### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE ASSIGNED O

N BRIEFS DE

CEMBER 29, 2000

MARIA NELSON v. STATE OF TEN NESSEE DEPARTMENT OF SAF ETY
Direct Appeal from the Chancery Court for Davidson County No. 99-1448-III; The Honorable Ellen Hobbs Lyle, Chancellor

No. M2000-01147-COA-R3-CV - Filed March 20, 2001

This appeal arises from entry of a default judgment by the Appellee against the Appellant following the Appellant’s fail

ure toappear at a sc heduled hea ring. The Appellant filed a petition for judicial review with the Chancery Court of Davidson County. The trial court affirmed. The Appellant app eals from the Chancer y Court of Da

vidson County’ s decision affirm ing the default judgment entered against the Appellant. For the reasons stated herein, we reverse the trial court’s decision.
Tenn. R. App. P. 3; A

ppeal as of Right; Judgm ent of the Chancery

Court Reversed a

nd Remanded

A LAN E. H IGHERS , J., delivered the opinion of the court, in which D AVID R. F ARMER , J., and H OLLY K IRBY L ILLARD , J., joined.
Maria Nelson, pro se

Paul G. Summers, Attorney General &

Reporter, Michael A. Meyer, Assistant Attorney General, for Appellee

OPINION
I. Facts and Procedural History

The Appellant, Maria

Nelson (“Ms. Nelson”) is a resident of West Memphis, Arkansas and holds a valid Arkansas driver’s licens e. On Nov ember 5, 1997, Ms. N elson and another

motorist

were invol ved in an automobile accident in Memphis, Tennessee. The accident report stated that the other motorist’s a

utomobile struck Ms.

Nelson’s auto

mobile when Ms. Nelson attempted to make

a left turn from the wrong lane. The report also state d that the estimate

d damage to eac

h automobile

was over four hundre

d dollars. By letter d

ated September 14, 1998, the Appelle e, State of Tennessee Depar tmentof Safety (

“the Departmen

t”), informed Ms.

Nelson that her dr

iver’s license,

driv in g privileges,

and privileges to obtain a license would be revoked on October 4, 1998 unless she-2-

complied with one of the foll owing provisions: (1) submit proof tha t she had motor vehi

cle liability insurance at

the time of

the accident; (2

) file a notarized

release(s) fr

om all persons who f

iled claims for damages with the department for the acciden

t; or (3) deposit ca

sh or a corporate

surety bond

with the department for $2,727.00. The Department also informed Ms. N

elson that she had a

right to a hearing on the proposed action if she requested a hearing on or before October 4, 1998.
Ms. Nelson requested

a hearing on October 5, 1998. By letter dated October 30, 1998, the Department

granted Ms. Nelson a hearing scheduled for

November 12, 1998. The letter also stated that if Ms. N elson wish ed to resche dule the hea ring date, s he should m ake the reque st in writ ing. On November 5, 1998,

Ms. Nelson made a w

ritten request

to reschedule the hearing. By letter date d November

11, 1998, the Depa

rtment notified Ms.

Nelson th at she had lost her driver’s license, driving privileges, and pri vileges to ob tain a license. By letter dated December 18, 1998, the Department

notified Ms. Nelson that the hearing was rescheduled for January 14, 1999. Ms. Nelson claims tha t sh e nev er re cei ved thi s le tte r. O n Ja nua ry 1 4 , 1999, Ms. Nelson failed to appear at the hearing, and a default judgment was entered. Ms. Nelson submitted a petition for reconsideration

on February 16, 1999. On March 18, 1999, the Department denied Ms. Nelson’s petition. On May 21, 1999, Ms. Nelson filed a pe tition for judicial review with the Chancery Court of Davidson Cou nty. The trial court a ffirmed th

e order of the Department and dismissed Ms. Nelson’ petition with prejudice. This appeal followed.

II. Standard of Review

Our standard of review of this administrative agency is gove rned by section

4-5-322 of the Tennessee Code,

which provides:
(h) The court may affirm the decision of the age ncy or remand the case for further proceedings. The court may reverse or modify the decision if the rights of the petitioner have been prejudiced bec

ause the administr

ative findings, i

nferences, conclusions or decisions are: (1) In violati

on of constitutiona

l or statutory

provisions; (2) In ex cess of t he s tat uto ry aut hor ity o f th e age ncy; (3) Made upon unlawful procedure; (4) Arbitrary or capricious or characte rized by abuse of discretion or clearly unwarranted exercise of discretion; or (5) Unsupported by evidence which is both substantial and material in the light of the entire record. In determining the substantiality of the evidence, the court shall take in

to account whate

ver in the recor

d fairly detracts from its

weight, but the c

ourt shall not substit

ute its judgment for that of the agency as to the weight of the evidence on ques

tions of fact. (i) No agency decision pursuant to a hearing in a1 In her appe llate brief, Ms. Nelson argues that she was not required to comply with sect ion 55-12-104(a) of the Tenness ee Code . The Department never stated that Ms. Nelson must comply with section 55-12-104(a). Rather, the Department stated that Ms. Nelson m ust comply with section 55-12 -105. We find that M s. Nelson intended t o argue that she was not re quired to c omply with se ction 55-1 2-105 inste ad of section 55-12-1 04(a).
-3- contested case shall be reversed, remanded or modified by the reviewing court unless for errors which af fect the merits of such decision.

T ENN

. C ODE A NN . § 4-5-322 (h)-(i) (1998). In the case at bar,

th e decision of the administrative agency was not a decision on the merits but rather a default judgment. Our review is not a review of the merits of the case but is a review of the trial court’s decision affirming the Department’s decision to enter default against Ms. Nelson.
III. Law and Analysis

The following issues, as we perceive the m, are presen ted for our revie w: (1) whether Ms

. Nelson was required to p rovide proof of f

inancial responsibi lity under section 55-12-105 of the TennesseeCode; (2) whether Ms. Nelson’s dri ver’s li cense, driving privileges, and

privileges to obtain a license were revoked

on November 11, 19

98, prior to the dat

e set for the hearing such that she was, therefore

, deprived of due

process; (3) whether

Ms. Nelson failed to receive notice of the January 14, 1999, hearing and was, therefore, deprived of due process; and (4) whether the trial court erred in assessing court costs aga inst Ms. Nelson as an

indigent litiga

nt. We will

examine each of these issues in turn.

The first issue prese

nted for our revi

ew is whether Ms. Nelson was required to provide proof of financial r esponsibility under section 55-12-105 of the Tennessee Code. 1 Section 55-12-105 states: (a) The commissio ner shall, upon re

ceiving an acc

ident report of an accident occurring in this state which has resulted in bodily injury, or death, or damage to the property of any one (1) person in excess of four hundred dollars ($400), and upon determining that there is a reasonable possibility of a judgment against the owner, operator, or both, and upon receiving notice of a claim filed against such owner, operator, or both, revoke the license and all registrations of the owner, operator, or both, of a motor vehicle involved in such accident, and in case of a nonresident, the p

rivilege of ope

rating a motor ve

hicle within the state and of th

e use within this sta

te of any mot

or vehicle owned by such nonresident, unless such operator, owner, or both, shall deposit security in a sum which shall be sufficient in the judgment of the commissioner, and in no event less than five hundred dolla

rs ($500), to satis

fy any judgment or judg

ments-4- resulting from su

ch accident whic

h may be rec

overed agains

t such operator, owner, or both. (b) The following

, and only the

following, shall b

e acceptable pro of o f fi nan cia l se curi ty: (1) Filing of written proof of insurance coverage with the commissioner on forms approved by the commissioner; (2) The deposit of cash with the commissioner of no less than the amount specified in § 55-12-102, or in the total amount of all damages suffered, whichever is less, subject to a minimum deposit of five hundred dollars ($500); (3) The execution and filing of a bond with the commissioner of no less than the amount specified in § 55-12-102, or in the total amount of all damages suffered, whichever is less, subject to a minimum bond of five hundred dollars ($500); or (4) The submission to the commissioner of notarized releases executed by all parties who had previously filed c laims with the department a

s a result of the a

ccident. (c) Any notice of revocation issued under this section shall be sent by United States mail to the last known address of such operator and owner not less than twenty (20) day s prior to the effective date of revocation, and shall state the amount required as security

, and that the oper

ator, owner, or b

oth are entitled to an administrative hearing conducted pursuant to a request under the provisions of § 55-12-103(a). Any request for an administrative hearing must be submitted in writing on or before the effective date of the proposed revocation.

T ENN

. C ODE A NN . § 55-12-105 (1998).

Ms. Nelson claims that the accident failed to result in damage to property in excess of four hundreddollars such that section 55-12-105 was inapplicable. We disagree. Section 55-12-110(a) of the Tennessee

Code states:
Any party who has suffer ed damages as a result of an accident may submit to the commissioner an affidavit or an accident report showing thereon the amount of damages suffered. The affidavit or accident report, when properly executed, shall, for the purpose of this chapter, be accepted by the commissioner as satisfactory

evidence to indic

ate the amount of a

ctual damages, unless evidence to the contrary is received, in which case the commissioner shall, for the purposes of this chapter, determine the damages from written evidence submitted to the commissioner.-5-

T ENN

. C ODE A NN . § 55-12-110(a) (1998).

The accide nt re port which was filed with the commissioner states that each automobile sustained

more than four

hundred dollars in damage. Pursuant to section 55-12-110(a), the commissioner was entitled to rely on the accident report and find that the accident cause d more than four hundred dollars in property

damage unless

the commissioner r

eceived eviden

ce to the contrary. We can find no such evidence

to the contrary

in the case at bar

. Accordingly

, this issue is without m

erit.

The second issue presented for our review is whether Ms. Nelson’s driver’s license, driving privileges,

and privileges t

o obtain a license were re

voked on November

11, 1998, prior to th

e date set for the he aring such that s he was, therefo

re, denied due pr

ocess. The trial c

ourt noted in it

s
me morandumand order that the record revea

led that no action w

as taken to actua

ll y revoke Ms

. Nelson’s license until after the January 14, 1999, hearing. As stated by the trial court, “While

it is notclear to the Court or from the record why the Department would have reschedule d a hearing for the petitioner on January 14, 1999, but sent the petitioner a letter revoking her license on November 11, 1998, the Court finds that there was no deprivation of due process.” We agree. The Department mailed Ms. Nelson a letter dated November 1 1, 1998, stating th at her driver’s

li cense, dr iving privileges,

and privileges to obtain a license were revoked. Nevertheless, the Department rescheduled

the hearing on the matter for January 14, 1999. Clearly the Department did

not actually revoke Ms. Nelson’s driver’s license, driving privileges, and privileges to obtain a license whenit hadrescheduled a hearing for a later date on the matter. Because we fi

nd that Ms. Nelson’ s rights

were not actually revoked prior to the January 14, 1999, hea ring, wefind that she was not deprived of due process when the Department sent her the letter dated November 11, 1998.

The third issue presented for our review is whether Ms. Nelson failed to receive notice of the January 14, 1999, hearing and was, therefore, deprived of due process. The Department contends that it notified Ms. Nelson by letter dated December 18, 1998, that the hearing was rescheduled for January 14, 1999. Ms. Nelson claims that she never received the letter. There are two way s to prove that a l etter has be en received: (1) by direct proof of delivery and receipt; or (2) by proof that the letter was duly mailed. See U.S. Life Title Ins. Co. v. Departmen t of Commerce and Ins. , 770 S.W.2d 537, 542 (Tenn. Ct. App. 1988). Proof of due mailing raises a presumption that the letter

wa s receiv ed. See id. Proving that a letter was duly mailed requires evidence that the letter w as deposited with the post office properly stamped and correctly addressed. See id. ; Southern Region Indus. Realty, Inc. v. Chattanooga Warehouse & Cold Storage Co, Inc. , 612 S.W.2d 162, 164 (Tenn. Ct. App. 1980); W.E. Richmond & Co. v. Security Nat’l Bank, 64 S.W.2d 863, 869 (Tenn. Ct. App. 1933). “Evidence that another let ter, address ed in the same manner as the letter in question, was received by the addressee, is entitled to be considered in determining whether or not the presumption will arise.” W.E. Richmond & Co. , 64 S.W.2d at 869 (cit ing Lawrence Bank v. Raney & Berger I ron Co. , 26 A. 119, 12 1 (Md. 189 3)). The presumption is one of fact which can be rebutted. See id.

There is no direct evide

nce that the lette

rdated December

18, 1998 was rece

ived by Ms. Nelson. A ccor dingly, it was incumbent on the Department to present evidence that the letter wa s-6-

duly mailed. We find that the Department failed to satisfy its burden. The Department notes that there is no evidence that the letter was returned for insufficient postage or inability to make a del ive ry. The Department p resentsno evidence, however, that the letter was properly stamped a nd deposited with the post office. While the address onthe face of the letter reflects that it was mailed to the address at which Ms. Nelson received all other correspondence and no tices fro m the Dep ar tment, this alone is not suff icient evidence

to raise the pres

umption that the lett

er was duly mailed. We find that Ms. Nelson’s due process rights were violated for failure to receive notice of the hearing rescheduled for January 14, 1999. Consequently , the trial court erred in affirming the Department’s default judgment against Ms. Nelson.

The final issue presented for our review is whether the trial court erred in asses sing c ourt costs against

Ms. Nelson as an ind

igent litigant.

Because we fi

nd that the trial co

urt erred in affirming the Department’s default judgment against Ms. Nelson, we decline to address theissue of court costs.

IV. Conclusion

For the foregoing

reasons, we rev

erse the decision of the trial court affirming the Appellee’s entry of default judgment against the Appellant and remand the case to the trial court for further proceedings consistent with this opinion. Costs of this appeal are taxed against the Appellee, State of T enn ess ee De part men t of Saf ety, for whi ch ex ecut ion may i ssu e ifnece ssa ry.

___________________________________ ALAN E. HIGHERS, JUDGE