*1 Director, of Finance WEISS, Richard v. Patricia G. Administration, of Arkansas State JOHNSON 961 S.W.2d 97-565 of Arkansas Court Supreme 12, 1998 February delivered Opinion *2 Mark S. Ferguson, appellant. Bunch, for
Ray appellee. The appellee’s Imber, Annabelle Clinton Justice. driver’s license Office of Driver Services of suspended by the Revenue Division of of Finance & Adminis- tration of her DWI Pursuant to pending adjudication charge. Act filed a “de novo for review” appellee of the determination in circuit court. DF&A faffed to agency at the and the trial court entered a appear hearing, judgment favor of DF&A moved to set aside the appellee. judgment, alleg- that it was not served with ing appeEee’s petition compHance motion, with Ark. P. 4. R. Civ. The trial court denied the find- that the was a and that the ing rule was “special hearing” dismiss, We reverse and that the service apphcable. holding of Rule 4 are because the appEcable statutory procedure *3 at issue is sEent on notice or service of at the circuit court process level. 23, 1996, On Patricia filed September a petition Johnson
the Benton Circuit Court for de novoreview of a County decision the Office of Driver Services to her driver’s license. suspend styled “PATRICIA petition G. vs. Johnson JOHNSON ARKANSAS, STATE OF SERVICES, OFFICE OF DRIVER REVENUE DIVISION OF THE DEPARTMENT OF FINANCE AND ADMINISTRATION.” to the facts According as set forth in her 13, had been petition, arrested on July Johnson 1996, for DWI second offense and on a driving driver’s suspended license, of resulting her license. suspension On September 18, 1996, the Office of Driver Services held a and sus hearing tained the license. suspension The certificate of ser Johnson’s vice attached to the indicated that “served a copy Johnson of the. . . Petition for Relief Concerning Driver’s Suppression Boone, License. . . on Toni Referee, Driver Control Hearing Avenue, North 145, Suite CoEege 72701, Arkansas FayetteviEe, MaE, thereof in the placing United copy States postage pre addressed to her as above paid, set forth.” In 6, 1996, a letter dated December counsel sent a Johnson’s Boone, letter to Toni “Driver Referee,” Control at the Hearing same address set forth in the certificate of service. Johnson enclosed a and informed copy petition, Boone that the mat- ter had been set for a on At hearing January 1997. this hearing Boone, counsel that explained referee who actuaEy Johnson’s Ecense, was not suspended Counsel stated present. Johnson’s was, is the one that the license and actuaEy suspended “[Boone] notified her of this and the 6th I mailed on December so about it.” all were informed make sure that court date to parties absence, that the court reinstate moved Based on Boone’s Johnson concerning charges against her license adjudication “pending that some kind of statement Boone can her unless Toni produce examined The trial court of this had no hearing.” she knowledge Boone, then stated the to and that had sent the letter Johnson following: have here with notice the facts that you provided Based upon I read this 5-65-104C the fact that as and based upon this the burden at this hearing of Driver Services has the Office [sic] that a revocation of the evidence to establish by preponderance I think I don’t failing prosecute appear was appropriate, burden, that have they but find that the choice got any have rein- and that the driver’s license should be met their burden a final adjudication. stated pending 23, 1997, entered an order the trial court reinstating On January license, Driver that the Office of Serv- driver’s finding Johnson’s notice even it had received failed to though ices had appear its and that it had “failed to meet the December 6 letter through burden in this case.” 18, 1997, Finance &
On February aside the order on filed a motion to set Administration of DF&A as a failed to name Director grounds Johnson and that P. “4(8A)” [sic], as Ark. R. Civ. defendant required by failed to deliver a summons complaint copy Johnson *4 Ark. R. of DF&A as Civ. the Chief Executive Officer required that it did not receive further P. DF&A “4(7)” alleged [sic]. it received the trial court’s order “this action” until notice of license, and that DF&A reinstatement directing Johnson’s an time to file answer. be additional should granted 20, 1997, on DF&A’s March following hearing On motion, an the motion and trial court entered order denying as follows: finding in circuit court review conducted pursuant 1. That the de novo is a “special hearing.” Ark. Code Ann. 5-65-104
to § Boone, officer, an authorized Toni was 2. That the hearing Services, Driver and that “notification of the Office of agent was date her under the facts of this case of the hearing received made to service [DF&A].” That with notice of the de 3. served DF&A properly Johnson meet novoreview and that DF&A failed to its burden proof. DF&A from order its brings present appeal denying set aside. motion to
DF&A’s sole on that the trial abused is court argument appeal its its aside service discretion motion to set because denying for review failed to petition comply Johnson’s of Ark. R. Civ. P. 4. DF&A contends service Specifically, and a summons should have been made on Richard Weiss, DF&A, chief executive officer of R. Ark. Civ. P. and that 4(d)(7), Weiss should have been named as a to the party action under Ark. R. P. Civ. 4(d)(8).
Act 802 of codified in at Ark. Code Ann. part 5-65-104 1997), sus (Repl. generally governs temporary § of driver’s hcenses held for pension those arrested driv persons while intoxicated. The statute directs officer ing arresting license, seize the arrestee’s to that individual’s subject right before the of Driver Office Services of the Revenue Divi hearing sion of the of Finance & Administration. Ark. Code Ann. This “shall cover the 5-65-104(a)(1). issues of § whether the officer had reasonable to believe that the grounds per son had been a vehicle while intoxicated. . . and operating whether the under arrest.” Ark. person placed Code 5-65-104(a) (8) “At the burden (A). shall be hearing, proof § state, on the and the decision shall be based on a preponderance determination, the evidence.” Id. an adverse Following person file “de novo may review” within in the days thirty circuit court which the county offense took place. Code Ann. 5-65-104(c). “The administrative held hearings to this section be shall from the Admin pursuant Arkansas exempt Act, istrative Procedure 25-15-201 et Id. On review to seq.” court, circuit the trial court is directed hear the case de novo“to whether, evidence, determine on a based of the preponderance revocation, exist for grounds denial of the suspension, person’s to drive.” Id. privilege absent from the statute is Noticeably indication any whether the service of the Rules of Civil Procedure provision court, on review to circuit that the APA does say except *5 at not the administrative level. One notice or service apply provi sion found that is in the statute deals with that the requirement 414 a notice form as officer the driver a receipt serving
arresting give Ark. Code or revocation and the right hearing. of suspension Furthermore, notices from 5-65-104(a)(2). “[a]ny Ann. § under are not this act which of Driver Services Office required . certified mail. . . Refusal delivered shall be sent by personally of the or addressee to delivery attempted delivery accept Ark. Code . notice.” notice . . shall constitute nonreceipt has to drive Once a privilege Ann. 5-65-104(a)(3). person’s denied, statute, revoked, or been person suspended the Office Driver Services is entitled to with upon 5-65-104(a)(7). “written Ark. Code. request.” Procedure, 1 of Rules of Rule the Arkansas Civil gov Rules, rules of the that scope provides part erning “[t]hese circuit, in the and shall procedure chancery, probate govern nature in all suits or actions of a civil courts exceptions Note to in Rule 81.” The Rule stated Reporter’s explains “ makes to the of these rules Rule 81 applicability exceptions The Rule statutory 81(a) pro proceedings.” exception special as follows: vides all civil in General. These rules shall (a) Applicability circuit, cognizable chancery, probate
proceedings this in those where a statute courts of State instances except creates a remedy which right, proceeding specificallyprovides different event the so in which procedure procedure specified shall apply. that the Ark. R. Civ. P. The Note 81(a). Reporter’s explains “would be those established 81(a) Rule exception proceedings and the statute a different statute procedure. Except prescribes statute, however, extent that these are modified they rules all added.) cases.” shall apply (Emphasis This court has the distinction between historically recognized — actions two civil proceedings special proceedings types — are and considered whether or not the rules of civil procedure to certain in In proceedings. Recently, applicable types special Martindale, 491 (1997), re: S.W.2d Adoption of were with the issue of whether the nonsuit we voluntary presented of Ark. R. P. were 41(a) Civ. adoption applicable statute and created Adoption proceedings, proceedings. law, at common “with unknown were proceedings appro- special enacted to and necessary signifi- special procedures protect priate
415 such cant concerns as the of rights public adoptive parents policy and minor children to establish a stable and secure relation- family Id. the nonsuit of Rule ship.” Applying voluntary to would have the (a) 41 nullified proceedings effectively adoption of the Arkansas Revised Uniform Act’s plain meaning Adoption limitations, statute of and the intent one-year legislative ignored Thus, behind the statute limitations. the trial court in Martin- erred dale in a dismissal without granting allowing prejudice the a set aside an subsequent refiling adoption outside of the limitations statutory period. Dist., Sosebee
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This conclusion is bolstered of review review,” labeled a for circuit court. While “petition sought Thus, de statute that the circuit court hears the case novo. explains the circuit court is no bound administrative decision way if below and assumes the case as it were filed in circuit originally of the circuit action court. Given character court “original” review, it consistent to the chal due to de novo seems require notice traditional means of DF&A through lenging party give In re: Annexation to Town service Beaver, process. Proposed Compare 516, 282 Ark. S.W.2d 467 (1984) 669 (challenge county in circuit court to statute court annexation proceeding pursuant not an but an attack” service was requiring “appeal” “independent Commissioners, under Rule with v. Board 286 Fulmer 4) process 419, of commissioner’s 692 S.W.2d (1985) (challenge sale statute did notice Rule 4 where require pursuant the statute at issue was a action which con- statutory “special its own for notice”). tained] held that Rule service Having governs Johnson’s review, it is clear that DF&A was served petition not properly under the The reflects that Rule. abstract mailed simply Johnson Boone a of her via United Mail at States Boone’s copy business address. also mailed Boone a letter informing Johnson 10, Boone that matter was set for a on 1997. January However, the record fails that the to show director of DF&A was lawsuit, ever named aas to the see Civ. P. Ark. R. party 4(d)(8) DF&A with 25(d)(2), served properly and a summons. See Ark. R. Civ. P. Because 4(d)(7). Johnson failed serve DF&A under Rule the trial court lacked properly enter jurisdiction to an order license. We reinstating Johnson’s hold that the trial court abused its discretion in DF&A’s denying *8 aside, motion to set and reverse and dismiss without prejudice.
Reversed dismissed without prejudice.
Brown, J., concurs. L. I Brown, com- Justice, concurring.
Robert agree but pletely write majority an opinion only highlight for two inconsistency procedures review. categories judicial We hold that Ark. P. R. Civ. today review governs judicial driver’s license under Ark. Code suspensions 5-65-104(c) 1997), which includes of a (Repl. issuance summons and personal service of the on the Under the Administrative agency. Act, Procedure service of the for review mail judicial is all that is See Ark. Code Ann. required. 25-15-212(b)(2) (Repl. 1996).
Conflicting for administrative procedures to circuit appeals court on basic like service can create points process procedural pitfall their clients. I attorneys invite the attention of the General to this Assembly matter.