                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                    ASSIGNED ON BRIEFS DECEMBER 29, 2000

MARIA NELSON v. STATE OF TENNESSEE DEPARTMENT OF SAFETY

                Direct Appeal from the Chancery Court for Davidson County
                No. 99-1448-III; The Honorable Ellen Hobbs Lyle, Chancellor



                    No. M2000-01147-COA-R3-CV - Filed March 20, 2001


This appeal arises from entry of a default judgment by the Appellee against the Appellant following
the Appellant’s failure to appear at a scheduled hearing. The Appellant filed a petition for judicial
review with the Chancery Court of Davidson County. The trial court affirmed.
The Appellant appeals from the Chancery Court of Davidson County’s decision affirming the default
judgment entered against the Appellant. For the reasons stated herein, we reverse the trial court’s
decision.

  Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Reversed and
                                        Remanded

ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY
KIRBY LILLARD, J., joined.

Maria Nelson, pro se

Paul G. Summers, Attorney General & Reporter, Michael A. Meyer, Assistant Attorney General, for
Appellee

                                            OPINION

                                I. Facts and Procedural History

         The Appellant, Maria Nelson (“Ms. Nelson”) is a resident of West Memphis, Arkansas and
holds a valid Arkansas driver’s license. On November 5, 1997, Ms. Nelson and another motorist
were involved in an automobile accident in Memphis, Tennessee. The accident report stated that
the other motorist’s automobile struck Ms. Nelson’s automobile when Ms. Nelson attempted to make
a left turn from the wrong lane. The report also stated that the estimated damage to each automobile
was over four hundred dollars. By letter dated September 14, 1998, the Appellee, State of Tennessee
Department of Safety (“the Department”), informed Ms. Nelson that her driver’s license, driving
privileges, and privileges to obtain a license would be revoked on October 4, 1998 unless she
complied with one of the following provisions: (1) submit proof that she had motor vehicle liability
insurance at the time of the accident; (2) file a notarized release(s) from all persons who filed claims
for damages with the department for the accident; or (3) deposit cash or a corporate surety bond with
the department for $2,727.00. The Department also informed Ms. Nelson that she had a right to a
hearing on the proposed action if she requested a hearing on or before October 4, 1998.

        Ms. Nelson requested a hearing on October 5, 1998. By letter dated October 30, 1998, the
Department granted Ms. Nelson a hearing scheduled for November 12, 1998. The letter also stated
that if Ms. Nelson wished to reschedule the hearing date, she should make the request in writing.
On November 5, 1998, Ms. Nelson made a written request to reschedule the hearing. By letter dated
November 11, 1998, the Department notified Ms. Nelson that she had lost her driver’s license,
driving privileges, and privileges to obtain a license. By letter dated December 18, 1998, the
Department notified Ms. Nelson that the hearing was rescheduled for January 14, 1999. Ms. Nelson
claims that she never received this letter. On January 14, 1999, Ms. Nelson failed to appear at the
hearing, and a default judgment was entered. Ms. Nelson submitted a petition for reconsideration
on February 16, 1999. On March 18, 1999, the Department denied Ms. Nelson’s petition. On May
21, 1999, Ms. Nelson filed a petition for judicial review with the Chancery Court of Davidson
County. The trial court affirmed the order of the Department and dismissed Ms. Nelson’ petition
with prejudice. This appeal followed.

                                      II. Standard of Review

      Our standard of review of this administrative agency is governed by section 4-5-322 of the
Tennessee Code, which provides:

                (h) The court may affirm the decision of the agency or remand
                the case for further proceedings. The court may reverse or
                modify the decision if the rights of the petitioner have been
                prejudiced because the administrative findings, inferences,
                conclusions or decisions are:
                (1) In violation of constitutional or statutory provisions;
                (2) In excess of the statutory authority of the agency;
                (3) Made upon unlawful procedure;
                (4) Arbitrary or capricious or characterized by abuse of
                discretion or clearly unwarranted exercise of discretion; or
                (5) Unsupported by evidence which is both substantial
                and material in the light of the entire record.
                In determining the substantiality of the evidence, the
                court shall take into account whatever in the record fairly
                detracts from its weight, but the court shall not substitute
                its judgment for that of the agency as to the weight of the
                evidence on questions of fact.
                (i) No agency decision pursuant to a hearing in a


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                  contested case shall be reversed, remanded or modified
                  by the reviewing court unless for errors which affect
                  the merits of such decision.

TENN. CODE ANN . § 4-5-322 (h)-(i) (1998).
In the case at bar, the decision of the administrative agency was not a decision on the merits but
rather a default judgment. Our review is not a review of the merits of the case but is a review of the
trial court’s decision affirming the Department’s decision to enter default against Ms. Nelson.

                                             III. Law and Analysis

        The following issues, as we perceive them, are presented for our review: (1) whether Ms.
Nelson was required to provide proof of financial responsibility under section 55-12-105 of the
Tennessee Code; (2) whether Ms. Nelson’s driver’s license, driving privileges, and privileges to
obtain a license were revoked on November 11, 1998, prior to the date set for the hearing such that
she was, therefore, deprived of due process; (3) whether Ms. Nelson failed to receive notice of the
January 14, 1999, hearing and was, therefore, deprived of due process; and (4) whether the trial court
erred in assessing court costs against Ms. Nelson as an indigent litigant. We will examine each of
these issues in turn.

        The first issue presented for our review is whether Ms. Nelson was required to provide proof
of financial responsibility under section 55-12-105 of the Tennessee Code.1 Section 55-12-105
states:
                (a) The commissioner shall, upon receiving an accident report
                of an accident occurring in this state which has resulted in
                bodily injury, or death, or damage to the property of any one (1)
                person in excess of four hundred dollars ($400), and upon
                determining that there is a reasonable possibility of a judgment
                against the owner, operator, or both, and upon receiving notice
                of a claim filed against such owner, operator, or both, revoke
                the license and all registrations of the owner, operator, or both,
                of a motor vehicle involved in such accident, and in case of a
                nonresident, the privilege of operating a motor vehicle within
                the state and of the use within this state of any motor vehicle
                owned by such nonresident, unless such operator, owner, or
                both, shall deposit security in a sum which shall be sufficient
                in the judgment of the commissioner, and in no event less than
                five hundred dollars ($500), to satisfy any judgment or judgments


         1
          In her appe llate brief, Ms. Nelson argues that she was not required to comply with section 55-12-104(a) of the
Tenness ee Code. The Department never stated that Ms. Nelson must comply with section 55-12-104(a). Rather, the
Department stated that Ms. Nelson m ust comply with section 55-12 -105. We find that M s. Nelson intended to argue that
she was not re quired to c omply with se ction 55-1 2-105 inste ad of section 55-12-1 04(a).

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               resulting from such accident which may be recovered against
               such operator, owner, or both.
               (b) The following, and only the following, shall be acceptable
               proof of financial security:
               (1) Filing of written proof of insurance coverage with the
               commissioner on forms approved by the commissioner;
               (2) The deposit of cash with the commissioner of no less than
               the amount specified in § 55-12-102, or in the total amount of
               all damages suffered, whichever is less, subject to a minimum
               deposit of five hundred dollars ($500);
               (3) The execution and filing of a bond with the commissioner
               of no less than the amount specified in § 55-12-102, or in the
               total amount of all damages suffered, whichever is less, subject
               to a minimum bond of five hundred dollars ($500); or
               (4) The submission to the commissioner of notarized releases
               executed by all parties who had previously filed claims with
               the department as a result of the accident.
               (c) Any notice of revocation issued under this section shall be
               sent by United States mail to the last known address of such
               operator and owner not less than twenty (20) days prior to the
               effective date of revocation, and shall state the amount required
               as security, and that the operator, owner, or both are entitled to
               an administrative hearing conducted pursuant to a request under
               the provisions of § 55-12-103(a). Any request for an administrative
               hearing must be submitted in writing on or before the effective
               date of the proposed revocation.

TENN. CODE ANN . § 55-12-105 (1998).

        Ms. Nelson claims that the accident failed to result in damage to property in excess of four
hundred dollars such that section 55-12-105 was inapplicable. We disagree. Section 55-12-110(a)
of the Tennessee Code states:

               Any party who has suffered damages as a result of an accident
               may submit to the commissioner an affidavit or an accident
               report showing thereon the amount of damages suffered. The
               affidavit or accident report, when properly executed, shall, for
               the purpose of this chapter, be accepted by the commissioner
               as satisfactory evidence to indicate the amount of actual damages,
               unless evidence to the contrary is received, in which case the
               commissioner shall, for the purposes of this chapter, determine
               the damages from written evidence submitted to the commissioner.



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TENN. CODE ANN . § 55-12-110(a) (1998).

The accident report which was filed with the commissioner states that each automobile sustained
more than four hundred dollars in damage. Pursuant to section 55-12-110(a), the commissioner was
entitled to rely on the accident report and find that the accident caused more than four hundred
dollars in property damage unless the commissioner received evidence to the contrary. We can find
no such evidence to the contrary in the case at bar. Accordingly, this issue is without merit.

        The second issue presented for our review is whether Ms. Nelson’s driver’s license, driving
privileges, and privileges to obtain a license were revoked on November 11, 1998, prior to the date
set for the hearing such that she was, therefore, denied due process. The trial court noted in its
memorandum and order that the record revealed that no action was taken to actually revoke Ms.
Nelson’s license until after the January 14, 1999, hearing. As stated by the trial court, “While it is
not clear to the Court or from the record why the Department would have rescheduled a hearing for
the petitioner on January 14, 1999, but sent the petitioner a letter revoking her license on November
11, 1998, the Court finds that there was no deprivation of due process.” We agree. The Department
mailed Ms. Nelson a letter dated November 11, 1998, stating that her driver’s license, driving
privileges, and privileges to obtain a license were revoked. Nevertheless, the Department
rescheduled the hearing on the matter for January 14, 1999. Clearly the Department did not actually
revoke Ms. Nelson’s driver’s license, driving privileges, and privileges to obtain a license when it
had rescheduled a hearing for a later date on the matter. Because we find that Ms. Nelson’s rights
were not actually revoked prior to the January 14, 1999, hearing, we find that she was not deprived
of due process when the Department sent her the letter dated November 11, 1998.

         The third issue presented for our review is whether Ms. Nelson failed to receive notice of the
January 14, 1999, hearing and was, therefore, deprived of due process. The Department contends
that it notified Ms. Nelson by letter dated December 18, 1998, that the hearing was rescheduled for
January 14, 1999. Ms. Nelson claims that she never received the letter. There are two ways to prove
that a letter has been received: (1) by direct proof of delivery and receipt; or (2) by proof that the
letter was duly mailed. See U.S. Life Title Ins. Co. v. Department of Commerce and Ins., 770
S.W.2d 537, 542 (Tenn. Ct. App. 1988). Proof of due mailing raises a presumption that the letter
was received. See id. Proving that a letter was duly mailed requires evidence that the letter was
deposited with the post office properly stamped and correctly addressed. See id.; Southern Region
Indus. Realty, Inc. v. Chattanooga Warehouse & Cold Storage Co, Inc., 612 S.W.2d 162, 164 (Tenn.
Ct. App. 1980); W.E. Richmond & Co. v. Security Nat’l Bank, 64 S.W.2d 863, 869 (Tenn. Ct. App.
1933). “Evidence that another letter, addressed in the same manner as the letter in question, was
received by the addressee, is entitled to be considered in determining whether or not the presumption
will arise.” W.E. Richmond & Co., 64 S.W.2d at 869 (citing Lawrence Bank v. Raney & Berger Iron
Co., 26 A. 119, 121 (Md. 1893)). The presumption is one of fact which can be rebutted. See id.


       There is no direct evidence that the letter dated December 18, 1998 was received by Ms.
Nelson. Accordingly, it was incumbent on the Department to present evidence that the letter was


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duly mailed. We find that the Department failed to satisfy its burden. The Department notes that
there is no evidence that the letter was returned for insufficient postage or inability to make a
delivery. The Department presents no evidence, however, that the letter was properly stamped and
deposited with the post office. While the address on the face of the letter reflects that it was mailed
to the address at which Ms. Nelson received all other correspondence and notices from the
Department, this alone is not sufficient evidence to raise the presumption that the letter was duly
mailed. We find that Ms. Nelson’s due process rights were violated for failure to receive notice of
the hearing rescheduled for January 14, 1999. Consequently, the trial court erred in affirming the
Department’s default judgment against Ms. Nelson.

       The final issue presented for our review is whether the trial court erred in assessing court
costs against Ms. Nelson as an indigent litigant. Because we find that the trial court erred in
affirming the Department’s default judgment against Ms. Nelson, we decline to address the issue of
court costs.

                                          IV. Conclusion

        For the foregoing reasons, we reverse the decision of the trial court affirming the Appellee’s
entry of default judgment against the Appellant and remand the case to the trial court for further
proceedings consistent with this opinion. Costs of this appeal are taxed against the Appellee, State
of Tennessee Department of Safety, for which execution may issue if necessary.




                                                       ___________________________________
                                                       ALAN E. HIGHERS, JUDGE




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