{ "id": 1604801, "name": "Richard WEISS, Director, Department of Finance and Administration, State of Arkansas v. Patricia G. JOHNSON", "name_abbreviation": "Weiss v. Johnson", "decision_date": "1998-02-12", "docket_number": "97-565", "first_page": "409", "last_page": "417", "citations": [ { "type": "official", "cite": "331 Ark. 409" }, { "type": "parallel", "cite": "961 S.W.2d 28" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "286 Ark. 419", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721667 ], "weight": 2, "year": 1985, "pin_cites": [ { "parenthetical": "challenge of commissioner's sale pursuant to statute did not require notice under Rule 4 where the statute at issue was a \"special statutory action which contained] its own provisions for notice\"" }, { "parenthetical": "challenge of commissioner's sale pursuant to statute did not require notice under Rule 4 where the statute at issue was a \"special statutory action which contained] its own provisions for notice\"" } ], "opinion_index": 0, "case_paths": [ "/ark/286/0419-01" ] }, { "cite": "282 Ark. 516", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1740837 ], "weight": 2, "year": 1984, "pin_cites": [ { "parenthetical": "challenge of county court annexation proceeding in circuit court pursuant to statute was not an \"appeal\" but an \"independent attack\" requiring service of process under Rule 4" }, { "parenthetical": "challenge of county court annexation proceeding in circuit court pursuant to statute was not an \"appeal\" but an \"independent attack\" requiring service of process under Rule 4" } ], "opinion_index": 0, "case_paths": [ "/ark/282/0516-01" ] }, { "cite": "316 Ark. 366", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907742 ], "weight": 2, "year": 1994, "pin_cites": [ { "parenthetical": "\"What this court intended when it adopted. . . Rule 82 [sic] in particular, was to except from the rules special proceedings created by statute which established different procedures from those applicable to civil actions\"" }, { "parenthetical": "\"What this court intended when it adopted. . . Rule 82 [sic] in particular, was to except from the rules special proceedings created by statute which established different procedures from those applicable to civil actions\"" } ], "opinion_index": 0, "case_paths": [ "/ark/316/0366-01" ] }, { "cite": "310 Ark. 138", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898913 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/310/0138-01" ] }, { "cite": "330 Ark. 88", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 298558 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/330/0088-01" ] }, { "cite": "897 S.W.2d 556", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1451147, 1451191 ], "weight": 3, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/320/0412-01", "/ark/320/0392-02" ] }, { "cite": "320 Ark. 412", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1451147 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/320/0412-01" ] }, { "cite": "327 Ark. 685", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 922855 ], "weight": 4, "year": 1997, "pin_cites": [ { "parenthetical": "\"The Arkansas Revised Uniform Adoption Act's one year statute of limitations provides a special procedure which cannot be annulled by Rule 41(a).\"" } ], "opinion_index": 0, "case_paths": [ "/ark/327/0685-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-65-104", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 13, "pin_cites": [ { "page": "(a)(1)" }, { "page": "(a)", "parenthetical": "A" }, { "page": "(c)" }, { "page": "(a)(2)" }, { "page": "(a)(3)" }, { "page": "(c)" }, { "page": "(c)" }, { "page": "(c)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 25-15-212", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1996, "pin_cites": [ { "page": "(b)(2)" } ], "opinion_index": 1 }, { "cite": "Ark. Code Ann. \u00a7 5-65-104", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "page": "(c)" } ], "opinion_index": 1 } ], "analysis": { "cardinality": 731, "char_count": 16908, "ocr_confidence": 0.742, "pagerank": { "raw": 1.1358969246967251e-07, "percentile": 0.5772894481492936 }, "sha256": "0736975195ead2280c836cdfd2c383e22be94bbb783e7c3a0163b7882fd10f39", "simhash": "1:727fa03201cb3df2", "word_count": 2845 }, "last_updated": "2023-07-14T15:04:18.346145+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Brown, J., concurs." ], "parties": [ "Richard WEISS, Director, Department of Finance and Administration, State of Arkansas v. Patricia G. JOHNSON" ], "opinions": [ { "text": "Annabelle Clinton Imber, Justice.\nThe appellee\u2019s driver\u2019s license was suspended by the Office of Driver Services of the Revenue Division of the Department of Finance & Administration pending the adjudication of her DWI charge. Pursuant to Act 802 of 1995, the appellee filed a \u201cde novo petition for review\u201d of the agency determination in circuit court. DF&A faffed to appear at the hearing, and the trial court entered a judgment in favor of appellee. DF&A moved to set aside the judgment, alleging that it was not served with appeEee\u2019s petition in compHance with Ark. R. Civ. P. 4. The trial court denied the motion, finding that the hearing was a \u201cspecial hearing\u201d and that the rule was not apphcable. We reverse and dismiss, holding that the service provisions of Rule 4 are appEcable because the statutory procedure at issue is sEent on notice or service of process at the circuit court level.\nOn September 23, 1996, Patricia Johnson filed a petition in the Benton County Circuit Court for de novo review of a decision by the Office of Driver Services to suspend her driver\u2019s license. Johnson styled the petition \u201cPATRICIA G. JOHNSON vs. STATE OF ARKANSAS, OFFICE OF DRIVER SERVICES, REVENUE DIVISION OF THE DEPARTMENT OF FINANCE AND ADMINISTRATION.\u201d According to the facts as set forth in her petition, Johnson had been arrested on July 13, 1996, for DWI second offense and driving on a suspended driver\u2019s license, resulting in the suspension of her license. On September 18, 1996, the Office of Driver Services held a hearing and sustained the suspension of Johnson\u2019s license. The certificate of service attached to the petition indicated that Johnson \u201cserved a copy of the. . . Petition for Relief Concerning Suppression of Driver\u2019s License. . . on Toni Boone, Driver Control Hearing Referee, 280 North CoEege Avenue, Suite 145, FayetteviEe, Arkansas 72701, by placing a copy thereof in the United States MaE, postage prepaid, addressed to her as above set forth.\u201d\nIn a letter dated December 6, 1996, Johnson\u2019s counsel sent a letter to Toni Boone, \u201cDriver Control Hearing Referee,\u201d at the same address set forth in the certificate of service. Johnson enclosed a copy of the petition, and informed Boone that the matter had been set for a hearing on January 10, 1997. At this hearing Johnson\u2019s counsel explained that Boone, the referee who actuaEy suspended Johnson\u2019s Ecense, was not present. Counsel stated \u201c[Boone] was, is the one that actuaEy suspended the license and so on December the 6th I mailed a petition and notified her of this court date to make sure that all parties were informed about it.\u201d Based on Boone\u2019s absence, Johnson moved that the court reinstate her license \u201cpending adjudication concerning the charges against her unless Toni Boone can produce some kind of a statement that she had no knowledge of this hearing.\u201d The trial court examined the letter that Johnson had sent to Boone, and then stated the following:\nBased upon the facts that you have provided here with notice of this hearing and based upon the fact that as I read this 5-65-104C [sic] the Office of Driver Services has the burden at this hearing to establish by preponderance of the evidence that a revocation was appropriate, by failing to appear and prosecute I don\u2019t think I have got any choice but to find that the burden, that they have not met their burden and that the driver\u2019s license should be reinstated pending a final adjudication.\nOn January 23, 1997, the trial court entered an order reinstating Johnson\u2019s driver\u2019s license, finding that the Office of Driver Services had failed to appear even though it had received notice through the December 6 letter and that it had \u201cfailed to meet its burden in this case.\u201d\nOn February 18, 1997, the Department of Finance & Administration filed a motion to set aside the order on the grounds that Johnson failed to name the Director of DF&A as a defendant as required by Ark. R. Civ. P. \u201c4(8A)\u201d [sic], and that Johnson failed to deliver a copy of the summons and complaint to the Chief Executive Officer of DF&A as required by Ark. R. Civ. P. \u201c4(7)\u201d [sic]. DF&A further alleged that it did not receive notice of \u201cthis action\u201d until it received the trial court\u2019s order directing reinstatement of Johnson\u2019s license, and that DF&A should be granted additional time to file an answer.\nOn March 20, 1997, following a hearing on DF&A\u2019s motion, the trial court entered an order denying the motion and finding as follows:\n1. That the de novo review conducted in circuit court pursuant to Ark. Code Ann. \u00a7 5-65-104 is a \u201cspecial hearing.\u201d\n2. That the hearing officer, Toni Boone, was an authorized agent of the Office of Driver Services, and that \u201cnotification received of the hearing date by her under the facts of this case was service made to [DF&A].\u201d\n3. That Johnson properly served DF&A with notice of the de novo review and that DF&A failed to meet its burden of proof.\nDF&A brings the present appeal from the order denying its motion to set aside.\nDF&A\u2019s sole argument on appeal is that the trial court abused its discretion in denying its motion to set aside because service of Johnson\u2019s petition for review failed to comply with the provisions of Ark. R. Civ. P. 4. Specifically, DF&A contends that service of the petition and a summons should have been made on Richard Weiss, the chief executive officer of DF&A, under Ark. R. Civ. P. 4(d)(7), and that Weiss should have been named as a party to the action under Ark. R. Civ. P. 4(d)(8).\nAct 802 of 1995, codified in part at Ark. Code Ann. \u00a7 5-65-104 (Repl. 1997), generally governs the temporary suspension of driver\u2019s hcenses held by those persons arrested for driving while intoxicated. The statute directs the arresting officer to seize the arrestee\u2019s license, subject to that individual\u2019s right to a hearing before the Office of Driver Services of the Revenue Division of the Department of Finance & Administration. Ark. Code Ann. \u00a7 5-65-104(a)(1). This hearing \u201cshall cover the issues of whether the officer had reasonable grounds to believe that the person had been operating a vehicle while intoxicated. . . and whether the person was placed under arrest.\u201d Ark. Code Ann. \u00a7 5-65-104(a) (8) (A). \u201cAt the hearing, the burden of proof shall be on the state, and the decision shall be based on a preponderance of the evidence.\u201d Id. Following an adverse determination, a person may file a \u201cde novo petition for review\u201d within thirty days in the circuit court in the county in which the offense took place. Ark. Code Ann. \u00a7 5-65-104(c). \u201cThe administrative hearings held pursuant to this section shall be exempt from the Arkansas Administrative Procedure Act, \u00a7 25-15-201 et seq.\u201d Id. On review to circuit court, the trial court is directed to hear the case de novo \u201cto determine whether, based on a preponderance of the evidence, grounds exist for revocation, suspension, or denial of the person\u2019s privilege to drive.\u201d Id.\nNoticeably absent from the statute is any indication whether the service provision of the Rules of Civil Procedure apply on review to circuit court, except to say that the APA does not apply at the administrative level. One notice or service provision that is found in the statute deals with the requirement that the arresting officer give the driver a receipt form serving as a notice of suspension or revocation and the right to a hearing. Ark. Code Ann. \u00a7 5-65-104(a)(2). Furthermore, \u201c[a]ny notices from the Office of Driver Services required under this act which are not personally delivered shall be sent by certified mail. . . . Refusal of the addressee to accept delivery or attempted delivery of the notice . . . shall not constitute nonreceipt of notice.\u201d Ark. Code Ann. \u00a7 5-65-104(a)(3). Once a person\u2019s privilege to drive has been revoked, denied, or suspended under the statute, the person is entitled to a hearing with the Office of Driver Services upon \u201cwritten request.\u201d Ark. Code. Ann. \u00a7 5-65-104(a)(7).\nRule 1 of the Arkansas Rules of Civil Procedure, governing the scope of the Rules, provides in part that \u201c[t]hese rules shall govern the procedure in the circuit, chancery, and probate courts in all suits or actions of a civil nature with the exceptions stated in Rule 81.\u201d The Reporter\u2019s Note to Rule 1 explains that \u201c Rule 81 makes exceptions to the applicability of these rules for special statutory proceedings.\u201d The Rule 81(a) exception provides as follows:\n(a) Applicability in General. These rules shall apply to all civil proceedings cognizable in the circuit, chancery, and probate courts of this State except in those instances where a statute which creates a right, remedy or proceeding specifically provides a different procedure in which event the procedure so specified shall apply.\nArk. R. Civ. P. 81(a). The Reporter\u2019s Note explains that the Rule 81(a) exception \u201cwould be those proceedings established by statute and the statute prescribes a different procedure. Except to the extent that these rules are modified by statute, however, they shall apply in all cases.\u201d (Emphasis added.)\nThis court has historically recognized the distinction between two types of proceedings \u2014 civil actions and special proceedings \u2014 and considered whether or not the rules of civil procedure are applicable to certain types of special proceedings. Recently, in In re: Adoption of Martindale, 327 Ark. 685, 940 S.W.2d 491 (1997), we were presented with the issue of whether the voluntary nonsuit provisions of Ark. R. Civ. P. 41(a) were applicable to adoption proceedings. Adoption proceedings, created by statute and unknown at common law, were special proceedings \u201cwith appropriate and necessary special procedures enacted to protect significant public policy concerns such as the rights of adoptive parents and minor children to establish a stable and secure family relationship.\u201d Id. Applying the voluntary nonsuit provisions of Rule 41 (a) to adoption proceedings would have effectively nullified the plain meaning of the Arkansas Revised Uniform Adoption Act\u2019s one-year statute of limitations, and ignored the legislative intent behind the statute of limitations. Thus, the trial court in Martin-dale erred in granting a dismissal without prejudice and allowing the subsequent refiling of a petition to set aside an adoption outside of the statutory limitations period.\nBy way of comparison, Sosebee v. County Line Sch. Dist., 320 Ark. 412, 897 S.W.2d 556 (1995), presented the similar issue of whether Rule 41(a) allowed a nonsuit and the subsequent refiling of an appeal to circuit court outside of the seventy-five day time limit for such appeals under the Arkansas Teacher Fair Dismissal Act. In determining whether the Act was a \u201cspecial proceeding\u201d as that term is used in Rule 81 (a), the Sosebee court began by noting that \u201c[t]he Rules. . . apply to a proceeding unless a statute, which creates a right, specifically provides for a different procedure.\u201d Id. The Act was lacking in \u201cspecial rules\u201d concerning appeals to circuit court, while the court found \u201cvery thick and long breach of contract roots extending from the Teacher Fair Dismissal Act.\u201d Id. Moreover, the nature of the circuit court\u2019s review was not in substance that of an \u201cappeal,\u201d but instead encompassed the taking of evidence beyond the record of the administrative proceeding. For these reasons, the rights pursued under such an \u201cappeal\u201d were not created by the Act, as that term is used under the Rule 81(a) exception. Given the lack of procedures found in the Act once the matter reached the circuit court level, the Rules of Civil Procedure applied.\nIn the present case, like the adoption proceedings in Martindale, the right to judicial review of an administrative agency\u2019s temporary suspension of a driver\u2019s license is clearly a right created by statute as that term is used in Rule 81(a). Such a right to review has no origins in the common law. Driving itself is a privilege, not a right. See Pyron v. State, 330 Ark. 88, 953 S.W.2d 874 (1997). Thus, in that sense, the right to review in circuit court under Ark. Code Ann. \u00a7 5-65-104(c) is a statutory \u201cspecial proceeding.\u201d\nHowever, the analysis under Rule 81(a) does not end there. Not only must the statute create a \u201cright, remedy or proceeding,\u201d but it must also \u201cprovide [] a different procedure in which event the procedure so specified shall apply.\u201d Ark. R. Civ. P. 81(a). See also Reporter\u2019s Note to Rule 81 (\u201cthe [Rule 81(a)] exception would be those proceedings established by statute and the statute prescribes a different procedure\u201d) (emphasis added); Martindale, supra, (\u201cThe Arkansas Revised Uniform Adoption Act\u2019s one year statute of limitations provides a special procedure which cannot be annulled by Rule 41(a).\u201d); Sosebee, supra, (\u201cThe Rules thus apply to a proceeding unless a statute, which creates a right, specifically provides for different procedure\u201d) (emphasis added); Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992), limited on other grounds, 316 Ark. 366, 872 S.W.2d 370 (1994) (\u201cWhat this court intended when it adopted. . . Rule 82 [sic] in particular, was to except from the rules special proceedings created by statute which established different procedures from those applicable to civil actions\u201d) (emphasis added). On this point, Ark. Code Ann. \u00a7 5-65-104(c) provides nothing \u201cdifferent\u201d from the Rules in the way of notice or service of process at the circuit court level. By the statute\u2019s express terms, the APA does not apply, thus extinguishing a potential source for guidance. Given the silence of Ark. Code Ann. \u00a7 5-65-104(c) on the subject of notice or service of process, and therefore the lack of a \u201cdifferent procedure\u201d which conflicts with the Rules, we are left with no choice but to conclude that the Rules govern because the Rule 81(a) exception does not apply.\nThis conclusion is bolstered by the nature of the review sought in circuit court. While labeled a \u201cpetition for review,\u201d the statute explains that the circuit court hears the case de novo. Thus, the circuit court is in no way bound by the administrative decision below and assumes the case as if it were originally filed in circuit court. Given the \u201coriginal\u201d character of the circuit court action due to the de novo review, it seems consistent to require the challenging party to give DF&A notice through traditional means of service of process. Compare In re: Proposed Annexation to Town of Beaver, 282 Ark. 516, 669 S.W.2d 467 (1984) (challenge of county court annexation proceeding in circuit court pursuant to statute was not an \u201cappeal\u201d but an \u201cindependent attack\u201d requiring service of process under Rule 4) with Fulmer v. Board of Commissioners, 286 Ark. 419, 692 S.W.2d 246 (1985) (challenge of commissioner\u2019s sale pursuant to statute did not require notice under Rule 4 where the statute at issue was a \u201cspecial statutory action which contained] its own provisions for notice\u201d).\nHaving held that Rule 4 governs service of Johnson\u2019s petition for review, it is clear that DF&A was not properly served under the Rule. The abstract reflects that Johnson simply mailed Boone a copy of her petition via United States Mail at Boone\u2019s business address. Johnson also mailed Boone a letter informing Boone that the matter was set for a hearing on January 10, 1997. However, the record fails to show that the director of DF&A was ever named as a party to the lawsuit, see Ark. R. Civ. P. 4(d)(8) and 25(d)(2), or that DF&A was properly served with the petition and a summons. See Ark. R. Civ. P. 4(d)(7). Because Johnson failed to properly serve DF&A under Rule 4, the trial court lacked jurisdiction to enter an order reinstating Johnson\u2019s license. We hold that the trial court abused its discretion in denying DF&A\u2019s motion to set aside, and reverse and dismiss without prejudice.\nReversed and dismissed without prejudice.\nBrown, J., concurs.", "type": "majority", "author": "Annabelle Clinton Imber, Justice." }, { "text": "Robert L. Brown, Justice,\nconcurring. I agree completely with the majority opinion but write only to highlight an inconsistency in procedures for two categories of judicial review. We hold today that Ark. R. Civ. P. 4 governs judicial review of driver\u2019s license suspensions under Ark. Code Ann. \u00a7 5-65-104(c) (Repl. 1997), which includes issuance of a summons and personal service of the petition on the agency. Under the Administrative Procedure Act, service of the petition for judicial review by mail is all that is required. See Ark. Code Ann. \u00a7 25-15-212(b)(2) (Repl. 1996).\nConflicting procedures for administrative appeals to circuit court on basic points like service of process can create a procedural pitfall for attorneys and their clients. I invite the attention of the General Assembly to this matter.", "type": "concurrence", "author": "Robert L. Brown, Justice," } ], "attorneys": [ "Mark S. Ferguson, for appellant.", "Ray Bunch, for appellee." ], "corrections": "", "head_matter": "Richard WEISS, Director, Department of Finance and Administration, State of Arkansas v. Patricia G. JOHNSON\n97-565\n961 S.W.2d 28\nSupreme Court of Arkansas\nOpinion delivered February 12, 1998\nMark S. Ferguson, for appellant.\nRay Bunch, for appellee." }, "file_name": "0409-01", "first_page_order": 431, "last_page_order": 439 }