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Nichols v. Director of Revenue6/30/2003
Opinion Vote: AFFIRMED.
Howard, P.J., and Hardwick, J., concur.
Opinion:
Appellant Megan Nichols appeals from the judgment of the trial court dismissing Count I of her "Petition for Review and Petition for Trial De Novo." On appeal, Nichols claims that the trial court erred in dismissing Count I and ruling that section 302.311 was not available to her as a remedy of judicial review of the Director of Revenue's decision to suspend her license. She claims that both section 302.311 and section 302.535 provide for judicial review of administrative decisions to suspend a license. Because this court finds that section 302.311 does not provide an alternative means for judicial review, the judgment of the trial court is affirmed.
Factual and Procedural History
On November 23, 2001, Megan Nichols was stopped by a Smithville police officer for a traffic violation. During the stop, the officer observed "indicia of consumption of an alcoholic beverage." A chemical test was administered and Nichols' blood alcohol content (BAC) was found to be .049% by weight. Because Nichols was under the age of twenty-one and had a BAC of .02% or greater, Nichols license was seized pursuant to section 302.505.1. Nichols timely filed a request for an administrative hearing. On March 11, 2002, a hearing was held before a hearing officer. On April 1, 2002, the hearing officer sustained the suspension of Nichols' license.
Nichols subsequently filed a "Petition for Review and Petition for Trial De Novo" in the Circuit Court of Clay County. Count I of the Petition requested "a hearing" under section 302.311. Count II requested a trial de novo under section 302.535 "as a concurrent or an alternative action to" Count I. Counsel for the Director filed an "Entry of Appearance and Answer" in which asked the court to dismiss Count I since Nichols "ha an adequate statutory remedy" under section 302.535 and that remedy was requested under Count II. After "hearing arguments and reviewing the caselaw[,]" the court entered judgment on August 22, 2002, dismissing Count I. On September 17, 2002, Nichols filed a dismissal with prejudice of Count II, her request for review under section 302.535. This appeal follows.
Standard of Review
Both Nichols and Director state that the standard of review in this case is that outlined in Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976) . This case, however, did not proceed to trial and was decided based upon the motion filed by the Director. While the trial court ruled on the motion to dismiss, a hearing was held on that motion and the issues were briefed. Thus, the motion to dismiss would then be treated as one for summary judgment. See Deeken v. City of St. Louis , 27 S.W.3d 868, 870 (Mo. App. 2000) . Nonetheless, this case involves the issue of statutory construction, which is a question of law, and this court's review is de novo. Estate of Buford ex rel. Bruse v. Edward D. Jones & Co., L.P. , 83 S.W.3d 589, 594 (Mo. App. 2002).
Analysis
Nichols' sole point on appeal is that the trial court erred in sustaining the Director's motion to dismiss, ruling that section 302.311 was not available to Nichols as a remedy for judicial review of the Director's decision to suspend her license. She claims that section 302.535 is not the sole legal remedy and section 302.535 does not always provide an adequate remedy. She argues that review under section 302.311 should be allowed since it, and not section 302.535, provides for judicial scrutiny of the administrative hearing officer's decision.
The ultimate question before this court is whether section 302.311 and section 302.535
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