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NOTICE: This slip opinion is subject to
revision and may not reflect the final opinion adopted by the




Missouri Court of Appeals Southern District

Case Style: Blake Edward Ford, Respondent, v. Director of

Case Number: 22879

Handdown Date: 02/14/2000

Appeal From: Circuit Court of Scott County, Hon. David A.

Counsel for Appellant: Evan J. Buchheim

Counsel for Respondent: Richard Whiffen

Opinion Summary: None


Opinion Author: Phillip R. Garrison, Chief Judge

Opinion Vote: REVERSED. Montgomery, P.J., and Barney, J.,


Blake Edward Ford ("Respondent") was arrested by a
Sikeston, Missouri
police officer for driving while intoxicated when he was found
passed out
behind the wheel of his car. A breath test demonstrated that he
had a blood
alcohol content of .15% and, although he was never convicted for
while intoxicated, his driving privileges were suspended by the
Director of
Revenue ("Director") pursuant to Section 302.505, RSMo
Respondent filed a petition three years later against the
Missouri State
Highway Patrol, the Department, the City of Sikeston and the
Scott County
prosecuting attorney seeking to have all records relating to the
arrest and
the Department’s administrative action expunged. His petition
sought relief
pursuant to Section 610.122, RSMo Cum.Supp. 1998, [2] "and in
accord with
the equitable authority granted to Courts of general jurisdiction
the State of Missouri." Director filed a motion to dismiss
noting that
there was no statutory authority for the expungement sought. That
was overruled.
At the hearing on the petition, Director disputed the trial
authority to order the expungement of the Department’s
records of the suspension, noting that there is no statutory
authorizing that action under these facts. The only witness was
who testified that he had gone through alcohol rehabilitation,
and he
answered affirmatively to the following question:

[a]s you and I were discussing ten years down the road this
administrative mark on your record might not be a big concern,
but right now it is there for everyone to see, potential
employers and your insurance company to see, and you are asking
that the incident that happened to you when you were seventeen be
expunged from your records so you can have a clean start?

The trial court ordered all defendants to delete all records
of the arrest,
confinement and the administrative action. In doing so, it noted
Respondent was seventeen years old at the time of his arrest, and
it found
that it was "well satisfied that [Respondent] ha[d] rehabilitated himself
and ha[d] been able to avoid consumption of alcohol for a period
of time so
as to convince the Court of [Respondent’s] maturity." It
also found that
the records of Respondent’s arrest and those relating to the
suspension indicating an "alcohol related enforcement
contact [were] detrimental to the [Respondent], [were] detrimental to
[Respondent’s] employment and education prospects, that there [was] no adequate
remedy at
law, and that irreparable harm [would] continue to come to the
[Respondent] by the presence of these records."
Noting that its jurisdiction to order the expungment had been
the trial court referred to the fact that under Article 5,
Section 14 of
the Missouri Constitution, the Circuit Courts of this State have
jurisdiction over all cases and matters, civil and criminal,
equitable powers. It also noted Section 1.010, RSMo 1994, which
that the Common Law of England, except where repugnant or
inconsistent with
the United States Constitution, the Missouri Constitution or the
statutes, is the rule of action and decision. It held, inter

The Court notes that Missouri Statute 610.122 provides
for the expungement of any record of arrest, if it is
determined that the arrest was based on false
information if other listed conditions exist. While
this Statute is not applicable here, Subsection 5
states that the Court may act, provided no civil action
is pending related to the arrest or the records sought
to be expunged. This Statute, enacted by the
Legislature, does not prohibit other methods of

The trial court concluded that it had jurisdiction and
authority to issue
an equitable decree ordering the expungement of Respondent’s
arrest records
and the Department’s records of the administrative suspension. In
finding, the trial court concluded that the information placed on
Respondent’s driving record by the Department in connection with
administrative suspension "is so similar to a record of
arrest as to be
legally indistinguishable." The trial court entered a
judgment directing
the Director and the other defendants to "delete from their
records all
records of arrest, confinement, Administrative Hearing and other
relating to" the incident in question. Director appeals that
In his sole point on appeal, Director contends that the trial
court erred
in ordering the expungement of all records, including those of
administrative action under Section 302.505, RSMo 1994, because
that action
exceeded the court’s jurisdiction and was a misapplication of law
in that:
(1) the trial court, in ordering the expungement of records, may
grant only
the relief provided by specific statutes relating to the
expungement of
such records, as opposed to exercising general equitable powers;
Respondent’s petition sought relief under only Section 610.122,
Cum.Supp. 1998; (3) Section 610.122, RSMo Cum.Supp. 1998, does
not apply
because it only allows expungement of arrest records, and not
records of
administrative actions taken by Director; (4) Respondent
presented no
evidence that his arrest was based on false information or that
any other
conditions provided in Section 610.122, RSMo Cum.Supp. 1998, were
met; and
(5) Section 610.122, RSMo Cum.Supp. 1998, does not apply to the
of arrest records relating to alcohol-related offenses because
specific statutes govern expungement of those records.
Section 610.122, RSMo Cum.Supp. 1998, by its terms, applies only
to records
of arrest, and then, only if the court finds that the arrest was
based on
false information and that all of the five conditions set forth
in the
statute are shown to exist. Respondent made no showing sufficient
satisfy any of these requirements. In fact, the trial court found
Section 610.122, RSMo Cum.Supp. 1998, was inapplicable, but it
proceeded to
grant the relief sought by Respondent under general equitable
apparently with the belief that subsection 5 of that statute, by
to the necessity of showing the lack of a pending civil action
relating to
the arrest or records sought to be expunged, indicated that other
of expungment are not prohibited.
We are not directed to any statute that would authorize the
action taken by
the trial court here concerning records of the Department. For
Section 302.545, RSMo Cum.Supp. 1998, authorizes the expungement
of the
Department records, but it applies only to persons under
twenty-one years
of age whose driving privilege has been suspended or revoked for
a first
determination that they were driving with a blood alcohol content
of .02 to
.10. Here, the evidence indicates that Respondent had a blood
alcohol level
of .15.
As pointed out by Director, he is responsible for maintaining
records for Missouri drivers. He refers to Stahl v. Director of
998 S.W.2d 601, 603-04 (Mo.App. S.D. 1999), where this court said
driving records are relied on for various purposes, are expected
to be
accurate, and can be relevant to future actions. In Stahl, we
pointed out
that Section 302.312, RSMo Cum.Supp. 1998, provides for properly
copies of records of the Department to be admissible as evidence
in trials
and administrative proceedings, and that it would be ludicrous to
such records to be admitted in evidence without permitting those
charged with maintaining the records to do so accurately. Id. at
604. We
also noted that under Section 302.525, RSMo 1994, a person’s
prior "alcohol
related enforcement contacts" (which include any suspension
under sections
302.500, RSMo 1994, to 302.540, RSMo 1994) have an effect on the
length of
revocation if he is found to have driven with a blood alcohol
content of at
least .10%. Id. In that regard, the trial court in the instant
case found,
as one of its justifications for ordering the expungement, that
evidence in question of an "alcohol related enforcement
contact" was
detrimental to Respondent. Obviously, the expungement here would
have the
effect of circumventing section 302.525, RSMo 1994, in the event
of a
future suspension or revocation.
Respondent argues that the trial court has general equitable
to expunge the records, which is not restricted or abrogated by
aforementioned statutes. In support, he cites Bormann v. City of
Heights, 213 S.W.2d 249, 252 (Mo.App. St.L. 1948), for the
proposition that
circuit courts have general jurisdiction of suits in equity,
"and in a
proper case" are invested with all the powers inherent in an
English court
of chancery. In Bormann, however, the court went on to say that
is the correction of that wherein the law by reason of its
universality is
deficient. Equity follows the law, and court of equity have no
authority to disregard plain provisions of a statute than do
courts of
law." Id. at 252-53.
Respondent also relies on State ex rel. Herzog v. Koelling, 229
S.W.2d 252
(Mo.App. St.L. 1950), in which the court held that the circuit
court had
equitable jurisdiction to expunge records of a marriage
certificate and
license recorded in the office of the Recorder of Deeds where the
return of
the solemnizing official was a forgery. The appellate court held
that "[a] court of equity has inherent jurisdiction to relieve against
fraud by
ordering the cancellation of written instruments, even though
they be
public records where private rights are invaded." Id. at
Continuing, the court said that courts of equity have always had
the power
in certain classes of cases to inquire into and correct mistakes,
injustice, and wrong. Id. at 254. Koelling is factually
dissimilar from the
instant case. See also Chrun v. Chrun, 751 S.W.2d 752, 755
(Mo.banc 1988),
holding that a court of equity will provide relief from a
judgment obtained
by extrinsic fraud, accident or mistake, and that such
allegations are
necessary to invoke equitable jurisdiction, and Sutton v.
Schwartz, 808
S.W.2d 15, 23 (Mo.App. E.D. 1991), where the court said that
doctrines are invoked to prevent injustices. In the instant case,
it does
not appear that the records in issue are the result of a mistake,
inequitable or fraudulent conduct, or constitute an injustice or
a wrong.
It is significant, in this regard, that the legislature has
statutes concerning expungement of records concerning arrests and
related enforcement contacts, and none of those legislative
would entitle Respondent to the relief granted by the trial
court. See
Sections 610.122, RSMo Cum.Supp. 1998; 302.545, RSMo Cum.Supp.
1998; and
577.054, RSMo 1994. [4] A court of equity may not act
merely upon its own
conceptions of what may be right or wrong in a particular case,
and may not
purport to establish a right that does not exist. Seifert v.
Seifert, 708
S.W.2d 150, 156 (Mo.App. E.D. 1985). The Missouri Supreme Court
has said
that "[u]nless a statutory scheme is plainly inadequate
under circumstances
where a court has a duty to act, there is no need for the court
to exercise
its equity powers to fashion a ‘better’ remedy than exists in the
statutes." Cotton v. Wise, 977 S.W.2d 263, 264 (Mo.banc
Even more importantly, to invoke equity jurisdiction, the party
that relief must plead and prove there is no adequate remedy at
law. Blue
Cross Health Services v. Sauer, 800 S.W.2d 72, 76 (Mo.App. E.D.
1990). A
circuit court lacks jurisdiction to grant equitable relief where
there is
an adequate remedy at law. Schildknecht v. Director of Revenue,
901 S.W.2d
348, 349 (Mo.App. E.D. 1995). Pleading and proving the lack of an
remedy at law are jurisdictional, a defect which may be raised at
any stage
of the proceedings, or even by the court itself. Kerber v. Alt,
275 S.W.2d
604, 606 (Mo.App. St.L. 1955). Here, Respondent neither pled nor
any evidence concerning the lack of an adequate remedy at law.
fortified by the existence of statutes providing for expungement
of records
under certain circumstances, leads us to the conclusion that the
court lacked jurisdiction to enter the judgment in this case.
the judgment is reversed.

Separate Opinion:


Section 302.505, RSMo 1994, provides that the Missouri
Department of
Revenue (the "Department") shall suspend or revoke the
license of a person
upon its determination that the person was arrested upon probable
cause for
driving while the alcohol concentration in his blood or breath
was .10 or
more by weight of alcohol in his blood. It also provides that the
determination of those facts by the Department is independent of
determination of those facts in the adjudication of any criminal
arising out of the same occurrence and that "[t]he
disposition of those
criminal charges shall not affect any suspension or revocation
under this

[2] Section 610.122, RSMo Cum.Supp. 1998, provides:
Notwithstanding other provisions of law to the contrary, any
record of
arrest recorded pursuant to section 43.503, RSMo, may be expunged
if the
court determines that the arrest was based on false information
and the
following conditions exist:
(1) There is no probable cause, at the time of the action to
expunge, to
believe the individual committed the offense;
(2) No charges will be pursued as a result of the arrest;
(3) The subject of the arrest has no prior or subsequent
misdemeanor or
felony convictions;
(4) The subject of the arrest did not receive a suspended
imposition of
sentence for the offense for which the arrest was made or for any
related to the arrest; and
(5) No civil action is pending relating to the arrest or the
records sought
to be expunged.

[3] We do not perceive that a record relating to a
statutorily authorized
suspension is an injustice or a wrong which itself would
intervention by a court of equity.

[4] Section 577.054, RSMo 1994, authorizes
expungement from all official
records of an individual’s arrest, plea, trial or conviction
relating to a
first alcohol related driving offense if that individual has gone
ten years
after such plea or conviction without another conviction for an
related driving offense.