                                          In the
                         Missouri Court of Appeals
                                  Western District
 HOLLY N. WATERS,                             )
                                              )
                 Appellant,                   )   WD82376
                                              )
 v.                                           )   OPINION FILED: October 8, 2019
                                              )
 DIRECTOR OF REVENUE,                         )
                                              )
                Respondent.                   )

                Appeal from the Circuit Court of Clay County, Missouri
                         The Honorable Karen L. Krauser, Judge

      Before Division One: Cynthia L. Martin, Presiding Judge, Alok Ahuja, Judge and
                              Anthony Rex Gabbert, Judge


        Holly N. Waters ("Waters") appeals from the trial court's judgment sustaining the

Director of Revenue's suspension of her driving privileges. Waters argues on appeal that

the trial court erred in concluding that it did not have authority to hear and determine due

process violations that allegedly took place at the administrative hearing. Finding no error,

we affirm.
                                 Factual and Procedural Background1

         On July 24, 2016, Waters was arrested at a checkpoint in Clay County, Missouri

after exhibiting signs of intoxication. Following a breath test, Waters's driving privileges

were suspended as a result of driving with a blood-alcohol content in excess of the legal

limit set forth in section 302.505.1.2 Waters filed a request for an administrative hearing

to review the suspension of her driving privileges, and an administrative hearing officer for

the Director of Revenue held a hearing on November 14, 2016. The hearing officer

affirmed the suspension on November 21, 2016. Thereafter, Waters filed a timely petition

for trial de novo pursuant to section 302.535 on November 30, 2016, in the Circuit Court

of Clay County.

         Waters filed a motion for summary judgment on November 20, 2017, asking the

trial court to set aside the suspension of her license because the administrative hearing

officer who presided over the administrative hearing violated Waters's "due process rights

to a fair, impartial, and meaningful hearing conducted by [a] neutral hearing officer."

Waters asserted that the administrative hearing officer violated her right to due process in

two respects: (1) after learning from an unidentified clerk that the Director of Revenue's

file did not contain a complete maintenance report,3 the administrative hearing officer


         1
            We view "'[t]he evidence and reasonable inferences drawn therefrom . . . in the light most favorable to the
trial court's judgment and [disregard] all contrary evidence and inferences.'" Boggs v. Dir. of Revenue, 564 S.W.3d
693, 697 (Mo. App. W.D. 2018) (quoting Rothwell v. Dir. of Revenue, 419 S.W.3d 200, 203 (Mo. App. W.D.
2013)).
          2
            All statutory references are to RSMo 2000 as supplemented through the date of Waters's arrest on July 23,
2016.
          3
            "A maintenance report showing that a maintenance check was performed within 35 days prior to the
driver's breath test is evidence of the foundational requirement that 'the test was performed according to approved
techniques and methods on a reliable machine.'" Carey v. Dir. of Revenue, 514 S.W.3d 679, 683 (Mo. App. E.D.
2017) (quoting Sellenriek v. Dir. of Revenue, 826 S.W.2d 338, 340 (Mo. banc 1992)).

                                                           2
notified a member of his support staff of the deficiency, and the member of his support

staff then obtained a complete copy of the maintenance report from the Missouri

Department of Health and Senior Services' website and supplemented the Director of

Revenue's file with it; and (2) over Waters's objections, the administrative hearing officer

allowed the complete maintenance report to be admitted into evidence and then ruled that

a breath test, which determined Waters's blood-alcohol concentration was in excess of the

legal limit, was performed using properly functioning equipment by a licensed person

before affirming the suspension of Waters's license.

       The Director of Revenue filed a response in which it objected to the relevance of

Waters's due process claims, given that a trial de novo is an original proceeding and none

of the actions taken by the administrative hearing officer are before the trial court for

review. The Director of Revenue further disputed Waters's contention that due process

violations occurred at the administrative hearing. The Director of Revenue asserted that it

was aware of no case law or statute that prohibits the Director of Revenue's file, which

initially includes the report submitted by the officer to the Director of Revenue, from being

supplemented for the administrative hearing.

       After hearing arguments from counsel, the trial court denied Waters's motion for

summary judgment. The trial de novo took place on July 23, 2018. Waters argued at the

outset of the trial de novo that she believed that the trial court had authority to consider

whether Waters's due process rights were violated during the administrative hearing and

objected to the admission of the chemical breath test results in an attempt "to keep [the]

issue alive." Further, Waters asked the trial court to admit into evidence the statement of

                                             3
uncontroverted facts filed with her motion for summary judgment and the exhibits

supporting those uncontroverted facts. The trial court received both into evidence. The

Director of Revenue, in its pretrial requests, asked the trial court to make findings of fact

and conclusions of law on the credibility of witnesses, and whether the Director of Revenue

met its burden to show that probable cause existed to arrest Waters and to show that Waters

had a blood-alcohol concentration in excess of the legal limit.

       Following a trial in which the court received into evidence, inter alia, a copy of the

alcohol influence report and the arresting officer's testimony, the trial court issued findings

of fact, conclusions of law, and judgment sustaining the suspension of Waters's driving

privileges ("Judgment"). The Judgment found the evidence adduced by the Director of

Revenue credible, and concluded that there was probable cause to arrest Waters for an

alcohol-related offense and that Waters was driving with a blood-alcohol concentration in

excess of the legal limit.

       Following the entry of Judgment, Waters filed a motion to set aside the Judgment

("motion to set aside") requesting, inter alia, that the trial court make findings of fact and

conclusions of law regarding whether the trial court had authority to consider Waters's

allegations that her due process rights were violated during the administrative hearing.

During a hearing on Waters's motion to set aside, the trial court indicated that it would not

modify the Judgment to include findings and conclusions on the issue because Waters

failed to request those findings and conclusions during the trial de novo. The trial court

also stated during the hearing that de novo review does not afford a trial court the authority



                                              4
to review alleged errors during an administrative hearing. The trial court denied Waters's

motion to set aside.

         Waters appeals.

                                               Standard of Review

         We review the "'trial court's judgment in a driver's license revocation case . . . as

any court-tried civil case.'" Boggs v. Dir. of Revenue, 564 S.W.3d 693, 696 (Mo. App.

W.D. 2018) (quoting Rothwell v. Dir. of Revenue, 419 S.W.3d 200, 203 (Mo. App. W.D.

2013)). We will affirm the judgment from a court-tried case "unless there is no substantial

evidence to support it, unless it is against the weight of the evidence, unless it erroneously

declares the law, or unless it erroneously applies the law." Murphy v. Carron, 536 S.W.2d

30, 32 (Mo. banc 1976). While we defer to the trial court on issues of fact, including the

resolution of contested evidence and credibility determinations, questions of law are

reviewed de novo. White v. Dir. of Revenue, 321 S.W.3d 298, 308 (Mo. banc 2010).

                                                       Analysis

         Waters presents a single point on appeal. Waters argues that the trial court erred in

denying her motion for summary judgment and in denying her continuing objection

regarding the trial court's authority in a trial de novo to hear and determine her allegations

of due process violations that occurred at the administrative hearing.4 Waters does not ask


         4
           Waters's point on appeal asserts that "the trial court had the jurisdiction or authority in the trial de novo to
hear and determine allegations of due process violations which occurred at the administrative level," and Waters
refers to the trial court's jurisdiction in a trial de novo throughout her brief. [Appellant's Brief, p. 15] Any reference
to whether the trial court has jurisdiction in a trial de novo is erroneous, as J.C.W. ex rel. Webb v. Wyciskalla, 275
S.W.3d 249, 252 (Mo. banc 2009), clarified that there are only two kinds of jurisdiction in Missouri, subject-matter
and personal. See also Ground Freight Expeditors, LLC v. Binder, 359 S.W.3d 123, 126 (Mo. App. W.D. 2011)
("[An] application for trial de novo [is] a civil matter and, thus, technically a matter over which the [trial] judge had
subject-matter jurisdiction").

                                                             5
us to determine whether a violation of her rights to due process took place during the

administrative hearing. Instead, Waters simply asks us to determine "whether or not the

[trial] courts . . . have the . . . authority to hear and determine due process violations which

occur at the administrative level." [Appellant's Brief, p. 18]

       Waters's point on appeal is flawed in two respects. First, Waters's point on appeal

challenges two rulings by the trial court: the denial of her motion for summary judgment

and the denial of her continuing objection. Rule 84.04(d)(1)5 provides that each point on

appeal shall "[i]dentify the trial court ruling or action" that the appellant challenges.

(Emphasis added.) A point on appeal that challenges more than one trial court ruling or

action is multifarious and preserves nothing for appeal. LVNV Funding, LLC v. Mavaega,

527 S.W.3d 128, 141 (Mo. App. W.D. 2017). Nevertheless, we exercise our discretion to

review Waters's complaints ex gratia.

       Waters's point on appeal is further flawed in that it challenges the trial court's denial

of summary judgment. "Ordinarily, 'an order denying a motion for summary judgment is

an interlocutory order and is not reviewable on appeal.'" Id. at 135 n.7 (quoting K.C. Air

Cargo Servs., Inc. v. City of Kansas City, 523 S.W.3d 1, 5 (Mo. App. W.D. 2017)).

Challenging the denial of summary judgment on appeal is improper "'even when an appeal

is taken from a final judgment and not from the denial of a motion for summary judgment.'"

Gamble v. Browning, 277 S.W.3d 723, 729-30 (Mo. App. W.D. 2008) (quoting State ex

rel. Mo. Div. of Transp. v. Sure-Way Transp., Inc., 884 S.W.2d 349, 351 (Mo. App. W.D.



       5
           All rule references are to the Missouri Supreme Court Rules (2019), unless otherwise indicated.

                                                          6
1994)). Challenges to the denial of a motion for summary judgment are impermissible

because "[t]here are other procedural vehicles for preserving and raising [issues set forth

in a motion for summary judgment] at trial through motions for directed verdict, objections

to testimony, and/or jury instructions." Id. As such, we will not consider Waters's

challenge to the trial court's denial of her motion for summary judgment.

       We are left with Waters's contention that the trial court erred in denying her

continuing motion that the trial court had authority to hear and determine her allegations

of due process violations that occurred at the administrative hearing. While the trial court

made no findings regarding this subject in the Judgment, the trial court noted on the record

during the hearing on Waters's motion to set aside that it believed it did not have the

authority in a trial de novo to consider Waters's complaints about alleged due process

violations that occurred during the administrative hearing. The trial court's understanding

of its role in a trial de novo was correct.

       A driver who receives a notice of suspension of driving privileges "may make a

request within fifteen days of receipt of the notice for a review of the [Director of

Revenue's] determination at a hearing." Section 302.530.1. If the suspension is affirmed

following the administrative hearing, the driver may file a petition for trial de novo in the

circuit court of the county where the driver was arrested. Section 302.530.7; section

302.535. Section 302.535.1 provides that a trial do novo "shall be conducted pursuant to

the Missouri rules of civil procedure and not as an appeal of the administrative decision

pursuant to chapter 536." (Emphasis added.)



                                              7
         This statutory scheme clearly contemplates that while a trial de novo follows an

administrative hearing, a trial de novo is an original proceeding and is not designed or

intended to review the underlying administrative proceeding for alleged error. Folkedahl

v. Dir. of Revenue, 307 S.W.3d 238, 241 (Mo. App. W.D. 2010). The trial de novo is a

"new, judicial proceeding, unfettered by factual findings or legal conclusions rendered in

an administrative tribunal." Jarvis v. Dir. of Revenue, 804 S.W.2d 22, 24 (Mo. banc 1991).

Thus, the court may not "consider or base its decision upon the evidence presented at the

administrative hearing or the findings of the hearing officer." Jenkins v. Dir. of Revenue,

858 S.W.2d 257, 261 (Mo. App. W.D. 2013). "[T]he statutory procedure permits [the

driver] to start anew in her attack on the [Director of Revenue's] order suspending her

driving privilege." Jarvis, 804 S.W.3d at 24. "[The driver's] strategy may change; she may

present new evidence; she may confront the [Director of Revenue's] witnesses again with

renewed vigor . . . ." Id.

         Thus, a driver's complaints about the outcome of, or evidence admitted during, an

administrative hearing which results in the suspension of the driver's license are irrelevant

during a trial de novo. The driver has the opportunity during the trial de novo to object

anew to the admission of evidence, and in doing so to raise any relevant complaints about

the foundation for or authenticity of the evidence. Challenges, however, alleging due

process violations during the administrative hearing are outside the scope of the trial court's

statutory charge in a trial de novo.6


         6
         This result is consistent with the results reached in cases addressing a circuit judge's authority when sitting
de novo following proceedings before an associate circuit judge or the small claims court. See, e.g., KNT Mgmt.,
LLC v. Flenoid, 419 S.W.3d 897, 901 (Mo. App. E.D. 2014) (noting that a circuit court does not take a case not

                                                           8
         Waters's point on appeal is denied.

                                                     Conclusion

         The Judgment is affirmed.7



                                                        __________________________________
                                                        Cynthia L. Martin, Judge


All concur




heard on the record by an associate circuit judge for "appeal," but instead, for a trial de novo, and as a result does not
sit "as an appellate court to assess claims of error in the original proceedings before the associate circuit judge");
Killerson v. American Bankers Ins. Co. of Florida, 733 S.W.2d 442, 444 n.4 (Mo. banc 1987) (noting that a circuit
judge under section 482.365 takes a case from the small claim court for trial de novo, not appeal, and thus does not
sit "as an appellate court to assess claims of error in the proceedings of the small claims court").
          7
            Waters's motion for attorneys' fees pursuant to section 302.536, filed just prior to oral argument in this
case, and taken with the case, is therefore denied, as Waters has not prevailed on appeal.

                                                            9
