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Greenwood v. Director of Revenue10/19/1999
This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.
Appeal From: Circuit Court of St. Louis County, Hon. Mary Fox
Opinion Vote: REVERSED AND REMANDED. Gaertner, P.J., Dowd and Simon, JJ., concur.
Opinion:
The Director of Revenue of the State of Missouri ("Director") appeals from the trial court's judgment reinstating Stephen Greenwood's driving privileges.
Facts
Respondent Stephen Greenwood was issued a notice that his driver's license would be revoked on April 22, 1998 due to an accumulation of points arising from a driving while intoxicated conviction ("DWI revocation"). Mr. Greenwood filed a petition for review on April 14, 1998. Mr. Greenwood asserted that he had refused to submit to a chemical test during the underlying arrest and that his driving privilege was revoked for one year starting January 19, 1997 ("refusal revocation"). He argued that, pursuant to the revocation duration statute, he should be given credit for the time he had already served under his refusal revocation against the pending DWI revocation. Section 302.525.4 RSMo 1994. On October 2, 1998, Commissioner Mary Fox agreed with Mr. Greenwood, recommending that he be given credit for the revocation he had already served and that his driving privilege be immediately reinstated. The circuit court entered a judgment adopting her recommendation and reinstating Mr. Greenwood's driving privileges. The Director filed a motion to set aside this judgment on October 26, 1998, claiming that the time served for the refusal revocation could not be credited towards the revocation he received for the assessment of points for the DWI conviction. Commissioner Mary Fox recommended overruling this motion and the circuit court adopted her recommendation. This appeal followed.
Analysis
In the sparse record before the court, there is no reference to the Director filing an answer to Mr. Greenwood's petition for review of the revocation of his driving privileges. Furthermore, there is no record of a hearing on this petition. In short, the record contains no indication that the Director contested this case in the slightest before filing the motion to set aside the trial court's judgment. We find this somewhat peculiar considering that the Director has the burden of proof in a review of a license revocation. Zimmerman v. Director, 1999 WL 170356, at 2 (Mo.App. E.D. 1999); McMaster v. Lohman, 941 S.W.2d 813, 815-816 (Mo.App. W.D. 1997).
On the other hand, neither does the record show that Mr. Greenwood objected to the Director's failure to file an answer. "Although the rule requiring an answer is mandatory, it is waived unless the opposing party timely invokes its enforcement." Sentinel Federal Sav. & Loan Ass'n v. Jones, 823 S.W.2d 105, 108-109 (Mo.App. 1991); St. Louis County v. St. Louis County Police Officers Ass'n, Local 844, 652 S.W.2d 142, 146 (Mo.App. 1983). With no answer filed by the Director, Mr. Greenwood could have filed for and would have been entitled to a judgment on the pleadings. See, State v. Skinker, 25 S.W.2d 472, 476, 324 Mo. 955 (Mo. 1930). In the absence of anything in the record to the contrary, it is a fair presumption that no motion for judgment on the pleadings was made. Id. The record does indicate that the case came on for trial, that evidence was presented, and that a judgment on the merits, not on the pleadings, was rendered.
Consequently, the issue to be decided is a narrow one. The Director contends that the refusal revocation period cannot be credited towards the DWI revocation period. Mr. Greenwood did not file a brief. We agree with the Director'
Page 1 2 Missouri DUI Attorneys
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