Brent L. Kinzenbaw, Respondent v. Director of Revenue, Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Brent L. Kinzenbaw, Respondent v. Director of Revenue, Appellant. Case Number: WD58336 Handdown Date: 05/15/2001 Appeal From: Circuit Court of Morgan County, Hon. Patricia F. Scott Counsel for Appellant: James Chenault, III Counsel for Respondent: Timothy Richard Cisar Opinion Summary: The Director of Revenue appeals the circuit court's judgment to set aside the director's denial of Brent L. Kinzenbaw's application for a driving license. The circuit court found that the director did not meet his burden of going forward with evidence and, therefore, did not meet his burden of proof. The director asserts, however, that he met his burden by attaching certified records pertaining to the denial action to his answer and by filing it with the circuit court. AFFIRMED. Division holds: The circuit court did not err in setting aside the director's denial of Kinzenbaw's application for a Missouri driving license. Because the director presented no evidence at the hearing, the director did not meet his burden of going forward with the evidence and, therefore, did not meet his burden of proof. Attaching certified records pertaining to the denial action to his answer and filing it with the circuit court is insufficient to meet the director's burden of proof. Citation: Opinion Author: Paul M. Spinden, Chief Judge Opinion Vote: AFFIRMED. Smart, Jr., and Smith, J.J., concur. Opinion: The Director of Revenue appeals the circuit court's judgment to set aside the director's denial of Brent L.

Kinzenbaw's application for a driving license. The circuit court found that the director did not meet his burden of going forward with evidence and, therefore, did not meet his burden of proof. The director asserts, however, that he met his burden by attaching certified records pertaining to the denial action to his answer and by filing it with the circuit court. We affirm the circuit court's judgment. According to the parties involved in this case, the director notified Kinzenbaw on November 19, 1999, that he had denied Kinzenbaw's application for a driving license pursuant to section 302.060(9), RSMo Supp. 1998, because of convictions in Missouri of driving while intoxicated and blood alcohol content and in Iowa of intoxication. Kinzenbaw filed a petition for review in circuit court. The director filed an answer to which he attached certified records from the Department of Revenue's files. These records allegedly established Kinzenbaw's previous convictions. The circuit court convened a hearing. The prosecuting attorney appeared on the director's behalf pursuant to section 302.311, RSMo 1994, and announced that he would present no evidence. Kinzenbaw also did not present any evidence but moved for a judgment in his favor based on the director's lack of evidence. The circuit court found that the director did not meet his burden of going forward with the evidence and entered judgment to set aside denial of Kinzenbaw's application for a driving license. The director appeals. In his only point on appeal, the director asserts that the circuit court erred in setting aside denial of Kinzenbaw's application for a driving license because he met his burden of going forward with the evidence by filing relevant certified records by attaching them to his answer to Kinzenbaw's petition for review. He contends that these records established that he properly denied Kinzenbaw's application for a driving license. The director asserts that, when a circuit court reviews a case under section 302.311,(FN1) he need file only the pertinent certified records with the reviewing court and need not have the records formally admitted into evidence. The director also claims that whether he appears in court is irrelevant to whether such records are sufficient to meet his burden of proof. We disagree. The Supreme Court recently decided this issue in Wampler v. Director of Revenue, No. SC83086 (April 24, 2001): [Section 302.312.1, RSMo Supp. 1997,] provides that department of revenue records, when properly certified, "shall be admissible as evidence in all courts of this state and in all administrative proceedings." However, that a document or record is "admissible" does not mean it is automatically admitted into evidence merely because it has been filed in a case or attached to a pleading. While section 302.311 allows an appeal "in the manner provided by chapter 536, RSMo," the cause is to be heard "de novo." The director is required, as are proponents in other de novo civil cases, to put into evidence that which the fact finder is asked to consider. The judge is not required to leaf through a file to determine what should be used as evidence. Merely filing a document "does not put it before the court as evidence." Hopkins v. Hopkins, 664 S.W.2d 273, 274 (Mo. App. 1984). Id. slip op. at 5-6 (emphasis in the original and footnote omitted). Filing records without introducing them into evidence is not sufficient to meet the director's burden of proof.

The circuit court did not err in setting aside the director's denial of Kinzenbaw's application for a Missouri driving license. Because the director presented no evidence at the hearing, the director did not meet his burden of going forward with the evidence and, therefore, did not meet his burden of proof. Attaching certified records pertaining to the denial action to his answer and filing it with the circuit court is insufficient to meet the director's burden of proof. Footnotes: FN1.Section 302.311 says, "In the event an application for a license is denied or withheld, or in the event that a license is suspended or revoked by the director, the applicant or licensee so aggrieved may appeal to the circuit court of the county of his residence in the manner provided by chapter 536, RSMo, for the review of administrative decisions at any time within thirty days after notice that a license is denied or withheld or that a license is suspended or revoked. Upon such appeal the cause shall be heard de novo and the circuit court may order the director to grant such license, sustain the suspension or revocation by the director, set aside or modify the same, or revoke such license. Appeals from the judgment of the circuit court may be taken as in civil cases. The prosecuting attorney of the county where such appeal is taken, shall appear in behalf of the director, and prosecute or defend, as the case may require." Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.