author: HAROLD L. LOWENSTEIN, Judge.

text:
    UNITED MISSOURI BANK, N.A. Conservator of the Estate of Dennis Gallagher, Appellant, v. CITY OF GRANDVIEW, MO., et al., Defendant, J & D Enterprises, Respondent.
    No. WD 63955.
    Missouri Court of Appeals, Western District.
    Dec. 6, 2005.

      Ronald M. Sokol, Springfield, William G. Cownie, Co-Counsel, Lee’s Summit, for Appellant.
    Dana M. Harris, Kansas City, for Respondent.
    Before: SMITH, C.J., LOWENSTEIN and ELLIS, JJ.
   HAROLD L. LOWENSTEIN, Judge.

This appeal stems from a jury trial in which a shopping center owner was sued for negligent placement of a driveway exit where the appellant’s ward was injured by an exiting motorist. This is the second appeal of this cause of action. The first appeal followed the grant of the respondent’s motion for summary judgment. See this court’s opinion in United Missouri Bank, N.A. v. City of Grandview, 105 S.W.3d 890 (Mo.App.2003).

As a preliminary matter, the respondent, J & D Enterprises (J & D), encourages this court to deny each of the appellant’s points on appeal due to the appellant’s sporadic use of transcript citations for many factual references. Despite deficiencies in the appellant’s brief, this court will examine the points raised on appeal. State v. Westcott, 121 S.W.3d 543, 545 n. 2 (Mo.App.2003).

I. Facts

The record viewed in light most favorable to the verdict and judgment reveals that on October 9, 1996, at approximately 5:28 p.m., in Grandview, Missouri, Dennis Gallagher was severely injured when Walter Klammer made a left turn from the Farm Shopping Center’s (Farm Center) central exit into and across Blue Ridge Boulevard. Gallagher’s motorcycle, which was traveling eastbound on Blue Ridge Boulevard, struck Klammer’s car. The Farm Center is owned by J & D Enterprises. Gallagher, who was seventeen years old at the time of the accident, sustained, among other things, brain stem injuries, a broken leg, and permanent crossing of the eyes. He currently suffers from a seizure disorder and moves only with the assistance of a walker or wheelchair. Gallagher’s grandparents currently care for him. The appellant, United Missouri Bank, N.A. (Appellant), acting as conservator of Gallagher’s estate, originally brought suit against the City of Grand-view (City) and J & D. Appellant settled with Klammer.

Appellant sued J & D in negligence, alleging that Gallagher’s injuries resulted from the dangerous condition existing at the central entrance/exit (central exit) located on J & D’s property due to inadequate sight distance, in that drivers heading eastbound toward the central exit had no notice of an upcoming dangerous “intersection” and that J & D had actual and constructive notice of this dangerous condition. During the discovery phase of litigation, the trial court granted J & D’s and the City’s separate summary judgment motions, holding that the uncontroverted facts established that Klammer’s actions were responsible for the accident and that no evidence established that the trees or fence contributed to Klammer’s decision to enter the intersection. Appellant appealed to this court, which reversed the trial court and held that J & D failed to make a prima facie case for summary judgment on the issue of causation.

The City settled with Appellant before trial. This suit against J & D proceeded to trial in February of 2004. After a five-day trial, a unanimous jury found for the shopping center owner, J & D. Appellant raises five points of error. Additional facts relating to the points on appeal will follow the appropriate point.

II. Analysis

A. Lay Witness Testimony

Appellant first appeals the trial court’s exclusion of the testimony of lay witnesses, all of whom worked in or shopped at the Farm Center, regarding their cautious use or lack of use of the central exit to make a left turn onto Blue Ridge Boulevard. Appellant’s first point relied on states:

The trial court erred by ruling inadmissible as “lay opinion” the testimony of an employee, tenants and a patron of the Farm Shopping Center that they feared using the [central] exit from The Farm [Center] due to sight restrictions caused by the curve of Blue Ridge Boulevard and due to the speed of oncoming traffic, because (1) the testimony was admissible as “verbal shorthand” as evidence that ordinary people who were familiar with the [central] exit perceived a danger due to the stated factors and took precautions to avoid the danger, which is proper evidence of constructive notice of the danger that some form of injury was foreseeable in advance of the accident at issue, and (2) the evidence was admissible or curatively admissible as rebuttal of the testimony of the owner of The Farm [Center] that there is good sight distance from the [central] exit and that he had no notice of danger concerning the [central] exit and his whole staff used that exit “a lot.”

However, without reference in the point relied on, Appellant seems to contend in the legal argument portion of its brief, that under Gates v. Sells Rest Home, Inc., 57 S.W.3d 391 (Mo.App.2001), the lay opinion testimony is admissible because such testimony is rationally based on the perceptions of the witnesses and is helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue. But this theory of admissibility was not set out in Appellant’s point relied on. “[A]n argument not set out in the point relied on but merely referred to in the argument portion of the brief does not comply with the requirements of Rule 84.04(d) and the point is considered abandoned in this [c]ourt.” Brizendine v. Conrad, 71 S.W.3d 587, 593 (Mo. banc 2002). This court will proceed to Appellant’s arguments .that are set forth in its point relied on.

In the point, Appellant argues that the trial court abused its discretion when it excluded the lay witness testimony as “verbal shorthand” evidence that ordinary people who were familiar with this exit perceived a danger, which in turn, provides constructive notice to J & D. Appellant then argues, in the alternative, that the trial court abused its discretion when it did not admit such testimony to cure the testimony of William Dietrich, a partner of J & D, who stated that he made “well over a thousand” left turns -from the central exit without any concern about the available sight distance.

At trial, Appellant sought to introduce the testimony of three lay witnesses: -Susan Hollon, Natress Kelly, and Betty Tevis (hereinafter “lay witnesses”). Ms. Hollon not only was a tenant and employee of the Farm Center, but also was an eyewitness to the accident. Ms. Kelly worked for a business located at the Farm Center. Ms. Tevis was a patron of the Farm Center. To first demonstrate that the intersection is. dangerous, and alternatively, to show that J & D had notice of a dangerous condition, Appellant wanted to elicit from each of -these witnesses that she used the central exit only cautiously .or did .not use the central exit at all to make left turns on Blue Ridge Boulevard. The trial court ruled that such testimony constituted impermissible lay witness testimony.

Appellant called Dietrich as an adverse witness. While Appellant did not inquire as to Dietrich’s use of the central exit, he was asked about his knowledge of other accidents. On cross examination, J & D’s attorney .-asked without objection being made by Appellant, “[D]o you have judgment of how many times you had occasion to make left turns out of that [central] exit during the [eleven] years that you were there?” Dietrich answered, “I’d say it would be well over a thousand.” J & D’s counsel next asked, “Did you ever have any problems,” to which Dietrich answered that he did not. J & D’s counsel asked, “Did you personally ever have any concern about the available sight distance that you had when you were preparing to make any of those left-hand turns?” Dietrich replied that he did not.

Appellant later put the three lay witnesses on the stand. It began by asking Ms. Kelly whether she used the central exit. Ms. Kelly answered by stating,' “I did go out the [central exit], but not if I didn’t have to.” J & D then objected to Appellant’s question, claiming that it was a violation of the trial court’s in limine order. The court sustained J & D’s objection stating that “I didn’t want [the lay witnesses] coming in and saying, [“]I don’t use that intersection^”] because ... implicit in that statement [is] that there is something about the intersection that is a problem.” Appellant then offered to prove all three of the lay witness’ testimonies. Ms. Kelly testified as to her observations when exiting from the central exit. She stated that she saw a white picket fence and a tree.

Ms. Tevis next took the stand for an offer of proof. She testified that she saw a curve and fast-moving traffic when she looked to the left while at the central exit. Ms. Hollon testified as part of the offer of proof that she saw a crave, a fence, and part of the road. When Appellant asked her if she tried to turn left from the central exit, she answered no. J & D objected. Ms. Hollon was allowed to explain that she did not use the central exit because her business was on the east side of the Farm Center and, therefore, she had little occasion to use the central exit. Finally, Appellant offered to prove that each of the lay witnesses would testify that they would not use the central exit due to the fear caused by the curvature of Blue Ridge Boulevard and the speed of cars from its oncoming traffic.

Following the offers of proof, these three witnesses testified before the jury as to what each saw when she looked to the left while waiting to leave the Farm Center from the central exit. Ms. Kelly stated she could see a white picket fence, a tree, and oncoming traffic when she looked left from the central exit. When asked if she was familiar with the conditions to the left of the central exit, Ms. Tevis stated that “I tried to avoid that exit.” J & D’s counsel objected, and after a short conference between the lawyers and the trial judge, Ms. Tevis was dismissed. Ms. Hollon testified that “[tjhere’s a sign there and past that, then there’s the grassy area, there’s the road, and, in particular, when you look out to the left, you’ll see the businesses on the other side of the street.” Appellant did not rely on the doctrine of curative admissibility to support its contention that the further testimony of these witnesses was made admissible.

The exclusion of evidence rests in the sound discretion of the trial court, and the judgment must be reversed only if the exclusion amounts to an abuse of discretion. State v. Rose, 86 S.W.3d 90, 99 (Mo.App.2002). An abuse of discretion exists when a trial court’s ruling is clearly against the logic of the circumstances before it and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Id. at 99-100. In no event is reversal warranted if the exclusion did not prejudice the complaining party. Thornton v. Gray Auto. Parts Co., 62 S.W.3d 575, 585 (Mo.App.2001). Therefore, the issue is whether the exclusion of the lay witness’ testimony that each of them cautiously used or did not use the center exit due to a sight restriction was so arbitrary and unreasonable to shock the sense of justice and indicate a lack of careful consideration.

1. Verbal Shorthand

This court holds that the verbal shorthand argument advanced by Appellant does not apply to the facts of this case. Generally, a witness testifies to facts from which a jury draws its conclusions. Mohr v. Mobley, 938 S.W.2d 319, 321 (Mo.App.1997). Therefore, a witness generally should not testify to opinions or conclusions, unless it is “impossible or extremely difficult for a witness to convey an accurate or actual meaning, and the ... thing described may be more clearly and practically conveyed by a summary of the witness’s impressions or by comparison with some ordinary object or condition familiar to the court or the jury.” Id. In that instance, the court may accept the witness’s testimony, despite it being a conclusion. Id. In other words, if an extensive or involved description is warranted, a shorthand description is allowed. See State v. French, 476 S.W.2d 509, 512 (Mo.1972) (holding that the witness’ conclusion that the defendant’s dress was “flashy” fell within this rule); Beuttenmuller v. Vess Bottling Co., 447 S.W.2d 519, 526 (Mo.1969) (allowing a witness to describe the sound she heard as an “explosion” even though the witness did not observe the pop bottle explode); Travelers Indem. Co. v. Woods, 663 S.W.2d 392, 399 (Mo.App.1983) (describing furniture as “nice” falls within this rule); Whitney v. Cent. Paper Stock Co., 446 S.W.2d 415, 419 (Mo.App.1969) (holding the trial court erred when it excluded a witness’ opinion that wood around a hole in a floor was “rotten”).

Appellant conceded that the lay witnesses could not have testified that the intersection was “dangerous,” for this would invade the province of the jury. Rather, from the court’s reading of Appellant’s argument in light of Appellant’s first point relied on, it contends that a lay witness’s testimony that the witness does not use a particular exit or cautiously uses such an exit, would come within this “verbal shorthand” rule and, therefore, be admissible. The trial court did not abuse its discretion by excluding this lay witness testimony. Appellant fails to fully explain how the lay witness testimony might come within the rules under Mohr and other “verbal shorthand” cases. See generally French, 476 S.W.2d 509; Beuttenmuller, 447 S.W.2d 519; Woods, 663 S.W.2d 392; Whitney, 446 S.W.2d 415. Here, the lay witness testimony that'Appellant sought to introduce was not so complicated that only the use of a “short-hand description” would convey the description to the jury, and Appellant advances no authority that compels this court to extend the doctrine to the facts of this case.

2. Doctrine of Curative Admissibility

The bulk of Appellant’s argument is geared toward the theory that the lay witness’ testimony, even if inadmissible, is admissible under the doctrine of curative admissibility. The doctrine of curative admissibility allows a party to introduce otherwise inadmissible evidence to answer the opposing party’s previous introduction of inadmissible evidence if it would remove any unfair prejudice caused by the admission of the earlier inadmissible evidence. Adams v. Burlington N. R.R. Co., 865 S.W.2d 748, 751 (Mo.App.1993). To apply the doctrine of curative admissibility, the earlier evidence must have been inadmissible and was not objected to; the rebutting evidence is needed to remove an unfair prejudice that might otherwise ensue from the original evidence and the rebutting evidence must be of the same type or character. Id.

Specifically, Appellant disapproves of Dietrich’s testimony, in which- he was asked by J & D’s counsel on cross-examination how many times he had made left turns from the central exit. Dietrich stated that he has made “well over a thousand” turns without any concerns aboút the available sight distance. Appellant argues that the opinion testimony of Hollon, Kelly, and Tevis that each did not turn left from the central exit should have been admitted to cure the inadmissible testimony of Dietrich elicited by J & D’s counsel. Furthermore, Appellant argues that the testimony of lay witness Hollon, who not only witnessed the accident but also was Dietrich’s tenant and employee, should have been admitted to contradict Dietrich’s testimony that his “whole staff’ used the central exit “a lot.” Appellant next argues that the testimony of lay witnesses Kelly and Tevis would have removed the unfair prejudice caused by Dietrich’s testimony that he had no concern about the sight distance when making left turns from the central exit and that good sight distance exists.

J & D again claims that Appellant failed to preserve this argument for appeal when Appellant did not raise this argument in Appellant’s in limine motions, trial objections, offers of proof, or Motion for New Trial. Because this is a remedial admission, it is difficult to understand how Appellant could anticipate this in a motion in limine. Also, the doctrine of curative admissibility does not apply if Appellant would have objected. Contrary to J & D’s brief, Appellant did raise the doctrine of curative admissibility in his Motion for New Trial. Problematic, however, is Appellant’s failure to raise the doctrine of curative admissibility in its offer of proof.

This court has previously denied a party’s use of the doctrine of curative admissibility on appeal when the party’s offer of proof failed to refer to the doctrine of curative admissibility as a theory of admissibility. See Adams, 865 S.W.2d at 752. In Adams, the theory of admissibility presented in the offer of proof was that “exclusion of the evidence of disability payments will result in double damages.” Id. This court found that such a characterization does not sufficiently inform the trial judge as to the theory of admissibility. Id. The burden is on the party who is offering the evidence to explain the theory of admissibility. Id.

This court has examined the record made by Appellant and nowhere does Appellant reference the doctrine of curative admissibility as its theory of admissibility. Instead, Appellant’s offer of proof stated:

[APPELLANT’S COUNSEL]: With regard to the evidence of the previous witness, we do offer to prove that she will testify to pre-testimonial offer, since we’re staying away from these issues about avoiding the intersection in compliance with the Court’s ruling.
I want the record clear that if allowed to testify, they would testify that they wouldn’t use that exit. She did in this one case. And we’d do it as a standing offer for all three because of the fear caused by the curvature and the speed of oncoming traffic.
THE COURT: Okay.
[APPELLANT’S COUNSEL]: It’s going to stand for all three [witnesses],
THE COURT: It’s already with me.

Because Appellant failed to inform the trial court of the theory of admissibility that was being invoked and, therefore, deprived the trial court of an opportunity to correct itself during trial in the instance it erred, then the introduction of the doctrine of curative admissibility upon appeal and reliance on plain error relief fails. Use of the doctrine of curative admissibility requires the presentation of this theory of admissibility in an offer of proof for the trial judge to consider. See id. Such a requirement is necessary when contending with the curative admissibility doctrine because the justification for admission of the inadmissible latter evidence is to rebut the previously admitted inadmissiblé evidence. This is particularly important if the previously admitted inadmissible evidence was admitted days or weeks before the time the party seeking to introduce the rebuttal evidence under the doctrine of curative admissibility. .

In any event, Appellant failed to demonstrate, and it is difficult to discern, Appellant’s prejudice rising to the level necessary for reversal since-the lay witnesses were permitted to testify to their observations while at the intersection in question. While Appellant was prohibited from directly asking whether each lay witness used the central exit, a reasonable inference stemming from the testimony actually elicited from each witness leads to the similar outcome: that each may have had reservations about using the central exit in light of what each saw while leaving the Farm Center from the central exit. Point I denied.

B. Evidence of Alternate Safer Designs

Appellant’s second point relied on, consisting of one sentence over a page in length, is' somewhat difficult to interpret. Appellant asserts error because of the trial court limiting testimony of several , of its witnesses and the limiting of Appellant’s closing argument. Rule 84.04(d)(1) violations notwithstanding, it would , seem that Appellant seeks relief from not being allowed to argue to the jury that (1) if there had been no central exit or (2) if the exit in question had been placed fifty feet to the east or (3) if only a right hand turn had been allowed, then the accident would never have occurred.

Rule 84.13(b) does not allow an appellate court to reverse any judgment unless the trial court’s error materially affects the merits of the action. Without going into an extended examination of the court’s rulings, suffice it to say the facts here presented a determination for the jury to make as to whether J & D was liable for any 'of the exit’s deficiencies, and if those deficiencies were the proximate cause of the accident. This was not a situation where J & D’s negligence was the sole cause of the injury. In the case at bar, Appellant admits it was allowed to tell the jury, “the exit wasn’t necessary”; J & D could have redesigned the sight lines and could have requested a right turn only; and J & D could have moved the exit to the east., Additionally, the instructions allowed the jury to find for Appellant only if it found the limited sight distance “caused an unreasonable hazard to traffic.”

Appellant was allowed to present evidence of negligence connected with the placement and design of the exit. The jury was well aware of and could make a determination of whether J & D’s actions were a proximate and contributing cause of the damage. This was precisely what this court said should happen when it reversed summary judgment and returned the matter for a jury decision. See United Mo. Bank, N.A. v. City of Grandview, 105 S.W.3d at 901-02. The jury made that decision based on sufficient evidence by Appellant, and decided in favor of J & D. Any trial error in limiting evidence or closing argument cannot be deemed material. Point denied.

C. Klammer’s Statements Made to Officer Birkner

In its third point, Appellant argues the trial court erred when it admitted the testimony of police officer William Birkner on the basis the testimony constituted inadmissible hearsay. Officer Birkner testified as to Klammer’s statement made to him at the scene of the accident that “he thought that if he hurried up, he could make it across the street.” J & D offered Klam-mer’s out of court statement to show that Klammer in fact saw oncoming traffic, which leads to the inference that the central exit was not dangerous because Klam-mer could clearly see oncoming traffic. Here, there is no question that the desired testimony was hearsay. The issue is what, if any, hearsay exception should have applied.

Review of the admissibility of evidence is an abuse of discretion. State v. Case, 140 S.W.3d 80, 85 (Mo.App.2004). Hearsay is an out of court statement offered to prove the truth of the matter stated and is inadmissible unless the statement meets a recognized exception. Taylor v. Republic Auto. Parts, Inc., 950 S.W.2d 318, 323 (Mo.App.1997).

The trial court apparently admitted Klammer’s statement as an admission against interest. In order for a statement to qualify for admission under this exception, the statement must be offered by a party against an opposing party to the lawsuit. Because Klammer was not a party to this lawsuit, Appellant argues that this hearsay exception fails to apply.

To qualify as a admission against interest, the statement must meet each of the following requirements: (1) a conscious or voluntary acknowledgement by a party-opponent of the existence of certain facts; (2) the matter acknowledged must be relevant to the cause of the party offering the admission; and (3) the matter acknowledged must be unfavorable to, or inconsistent with, the position now taken by the party-opponent. Nettie’s Flower Garden, Inc. v. SIS, Inc., 869 S.W.2d 226, 229 (Mo.App.1993) (quoting United Servs. of Am. v. Empire Bank, 726 S.W.2d 439, 444 (Mo.App.1987)). Appellant is correct in that Klammer’s statement fails to meet the first requirement of the admission against interest exception as he was not a party opponent and, therefore, the exception is inapplicable. However, another exception to the hearsay rule applies.

The declaration against interest exception to the hearsay rule requires (1) an unavailable declarant, (2) the declaration relates to a fact against the declar-ant’s pecuniary, proprietary, or penal interest at the time the declaration was made, (3) the declaration concerns a fact personally cognizable by the declarant, and (4) the declaration is made under circumstances which render it improbable that a motive to falsify exists. Id. at 230.

Here, the record shows that because Klammer suffered from Alzheimer’s disease at the time of trial, he was incompetent to testify at trial and, therefore, unavailable under the declaration against interest exception. His statement that “he thought that if he hurried up, he could make it across the street,” implying his negligence, conflicts with his pecuniary interests at the time the statement was made. Furthermore, the declaration regards the accident in which Klammer was just involved in and, therefore, personally aware. And finally, no facts in the record indicate a probable motive for Klammer to make his statement unreliable.

Therefore, this court concludes that Klammer’s statement to Officer Birkner was admissible as a declaration against interest. The trial court’s reason given for the ruling was incorrect, but the correct ruling was made. Point denied.

D. Klammer’s Statements Made to Gallagher’s Former Attorney

Appellant argues in its fourth point that the trial court erred when it excluded Klammer’s statement made to Randall Cain, an attorney who formerly represented Gallagher. Appellant first argues that the statement was admissible as an admission against Klammer’s pecuniary interest. Alternately, Appellant argues that Klammer’s comments to the attorney were admissible under the doctrine of curative admissibility to rebut the previously “inadmissible” statement of Klammer to Officer Birkner. Because this court already held that the doctrine of curative admissibility requires preservation via an offer of proof, and because such offer of proof was not made defining the use of the curative admissibility doctrine as its theory for admission, this court does not reach the merits of Appellant’s argument relating to this doctrine. However, this court will consider Appellant’s argument that Klammer’s statement was admissible as an admission against pecuniary interests.

This court reviews the admissibility of evidence for an abuse of discretion. State v. Case, 140 S.W.3d at 85. Appellant offered to prove that Cain would testify that on February 5, 1997, as part of his investigation of the accident in relation to his representation of Gallagher, Cain called Klammer. Cain’s contemporaneously made notes during Klammer’s conversation stated that Klammer “[s]topped 10 feet from the curb line before proceeding, looked left, then right, saw vehicle coming from right, that’s why he accelerated. Nothing visible on the left. No problem with the sun either. He’s sure he stopped 10 feet from the curb line. Telephone conversation with Walter Klammer.”

The trial court ruled that the above evidence was inadmissible hearsay and that it did not qualify as a declaration against interest. Appellant now contends that Klammer’s statement was admissible as an admission. In order to have an admission, the declarant must be a party-opponent. Nettie’s Flower Garden, Inc., 869 S.W.2d at 229. It has already been determined that Klammer was not a party to this case, so Klammer’s statement cannot be admitted as an admission.

However, Klammer’s statement might have been admissible as a declaration against interest. But because Appellant failed to include Cain’s deposition transcript, this court is unable to verify the context of Klammer’s statement. Such context is necessary to determine whether Klammer’s statement qualifies as a declaration against interest. To be admissible as a declaration against interest, among other requirements, the declaration when made must relate to a fact against the declarant’s pecuniary, proprietary, or penal interests. See id. at 230. For example, if Cain informed Klammer that he was representing Gallagher against the City of Grandview and against the Farm Center (but not against Klammer), then Klam-mer’s statement would not appear to be a declaration against interest because his statement does not work against Klammer. However, this information is not verifiable in the record that was provided to this court and, therefore, cannot be reached. Point denied.

E. Lack op Accident Evidence

The last point relied on contains several themes, some of which have been addressed in previous points. The most dominant is that error was committed when the trial judge limited lay testimony as to' other accidents at or near the exit in question. Despite noncompliance with Rulé 84.04 (which includes failure to utilize page references in the transcript), this point will nevertheless be reviewed. The trial court sought to limit lay persons rendering an opinion that this particular exit was dangerous. Appellant acknowledges this testimony could only be offered to prove constructive notice to the landowner. The court did not allow the lay witnesses to testify as to the cause of accidents that had occurred but had not been seen by them. Appellant goes on to allege that J & D was allowed to argue in closing that Appellant did not introduce evidence of other accidents at this particular spot on Blue Ridge. Although Appellant did object to the argument, it did not raise this particular reason now presented on appeal. Point denied.

III. Conclusion

This court affirms the trial court’s judgment.

All concur.

      . Even though the center exit serves as an ingress and egress to the Farm Center, this opinion hereinafter refers to it as the "central exit” as Klammer was exiting from the Farm Center’s parking lot when Gallagher’s motorcycle struck Klammer.

      . Appellant labels this doctrine as "verbal shorthand,” although Missouri case law does not seem to refer to this theory by this name.

      . Appellant dedicates one sentence to this argument, despite relying on it in its first point relied on.

      . Notably, in its reply brief, Appellant fails to direct this court to the record where it raised the doctrine of curative admissibility.

      . Klammer’s statement to Officer Birkner was held to be admissible in part C above!


source: Caselaw Access Project

license: Public Domain

text:
    Tony L. WHITE, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64665.
    Missouri Court of Appeals, Western District.
    Dec. 6, 2005.
    Susan Lynn Hogan, Appellate Defender Office, Kansas City, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun Mackelprang and Evan J. Buch-heim, Office of Attorney General, Jefferson City, for Respondent.
    Before PAUL M. SPINDEN, Presiding Judge, VICTOR C. HOWARD, Judge, and RONALD R. HOLLIGER, Judge.
   ORDER

Tony White appeals the motion court’s denial, after evidentiary hearing, of his 24.035 motion for post-conviction relief. We have reviewed the briefs of the parties and the record, and find no error of law. A written opinion reciting the detailed facts and restating the applicable principles of law would have no precedential or jurisprudential value. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order. Affirmed. Rule 84.16(b)


author: PAUL M. SPINDEN, Presiding Judge.

text:
    Russell A. MAGEE and Constance L. Magee, Appellants, v. Carla A. BROWN and Edith M. Brown, Respondents.
    No. WD 65522.
    Missouri Court of Appeals, Western District.
    Dec. 6, 2005.

      Matthew Joseph O’Connor, Kansas City, for Appellant.
    Philip Cardarella, Kansas City, for Respondent.
   PAUL M. SPINDEN, Presiding Judge.

Russell and Constance Magee sued Carla Brown and her mother, Edith Brown, after Carla Brown crashed her mother’s car into the Magees’ van and trailer, which were parked on the shoulder of Interstate 435 in Kansas City. Russell Magee -had parked his vehicle on the shoulder to secure a load in the trailer. The car drivén by Brown careened across several lanes, hitting Russell Magee and crashing into the Magees’ van. Russell Magee was seriously injured. The Magees sued Brown and her mother in an eight-count petition.

Counts V and VI charged Edith Brown with negligently entrusting her automobile to her daughter, and Count VIII alleged that Edith Brown was liable for Constance Magee’s loss of consortium. Because the Magees do not appeal from a final judgment, we dismiss their appeal.

This appeal was prompted by the circuit court’s granting Edith Brown’s motion to dismiss her from the petition on the ground that it did not state a claim against her for negligent entrustment. The circuit court granted the motion by dismissing Counts V and VI pertaining to negligent entrustment. The Magees filed this appeal.

The appeal was premature. An order adjudicating “fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties.” Rule 74.01(b). The rule authorizes the circuit court to designate as final a judgment “as to one or more claims but fewer than all of the claims,” but, in the absence of an express determination, an order is not final if it does not resolve all claims. Committee for Educational Equality v. State, 878 S.W.2d 446, 453 (Mo. banc 1994). The circuit court did not make an express determination under Rule 74.01.

Moreover, by dismissing only Counts V and VI, the circuit court’s order did not dispose of all of the claims against Edith Brown. Count VIII appears to remain pending against her. Because the order did not dispose of all claims or any parties, and because the circuit court did not designate its order as final under Rule 74.01(b), the order is not final. We have no jurisdiction to consider the Magees’ appeal and dismiss it pursuant to Section 512.020.

VICTOR C. HOWARD and RONALD R. HOLLIGER, Judges, concur.


author: ROBERT G. ULRICH, Presiding Judge.

text:
    Andrew Berton PRIDE and Joyce Kay Pride, Respondents, v. Larry L. LEWIS, Appellant.
    No. WD 65124.
    Missouri Court of Appeals, Western District.
    Dec. 6, 2005.

      Kenneth C. Hensley, Raymore, MO, for Appellant.
    Robert E. Sundell, Maryville, MO, for Respondents.

      Before ROBERT G. ULRICH, P.J., PATRICIA A. BRECKENRIDGE and JAMES M. SMART, JJ.
   ROBERT G. ULRICH, Presiding Judge.

Larry L. Lewis appeals the judgment of the Circuit Court of Nodaway County, Associate Circuit Division, finding that he breached a real estate contract and ordering him to pay damages in the amount of $20,900.00, such sum to bear interest at the rate of nine percent per annum. Mr. Lewis presents three points on appeal. First, he contends the trial court erred in finding a breach of contract because he and his wife were both intended to be parties to the contract but Mrs. Lewis never signed the contract. Second, Mr. Lewis contends the trial court’s finding that a contract had been entered into was against the weight of the evidence because the sellers presented a counteroffer, thereby extinguishing Mr. Lewis’s offer, and neither Mr. Lewis nor his wife accepted the counteroffer. Finally, Mr. Lewis contends that the trial court erred when it sustained the sellers’ objection, based on relevance and the parol evidence rule, to a question asked by Mr. Lewis’s counsel’s question during trial. Mr. Lewis’s second point is granted and the judgment of the trial court is reversed.

Facts

Andrew and Joyce Kay Pride, husband and wife, owned a house located in Noda-way County. In 2002, they moved to a farm and placed the house for sale with Priority One Realty. The house sat empty for some time; Mr. and Mrs. Pride then found a tenant to rent the house until such time as it sold. The tenant rented the house for a sum of $450 per month.

In April 2003, Mr. and Mrs. Pride were informed that Mr. Lewis made an offer to purchase the house for $55,000, with earnest money in the amount of $1500. During this time, Mr. Lewis was married to Issoline Lewis. The first contract offered by Mr. Lewis through his realtor required Mr. and Mrs. Pride to owner finance the transaction. This offer was rejected by Mr. and Mrs. Pride. Mr. Lewis’s realtor then presented a second contract. Mr. and Mrs. Pride’s realtor presented them with the second contract, already signed by Mr. Lewis and his realtor. This contract specified conventional bank financing would be used. The contract stated that Mr. and Mrs. Pride were selling the house to Larry and Issoline Lewis. Mr. Lewis signed the contract on April 9, 2003. His realtor also signed the contract, although the date is not indicated. Mrs. Lewis never signed the contract. Mr. and Mrs. Pride, as well as their realtor, signed the real estate contract on April 11, 2003. Upon signing the contract, Mr. and Mrs. Pride informed their tenant that she would have to vacate the house by June 1, 2003. The contract provided by Mr. Lewis had a closing date of May 15, 2003. Mr. and Mrs. Pride changed this date, by hand, to June 1, 2003. This change was initialed by Mr. and Mrs. Pride, but not by Mr. Lewis or Mrs. Lewis.

Mr. and Mrs. Pride became aware that there was a problem with closing on the property in June, when the closing was scheduled to occur. They, along with their realtor, were prepared to close on the property but neither Mr. Lewis, Mrs. Lewis, nor their realtor ever appeared. Mr. and Mrs. Pride’s realtor contacted Mr. Lewis’s realtor and was informed that Mr. Lewis had not responded to phone calls or otherwise communicated with his realtor. Mr. Lewis testified that he thought “they were going to try to [close] early June, and that’s the last I knew.” He further testified that he had been travelling and had attempted to contact his real estate agent a couple of times but, upon not reaching her, “opted to wait and let them contact me.” When the closing with Mr. Lewis failed to occur, Mr. and Mrs. Pride sent him a letter notifying him of his default and their electing not to take the $1500 earnest money as damages.

After the closing with Mr. Lewis failed to occur, Mr. and Mrs. Pride re-listed the house with a realtor. Before Mr. Lewis made his offer, the house’s listing price had changed several times; when the house was listed again, after the closing with Mr. Lewis failed to occur, the house was listed for $55,000 and the price never changed. The house sold in June 2004 for $40,000. This was the highest offer Mr. and Mrs. Pride received for the house. During the additional year the house was for sale, Mr. and Mrs. Pride were unable to secure another tenant to rent the property.

The two contracts offered by Mr. Lewis and the contract wherein the house actually sold for $40,000 were the only three offers ever made for the property. Mr. and Mrs. Pride’s realtor testified that the house may have been worth only $40,000 when the offer for $40,000 was made and the subsequent sale occurred.

Mr. and Mrs. Pride sued Mr. Lewis for breach of contract. They sought damages for the difference between the $55,000 contract price with Mr. Lewis and the $40,000 for which the house actually sold, for the lost rent the year they were unable to find another tenant, and for attorney’s fees, as provided in the contract. The trial court entered judgment in favor of Mr. and Mrs. Pride and awarded them $20,900 in damages. No findings of fact or conclusions of law were requested or made and the judgment recites “the Court finds that the allegations in Plaintiffs Petition are true.”

Mr. Lewis’s timely appeal followed.

Standard of Review

As set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), the judgment of the trial court will be affirmed unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Spencer Reed Group, Inc. v. Pickett, 163 S.W.3d 570, 573 (Mo.App. W.D.2005). As neither party requested and the trial court did not make specific findings of fact and law, the trial court is assumed to have made findings consistent with the judgment issued. Id. The evidence and all reasonable inferences drawn therefrom will be viewed in the light most favorable to the trial court’s judgment, and all contrary evidence and inferences are disregarded. L.L. Lewis Constr., L.L.C. v. Adrian, 142 S.W.3d 255, 259 (Mo.App. W.D.2004). The trial court is the trier of fact and, as such, determines the credibility of witnesses and is free to believe or disbelieve all or part of witness testimony. Id.

This court is primarily concerned with the correctness of the result and not the route taken by the trial court to reach that result. Citibank (South Dakota), N.A. v. Mincks, 135 S.W.3d 545, 549 (Mo.App. S.D.2004). Because of this, the trial court’s judgment will be affirmed under any reasonable theory supported by the evidence. Spencer Reed Group, Inc., 163 S.W.3d at 573. An appellate court will set aside a judgment on the grounds that it is against the weight of the evidence with caution and only with the firm belief that the judgment is wrong. State ex rel. Nixon v. Alternate Fuels, Inc., 158 S.W.3d 811, 813 (Mo.App. S.D.2005). Weight of the evidence refers to the evidence’s weight in probative value or its effect in inducing belief, not its quantity. Austin v. Pickett, 87 S.W.3d 343, 346-47 (Mo.App. W.D.2002). Further, the fact that there is evidence of testimony in the record which may have supported a different conclusion than that reached by the trial court does not demonstrate that the judgment is against the weight of the evidence. Silver Dollar City, Inc. v. Kitsmiller Constr. Co., 931 S.W.2d 909, 913 (Mo.App. S.D.1996). An appellate court independently evaluates the trial court’s application of the law in determining whether there was a misapplication of the law. AAA Uniform & Linen Supply, Inc. v. Barefoot, Inc., 17 S.W.3d 627, 629 (Mo.App. W.D.2000).

Analysis

As resolution of Mr. Pride’s second point is dispositive, it is the only point addressed in this opinion. In his second point on appeal, Mr. Lewis argues that the trial court’s finding that a contract had been entered into was against the weight of the evidence. He contends that when Mr. and Mrs. Pride changed the closing date, they made a counteroffer for the sale of the real estate. He further argues that, because neither he nor his wife signed or initialed the change in closing date, he never accepted the counteroffer and thus there was no contract.

Before a plaintiff can establish a breach of contract, he or she must first establish the existence of a contract. Volker Court, LLC v. Santa Fe Apartments, LLC, 130 S.W.3d 607, 611 (Mo.App. W.D.2004). “A contract does not exist without a definite offer and a ‘mirror-image’ acceptance.” Id. Any acceptance that includes new or variant terms from the offer presented amounts to a counter-offer and a rejection of the original offer. Tirmenstein v. Cent. States Basement & Found. Repair, Inc., 148 S.W.3d 849, 851 (Mo.App. E.D.2004); Tower Props. Co. v. Allen, 33 S.W.3d 684, 688 (Mo.App. W.D.2000). The unequivocal acceptance of the offer is fundamental to the existence of a contract. Medicine Shoppe Int’l., Inc. v. J-Pral Corp., 662 S.W.2d 263, 269 (Mo.App. E.D.1983).

Mr. Lewis contends that Mr. and Mrs. Pride made a counteroffer when they changed the closing' date from May 15, 2003, to June 1, 2003. While both Mr. and Mrs. Pride initialed this change, it was undisputed at trial that neither Mr. nor Mrs. Lewis initialed the change to the contract. Mr. and Mrs. Pride acknowledge that changing the closing date amounted to a counteroffer.

The question is, was the counteroffer ever accepted? Mr. Lewis argues that he never accepted this counteroffer, and, thus, there was no contract. Mr. and Mrs. Pride argue that Mr. Lewis accepted their counteroffer through his conduct and failure to act. They specifically list three facts that manifest Mr. Lewis’s acceptance of their counteroffer. They are: (1) Mr. Lewis never contacted his real estate agent, Mr. or Mrs. Pride, the Pride’s real estate agent, or anyone else to reject the counteroffer; (2) Mr. Lewis knew the closing was to take place in early June; and (3) Mr. Lewis never sought the return of his earnest money.

As a general rule, silence or inaction cannot constitute acceptance of an offer. E.A.U., Inc. v. R. Webbe Corp., 794 S.W.2d 679, 686 (Mo.App. E.D.1990); Bestor v. Am. Nat’l. Stores, Inc., 691 S.W.2d 384, 388 (Mo.App. E.D.1985). Absent a duty to speak, silence may not be translated into acceptance merely because the of-feror attaches that effect to it. Bestor, 691 S.W.2d at 388. Inaction or silence does not evidence any intention of the offeree. Id.

This general rule does have exceptions, however. Acceptance of an offer or counteroffer does not always have to be made through explicit spoken or written word. Citibank (South Dakota), N.A. v. Wilson, 160 S.W.3d 810, 813 (Mo.App. W.D.2005). An offer may be accepted by conduct or failure to act. Id. This is the rule of law upon which Mr. and Mrs. Pride rely. They claim that Mr. Lewis’s conduct and failure to act amount to an acceptance of their counteroffer. While this statement of the law is accurate, it is of no avail in this case. This rule applies primarily to instances where services are rendered and the party benefited by the services is aware of the terms upon which the services are offered. Id. “If this party receives the benefit of the services in silence, when there was a reasonable opportunity to reject them, this party is manifesting assent to the terms proposed and thus accepts the offer.” Id. (internal citations and quote marks omitted). See also Moore v. Kuehn, 602 S.W.2d 713, 718 (Mo.App. E.D.1980)(stating that an offer may be accepted through conduct “[wjhere the offeree with reasonable opportunity to reject offered goods or services takes the benefit of them under circumstances which would indicate to a reasonable man. that they were offered with the expectation of compensation.”). These cases involve benefits or services being conferred or actions taken in accordance with the proposed agreement in such a manner that the other party is justified in assuming the offer has been accepted. See, e.g., Wilson, 160 S.W.3d at 813 (finding acceptance of offer when credit card company mailed patron a revised agreement, patron was informed that the revised agreement was binding unless she cancelled her account within thirty days and did not use her credit card, and patron continued to use her credit card thus manifesting her acceptance of the revised agreement); E.A.U., Inc., 794 S.W.2d at 686 (finding acceptance of offer where offeree referred offeror to' third party for third party’s approval of change, where offeree indicated it would be agreeable to any change authorized by third party, and where offeror notified offeree it had obtained third party’s approval and offeree failed to reject the change); Medicine Shoppe Int’l. Inc., 662 S.W.2d at 271 (finding acceptance of license agreement when company filled orders for pharmaceuticals and accepted royalty payment in accord with the terms of the license agreement).

The case relied upon by Mr. and Mrs. Pride for the rule of law that conduct may amount to acceptance of an offer is Environmental Waste Management, Inc. v. Industrial Excavating & Equipment, Inc., 981 S.W.2d 607, 612 (Mo.App. W.D.1998). This case is similar to the above examples in that the offeree received the benefit of services in silence, knowing the terms upon which they were offered and having the opportunity to decline the services, and thus was deemed to have accepted the terms of the offer. Id. In Environmental Waste Management, Inc., the plaintiff sent the defendant a létter wherein its prices for contaminated soil removal were listed. The defendant allowed the plaintiff to remove contaminated soil, but then refused to pay the prices listed in the letter. The plaintiff subsequently sued for breach of contract and the court held that, by allowing the plaintiff to remove the contaminated soil, the defendant accepted the offer in the letter. Id.

Mr. and Mrs. Pride advance the similarity of this case. Mr. Lewis did not accept services or benefits under the terms of an agreement and later claim never to have accepted the agreement. This case is not analogous. As noted, supra, Mr. Lewis had no duty to reject the counteroffer. Further, while Mr. Lewis failed to request the refund of his earnest money, this is not sufficient to create a binding contract. Mr. and Mrs. Pride argue that: “Logic would indicate that a person would desire the return of their earnest money if they believed that no contract had ever been in existence.” Maybe so; but almost no testimony regarding this was presented at trial. Mr. Lewis may have believed that the earnest money was nonrefundable. Perhaps he did not want to encounter the hostility of having it refunded.. Whatever his reason, the fact that he failed to request the return of the earnest money does not make this case one where Mr. Lewis received a benefit or services under a proposed agreement.

The last evidence Mr. and Mrs. Pride advance as indicative of Mr. Lewis’s acceptance of the counteroffer is the fact that he was aware the closing date was in early June. While this certainly weighs in favor of Mr. and Mrs. Pride, it is not sufficient for the trial court to find that Mr. Lewis had accepted the counteroffer resulting in a binding contract. See, e.g., Tower Props. Co., 33 S.W.3d at 688 (finding no acceptance of counteroffer when offeree took no action in response to counteroffer, even though offeree received counteroffer and was fully aware of its terms).

Mr. Lewis could have been clearer with respect to the fact that he was rejecting the counteroffer. He may have known that Mr. and Mrs. Pride assumed their counteroffer had been accepted and were proceeding accordingly. Perhaps as a courtesy he should have informed Mr. and Mrs. Pride that he did not accept their counteroffer. Regardless of whether he breached cultural mores, Mr. Lewis had no legal duty to act or explicitly reject the counteroffer. Mr. and Mrs. Pride erroneously assumed that silence was equivalent to acceptance. This case does not fit with the line of cases holding that an offeree’s conduct or failure to act amounted to acceptance of an offer. Mr. and Mrs. Pride should have secured Mr. Lewis’s acceptance to the counteroffer before advancing the transaction. This court can not create a contract where one did not exist, especially given the importance of an “unequivocal acceptance of the offer.” Medicine Shoppe Int'l., Inc., 662 S.W.2d at 269.

Conclusion

Mr. and Mrs. Pride made a counteroffer when they changed the closing date in the real estate sales contract. Because the counteroffer was never accepted by Mr. or Mrs. Lewis, a contract was never formed. The judgment of the trial court is reversed.

All concur.


text:
    Jerald Douglas DENNY, Appellant, v. STATE of Missouri, Respondent.
    No. WD 65091.
    Missouri Court of Appeals, Western District.
    Dec. 6, 2005.

      Nancy A. McKerrow, Columbia, MO, for appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for respondent.
    Before ROBERT G. ULRICH, P.J., PATRICIA A. BRECKENRIDGE and JAMES M. SMART, JJ.
   ROBERT G. ULRICH, Presiding Judge.

Jerald D. Denny appeals the denial of his Rule 24.035 motion for postconviction relief without an evidentiary hearing. Mr. Denny sought to vacate his conviction for the class D felony of driving while his license was revoked, section 302.321, RSMo 2000, and sentence as a prior and persistent offender to four years imprisonment. He claims the motion court denied him due process of law by failing to enter specific findings of fact and conclusions of law on each of his claims in that meaningful appellate review of the judgment is not possible. Because the motion court never acquired jurisdiction, over this matter, the judgment is reversed and the case remanded.

On March 22, 2004, Mr. Denny entered a guilty plea to one count of driving while his license was revoked. Mr. Denny was sentenced as prior and persistent felony offender to four years imprisonment. On April 12, 2004, Mr. Denny filed his pro se Motion to Vacate, Set Aside or Correct the Judgment or Sentence pursuant to Rule 24.035. Counsel, appointed to represent Mr. Denny, filed “Counsel’s Statement in Lieu of Amended Motion Under Rule 24.035.” Appointed counsel determined that she would not file an amended motion because no potentially meritorious claims had been omitted from Mr. Denny’s pro se motion. The motion court overruled Mr. Denny’s motion, without an evidentiary hearing, on January 24, 2005. Mr. Denny’s timely appeal followed.

Mr. Denny’s sole point on appeal is that the trial court erred in overruling his motion without entering specific findings of fact and conclusions of law on each of his claims and that this denied him due process of law in that it makes meaningful appellate review of the judgment impossible. The merits of Mr. Denny’s appeal are not reached, however, as the motion court never acquired jurisdiction to consider the motion.

Mr. Denny failed to sign his pro se motion. Rule 55.03 applies to motions for postconviction relief and requires that motions be signed by the party if the party is not represented by counsel at the time the motion is filed. Tooley v. State, 20 S.W.3d 519, 520 (Mo. banc 2000); Rule 55.03(a). This signature requirement “is not a hollow, meaningless technicality.” Tooley, 20 S.W.3d at 520. The movant’s signature is a mandatory element for jurisdiction to attach. Id. An unsigned motion for postconviction relief is a nullity and does not invoke the motion court’s jurisdiction. Blanton v. State, 159 S.W.3d 870, 870 (Mo.App. W.D.2005); Tooley, 20 S.W.3d at 520. Because the motion court never acquired jurisdiction, it did not have the power to appoint counsel or rule on the motion. Its judgment must be reversed.

Rule 55.03 further provides that an unsigned filing shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party making the filing. Rule 55.03(a). There is no indication that this omission has been brought to Mr. Denny’s attention. Apparently the motion court, Mr. Denny’s appointed counsel, and the State all overlooked the deficiency. Now that the omission has been brought to Mr. Denny’s attention, he must promptly correct the deficiency or his motion will be stricken. This is an opportunity for Mr. Denny to correct the error and sign the motion; this is not an opportunity for Mr. Denny to amend his motion in any manner. Mr. Denny’s time frame within which to file a motion has long since lapsed; thus, he has the opportunity to sign his original pro se motion but may not file a new or amended motion. Rule 24.035(b). If he chooses to remedy the oversight, the motion court will have jurisdiction to rule on the motion.

Mr. Denny filed his motion on April 12, 2004. More than one year later, he will be given the opportunity to correct the omission of his signature pursuant to Rule 55.03(a). A party is allowed to utilize this provision regardless of how much time elapses before the deficiency is called to his or her attention. See, e.g., Blanton, 159 S.W.3d at 870-71 (noting that unsigned postconviction motion was filed March 11, 2003, and that movant could have cured deficiency if he had promptly corrected omission and signed motion when he learned of it on January 20, 2005); Wallingford v. State, 131 S.W.3d 781, 782 (Mo. banc 2004)(stating: “[T]he specific holding of Tooley is that under Rule 55.03(a), movants have the opportunity to correct omission of a signature. Rule 55.03(a) applies where the dismissal occurs within the original 90-day filing period, as in Tooley, or where it occurs later, as in this case.”).

The judgment of the motion court is reversed and the case is remanded for action consistent with this opinion.

All concur.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. James PELSTER, Appellant.
    No. ED 85327.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 6, 2005.

      Craig E. Hellmann, Washington, MO, for appellant.
    Robert E. Parks II, Union, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

James Pelster (hereinafter, “Defendant”) appeals from the judgment entered after a bench trial found him guilty of domestic assault in the third degree, Section 565.074 RSMo (2000). The trial court sentenced Defendant to imprisonment for 180 days, execution to be suspended, and two years’ supervised probation. Defendant’s sole point on appeal claims the trial court erred overruling his motion for judgment of acquittal in that the State failed to prove beyond a reasonable doubt that he was an adult at the time of the occurrence.

We have reviewed the briefs of the parties and the record on appeal. An extended opinion would have no precedential value.

The judgment is affirmed pursuant to Rule 30.25(b).


text:
    STATE of Missouri, Respondent v. Hasani A. ABERNATHY, Appellant.
    No. ED 85562.
    Missouri Court of Appeals, Eastern District, Division Four.
    Dec. 6, 2005.
    Jo Ann Rotermund, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Cecily L. Helms, Jefferson City, MO, for respondent.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Hasani A. Abernathy (“Defendant”) appeals from a judgment entered after a jury found him guilty of possession of a controlled substance, a class C felony. The court sentenced Defendant to ten years in the. Missouri Department of Corrections, the execution of which was stayed pending Defendant’s participation in a long-term substance abuse program.

In his sole point on appeal, Defendant claims that the trial court erred in denying Defendant’s motion for judgment of acquittal because the State failed to establish that he possessed a controlled substance beyond a reasonable doubt. We find no error and affirm.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 30.25(b).


text:
    COMMERCIAL UNION INSURANCE COMPANY and Robert Thompson, Respondents, v. Ronald E. HAWTHORNE, Appellant.
    No. WD 65354.
    Missouri Court of Appeals, Western District.
    Dec. 6, 2005.
    Richard J. Koury II, Independence, MO, for respondents.
    Ronald E. Hawthorne, Lenexa, KS, pro se.
    Before SPINDEN, P.J., and HOWARD and HOLLIGER, JJ.
   Order

PER CURIAM.

Ronald E. Hawthorne appeals the judgment denying his motion to set aside a default judgment entered against him.

After a thorough review of the record, we conclude that no error of law appears. Respondents’ motion to dismiss or to strike Hawthorne’s brief is denied. An extended opinion would have no prece-dential value, but we have provided a memorandum explaining our reasoning to the parties. Judgment affirmed. Rule 84.16(b).


author: RONALD R. HOLLIGER, Judge.

text:
    Dean ALEXANDER, Appellant, v. Tom CHANDLER, Defendant, ABS Global, Inc., Respondent.
    No. WD 65253.
    Missouri Court of Appeals, Western District.
    Dec. 6, 2005.

      Jeffery Thomas Adams, Clinton, for appellant.
    Larry James Tyrl, Kansas City, for respondent.
   RONALD R. HOLLIGER, Judge.

Dean Alexander (“Alexander”) appeals from a grant of summary judgment in favor of ABS Global, Inc. (“ABS”) on his breach of contract claim asserting that Tom Chandler (“Chandler”) was the agent of ABS. The trial court found that there was no actual agency relationship between Chandler and ABS and granted summary judgment on Alexander’s claim as to ABS. We reverse and remand because there was a genuine issue of material fact as to whether Chandler was the apparent agent of ABS.

Facts

Alexander breeds and sells commercial cattle. As part of his business, he maintains an amount of bull semen in supercooled nitrogen tanks to be used for impregnating cows. Chandler is an independent salesman for ABS and sells bull semen for the company in a defined territory to individuals like Alexander. Alexander, however, never purchased bull semen from ABS.

Chandler, individually, is also in the nitrogen supply business. In 2002, Alexander entered into an oral contract with Chandler for the supply of nitrogen for his semen storage tanks. Under the agreement, Chandler would supply nitrogen to Alexander’s tanks in exchange for a fee. ABS was not in the nitrogen supply business at the time, but did allow Chandler to use company owned nitrogen tanks carrying the ABS logo to service Alexander’s tanks. Additionally, Chandler used other items containing the ABS logo in his dealings with Alexander, including calendars and billing slips. Chandler also sent Alexander postcards and gave out business cards with the ABS label that identified Chandler as an “ABS Representative.”

Sometime after the contract was formed, one of Alexander’s tanks was not filled properly. Consequently, the temperature in the tank rose too high and the bull semen contained in that tank were rendered unusable. Alexander then filed a lawsuit against Chandler and ABS alleging breach of contract and claiming that Chandler was the actual and/or apparent agent of ABS. Alexander asserted that ABS knowingly permitted Chandler to represent himself as the agent of ABS, acting on the company’s behalf, and that Alexander reasonably relied on those representations to his detriment.

The trial court granted ABS’ motion for summary judgment as to the claim against the company finding no agency relationship between ABS and Chandler. The court designated its judgment as a final and appealable judgment finding no just reason for further delay. Alexander now appeals.

Standard of Review

Our review of a grant of a motion for summary judgment is de novo; the trial court’s decision will be upheld if the mov-ant is entitled to judgment as a matter of law and no genuine issues of material fact exist. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376-77 (Mo. banc 1993). We review the record in the light most favorable to the party against whom judgment was entered, according that party all reasonable inferences that may be drawn from the record. Id at 376.

Discussion

Alexander claimed in his petition that he had a contract with Chandler that Chandler was to keep his nitrogen tank full in exchange for a yearly fee. Alexander’s petition alleged that Chandler negligently failed to keep the tank full in violation of the contract resulting in the destruction of the semen contained in the tank. Additionally, the petition alleged that Chandler was a servant/employee of ABS, or, in the alternative, Chandler was the apparent agent of ABS. In its motion for summary judgment, ABS claimed that Chandler was at no time an agent of the company but, rather, an independent contractor and ABS was, therefore, not responsible for his actions.

Alexander did not argue in his response to the motion for summary judgment that Chandler was a servant or employee of ABS. Rather, Alexander rested his theory of agency on the contention that Chandler was cloaked with apparent authority by ABS to enter into contracts on behalf of the company for the delivery of nitrogen. Alexander supported his assertions with facts from the record including: ABS provided Chandler with nitrogen tanks marked with the ABS logo for the purpose of servicing customer needs for nitrogen; Chandler billed Alexander for his services using invoices that displayed the ABS logo; Chandler sent post cards to Alexander that indicated that he was an “ABS Representative”; Chandler gave out business cards identifying himself as an “ABS Representative”; Chandler gave out calendars marked with his name and the ABS logo.

Apparent authority results from a direct communication from the principal to a third party causing that third party to reasonably believe that a person has authority to act for the principal. Nichols v. Prudential Ins. Co. of Am., 851 S.W.2d 657, 661 (Mo.App.1993). The communication need not be verbal and can constitute a combination of actions by the principal, or manifestations that the principal allows to be made without objection. Hamilton Hauling, Inc. v. GAF Corp., 719 S.W.2d 841, 846 (Mo.App.1986) (“The ‘holding out’ of the agent’s authority by the principal party may be by action or inaction.”).

When a principal has by his voluntary act placed an agent in such a situation that a person of ordinary prudence, conversant with business usages and the nature of the particular business, is justified in presuming that such agent has authority to perform a particular act on behalf of his principal, the principal is estopped, as against such innocent third person, from denying the agent’s authority to perform the act.

Id. “Once established, apparent authority is the equivalent of expressly conferred authority as far as third persons are concerned.” Utley Lumber Co. v. Bank of the Bootheel, 810 S.W.2d 610, 613 (Mo.App.1991) (citations omitted).

As stated, ABS moved for summary judgment alleging that no actual or apparent agency relationship existed. Alexander responded by arguing and asserting facts in support of apparent agency. ABS may establish a right to judgment as a matter of law by showing facts that negate any one of the elements of Alexander’s cause of action or that Alexander, after an adequate period of discovery, has not and will not be able to produce evidence sufficient to allow the trier of fact to find the existence of any one of the elements of his claim. Gauert v. Chris-Leef Gen. Agency, Inc., 123 S.W.3d 270, 272 (Mo.App.2003). If ABS can establish a right to judgment as a matter of law, Alexander must demonstrate that one or more of the material facts asserted by ABS as not in dispute is, in fact, genuinely disputed. Id. To rely on apparent agency, Alexander must show:

(1) the [apparent] principal manifested his consent to the exercise of such authority or knowingly permitted the [apparent] agent to assume the exercise of such authority; (2) the person relying on this exercise of authority knew of the facts and, acting in good faith, had reason to believe, and actually believed, the agent possessed such authority; and (3) the person relying on the appearance of authority changed his position and will be injured or suffer loss if the transaction executed by the agent does not bind the principal.

Bost v. Clark, 116 S.W.3d 667, 677 (Mo.App.2003). The trial court entered summary judgment against Alexander finding that he had not produced evidence of an agency relationship between Chandler and ABS. In so concluding, the court relied on its finding that Alexander had not shown that ABS had a “right to control” Chandler, and, therefore, Alexander had failed to reach his burden of establishing an agency relationship. See Bargfrede v. Am. Income Life Ins. Co., 21 S.W.3d 157, 162 (Mo.App.2000) (discussing respondeat superior and factors germane to evaluating the existence of a master/servant relationship).

The right to control, however, is not relevant to the issues at hand. As stated, Alexander maintained in his response to the motion for summary judgment that he could make a submissible case on a theory of apparent agency. Such a theory has little to do with whether a master/servant relationship exists but, rather, whether ABS cloaked Chandler with the appearance of authority to perform acts on its behalf as reasonably understood by Alexander. Although the right to control is the paramount issue in determining the existence of a master/servant relationship, such a determination is largely irrelevant to the question of apparent agency. What is relevant are the manifestations about Chandler’s capacity as an “ABS representative” that were made by ABS or allowed by ABS without objection. See Hamilton, 719 S.W.2d at 846.

The fact that the trial court used the wrong rationale in granting summary judgment does not require reversal, however, if the judgment can be sustained on any other theory. Auto Owners (Mut.) Ins. Co. v. Sugar Creek Mem’l Post No. 3976, 123 S.W.3d 183, 190 (Mo.App.2003). Accordingly, we evaluate the evidence de novo applying the proper elements of apparent agency to determine whether there is any genuine issue as to its existence on the undisputed facts of this case.

The three elements required to make a prima facie showing of apparent authority stated above can be reduced to: (1) consent by the principal to the exercise of the authority; (2) good faith reliance by a third party; and (3) damage sustained. The core issue of this dispute revolves around the issue of consent; that is, did ABS consent to Chandler asserting apparent authority to contract on the company’s behalf or knowingly permit him to do so?

In his response to the motion for summary judgment, Alexander alleged that ABS, by acts or conscious omissions, led him to believe that Chandler was acting on the behalf of ABS in contracting with him to deliver nitrogen. Alexander supported these assertions by referring to facts from the pleadings and discovery including the following: ABS provided Chandler with nitrogen tanks marked with the ABS logo for the purpose of servicing customer needs for nitrogen; Chandler billed Alexander for his services using invoices that also displayed the ABS logo; Chandler sent post cards to Alexander indicating that Chandler was an “ABS Representative”; Chandler gave out calendars to individuals, including Alexander, bearing the ABS logo and Chandler’s name; Chandler handed out business cards indicating that he was an “ABS Representative.”

Although these facts are not in dispute, the record conflicts as to which of those representations ABS consented to or knowingly permitted. This is of obvious importance because apparent authority is created by some “act or failure to act” on behalf of the alleged principal and not of the agent. Hamilton, 719 S.W.2d at 848. Any determination of apparent authority will always turn upon the particular facts of each case; there is no set rule establishing when an inference of agency is proper. Corrington Park Assocs., L.L.C. v. Barefoot, Inc., 983 S.W.2d 210, 212-13 (Mo.App.1999). Precisely what ABS consented to with regard to the representations made by Chandler is of tremendous importance in determining whether, as a matter of law, Chandler was not cloaked with apparent authority by ABS. For instance, some case law indicates that the mere possession of invoices bearing the name of the alleged principal is insufficient to establish apparent authority. Dudley v. Dumont, 526 S.W.2d 839, 846 (Mo.App.1975). The flip side here is that Chandler was in possession of much more material displaying the ABS logo than a few invoices.

It is clear that ABS consented to the use of the ABS calendars and the tanks brandishing the ABS logo because it provided both to Chandler. With regard to the invoices, Chandler testified at his deposition that previous managers within the company were aware that he was using the ABS logo on the invoices and did not object. However, Chandler’s immediate manager testified that he was not aware that Chandler was using the invoices and business cards bearing the ABS logo.

In sum, the evidence is clear as to what kind of manifestations were made to Alexander attributing apparent authority to Chandler. The evidence conflicts, however, as to whether ABS acquiesced or consented to the making of all or merely some of those manifestations. Such evidence is vital to the root of apparent authority— that the apparent principal consented to representations of authority upon which a third party reasonably relied. To be sure, agency will not be presumed and Alexander bears the burden of proving the agency relationship. Corrington, 983 S.W.2d at 213. Alexander, however, has provided evidence that ABS knowingly consented to some of the representations made by Chandler and the evidence conflicts as to some of the others.

Recalling the fact that we are required to review the record in the light most favorable to Alexander, under these circumstances we believe that the grant of summary judgment was improper. The discrepancies in the record as to how many of Chandler’s representations to Alexander that ABS impliedly consented to preclude a conclusion that, as a matter of law, apparent authority did not exist. A genuine issue exists when the record contains competent materials that show “two plausible, but contradictory, accounts of the essential facts.” ITT, 854 S.W.2d at 382; Deer Run Prop. Owners Ass’n v. Bedell, 52 S.W.3d 14, 17 (Mo.App.2001). “[W]e exercise great caution in affirming a summary judgment because the procedure implicates the denial of due process by denying an opposing party his day in court.” D'Arcy Assocs., Inc. v. K.P.M.G. Peat Marwick, 129 S.W.3d 25, 31 (Mo.App.2004). The facts upon which ABS relied in their motion do not establish as a matter of law that apparent authority did not exist, and, accordingly, the trial court erred in granting the motion for summary judgment.

The case is reversed and remanded for further proceedings.

PAUL M. SPINDEN, Presiding Judge, and VICTOR C. HOWARD, Judge, concur.

      . Chandler's use of business cards declaring him to be an “ABS Representative” appear to be immaterial to the core issue of apparent authority because Alexander testified that he never saw them. See Bost, 116 S.W.3d at 677 (person relying on the exercise of authority must know of the facts... ) (emphasis added).


text:
    Tyron TAYLOR, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85474.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 6, 2005.
    Kristina Starke, Assistant Public Defender, St. Louis, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Tyron Taylor (“Movant”) appeals the judgment of the motion court denying his Rule 29.15 post-conviction motion after an evidentiary hearing. A jury convicted Movant of first degree robbery, Section 569.020 RSMo 2000, and armed criminal action, Section 571.015 RSMo 2000. He was sentenced to concurrent terms of twenty years’ imprisonment on each count. We affirm.

We have reviewed the briefs of the parties and the record on appeal and no error of law appears. The trial court’s judgment was supported by substantial evidence on the record. No precedential or jurisprudential purpose would be served by an opinion reciting the detailed facts and restating the general principles of law. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order affirming the judgment pursuant to Rule 84.16(b).


author: GLENN A. NORTON, Chief Judge.

text:
    Andrew M. GEIST, Respondent, v. DIRECTOR OF REVENUE, Appellant.
    No. ED 85361.
    Missouri Court of Appeals, Eastern District, Northern Division.
    Dec. 6, 2005.

      Casey J. Welch, Hannibal, MO, for respondent.
    Cheryl A. Caponegro Nield, Jefferson City, MO, for appellant.
   OPINION

GLENN A. NORTON, Chief Judge.

The Director of Revenue appeals the judgment reinstating Andrew Geist’s driving privileges. We reverse and remand with directions.

I. BACKGROUND

Geist’s driving privileges were suspended for driving while intoxicated, and he sought a trial de novo. At trial, the Monroe City police officer who arrested Geist testified that he observed Geist swerve and run off the road in Monroe City. The officer followed him and activated the lights on his police car, but Geist continued driving out of Monroe City. Geist testified that he did not see the officer’s lights behind him until he was outside the city limits, where he was eventually stopped. When the officer came into contact with Geist, he detected a “faint to moderate” odor of intoxicants on Geist’s breath. The officer also testified that Geist was argumentative, that his eyes were a little bit dilated and that he swayed a little bit when he walked. The officer observed six clues indicating intoxication during the gaze nys-tagmus test and testified that Geist did not perform the walk-and-turn test as instructed. The officer did not administer the one-leg stand test because Geist told him he had a bad knee.

The officer arrested Geist for driving while intoxicated and took him back to the police station in Monroe City. There, he performed a breath test, which revealed that Geist’s blood alcohol concentration was .214%. The officer stated that he was with Geist for 15 minutes before the breath test was administered, but Geist testified that the officer left at some point during those 15 minutes. He could not remember for sure, but Geist knew he was having trouble with his asthma at that time and “could have” used his inhaler while the officer was away. Geist said that he blew several breaths into the breathalyzer. The officer explained that for the machine to get a result, there must be at least one breath of sufficient length. If none of Geist’s breath samples were sufficient, then the machine would have indicated “invalid sample,” which it did not do.

The trial court reinstated Geist’s driving privilege on the following findings:

1. The arresting Officer’s testimony concerning [Geist’s] operation of his vehicle within the City limits of Monroe City, Missouri, was not credible in that the Court finds from the testimony of the various witnesses and exhibits that the arresting Officer’s observation and stop of [Geist] did not occur within the City limits of Monroe City, and that the Police Officer was a Monroe City Police Officer.
2. The arresting Officer lacked probable cause to arrest for an alcohol-related offense within the Police Officer’s jurisdiction.

The Director appeals.

II. DISCUSSION

This Court will affirm the trial court’s judgment unless there is no substantial evidence to support it, it is contrary to the weight of the evidence, or the court erroneously declared or applied the law. Hinnah v. Director of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002). To suspend or revoke a driver’s license for an alcohol-related offense, the Director must show by a preponderance of the evidence that the arresting officer had probable cause to arrest the driver for driving while intoxicated and that the driver’s blood alcohol concentration exceeded the legal limit. Frick v. Director of Revenue, 133 S.W.3d 66, 68 (Mo.App. E.D.2003); see also section 302.505.1 RSMo 2000. We agree with the Director that in this ease there was uncontroverted evidence both that Geist’s blood alcohol concentration was over the legal limit and that the officer had probable cause to arrest Geist for driving while intoxicated. Moreover, as the Director argues, it is irrelevant that the arrest occurred outside of the officer’s jurisdiction in this civil matter.

A. Blood Alcohol Concentration

The trial court made no findings of fact or conclusions of law as to Geist’s blood alcohol concentration; thus, we consider the issue as having been found in accord with the result reached. See Hinnah, 77 S.W.3d at 621. But the evidence that it was over the legal limit was uncontrovert-ed in this case. The only conflicting testimony on this issue involved whether the officer left Geist alone at any point during the 15 minutes preceding the breath test. Even if that conflict was resolved in favor of the driver, the possibility that Geist “could have” used an inhaler before the test, without more, does not call the test results into question. Neither does any suggestion that the number of breaths he blew into the machine invalidated the results, especially in light of the officer’s uncontradicted explanation that the machine did not indicate Geist’s breath sample was invalid. Because the trial court made no specific findings as to the credibility of the officer’s testimony regarding Geist’s blood alcohol concentration, we will not presume that the court found a lack of credibility on this issue and need not defer to the trial court’s conclusion. See Mathews v. Director of Revenue, 8 S.W.3d 287, 238 (Mo.App. E.D.1999); see also Hinnah, 77 S.W.3d at 620.

B. Probable Cause

Probable cause exists when the officer observes the unusual or illegal operation of a motor vehicle and observes indicia of intoxication upon coming into contact with the driver. Parres v. Department of Revenue, 75 S.W.3d 311, 314 (Mo.App. E.D.2002). The trial court made no specific finding that the officer’s testimony on these issues lacked credibility. The only specific finding by the trial court regarding the officer’s credibility involved where the officer claimed to have observed Geist, not what he observed Geist do while operating the car or after he was stopped. The officer’s testimony regarding Geist’s unusual driving and indicia of intoxication is uneontroverted. Other than counsel’s attempt at trial to challenge the officer’s qualifications to administer the gaze nys-tagmus test, Geist did not rebut the officer’s testimony on these issues. Again, where the evidence is uncontroverted and there is no relevant credibility determination, we need not defer to the trial court’s conclusion that the officer lacked probable cause. See Hinnah, 77 S.W.3d at 620; Mathews, 8 S.W.3d at 238. Evidence that Geist swerved and ran his car off the road, smelled of alcohol, had dilated eyes, swayed when he walked and performed poorly on two field sobriety tests was sufficient to demonstrate that the officer had probable cause to arrest him for driving while intoxicated. See, e.g., Duckworth v. Director of Revenue, 11 S.W.3d 658, 660 (Mo.App. E.D.1999) (prima facie case of probable cause made where car swerved several times and crossed center line twice, officer smelled alcohol on driver’s breath and driver performed poorly on field sobriety tests); Rogers v. Director of Revenue, 947 S.W.2d 475, 477 (Mo.App. E.D.1997) (probable cause established where car struck parked vehicle, driver had slurred speech, dilated pupils, bloodshot eyes, moderate smell of alcohol on breath, sway to his walk and completed field sobriety tests to varying degrees of success).

Finally, to the extent that the trial court’s findings suggest that the arrest was illegal because it occurred outside the officer’s jurisdiction and that is why the officer lacked probable cause, the court misapplied the law. The legality of the arrest, aside from the statutory requirement that it be based on probable cause, “is of no consequence in a civil revocation proceeding.” Siehndel v. Russell-Fischer, 114 S.W.3d 449, 452 (Mo.App. W.D.2003). This conclusion derives from the principle that the exclusionary rule, which prohibits the use of illegally-obtained evidence in criminal prosecutions, does not apply in administrative revocations and suspensions because they are civil proceedings. See Riche v. Director of Revenue, 987 S.W.2d 331, 333-36 (Mo. banc 1999).

Point granted.

III. CONCLUSION

The judgment is reversed. The case is remanded with directions to enter a judgment reinstating the suspension of Geist’s driving privileges.

CLIFFORD H. AHRENS, J. and KENNETH M. ROMINES, J., concurring.

      . The legal limit is "eight-hundredths of one percent or more by weight.” Section 302.505.1.

      . Geist has not filed a responsive brief.

      . Presumably such a conclusion would be based on Monroe City’s status as a fourth class city and the case law holding that "[a] police officer of a fourth class city may not stop and arrest an individual beyond the city's limits, even if the officer unsuccessfully attempts to stop the suspect within the city’s territorial jurisdiction.” Kimber v. Director of Revenue, 817 S.W.2d 627, 631 (Mo.App. W.D.1991).


text:
    STATE of Missouri, Respondent, v. Darriel GILBERT, Appellant.
    No. ED 85826.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 6, 2005.
    Nancy A. McKerrow, Ellen H. Flottman, Public Defenders, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Dora A. Fichter, Karen L. Kramer, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Appellant Darriel Gilbert (“Appellant”) appeals from the decision of the trial court, after a jury convicted him of one count of Kidnapping, in violation of Section 565.110 RSMo. (2000), one count of Armed Criminal Action, in violation of Section 571.015, and one count of Assault in the Second Degree, in violation of Section 565.060, in the Circuit Court of St. Charles County.

We have thoroughly reviewed the record and the briefs of the parties, and no error of law appears. Therefore, an opinion would have no precedential value. The judgment is affirmed pursuant to Rule 30.25(b).

      . All Statutory references are to RSMo. (2000).


text:
    Michael WHELAN, Petitioner/Appellant, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Respondent/Respondent.
    No. ED 85678.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 6, 2005.
    Carl M. Ward, Washington, MO, for appellant.
    Dustin J. Allison, Assistant Attorney General, St. Louis, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Petitioner, Michael Whelan, appeals from the trial court’s judgment denying his petition for review of the revocation of his driving privileges under section 577.041 RSMo (2000) after he refused to submit to a chemical test. No error of law appears. A written opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order.

We affirm the judgment pursuant to Rule 84.16(b).


text:
    In the Interest of T.R.A. & T.A.
    No. ED 86287.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 6, 2005.
    Stanley Schechter, St. Louis, MO, for Appellant, Tera Carson (Mother of T.R.A. & T.A.).
    Janice Lauer Palozola, St. Louis, MO, GAL for T.R.A. & T.A. (minors).
    Richard J. Childress, St. Louis, MO, for MO Children’s Div.
    Cynthia Harcourt-Hearring, St. Louis, MO, for Juvenile Officer.
    Steven W. Neimeyer, St. Louis, MO, for Natural Father.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Tera Carson (Carson) appeals the Family Court’s judgment, which terminated her parental rights with respect to T.R.A., born 31 July 1991, and T.A., born 10 February 1993, pursuant to Section 211.447 RSMo (2000). We have reviewed the briefs of the parties and the Record on Appeal, and we find no error of law in this case. No jurisprudential purpose would be served by a written opinion. The parties have been provided with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed pursuant to Rule 84.16(b)(5)


text:
    Charles BIONDO, Appellant, v. UNION INSURANCE COMPANY OF PROVIDENCE, Respondent.
    No. ED 86301.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 6, 2005.
    Donald V. Nangle, Attorney at Law, St. Louis, MO, for Appellant.
    Robert W. Cockerham, John F. Mahon, Brown and James, P.C., St. Louis, MO, for Respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Appellant, Charles Biondo (“Biondo”), appeals the judgment of the Circuit Court of St. Charles County granting summary judgment in favor of Respondent, Union Insurance Company of Providence (“Union Insurance”). Biondo had filed an action against Union Insurance for breach of his insurance policy and sought compensation for damage to the foundation of his home. We affirm.

We have reviewed the briefs of the parties and the record on appeal. As an extended opinion would serve no jurisprudential purpose, we affirm the judgment pursuant to Rule 84.16(b). We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision.