Robert Boulware, 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 Eastern District Case Style: Robert Boulware, Respondent, v. Director of Revenue, Appellant Case Number: ED81576 Handdown Date: 05/13/2003 Appeal From: Circuit Court of St. Louis City, Judge Edward Sweeney Counsel for Appellant: Loretta Schouten Counsel for Respondent: Timothy Maxwell Opinion Summary:

The director of revenue appeals from a judgment reinstating the driving privileges of Robert Boulware and assessing costs against the director. AFFIRMED AS MODIFIED. Division Two holds: The court lacked the requisite statutory authority to assess costs against the director. Citation: Opinion Author: Gary M. Gaertner, Sr., Judge Opinion Vote: AFFIRMED AS MODIFIED. Simon, P.J. and Crane, J. concur. Opinion: Appellant, Director of Revenue ("Director"), appeals from a judgment assessing costs against it. We affirm as modified. After Director revoked his driver's license, Robert Boulware ("driver") filed a petition for de novo review with the Circuit Court of the City of St. Louis. Initially, the trial court entered a judgment denying the petition. Four days later, pursuant to Rule 75.01, the trial court vacated its initial judgment and entered a new judgment reinstating driver's driving privileges. The trial court also assessed costs against the Director. The Director appeals, contesting the assessment of

costs. "Absent a statute to the contrary, costs are not recoverable from the state in its own courts." Reed v. Director of Revenue , 834 S.W.2d 834, 837 (Mo.App.E.D. 1992). Section 536.087.1, RSMo 2000 permits a prevailing party in a civil action arising from an agency proceeding to recover "reasonable fees and expenses" incurred. However, " drivers license proceedings" are expressly excluded from the provisions of section 536.087. Section 536.085(1). Thus, the trial court erred in taxing costs against the state. Atkins v. Director of Revenue , 6 S.W.3d 428 (Mo.App.E.D. 1999). Pursuant to Rule 84.14, we modify the judgment to delete the costs assessed against the Director and affirm the judgment as modified. Footnotes: FN1. All statutory references are to RSMo 2000. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.