                              Missouri Court of Appeals
                                        Southern District
                                            Division Two


ALLAN WILLIAM WELCH,                                   )
                                                       )
       Petitioner-Respondent,                          )
                                                       )
vs.                                                    )       No. SD33344
                                                       )
DIRECTOR OF REVENUE,                                   )       Filed July 31, 2015
                                                       )
       Respondent-Appellant.                           )

             APPEAL FROM THE CIRCUIT COURT OF CHRISTIAN COUNTY

                         Honorable Ewing Mitchell Hough, Circuit Judge

AFFIRMED

       Director of Revenue (“Director”) appeals from the trial court’s judgment reinstating the

driving privileges of Allan William Welch. In two separate but related points, Director argues

that the trial court erred in reinstating Welch’s driving privileges because (1) the trial court failed

to evaluate Welch’s criminal history and (2) Welch’s alleged 2005 chemical refusal revocation

made him ineligible for reinstatement. Finding no merit in either of Director’s points, we affirm

the trial court’s judgment.

                              Factual and Procedural Background

       On July 2, 2002, Director suspended the driving privileges of Welch for a ten-year period

due to Welch’s multiple convictions relating to driving while intoxicated. On March 13, 2013,

Welch filed an application for reinstatement of his driving privileges, as provided in section

                                                   1
302.060.1(9), 1 alleging that the ten-year suspension of his driving privileges had expired and he

was eligible to apply to have his driving privileges reinstated.

        Director moved to dismiss Welch’s application, contending that Welch was statutorily

ineligible for reinstatement of his driving privileges, in that Welch had an “alcohol-related

enforcement contact as defined in section 302.525 during the preceding ten years, to wit: a

Chemical Refusal Revocation on August 23, 2005.” Attached to the motion to dismiss, Director

submitted Exhibit A, which included a “Certification Pursuant to §302.312, RSMo[,]” certifying

that the records constituting Exhibit A “are true and accurate copies of papers, documents, and

records lawfully deposited or filed in the offices of the Missouri Department of Revenue[,]” and

Welch’s Missouri Driver Record, dated March 21, 2013, which revealed a “Chemical Refusal

1
 References to section 302.060.1(9) are to RSMo Cum.Supp. 2012. As relevant here, section 302.060.1(9)
provides:

        1. The director shall not issue any license and shall immediately deny any driving privilege:

        ****

                  (9) To any person who has been convicted more than twice of violating state law, or a
        county or municipal ordinance where the defendant was represented by or waived the right to an
        attorney in writing, relating to driving while intoxicated; except that, after the expiration of ten
        years from the date of conviction of the last offense of violating such law or ordinance relating to
        driving while intoxicated, a person who was so convicted may petition the circuit court of the
        county in which such last conviction was rendered and the court shall review the person’s habits
        and conduct since such conviction, including the results of a criminal history check as defined in
        section 302.010. If the court finds that the petitioner has not been convicted, pled guilty to or been
        found guilty of, and has no pending charges for any offense related to alcohol, controlled
        substances or drugs and has no other alcohol-related enforcement contacts as defined in section
        302.525 during the preceding ten years and that the petitioner’s habits and conduct show such
        petitioner to no longer pose a threat to the public safety of this state, the court may order the
        director to issue a license to the petitioner if the petitioner is otherwise qualified pursuant to the
        provisions of sections 302.010 to 302.540. No person may obtain a license pursuant to the
        provisions of this subdivision through court action more than one time.

(Emphasis added.) “Alcohol-related enforcement contacts” include:

        any suspension or revocation under section 302.500 to 302.540, any suspension or revocation
        entered in this or any other state for a refusal to submit to chemical testing under an implied
        consent law, and any conviction in this or any other state for a violation which involves driving
        while intoxicated, driving while under the influence of drugs or alcohol, or driving a vehicle while
        having an unlawful alcohol concentration.

Section 302.525.3, RSMo Cum.Supp. 2012.

                                                          2
Revocation effective on 9-07-2005[,]” resulting from an offense that occurred on August 23,

2005. This entry also states “Action is Stayed Appealed as of 9-07-2005[.]” In his written

response to Director’s allegation that Welch had an alcohol-related enforcement contact on

August 23, 2005, Welch stated, “said alleged contact has never been adjudicated administratively

as to its validity since said action has been stayed.”

       The parties appeared for hearing and, in addition to Exhibit A, Director offered into

evidence Exhibit B, “a new driving record” with the stay removed, along with the oral

explanation by Director’s counsel that the stay order noted in Exhibit A related to the chemical

refusal revocation was a “computer error” and the stay should have been applied to Welch’s

application for limited driving privileges in another county rather than the chemical refusal

action. Both parties conceded that Welch had “not been convicted, pled guilty, or found guilty

of and there are no pending charges of any offense related to alcohol[,]” and the point of

contention during the hearing was whether Director’s evidence established an alcohol-related

enforcement contact as defined in section 302.525.

       Welch testified that he had not been convicted of any alcohol, controlled substance, or

drug-related offenses during the preceding ten-year period; he had been married for three years,

had two children, and had attended church for nine years. Welch stated he volunteered his time

doing construction work for people in need, helped with vacation bible school, and coached his

children in baseball, soccer, and basketball. For the preceding seven years, Welch owned a

successful contracting and remodeling business. He also testified that he attended Alcoholics

Anonymous, participated in substance-abuse counseling, and sponsors other gentlemen

struggling with alcoholism. On cross-examination, Welch testified he was arrested by Joplin

Police Department on August 5, 2005, that he refused the chemical test, and he was charged in



                                                  3
Jasper County for felony driving while intoxicated. That charge was reduced to a “careless and

imprudent driving” misdemeanor. Welch did not recall filing a petition for review on the

chemical refusal. At the time of the hearing, Welch did not drive and rode with an employee to

and from work.

         The trial court concluded that “Welch has not been convicted of any offenses related to

alcohol, controlled substances, or drugs, and that his current habits and conduct reveal that he no

longer poses [a] threat to the public safety, nor to the citizens of the State of Missouri[,]” and

“that Welch has completed all requirements for reinstatement and is now therefore eligible for

reinstatement.” The trial court admitted both Exhibits A and B into evidence, but expressly

found that it “disbelieve[d] the evidence presented by Exhibit B” and “d[id] not find it credible.”

The trial court further explicitly found that Director’s “exhibits lack in credibility to deny

Welch’s statutory eligibility for reinstatement.” Director filed a Motion to Amend the Order

asking the court to denominate its order as a judgment. In response, the trial court ordered that

its earlier decision be “entered as Final Order and Judgment,” thereby ordering that “the

Missouri Department of Revenue administer the written and skills driving test to Welch.”

Director timely appeals. 2

                                               Standard of Review

         On appeal, “the trial court’s judgment will be affirmed unless there is no substantial

evidence to support it, it is against the weight of the evidence, or it erroneously declares or

applies the law.” White v. Dir. of Revenue, 321 S.W.3d 298, 307-08 (Mo. banc 2010). “In

reviewing a particular issue that is contested, the nature of the appellate court’s review is directed


2
  Petitioner did not file a responsive brief in this matter. “‘While there is no penalty for that omission, it requires
this court to adjudicate [an appellant’s] claims of error without the benefit of whatever argument, if any, [the
respondent] could have made in response.’” White v. Dir. of Revenue, 255 S.W.3d 571, 576 n.4 (Mo.App. 2008)
(quoting In re Estate of Klaas, 8 S.W.3d 906, 908 (Mo.App. 2000)).

                                                            4
by whether the matter contested is a question of fact or law.” Id. at 308. “When evidence is

contested by disputing a fact in any manner, this [c]ourt defers to the trial court’s determination

of credibility.” Id. Trial courts are free to disbelieve any, all, or none of the evidence. Id.

Questions of law are reviewed de novo. Id.

                                              Discussion

        In the first point relied on, Director contends

        [t]he trial court erred as a matter of law in reinstating [Welch’s] driving
        privileges, because a driver is statutorily ineligible for license reinstatement from
        a minimum ten-year license denial unless he shows that he has no alcohol-related
        enforcement contacts as defined in section 302.525 during the preceding ten years
        and the court evaluates the results of his criminal history check, in that, [Welch]
        has a chemical refusal revocation effective September 07, 2005, and the trial court
        did not evaluate [Welch’s] criminal history check.

        In the proceedings in the trial court below, Director never raised any issue regarding the

trial court’s failure to evaluate Welch’s criminal history check. “Appellate courts are merely

courts of review for trial errors, and there can be no review of a matter which has not been

presented to or expressly decided by the trial court.” Robbins v. Robbins, 328 S.W.2d 552, 555

(Mo. 1959) (internal quotations and citation omitted).

        “‘An issue that was never presented to or decided by the trial court is not
        preserved for appellate review.’” Brown v. Brown, 423 S.W.3d 784, 788 (Mo.
        banc 2014) (quoting State ex rel. Nixon v. Am. Tobacco Co., Inc., 34 S.W.3d 122,
        129 (Mo. banc 2000)). As required by rule 78.09, the trial court must be given the
        opportunity to rule on a question.[] Brown, 423 S.W.3d at 787. Adherence to this
        rule assists in resolving any alleged error at the earliest possible opportunity by
        “allowing the trial court to rule intelligently.” Id. at 787-88. It is a critical
        component in the efficient and timely resolution of disputes and the conservation
        of the parties’ and the courts’ limited resources. Id. at 788.

In re Marriage of Harris, 446 S.W.3d 320, 324 (Mo.App. 2014). This allegation of error will

not be addressed on appeal because it is not preserved for review, in that Director did not first

present the issue to the trial court to afford the trial court an opportunity to rule.



                                                    5
       The remaining allegation of error raised by Director in the first point relied on is echoed

in the second point, wherein Director claims

       [t]he trial court misinterpreted and misapplied the law in reinstating [Welch] from
       his minimum ten-year license denial, because, under the plain language of section
       302.060.1(9), RSMo, a driver is statutorily ineligible for license reinstatement
       from a minimum ten-year denial if the driver has an alcohol-related enforcement
       contact as defined in section 302.525 during the preceding ten years, in that
       [Welch’s] driving record shows he has a chemical refusal revocation effective
       September 07, 2005.

       Both of Director’s points claim that the trial court erred as a matter of law or misapplied

or misinterpreted the law in reinstating Welch’s driving privilege because Welch had, and his

driving record shows he has, a chemical refusal revocation effective September 7, 2005.

Director’s claim of legal error, therefore, is premised upon the fact that Welch had a chemical

refusal revocation effective September 7, 2005. The only evidence in the record supporting the

existence of that fact is Director’s Exhibit B that the trial court determined was not credible.

       Section 302.060.1(9) provides that Welch may petition the circuit court for reinstatement

of driving privileges, “and the court may order the director to issue a license” if Welch is

otherwise qualified and

       has not been convicted, pled guilty to or been found guilty of, and has no pending
       charges for any offense related to alcohol, controlled substances or drugs and has
       no other alcohol-related enforcement contacts as defined in section 302.525
       during the preceding ten years and that the Welch’s habits and conduct show such
       Welch to no longer pose a threat to the public safety of this state[.]

       Director initially proffered Exhibit A, consisting of Welch’s March 21, 2013 driver

record, to dispute Welch’s claim. In reference to an alleged chemical refusal revocation, Exhibit

A showed only that that issue was stayed pending appeal. Exhibit A showed no adjudication on

this issue. Director next offered Exhibit B, purportedly a revised and accurate April 23, 2013

driver record that contained no reference to any issue that had been stayed pending appeal.

However, it is clearly apparent that the trial court had serious concerns about the veracity of

                                                  6
Exhibit B. Throughout the transcript, the trial court questioned the procedure employed by

Director in changing Welch’s Missouri Driver Record, as well as the impact upon the

proceedings at hand, stating, for example:

       I said before and I say again I’m very concerned about the Director’s ability to
       walk across the hall and get a certified record different from the certified record
       they got the first time without anything in that second record to reflect the basis of
       that change, other than the good faith statements of [Director’s counsel], which I
       have no reason to disbelieve, but – but they’re not evidence. They don’t –
       [Director’s counsel’s] statements of explanation don’t fall under 312. It is not
       certified by the Director.”

In the end, the trial court determined that both exhibits “lack in [credibility] to deny Welch’s

[eligibility] for reinstatement[,]” and that both “are inconsistent and that the credibility of Exhibit

B is put in question.”

       Section 302.312, RSMo 2000, “authorizes the admission of the director’s records in

evidence in court,” Doughty v. Director of Revenue, 387 S.W.3d 383, 386 (Mo. banc 2013),

when “properly certified by the appropriate custodian or the director[,]” Section 302.312. The

trial court, however, is free to disbelieve any, all, or none of the evidence presented by Director.

Pearson v. Koster, 367 S.W.3d 36, 44 (Mo. banc 2012). Because Director’s claim of legal error

is factually premised upon the veracity of Exhibit B, the trial court’s determination that it was

not credible forecloses any further consideration of the claim. See Snelling v. Segbers, 450

S.W.3d 493, 496 n.2 (Mo.App. 2014) (“Credibility determinations by the finder of fact are not

subject to review by this Court.”). Points 1 and 2 are denied.

                                              Decision

       The trial court’s judgment is affirmed.



GARY W. LYNCH, J. – Opinion author

MARY W. SHEFFIELD, P.J. – concurs
                                                  7
DON E. BURRELL, J. – concurs




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