James Carter Zwyers, Respondent, v. Director of Revenue, State of Missouri, Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: James Carter Zwyers, Respondent, v. Director of Revenue, State of Missouri, Appellant. Case Number: No. 71561 Handdown Date: 07/22/1997 Appeal From: Circuit Court of St. Charles County, Hon. William T. Lohmar, Jr. Counsel for Appellant: Charles Gooch Counsel for Respondent: Ronald J. Brockmeyer Opinion Summary: Appellant, the Director of Revenue for the State of Missouri ("Director"), appeals from the judgment of the Circuit Court of St. Charles County setting aside the revocation of respondent's, James Zwyers' ("driver"), driving privileges. REVERSED AND REMANDED. Division One Holds: The trial court erred in failing to preserve driver's trial de novo by sound recording or court reporter; accordingly, the cause is reversed and remanded for a new trial de novo of which a record shall be made. Citation: Opinion Author: Per Curiam Opinion Vote: REVERSED AND REMANDED. Dowd, Jr., P.J., Reinhard, and Gaertner, JJ., concur. Opinion:

Appellant, the Director of Revenue for the State of Missouri ("Director"), appeals from the judgment of the Circuit Court of St. Charles County setting aside the revocation of respondent's, James Zwyers' ("driver"), driving privileges. We reverse and remand. Driver's driving privileges were revoked pursuant to RSMo sections 302.500-302.540 (1994). After the suspension was upheld in an administrative proceeding, driver filed a petition in the circuit court for a trial de novo. It appears the trial took place on July 30, 1996, when the trial court entered its order setting aside the revocation of driver's license. Director thereafter filed his notice of appeal, and requested a copy of the trial transcript in accordance with Rule

81.12(c). The official court reporter informed Director no record of the trial had been made. On appeal, Director contends the trial court erred in failing to preserve the record, thus mandating this Court reverse and remand the matter for a new trial de novo. We agree. Parties aggrieved by decision of the Department of Revenue may petition for a trial de novo in circuit court. RSMo section 302.535. We review the judgment of the circuit court, rather than the administrative order, and will affirm unless the judgment is not supported by substantial evidence or is against the weight of the evidence, or erroneously declares or applies the law. Kimber v. Director of Revenue, 817 S.W.2d 627, 629-30 (Mo.App.W.D. 1991). Here, the proceeding before the trial court was not preserved by sound recording or court reporter. The minutes do not reflect whether witnesses were called or what evidence was presented or admitted. Without the record on appeal, it is unclear on what grounds the trial court based its decision. Accordingly, we reverse the judgment and remand the case for a new trial de novo of which a record shall be made. Panhorst v. Director of Revenue, 894 S.W.2d 168, 169 (Mo.banc 1995); Kellison v. Director of Revenue, 908 S.W.2d 192, 193 (Mo.App.E.D. 1995). Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.