MICHAEL EDWARD SHELTON v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Respondent-Respondent. , 439 S.W.3d 301 ( 2014 )

MICHAEL EDWARD SHELTON, )
)
Petitioner-Appellant, )
)
vs. ) No. SD32964
)
DIRECTOR OF REVENUE, STATE OF ) Filed: August 27, 2014
MISSOURI, )
)
Respondent-Respondent. )
APPEAL FROM THE CIRCUIT COURT OF CRAWFORD COUNTY
Honorable Scott L. Bernstein, Associate Judge
DISMISSED
Michael Edward Shelton (“Appellant”) appeals the denial of a motion for
summary judgment. Because Appellant does not contest an appealable judgment, we
dismiss.
Appellant filed a petition for review in the Circuit Court of Crawford County after
receiving notice from the Director of Revenue (“the Director”) that, effective April 3,
2013, he was disqualified from operating a commercial motor vehicle (“CMV”) for a
period of one year. In his first amended answer to the petition, the Director alleged that
Appellant was convicted of driving while intoxicated on February 28, 2013, and that his
1
one-year CMV disqualification was pursuant to sections 302.700 and 302.755.1 The
Director also attached a copy of Appellant’s driving record showing that Appellant had
received a previous one-year CMV disqualification, effective September 10, 2011, based
upon an August 24, 2011 administrative alcohol suspension. The record reflected that
both Appellant’s September 10, 2011 disqualification and April 3, 2013 disqualification
arose from the same police citation, issued on April 3, 2011.
Appellant thereafter moved for summary judgment, relying upon the admissions
made in the Director’s answer. Because the undisputed facts showed that Appellant had
received a one-year CMV disqualification based upon an administrative alcohol
suspension, Appellant argued that his February 28, 2013 driving while intoxicated
conviction was not a “first violation” within the meaning of section 302.755.1. The
Director, citing Addison v. Director of Revenue, 302 S.W.3d 735, 737 (Mo.App. E.D.
2010), filed a reply contending that both disqualifications were proper.
Following a hearing, the trial court issued its final judgment, which (1) denied
Appellant’s motion for summary judgment; and (2) sustained the disqualification of his
commercial driving privileges based upon the February 28, 2013 conviction. Appellant
now appeals and raises a single point relied on specifically contending that “[t]he trial
court erred in overruling and denying Appellants’ [sic] motion for summary judgment[.]”
It is well-settled that the denial of a motion for summary judgment does not raise
an appealable issue. Amos v. City of Noel, 276 S.W.3d 355, 356 (Mo.App. S.D. 2009).2
1
All statutory references are to RSMo Cum.Supp. 2009.
2
One recognized exception exists where the merits of the denied motion are “inextricably intertwined”
with issues in an appealable summary judgment in favor of another party. Herring v. Prudential Property
& Cas. Ins. Co., 96 S.W.3d 893, 894 (Mo.App. W.D. 2002). We do not apply this exception here because
Appellant raises no contention that the Director either moved for or was granted summary judgment in this
case.
2
This is true even when, as in this case, the appeal is taken from a final judgment in the
case. Little v. McSwain, 400 S.W.3d 461, 462 (Mo.App. E.D. 2013). Because Appellant
challenges only the denial of his motion for summary judgment, a non-appealable issue,
his point presents nothing for review.3
Accordingly, Appellant’s appeal is dismissed.
Nancy Steffen Rahmeyer, J. - Opinion Author
Gary W. Lynch, J. - Concurs
Don E. Burrell, J. - Concurs
3
Appellate review is restricted to the issues raised in the points relied on. Underwood v. Hash, 67 S.W.3d
770, 779 (Mo.App. S.D. 2002). Appellant raises no challenge with respect to the trial court’s judgment
sustaining the disqualification of his commercial driving privileges; therefore, we do not address the merits
of that judgment.
3