. Specifically, the petitioner claimed the administrative hearing should have been dismissed.

On November 15,2002, the respondent filed a motion to dismiss the petitioner’s petition for judicial review on several grounds. First, the respondent claimed the petitioner’s allegation of error possessed no legal merit. Second, the petitioner failed to comply with K.S.A. 8-1020 by serving the Division of Vehicles, Driver Control Bureau, instead of the Secretary of Revenue. Moreover, the petitioner failed to serve a summons on either the Department of Revenue or its agency head, the Secretary of Revenue.

The district court held a hearing on January 8, 2003, and on January 21, 2003, the court filed an order dismissing the petitioner’s action on two independent grounds. First, the court found the petitioner’s request for review of the administrative suspension was moot because the respondent had failed to suspend the petitioner’s driving privileges 30 days after the administrative hearing order and had consequently waived the right to suspend petitioner’s driving privileges. In the alternative, the court found the petitioner had failed to execute proper service upon the Secretary of Revenue and, under the reasoning of Claus v. Kansas Dept. of Revenue, 16 Kan. App. 2d 12, 825 P.2d 172 (1991), the district court lacked jurisdiction over petitioner’s action.

On February 5, 2003, the respondent filed a motion to alter or amend the district court’s judgment. The respondent argued the Department could not lawfully suspend the petitioner’s driving privileges until the petitioner’s appeal of the order suspending the license was final and such appeal was not final until the district court had ruled on the motion to dismiss.

[239]*239On March 6, 2003, the petitioner filed a motion to dismiss the respondent’s motion to alter or amend the judgment, contending the motion was untimely. The district court did not rule upon this motion until October 1,2003. The court ultimately agreed with the petitioner’s analysis and dismissed the motion to alter or amend. The court further affirmed its earlier order dismissing the administrative suspension of the petitioner’s driver’s license.

Motion to Alter or Amend

Because the timeliness of the respondent’s motion to alter or amend affects the timeliness of the notice of appeal, the jurisdiction of this court is at issue. See City of Lawrence v. McCormick, 275 Kan. 509, 510, 66 P.3d 854 (2003) (holding that an untimely notice of appeal deprives an appellate court of jurisdiction). As such, the district court’s ruling that the motion to alter or amend was untimely must first be considered.

The petitioner argued and the district court apparently found that a motion to alter or amend must be filed within 10 days of the judgment inclusive of weekends and holidays. This issue involves interpretation of the pertinent statutes, which is a question of law over which this court has unlimited review. See Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004).

K.S.A. 60-259(f) states: “A motion to alter or amend the judgment shall be served and filed not later than ten (10) days after entry of the judgment.” In Hundley v. Pfuetze, 18 Kan. App. 2d 755, 758, 858 P.2d 1244, rev. denied 253 Kan. 858 (1993), this court held that in considering the timeliness of a motion to alter or amend a judgment, the method of calculation prescribed by K.S.A. 60-206(a) for periods less than 11 days is employed. If the judgment was mailed to the parties, the mail-rule provided by subsection (e) is then added to the filing deadline established by the initial calculation. 18 Kan. App. 2d at 758.

K.S.A. 2003 Supp. 60-206(a) states in pertinent part: “When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation.” Here, the district court’s initial order dismissing the administrative suspension of the petitioner’s driver’s license [240]*240was filed on Tuesday, January 21, 2003. Excluding Saturday, January 25; Sunday, January 26; Saturday, February 1; and Sunday, Februaiy 2, the respondent had until Tuesday, February 4, 2003, to timely file a motion to alter or amend.

However, K.S.A. 2003 Supp. 60-206(e) further provides:

“Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon such party and the notice or paper is served upon such party by mail, three days shall be added to the prescribed period.”

The petitioner concedes the district court order was mailed to the respective parties. Consequently, K.S.A. 2003 Supp. 60-206(e) is applicable, and the respondent should have been given an additional 3 days to submit a motion to alter or amend.

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Related

Hundley v. Pfuetze
858 P.2d 1244 (Court of Appeals of Kansas, 1993)
Barkley v. Toland
646 P.2d 1124 (Court of Appeals of Kansas, 1982)
Marinhagen v. Boster, Inc.
840 P.2d 534 (Court of Appeals of Kansas, 1992)
Rodarte v. Kansas Department of Transportation
39 P.3d 675 (Court of Appeals of Kansas, 2002)
Claus v. Kansas Department of Revenue
825 P.2d 172 (Court of Appeals of Kansas, 1991)
Cooper v. Werholtz
83 P.3d 1212 (Supreme Court of Kansas, 2004)
City of Lawrence v. McCormick
66 P.3d 854 (Supreme Court of Kansas, 2003)

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Bluebook (online)
99 P.3d 1141, 33 Kan. App. 2d 237, 2004 Kan. App. LEXIS 1133, 2004 WL 2480383, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-driving-privileges-of-mundhenke-kanctapp-2004.