author: ROBERT S. BARNEY, Judge.

text:
    Georgie BOROUGHF, Appellant, v. BANK OF AMERICA, N.A., Trustee of the James H. Johnson Trust U/A dated July 25, 1989, and Norma A. Ziegler, Respondents.
    No. 26288.
    Missouri Court of Appeals, Southern District, Division Two.
    March 29, 2005.

      Stuart H. King, McDonald, Hosmer, King & Royce, P.C., Springfield, for appellant.
    Lee E. Poppen, Tina G. Fowler, Lathrop & Gage, L.C., Springfield, for respondents.
   ROBERT S. BARNEY, Judge.

In the trial below, Appellant Georgie Boroughf (“Appellant”) attempted to admit into evidence, as Exhibit 1, a photocopy of a purported 1997 amendment to a trust instrument, originally executed by James H. Johnson (“Decedent”) on July 25,1989. Under the terms of the purported 1997 amendment to the trust (the “Boroughf photocopy”) Appellant was named the successor trustee and sole beneficiary of Decedent’s trust estate.

At trial, Respondent Norma Ziegler (“Ziegler”) and Respondent Bank of America (collectively “Respondents”) objected to the admission of Exhibit 1, on the basis of the best evidence rule and also on the basis that Exhibit 1 lacked sufficient foundation for its receipt as secondary evidence. The trial court excluded Exhibit 1.

At the conclusion of Appellant’s presentation of evidence, Respondents each made separate motions for directed verdict. The trial court sustained Respondents’ separate motions, denominating them as motions for judgment on all counts at the close of Appellant’s evidence and determined that, upon the facts and the law, Appellant was not entitled to relief. The trial court then entered its judgment in favor of Respondents.

Now, in her sole point on appeal, Appellant premises error upon the trial court’s grant of Respondent Ziegler’s motion for judgment at the close of the evidence, because of the trial court’s refusal to admit into evidence Exhibit 1, the Boroughf photocopy. We determine Appellant’s point lacks merit. We affirm the judgment of the trial court.

In a court-tried case, a motion for judgment on the grounds that upon the facts and the law a plaintiff is not entitled to relief is treated as submitting the issues on the merits. Kamil, Decker & Co., P.C. v. SMC Props., Inc., 998 S.W.2d 818, 819 (Mo.App.1999); see Rule 73.01(b), Missouri Court Rules (2004). We therefore review under the principles enunciated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We will affirm the decision of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Id. at 32. “The appellate court accepts as true the evidence and inferences favorable to the judgment and disregards contrary evidence, mindful that the credibility of witnesses and the weight to be given their testimony is a matter for the trial court, which is free to believe none, part, or all of any witness’s testimony.” Tobias v. Korman, 141 S.W.3d 468, 473 (Mo.App.2004).

The record shows James H. Johnson created the “Revocable Trust Agreement of James H. Johnson,” on July 25, 1989 (the “original 1989 trust”). Under this original 1989 trust, in the event that Decedent’s wife, Margaret L. Johnson (“Margaret”), were to predecease him, the primary beneficiary of the trust was to be Crystal Gayle Cline (“Crystal”), Margaret’s granddaughter through her daughter, Deborah Cline (“Cline”). The successor trustee to Decedent was Boatmen’s National Bank of Springfield, Respondent Bank of America’s predecessor in interest.

On or about July 11, 1990, Decedent amended the original 1989 trust by retyping and replacing pages 4 and 5 of the trust document. These two new pages had a heading at the top of the page which stated, “This page replaces page 4 [and page 5 respectively] of Revocable Trust Agreement of James H. Johnson. Date of Replacement: July 12, 1990,” and were signed by Decedent as “Grantor.” In addition to this heading, the pages differed from the original 1989 trust, in that Decedent made Ziegler, his niece, the sole trust beneficiary and removed Cline from the instrument altogether. This amended trust (the “Ziegler amendment”) was identical to the original 1989 trust in all other ways. Cline testified at trial that she was aware of the Ziegler amendment, but that Decedent did not understand its effect, and that Decedent used it to threaten Cline to “tow the line, or [the Ziegler amendment] was going to go into effect.”

On September 26, 1997, Margaret passed away and five months later, on February 13, 1998, Decedent passed away. Upon Decedent’s death, Bank of America took possession of the trust res in its capacity as trustee. Thereafter, in March of 1999, Bank of America transferred possession of the trust assets to Ziegler pursuant to the Ziegler amendment.

At a later date, Ziegler contacted Cline and told her that, prior to the property being sold at auction, Cline could remove some of Margaret’s belongings from the home which her mother had shared with Decedent. Cline went to the house and hastily removed her mother’s possessions from the residence by placing many of the items in boxes and trash bags. Cline then stored the items for a period of time.

Approximately seven months later, Cline, who was embroiled in a lawsuit against Ziegler based on the Ziegler amendment, began sorting through her mother’s belongings which she had removed from Decedent’s home. Cline testified that in her review of “some paperwork,” she discovered the Boroughf photocopy which purported to amend the original 1989 trust instrument. The Bo-roughf photocopy showed substantial revisions to the original 1989 trust, as amended by the Ziegler amendment.

Like the Ziegler amendment, the Bo-roughf photocopy had retyped pages containing a heading at the top of the first page which stated: “This page replaces page 1 of Revocable Trust Agreement of James H. Johnson. Date of replacement: November, 25, 1997” and was signed by Decedent as “Grantor.” Further, the heading appears at the top of additional pages numbered 2 and 3, as well as 4 and 5. It appears that there were no changes to pages 6, 7, and 8 of the original 1989 trust; however, the additional five pages discovered by Cline were different from both the original 1989 trust and the Ziegler amendment.

Page 1 of the Boroughf photocopy removed Bank of America as the successor trustee of the trust; appointed Georgie Boroughf as the trustee upon Decedent’s death; and, named Paula Smith as Bo-roughfs successor. Pages 2 and 3 were retyped and reworded to remove certain references to Decedent’s deceased wife, Margaret. Page 4 set out that “all assets of the trust go[ ] to the Trustee, Georgie Boroughf, if she still lives, or at her death ... all assets to be divided equally to Paula Smith ... and Jane Roberts.” Page 5 deleted references to the “Remainder Trust.”

The record reveals that no original of the Borough photocopy was ever found or presented to the trial court. The evidence at trial indicated that neither Cline nor Ziegler had any knowledge that either an original to the Boroughf photocopy or the Boroughf photocopy itself existed prior to its discovery. Cline stated that Decedent kept his estate planning documents in a three-ring blue binder, but outside of the 1989 original trust and the Ziegler amendment, she had no idea what other documents, if any, the blue binder may have contained.

At trial, Appellant’s handwriting expert, Don Lock, testified that because he did not have the original to the Boroughf photocopy to examine, he could not positively identify the signature on the Boroughf photocopy as being Decedent’s. He stated that in the present situation, he had to give a conservative opinion:

But the only reason ... I didn’t use the term identified, is because [the pages of file Boroughf photocopy] were machine copies. That’s the only reason. I found nothing — I found nothing that would point away from all of [the signatures I examined] being written by the same individual. Everything agreed. No— no unexplainable dissimilarities. Had I had the originals, then it would have been a positive opinion.

Lock went on to state that he saw “no unexplainable difference[s]” in the various signatures; that in all of the signatures he examined, the letters were slanted in the same direction; and, that the line quality of the signatures was similar.

On the other hand, Lock testified that even though one of the signatures on the Boroughf photocopy was on top of a portion of the typewritten words, he could not necessarily preclude a finding that the signature had been forged by cutting and pasting Decedent’s signature onto the document. Ultimately, Lock’s testimony turned on the fact that he felt hindered in his examination because he was unable to examine the original document and could only examine a photocopy.

Cline testified that the signatures on the Boroughf photocopy appeared to her to be that of Decedent.

Appellant asserts the best evidence rule was met because there was “uncontro-verted evidence” that the original to the Boroughf photocopy “was unavailable through no fault or act” of Appellant; that Lock’s expert testimony and Cline’s lay witness testimony was sufficient to prove Decedent’s signature on the Boroughf photocopy was not a forgery; and, that the fact that Cline located and presented the Boroughf photocopy “under circumstances ... directly contrary to her financial interest” further illustrated the Boroughf photocopy’s authenticity.

“The ‘best evidence’ rule is that generally the terras of a document must be proved by production of the original document.” Redpath v. Missouri Highway and Transp. Comm’n, 783 S.W.2d 429, 431 (Mo.App.1989). The “best evidence rule applies only when the evidence is offered to prove the terms or contents of a writing or recording.” Cooley v. Dir. of Revenue, 896 S.W.2d 468, 470 (Mo. banc 1995). In other words, the “principle is limited to proof of the operative terms of substantive written documents.” Chevalier v. Dir. of Revenue, 928 S.W.2d 388, 391 (Mo.App.1996). Generally, this involves a witness “purporting to testify as to his or her observation of the operative terms of a substantive written document.” Id. at 392. “The principal reason for the rule is the danger of mistransmission of the contents of a writing when evidence other than the writing itself is offered for the purpose of proving its terms.” Cooley, 896 S.W.2d at 470. “For example, the exact words used are critically important in the case of deeds, wills or contracts, where even a slight variation of those words may mean a great difference in the rights conferred under the document.” Id. “The trial court of course, is allowed broad discretion in determining whether the best evidence rule should be applied.” Chevalier, 928 S.W.2d at 392.

“A copy reproduced by a photographic duplicating process is not admissible under the best evidence rule.” Tobias, 141 S.W.3d at 473; see also Layman v. Southwestern Bell Tel. Co., 554 S.W.2d 477, 482 (Mo.App.1977). Here, the trial court did not abuse its discretion in excluding the Boroughf photocopy from evidence on the basis that the best evidence rule barred its receipt. See Tobias, 141 S.W.3d at 473.

However, the “best evidence rule does not preclude the introduction of secondary evidence.” Schnucks Twenty-Five, Inc. v. Bettendorf, 595 S.W.2d 279, 283 (Mo.App.1979). “Secondary evidence may ... be admitted if the offering party demonstrates that the primary evidence is lost or destroyed, is outside the jurisdiction, is in the possession or control of an adversary, or is otherwise unavailable or inaccessible.” Tobias, 141 S.W.3d at 473. In particular, a “photocopy as secondary evidence is admissible if there is a foundation showing that: ‘(1) the original is unavailable, (2) the unavailability is not the proponent’s fault, and (3) the secondary evidence is trustworthy.’ ” Ousley v. Casada, 985 S.W.2d 757, 758 (Mo. banc 1999) (quoting State v. Zimmerman, 886 S.W.2d 684, 691 (Mo.App.1994)). “The trial court is vested with wide discretion in determining the sufficiency of a foundation for the introduction of secondary evidence.” Interstate Distrib., Inc. v. Freeman, 904 S.W.2d 481, 484 (Mo.App.1995).

In the present matter, Appellant attempted to introduce the Boroughf photocopy into evidence as the sole proof of the validity of Appellant’s claim. As previously related, in order for the trial court to consider the photocopy as secondary evidence, Appellant had to prove that the original of the Boroughf photocopy was unavailable or lost through no fault of Appellant and that the photocopy was trustworthy. See Student Loan Mktg. Ass’n v. Holloway, 25 S.W.3d 699, 705 (Mo.App.2000). There was no evidence presented showing that the original to the Boroughf photocopy was lost. Additionally, Appellant did not attempt to demonstrate that the original document was outside the jurisdiction or otherwise unavailable or inaccessible. Instead, to prove up the trustworthiness of the Boroughf photocopy Appellant tried to prove that the signatures on the document were not forged.

When dealing with copies of original documents, the correctness of a copy may be proved by the testimony of a person who has compared the copy with the original and found it to be correct. Scrivner v. Am. Car & Foundry Co., 330 Mo. 408, 50 S.W.2d 1001, 1009 (1932). Here, there is no such testimony. Cline’s testimony was limited to her assertion that the signature on the Boroughf photocopy looked like Decedent’s signature. However, Cline was not present at the time the original to the Boroughf photocopy was drafted, read, executed, or signed by Decedent. She neither typed it herself nor physically made a copy of the instrument herself. She never saw the original document and, therefore, could not attest that the Boroughf photocopy was an exact copy of the original document. She was not even aware of the Boroughf photocopy’s existence until she “discovered” it some four years after Decedent’s death and no one had previously informed her of its existence. When she did discover the Bo-roughf photocopy it was not located in the usual place where Decedent kept his estate planning documents; indeed, the Boroughf photocopy was not even found in Decedent’s possession at the time of his death. There was not a single witness in this matter that could offer “competent testimony of the genuineness and the fact of the original document” or could testify that “the writing [was] in fact a true copy.” Scrivner, 50 S.W.2d at 1009.

Furthermore, there was no evidence indicating if the original to the Boroughf photocopy was either lost or destroyed; nor was there testimony showing that the document was in the possession or control of an adversary. We cannot say there was sufficient proof that the original to the Boroughf photocopy was unavailable or lost, a necessary pre-requisite to admission as secondary evidence. See Ousley, 985 S.W.2d at 758.

Also, in ruling against Appellant’s motion to receive the Boroughf photocopy into evidence, the trial court stated:

Well, I mean, [Respondent Ziegler’s counsel] has listed a laundry list of things that are concerns with me. I— I — it’s also telling to me that Ms. Cline has testified that — or at least at one point, was — was indicating that [Decedent] was incompetent, and that incompetency has — has since, I guess, gone away. In fact, her testimony yesterday was, he was as competent in '90 as he was in '97, as a result of [Ziegler’s counsel’s] questions as to the same thing, whether he was competent or not competent. [Cline] also testified that [Decedent] used the '90 amendment as a threat. That concerns me again about the reliability of this, with — with all of those things listed by [Ziegler’s counsel]. The objections by [Respondents] are sustained. I will not admit [Appellant’s] Exhibit 1.

The trial court was free to believe or to disbelieve Cline’s testimony concerning the trustworthiness of the Boroughf photocopy. ‘We defer to the trial court on determinations of witness credibility.” Luebbert v. Simmons, 98 S.W.3d 72, 77 (Mo.App.2003). Absent a clear abuse of discretion, the appellate court will not interfere with rulings on the admissibility of evidence.

“As no proper foundation was presented to admit [the Boroughf photocopy into evidence] and as the document had no legal effect, there was no error in excluding it.” Ousley, 985 S.W.2d at 758. There was no abuse of discretion in the trial court’s refusal to admit the Boroughf photocopy into evidence. See Interstate Distrib., 904 S.W.2d at 484. Given the factual circumstances of this case, without the receipt of the Boroughf photocopy into evidence Appellant was unable to substantiate her claims against Respondent Ziegler. See Tobias, 141 S.W.3d at 474. Accordingly, there was substantial evidence supporting the trial court’s granting of Respondent Ziegler’s motion for judgment at the close of her evidence. See id. at 473.

The judgment of the trial court is affirmed.

PARRISH, P.J., and SHRUM, J., concur.

      . In the trial court, Appellant brought an action against Respondents for unjust enrichment, conversion and for the creation of a constructive trust, together with an action for a declaratory judgment "[djetermining and declaring the rights and interest of the parties in the trust estate of James H. Johnson.”

      . On December 17, 2004, this Court sustained Appellant's motion to dismiss her appeal as to the judgment in favor of Respondent Bank of America. No issue is before this Court relating to any claim of collateral estoppel relating to Appellant’s appeal.

      . In the event that Crystal and her lineal descendants were not living at the time of Decedent’s death, the successor beneficiary to Crystal was the American Heart Association.

      . Cline testified that in her lawsuit against Ziegler, she had contended that at the time Decedent made out both the original 1989 trust and the Ziegler amendment, he was incompetent due to certain medications he had been taking; however, on cross-examination, Cline stated that Decedent was not incompetent, but that he might have been incompetent sometimes due to "a real anger problem. If he was angry, you know, he’s like most people, when you’re angry, he gets completely out of control.”

      . According to the record, Decedent had been seeing Boroughf socially since Margaret’s death and, according to Boroughf, had proposed to her prior to his death. We have been unable to find any information about Paula Smith in the legal file.

      . Lock’s testimony about Decedent’s signature was limited to his statement that there were "no unexplainable dissimilarities” between Decedent’s signatures on the Boroughf photocopy and Decedent's signatures on the other documents he examined on behalf of Appellant.


source: Caselaw Access Project

author: JAMES K. PREWITT, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Gary W. McINTOSH, Defendant-Appellant.
    No. 26175.
    Missouri Court of Appeals, Southern District, Division One.
    March 30, 2005.

      Irene Karns, Columbia, for defendant-appellant.
    Jeremiah W. Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., for plaintiff-respondent.
   JAMES K. PREWITT, Judge.

Gary W. McIntosh (“Appellant”) was initially charged with driving while license is revoked (in violation of § 302.321, RSMo 2000), in addition to driving while intoxicated (in violation of § 577.010, RSMo 2000). The charge of driving while license is revoked was later dismissed by the State. Because Appellant had two prior convictions for driving while intoxicated, he was charged under § 577.023, RSMo 2000, with a class D felony, as a prior and persistent offender. Upon the jury’s finding of guilt, Appellant was sentenced to three years’ imprisonment. He now appeals.

In his sole point on appeal, Appellant asserts that the trial court erred in overruling Appellant’s motion to suppress his statements and other evidence obtained because his being stopped was “unlawful.” Appellant further assigns error to the admission of evidence over his objections at trial. Appellant maintains that such evidence should have been excluded “as fruit of the poisonous tree as the result of an unlawful seizure.”

Appellant filed a motion to suppress evidence on October 9, 2003. He contended that the traffic stop and subsequent investigation by the arresting officer “violated [his] rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, Article I, Sections 10, 15 and 18(a) of the Missouri Constitution and Section 542.261 et seq. RSMo. (1994)[.]” Appellant further contended that “[t]he search was unlawful in that it was conducted without a warrant, without probable cause and was not within the scope of any exception to the warrant requirement.”

On October 16, 2003, a hearing was held on Appellant’s motion to suppress. The State called the arresting officer to testify. Appellant offered no evidence. Corporal Robert Green, an officer with the Greene County Sheriffs Department, testified that at approximately 2:30 a.m. on May 24, 2003, he observed a vehicle driven by Appellant as it turned off of Sunshine onto Farm Road 129. At the time the right-turn signal was activated, the vehicle’s headlights went out. Corporal Greene activated his lights and siren and followed Appellant about a block until Appellant pulled over into a private driveway.

Green testified that he detected an odor of intoxicants and noted “the appearance of his eyes” after Appellant exited the vehicle. The officer then instructed Appellant on the performance of three field sobriety tests: horizontal gaze nystagmus, walk-and-turn, and “one-leg” stand. Subsequent to administering these tests, Green determined that Appellant failed all three, and he arrested Appellant for driving while intoxicated. Green also testified that Appellant told him he had been drinking beer and that the result obtained from a portable breathalyzer at the scene indicated a blood-alcohol content above the legal limit.

Corporal Green transported Appellant to the Greene County jail. There, Green requested that Appellant submit to a breathalyzer test and informed Appellant of the consequences should Appellant refuse to submit. The officer testified that Appellant refused and “requested an attorney[.]” When Appellant failed in his effort to contact an attorney, Green stated that he again asked Appellant to submit to a breathalyzer test, but Appellant declined.

No other evidence was taken. The trial court heard closing arguments and subsequently denied Appellant’s motion to suppress. In denying Appellant’s motion, the trial court found Officer Green’s testimony credible and stated: “There is no improper reason for the stop, driving without headlights in the dark and in the middle of the night is a reason to stop an automobile. Nothing wrong with the initial investigation and nothing wrong with the arrest, so the motion to suppress will be denied.”

On appeal, Appellant contends that the incident of the headlights turning off when the right-turn signal was activated “did not ‘reasonably warrant the intrusion’ of stopping [Appellant] without [the officer] first determining if the lights were still off.” Appellant maintains that the stop was unlawful and that evidence obtained from the stop should be suppressed. In support, Appellant relies mainly on State v. Manley, 115 S.W.3d 398 (Mo.App.2003). There, this district found that certain observations cited by a trooper as justification for stopping a vehicle did not rise to the level of “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.” Id. at 403.

Manley briefly discusses the tenuous nature of the trooper’s observation that a violation of traffic laws occurred when the driver’s “wheel just touched the yellow line[,]” thus justifying the trooper’s initial contact with defendant. Id. at 401 n. 5. However, on appeal, the State apparently “abandoned ... any argument that ‘touching’ a yellow line on the highway constitutes a violation of state law.” Id. The issue became whether the officer’s beliefs that (1) defendant was trying to avoid him, (2) defendant was driving a rental car with Texas plates, and (3) defendant stayed in Arizona for only a short time constituted sufficiently “specific and articulable facts” to warrant an intrusion. This district found that such beliefs were not sufficient, thus the trooper had no reasonable suspicion to seize the defendant. Id. at 403. Manley does not control, as the stop was justified under the facts present here.

Upon review of a trial court’s ruling on a motion to suppress, this court will reverse only upon a finding that the trial court’s ruling is clearly erroneous. State v. Watkins, 73 S.W.3d 881, 883 (Mo.App.2002). We are limited to a determination of whether there was substantial evidence to support the trial court’s decision, and we consider the facts and reasonable inferences therefrom in the light most favorable to the trial court’s ruling. Id. Although this court defers to the trial court’s findings and determinations of credibility, matters of law, including allegations of Fourth Amendment violations, are reviewed de novo. State v. Whitaker, 101 S.W.3d 332, 333 (Mo.App.2003).

The Fourth Amendment “preserves the right of citizens to be free from unreasonable searches and seizuresf ]” and generally provides that a warrant is required to justify a search and seizure. State v. Schmutz, 100 S.W.3d 876, 879 (Mo.App.2003). However, there are “[sjpecific and well-delineated exceptions” to the warrant requirement; one of which is the Terry stop. Id,.

Appellant appears to contend that the only way the stop here might have been justified was as a Terry stop and argues that such a stop was not lawful. That we need not decide, as there was probable cause to believe that a violation of traffic laws occurred.

In Missouri, law enforcement officers are authorized to stop a vehicle when they observe violations of this state’s traffic laws. State v. Mendoza, 75 S.W.3d 842, 845 (Mo.App.2002). Here, Officer Green observed Appellant operating his vehicle without headlights at 2:30 in the morning. Sections 307.040 and 307.020(9), RSMo 2000 provide that vehicles must display “lighted lamps” “at any time from a half-hour after sunset to a half-hour before sunrise[.j” Appellant’s operation of his vehicle, however brief, without headlights at 2:30 a.m. justified the stop. Appellant’s point is denied.

The trial court’s denial of Appellant’s motion to suppress and subsequent objections to such evidence was not erroneous.

The judgment is affirmed.

GARRISON, P.J., and RAHMEYER, J., concur.

      . “The burden of going forward with the evidence and the risk of nonpersuasion shall be upon the state to show by a preponderance of the evidence that the motion to suppress should be overruled.” § 542.296.6, RSMo.

      . "Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)] stands for the proposition that an investigative detention, while a seizure, is authorized where specific and ar-ticulable facts and rational inferences from those facts give rise to a reasonable suspicion that a person has committed or is committing a crime.” State v. Spurgeon, 907 S.W.2d 798, 799 (Mo.App.1995). Suppression of evidence collected as a result of the stop is required if the State cannot demonstrate a reasonable suspicion. See State v. Pfleiderer, 8 S.W.3d 249, 256 (Mo.App.1999).


author: PHILLIP R. GARRISON, Presiding Judge.

text:
    David CLEMONS, Plaintiff-Respondent, v. ZIMMER BROADCASTING COMPANY, INC., Defendant-Appellant.
    No. 26325.
    Missouri Court of Appeals, Southern District, Division One.
    March 30, 2005.

      Peter C. Edwards, Joplin, for appellant.
    Charles Buchanan, Buchanan & Williams, P.C., Joplin, for respondent.
   PHILLIP R. GARRISON, Presiding Judge.

Zimmer Broadcasting Company, Inc. (“Appellant”) appeals from a $16,870.74 judgment entered in favor of David Clemons (“Respondent”) in his suit to recover commissions he claims to have earned before the termination of his employment with Appellant. We affirm.

Respondent worked for Appellant selling radio advertising for which he was being paid a commission of eight percent on his sales. The testimony was conflicting about whether there was a written contract of employment. Respondent testified that he signed an employment agreement with Appellant, but also testified that there was no written contract pertaining to his commissions. George DiMarco (“DiMarco”), Appellant’s general manager when Respondent was terminated, testified that he was not aware of any written contract with Respondent “[ojther than when commissions were changed we put a typed contract in his file changing his commissions ...” Larry Boyd (“Boyd”), Appellant’s general manager at the time of trial and a co-employee when Respondent worked there, testified that as far as he knew, Respondent had no written contract when he was terminated. There was no evidence of a written document concerning whether commissions would be paid after termination.

As part of his duties, Respondent serviced existing clients and made “cold calls” on new ones. His duties also included helping the client determine what their advertising needs were, when the commercials would air, what changes would be made in future commercials, and correcting problems with commercials not airing at the scheduled times. To accomplish these duties, Respondent would be in contact with clients several times each month.

The client was billed each month for the commercials that had aired. Local clients typically paid thirty days after being billed, and regional and national clients typically paid ninety days after billing. Respondent was not involved in the billing process, but sometimes helped collect unpaid invoices at Appellant’s request. He received his commissions after Appellant had collected from the clients.

Although the exact reasons are unclear and are not at issue on this appeal, DiMar-co told Respondent on Friday, January 25, 2002, that he was being terminated. The termination was not made effective until the following Monday or Tuesday in order to give Respondent a chance to collect some of the bills owed on accounts sold by him. Appellant, however, refused to pay Respondent commissions on accounts collected after the effective date of his termination even though these represented payment for ads that had been run prior to the end of his employment.

Respondent’s suit against Appellant alleged in count one that he was entitled by contract to an eight percent commission on sales of commercials and that he had not been paid commissions owed to him on commercials that had been aired and billed, but not yet collected, at the time of his termination; in count two that he was entitled to an accounting of the amount owed him; and in count three that he was entitled to an equitable accounting.

There was evidence that $211,602 had been billed by Appellant for ads sold by Respondent and aired prior to his termination. The evidence also demonstrated that of that amount, $210,884.29 was actually collected, leaving only $718 uncollected.

DiMarco testified that in the radio advertising industry some employers paid commissions on collection and others paid commissions when the bills went out. He testified that payment on collection was the predominant method in the industry, and that he was not aware of anyone that had been paid commissions after termination. Respondent also admitted that he was not aware of anyone in the industry that was paid a commission after being fired.

All of Respondent’s duties as to the advertising for which he is seeking commissions were complete at the time of his termination, except for collection of the bills. It is not clear from the record what action, if any, Respondent would have been required to take to collect any unpaid bills. He testified that he did not have many delinquent accounts because most of his accounts were “very good business” and that there was no reason to think that those accounts required any extra collection activity. DiMarco also testified that Respondent’s accounts were good payers. Boyd testified that he did not know of any specific collection activities taken on any of Respondent’s accounts after his termination, although he believed from the dates of payment of some of the accounts that some follow-up would have been involved.

The trial court found that Appellant had aired $210,884.29 worth of advertising sold by Respondent before he was fired but on which he had not been paid his eight percent commission. According to the evidence, this was the amount Appellant collected for the commercials that had aired prior to Respondent’s termination. The court also found that Respondent’s position had elements of both a manufacturer’s representative and finder of business, but in regards to the disputed commissions in this case, the court found the only responsibility remaining for Respondent as to the commercials, which had already run, would have been to aid in the collection of the bills if necessary. It also noted that Respondent’s “continuing responsibilities to these accounts would be minimal” and that less than one percent of the bills for ads sold by Respondent were not collected. A judgment was entered for Respondent in the amount of $16,870.74, and this appeal followed.

Appellant presents one point on appeal. It claims the trial court erred when it found Respondent to be both a manufacturer’s representative and a finder of business and entitled to post-termination commissions because its finding is not supported by the evidence and is a misapplication of the law. Appellant claims “that the evidence clearly reveals that Respondent is a manufacturing representative with continuing servicing responsibilities to his clients that survived his termination, and therefore is not entitled to be paid post-termination commissions.”

The standard of review for court-tried cases is well established. The judgment of the trial court will be sustained “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Missouri law differentiates between manufacturer’s representatives and finders when determining whether a party is owed post-termination commissions. J.S. DeWeese Co. v. Hughes-Treitler Mfg. Corp., 881 S.W.2d 638, 644-45 (Mo.App.E.D.1994). “A manufacturer’s representative with servicing responsibilities loses his right to collect commissions on pre-termi-nation business upon termination.” Id. at 645. A finder, however, retains the right to commissions on business even after termination. Id. “The rationale behind this distinction is that a finder has completed all of the work that needs to be completed and the right to payment vests upon the finding of business, while a manufacturer’s representative has continuing duties to service an account.” Id.

Appellant argues that Respondent’s duties placed him in the category of a manufacturer’s representative as his duties went

well beyond that of just selling airtime ... and included prospecting for new clients, servicing his accounts, continuous contact with his accounts, developing and changing advertising campaigns to fit the clients’ needs, assisting in creating the radio commercials, helping with collections on his accounts, and overall constant maintenance of client accounts.

Appellant also cites Respondent’s statement at trial that “[sjomeone had to call on those accounts” as further support for its claim. It argues that even though it was collecting money from clients for ads sold before Respondent was terminated, other employees of Appellant had to provide the same sort of services Respondent would have provided to clients after the sale, such as changing campaigns, dealing with problems, new creative processes, feedback, and collections.

Respondent argues that there was ample evidence to show that he had completed the necessary duties to earn the commissions at issue. He argues that although Appellant notes many of Respondent’s servicing duties to his clients, “[a]ll of these job duties, with the exception of ‘helping with collection on accounts’... are done before the advertising is aired.” He also points out that the evidence showed that Respondent’s accounts were good payers which rarely needed a collection call, that 99.7% of the amounts billed by Appellant on Respondent’s accounts during the time at issue were collected, and that Boyd testified that he had no specific knowledge of collection actions taken on any of Respondent’s accounts after his termination. He claims this shows an absence of any additional work which Respondent would have needed to collect on the accounts.

Appellant cites J.S. DeWeese Co., 881 S.W.2d 638, 641-42; Hogan v. NEC Ins., Inc., 848 S.W.2d 48, 50 (Mo.App. E.D. 1993); and E.F. Higgins, Inc. v. Kuhlman Die Casting Co., Inc., 663 S.W.2d 318, 320 (Mo.App. E.D.1983), as examples of the types of duties that relegate an employee to manufacturer’s representative status or a finder.

In J.S. DeWeese Co., the respondent contracted with the appellant to act as the respondent’s exclusive sales representative in a five state area. 881 S.W.2d at 641. The agreement provided that commissions were to be paid on the fifteenth day of the month for all “shipments paid” during the preceding month and allowed either party to terminate the agreement on thirty days notice. Id. at 642. The respondent terminated its contract with the appellant following a dispute regarding commissions on one of the appellant’s accounts. Id. at 642. The appellant’s suit was premised, in part, on breach of contract. Id. A summary judgment was granted in favor of the respondent on the appellant’s claim that it was entitled to post-termination commissions. Id. In affirming, the appellate court found that the agreement was clear in providing for commissions only for “shipments paid” during the preceding month. Id. at 644. It also discussed the differences between a finder and manufacturer’s representative, but based its decision on the factual evidence filed in support of the motion for summary judgment that included the testimony of appellant’s agent which “clearly place[d] his duties as a sales manufacturer’s representative within the realm of ‘servicing’ customers,” and his admission that some of his duties continued after the commission was earned. Id. at 644-45. The court noted that in opposition to the motion for summary judgment, the appellant filed an affidavit of the same agent making conclusory statements regarding the lack of an obligation to provide some post-sale “servicing,” but not all post-sale “servicing.” Id. It found that the record did not support that appellant was a finder and therefore was not entitled to post-termination commissions. Id.

Appellant also cites Hogan, 848 S.W.2d at 49, where an insurance saleswoman was employed pursuant to a verbal agreement to act as a customer service representative for which she would be paid a salary plus 60% of the first year’s premiums on new business. She was terminated and filed suit, claiming that she was entitled to commissions on insurance policies she had solicited, the premiums for which were due after her termination. Id. at 49. The trial court denied her claim, finding that she had no contractual right to collect the commissions after her termination. Id. at 50. It discussed the nature of the company’s business, noting that there were “frequent client changes, cancellations, renewals with new insurers, and policy lapses through defaults,” and that these factors weighed against paying of post-termination commissions because of the difficulty of calculation. Id. at 50. The appellate court, in affirming, found that apart from the contractual aspect, the trial court could have found that the saleswoman’s work was more in the nature of a manufacturer’s representative rather than a finder. Id. It noted that she was a customer service representative who performed “ministerial functions concerning accounts” and pointed out that someone else had to perform these functions once she was terminated, that several of the accounts for which she claimed commissions were continuing accounts which she only serviced, that several accounts on which she claimed commissions were canceled or modified, and that follow-up service was performed on the accounts after she departed. Id.

We agree with Respondent that Hogan is distinguishable from the current case because of the substantial additional work necessary after the employee’s termination to earn future commissions. Id. at 50. In this regard, it should be noted that in Hogan, entitlement to the commission for one year required the policies to remain in effect, which required servicing of those policies. Id. The claim there was not, as in this case, for commissions already earned prior to termination. Thus, here substantial additional work was not necessary to earn the commissions for the commercials which Appellant had already aired and was awaiting receipt of payment.

Appellant also cites E.F. Higgins, Inc., 663 S.W.2d 318, as an example of a discussion of what constitutes a finder. There, E.F. Higgins, Co. (“Higgins”) was a representative who sought die-casting contracts on behalf of Kuhlman Die Casting Co., Inc. (“Kuhlman”). Id. at 319. The parties had a contractual agreement dictating sales area, commissions, and servicing responsibilities as to accounts that required Higgins to contact and service its accounts on a regular basis in order to earn commissions. Id. at 319-320. There was evidence that the cost structure for the customer in the die-casting business is unique in that the initial order often becomes self-perpetuating as to reorders and could last for decades. Id. at 320. Kuhlman terminated Higgins in 1979 and voluntarily paid it commissions on orders billed six months after termination. Id. Higgins filed suit to recover commissions on reorders for castings for ten years following termination, seeking only to recover for casting reorders from customers it serviced when the original orders were developed. Id. The court discussed the distinction between a finder and manufacturer’s representative, and found that “[i]t is at least arguable that the nature of [Higgins’s] representation here more nearly approximated that of a ‘finder’ than of a true manufacturer’s representative at least as it related to reorders of previously ordered castings.” Id. at 320-321. It found in favor of Higgins, however, on the basis of the contract between the parties. Id.

In E.F. Higgins, Inc., the court never determined whether Higgins was actually a finder, noting only that it was arguable that it was such. Id. at 321. It decided the case on the agreement between the parties, which consisted of several letters. Id. at 319-321.

We agree with the trial court that Respondent’s position had elements of both a finder and a manufacturer’s representative. The agreement here, albeit perhaps verbal, called only for a commission of eight percent on sales of advertising and did not have any provision regarding payment of commissions after termination. We note that Respondent had made these sales before he was terminated. The operative fact in this case is that, as to the commissions Respondent claims he is entitled, the only contingency remaining before the commission was due to be paid him was collection of the bills. The trial court found that Respondent’s responsibilities in collection were minimal and not always necessary. There is ample testimony to support this finding. In this regard, we note the specific language from the test, discussed in both J.S. DeWeese Co. and Hogan, that “[t]he rationale behind this distinction is that a finder has completed all of the work that needs to be completed and the right to payment vests upon the finding of business, while a manufacturer’s representative has continuing duties to service an account.” J.S. DeWeese Co., 881 S.W.2d at 645; Hogan, 848 S.W.2d at 50.

An instructive case is Slusher v. Mid-America Broadcasting, Inc., 811 S.W.2d 443 (Mo.App. S.D.1991), which both parties cite. There, a television station terminated one of its employees who sold advertising. Id. Prior to termination, the employee had sold ads that were to air for the following three months and he claimed that he was entitled to commissions on this advertising which aired after his discharge. Id. The employee worked under a contract with the employer, however, which stated,

[i]t is agreed because of the nature of the Television advertising business and the necessity of continual and frequent service required by advertisers after they contract to purchase advertising time in order to complete the sale, commissions will be paid only while salesperson is employed in that capacity by [respondent’s television station].

Id. at 444. The employee was paid commissions on all of his accounts whose commercials aired prior to his discharge, but not on those that aired afterwards. Id. The court found that the trial court could have determined that the employee’s continuing service was necessary during the life of the advertising contract because there was evidence that an advertising salesman was required to supervise the contract made with the advertisers from the time the order was placed until the contract was fully performed. Id. at 444-45. The court went on to discuss the law, stating,

[t]he general principle of law which governs the merits of this appeal is that even when a discharge from employment is proper, an employer has no right to refuse to pay the employee for services rendered up to the time of discharge, unless the employee agrees by contract or written waiver to a different amount. Otherwise put, the rule is that a person employed to solicit sales orders on a commission basis is entitled to his commission when the order is accepted by his employer. The entitlement to commissions is not affected by the fact that payment for those orders may be delayed until after they have been shipped. This general rule may be altered by a written agreement by the parties or by conduct of the parties which clearly demonstrates a different compensation scheme.

Id. at 445-46 (internal citations omitted). The court found, however, that the contract between the employer and the employee was unambiguous in providing that commissions would only be paid while the employee remained employed, therefore, the employee was entitled to no post-termination commissions. Id. at 446 — 17.

Unlike Slusher, here there was no contractual limitation on the payment of commissions. While the Slusher court did not discuss whether the employee was a finder or a manufacturer’s representative, the principles of law discussed by the court support Respondent’s claim here. Slusher does not support Appellant’s contention that it does not have to pay post-termination commissions on commercials sold and run before Respondent’s termination.

The facts of this case demonstrate that virtually all of Respondent’s responsibilities necessary to earn the commissions for the commercials at issue were complete and the only remaining contingency for payment of his commissions was receipt of payment for the commercials by Appellant. There was evidence to support the trial court’s conclusion that any work necessary to actually collect the bills would have been minimal. We therefore find that the trial court did not err in finding in favor of Respondent. We affirm its judgment.

PREWITT, J., and RAHMEYER, J.,-eoncur.

      . Murphy interpreted the provision of Rule 73.01(c). The provisions of that rule now appear in essentially the same form in Rule 84.13(d), Missouri Rules of Civil Procedure (2004).


author: JEFFREY W. BATES, Chief Judge.

text:
    James B. MIDDLEMAS, Petitioner-Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Respondent-Appellant.
    No. 26112.
    Missouri Court of Appeals, Southern District, Division Two.
    March 31, 2005.

      James B. Middlemas, Harrisonville, pro se.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Robert E. Carlson, Asst. Atty. Gen., Jefferson City, for appellant.
    No brief filed by Respondent.
   JEFFREY W. BATES, Chief Judge.

The Director of Revenue (“Director”) appeals from a judgment setting aside the administrative suspension of the driver’s license of James Middlemas (“Petitioner”) after a trial de novo in circuit court. The Director contends the trial court erred because she made a prima facie case for suspension which Petitioner failed to rebut. We reverse and remand the case with directions to enter a judgment sustaining the Director’s suspension of Petitioner’s license.

The Department of Revenue is authorized to suspend the driver’s license of any person “arrested upon probable cause to believe such person was driving a motor vehicle while the alcohol concentration in the person’s blood, breath, or urine was eight-hundredths of one percent or more by weight....” § 302.505.1. After an adverse decision from the Department of Revenue, a driver may file a petition for a trial de novo in circuit court. § 302.535.1; Hlavacek v. Director of Revenue, 129 S.W.3d 374, 377 (Mo.App.2003). The following quotation succinctly summarizes the respective burdens imposed upon the Director and the driver at such a trial:

In order to make a prima facie case for license suspension, the Director is required to show two elements by a preponderance of the evidence. First, the Director must establish that the person was arrested upon probable cause. Second, the Director must show that the person had a blood alcohol concentration of .080 percent at the time of the arrest. ... The Director has the burden to present a prima facie case. If that threshold is met, the driver is entitled to present evidence in an attempt to rebut the Director’s prima facie case. While the burden of production shifts to the driver when the Director establishes a prima facie case, the burden of persuasion remains with the Director throughout the proceedings.

Lawson v. Director of Revenue, 145 S.W.3d 443, 445-46 (Mo.App.2004) (citations omitted).

We review the trial court’s judgment after a trial de novo pursuant to the familial' standards established by Rule 84.13(d) and Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Ruth v. Director of Revenue, 143 S.W.3d 741, 744 (Mo.App.2004). “This Court will affirm the trial court’s judgment unless there is no substantial evidence to support it, unless the decision is contrary to the weight of the evidence, or unless the trial court erroneously declares or applies the law.” Verdoorn v. Director of Revenue, 119 S.W.3d 543, 545 (Mo. banc 2003).

In determining whether the trial court’s judgment is supported by the evidence or is against the weight of the evidence, we defer to the trial court’s credibility determinations. See Hinnah v. Director of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002). It is important to point out, however, that “[i]f the evidence is uncontroverted or admitted so that the real issue is a legal one as to the legal effect of the evidence, then there is no need to defer to the trial court’s judgment.” Id. Furthermore, a trial court is not free to disregard unequivocal and un-contradicted evidence that supports the Director’s contentions. Laney v. Director of Revenue, 144 S.W.3d 350, 352 (Mo.App.2004); Spry v. Director of Revenue, 144 S.W.3d 362, 367 (Mo.App.2004); Curnutt v. Director of Revenue, 142 S.W.3d 225, 227 (Mo.App.2004). The standard of review does not allow an appellate court to disregard uncontroverted evidence meeting all elements of the Director’s case. Laney, 144 S.W.3d at 352.

The record reveals that Petitioner’s driver’s license was suspended by the Department of Revenue effective December 12, 2002, after an administrative hearing. A petition for trial de novo in circuit court was filed by Petitioner that same day.

The trial de novo was held on April 29, 2003. The Director’s proof was documentary in nature and consisted of 13 pages of certified records from the Department of Revenue. These records included an Incident Report from the Springfield Police Department and an Alcohol Influence Report (“AIR”). The narrative portion of the Incident Report contains the following description of the events that led up to Petitioner’s arrest for driving while intoxicated and the suspension of his license:

While driving in the area of 1800 E Meadowmere, I saw a silver vehicle leave the bar area. I noticed the vehicle drove west from the bar and drove across Glenstone. I saw the vehicle park abnormally (perpendicular to the spaces). I then noticed the vehicle return to the bar area. I followed the vehicle when it left the bar a second time. I noticed the Silver vehicle turn left (south) onto Glenstone. I noticed the vehicle “bounce” from lane divider to lane divider. The vehicle crossed both the inside/turn lane and the inside/outside S/B lane dividers just north of and south of Glenstone/Sunshine. I turned on my emergency lights at Cherokee/Glenstone. The vehicle immediately careened from the inside S/B line to the Brown Derby parking lot.
When I walked up to the vehicle, the door opened. I told the driver to close the door. He ignored me. I walked up and told the driver, later identified as James Middlemas, that I was closing the door. I closed the door and told Middle-mas to roll down the window (through a small crack in the window). Middlemas stumbled around with the controls for several seconds before finally getting the window down. I introduced myself and explained the reasons for the stop. Middlemas said he was going to his hotel. I noticed Middlemas was slurring heavily and I also noticed a very strong odor of intoxicants from Middlesmas’s mouth when he spoke. I asked Middle-mas how much he had to drink. Middle-mas said, “I had a beer earlier.” CPL. R. Schroeder arrived as my back-up officer.
I asked Middlemas to exit the vehicle to perform some sobriety tests. Middle-mas opened the door and almost fell out of the vehicle. I instructed Middlemas to walk to the other side (passenger side) of the vehicle to perform the tests (level debris-free asphalt). Middlemas walked with a heavy stagger and almost fell again. (SEE SFST’s ON PAGE 1 OF THE AIR FORM). I arrested Middle-mas for driving while intoxicated. I handcuffed (D/L) Middlemas and placed him in the rear of my vehicle. CPL Schroeder handled the Tow portion of the arrest. I transported Middlemas to County jail in my patrol unit.
I arrived and escorted Middlemas into the BAC room at the jail. I read Mid-dlemas the Miranda Warning. Middle-mas said he understood his rights. I then completed the interview portion of the AIR. I then read Middlemas Implied Consent. Middlemas consented to a breath test. Middlemas submitted a breath sample of 0.244. I issued Mid-dlemas the Notice of Revocation [sic] and 2 summons (DWI and Lane Violation). I booked Middlemas into the jail for DWI.

During the AIR interview, Petitioner admitted that he drank a six-pack of beer and three glasses of wine during a two-hour period while he was at the bar. According to the AIR, Petitioner also was observed for at least 15 minutes before being given the Breathalyzer test. During that period of time, no smoking, vomiting or oral intake of any material occurred. The only objection Petitioner’s attorney made to the certified records was to “the Breathalyzer results on the grounds that it was not — Department of Health regulations were not followed.” The trial court admitted the records subject to that objection, and the Director rested.

To rebut the Director’s case, Petitioner testified that: (1) he had been left alone in the booking room for five to 15 minutes; (2) when the arresting officer returned, he observed Petitioner only six to seven minutes before administering the Breathalyzer test; (3) the officer did not ask Petitioner if he had anything in his mouth; and (4) Petitioner was chewing gum at the scene and still had the gum in his mouth when he took the Breathalyzer test. Petitioner presented no evidence other than his own testimony. At the conclusion of the hearing, the trial judge took the case under advisement.

On January 22, 2004, the trial court entered its judgment in the cause. The pertinent portion of the judgment stated:

Upon due consideration of the evidence, the Court finds by a preponderance of the evidence that Petitioner was arrested upon probable cause to believe that he had committed an alcohol-related traffic offense, on September 4, 2002, in Greene County, Missouri. The Court further finds that the Petitioner had gum in his mouth at the time of the breath test and that the presence of gum contaminated the results of the blood alcohol test. Therefore, the Court finds that the suspension of Petitioner’s driving privileges pursuant to § 302.505.1, RSMo, should be and is hereby set aside.

On February 18, 2004, the trial court filed an “Amended Permanent Order and Judgment” which had been prepared by Petitioner’s attorney. This document appeal’s to have been executed without giving the Director notice or an opportunity to be heard on the matter. Omitting the caption, title, signature and date lines, the document contained only three sentences:

The court finds The Department of Revenue failed to show that the breathalyzer result was obtained in compliance with regulation 19 CSR 25-30.060, in that the court found the plaintiff was not observed for the 15 minute period. The court relied on the testimony of the plaintiff in making its determination. It is so ordered[.]

This appeal followed.

As a preliminary matter, we first address the Director’s contention that the so-called “Amended Permanent Order and Judgment” entered on February 18, 2004 is not a final judgment which we are authorized to consider in this appeal. We agree.

A circuit court’s de novo review of the Director’s action in suspending a driver’s license is civil in nature, and the proceeding is governed by the rules of civil procedure. St. Pierre v. Director of Revenue, 39 S.W.3d 576, 579 (Mo.App.2001); Lacy v. Director of Revenue, 9 S.W.3d 1, 2 (Mo.App.1999). “As a general rule, appellate courts only have jurisdiction over final judgments.” City of Kansas City v. Woodson, 130 S.W.3d 7, 10 (Mo.App.2004). To be final and appealable, a judgment must dispose of all claims as to all parties, leaving nothing for future determination. Id.; see also Sisk v. Union Pacific R.R. Co., 138 S.W.3d 799, 801 (Mo.App.2004).

The trial court rendered a final judgment on January 22, 2004 because the judge signed and filed a writing, denominated as a judgment, which disposed of all issues in the case and finally determined the parties’ rights. See Rule 74.01; Koppenaal v. Director of Revenue, 987 S.W.2d 446, 449 (Mo.App.1999). In contrast, the document filed by the trial court on February 18, 2004 was not a final judgment that we have jurisdiction to review because, despite the nomenclature employed, it did not dispose of Petitioner’s claim for reinstatement of his driving privileges. Cf. Weber v. Director of Revenue, 137 S.W.3d 563, 565 (Mo.App.2004) (holding that an amended judgment could be reviewed because both the original and amended judgments “ordered the suspension of petitioner’s driving privileges set aside,” although the factual findings in the documents varied). Therefore, we confine our review in this case to the final judgment rendered on January 22, 2004.

In the Director’s sole point relied on, she contends the trial court erred in setting aside the suspension of Petitioner’s license because she made a prima facie case for suspension which Petitioner failed to rebut. Once again, we agree with the Director’s contention.

The Director’s documentary evidence was received by the trial court, subject only to Petitioner’s objection to the Breathalyzer results on the ground that “Department of Health regulations were not followed.” This objection was so vague and nonspecific as to amount to no objection at all. See Krieger v. Director of Revenue, 14 S.W.3d 697, 701-02 (Mo.App.2000); Farmer v. Director of Revenue, 11 S.W.3d 113, 117 (Mo.App.2000). “It is incumbent upon the objecting party to make the basis of his or her objection reasonably apparent in order to provide the opponent an opportunity to correct the error and the court an opportunity to correctly rule on the objection.” Reed v. Director of Revenue, 834 S.W.2d 834, 836-37 (Mo.App.1992). Moreover, we find no indication in the record that the trial judge ever sustained this objection and excluded the blood alcohol test results. Therefore, the objection is deemed overruled, and the Director’s evidence is in the record for our consideration. See Ziegler v. Director of Revenue, 150 S.W.3d 145, 147 (Mo.App.2004).

After reviewing the Director’s documentary evidence, we find that it was sufficient to establish a prima facie case for suspension of Petitioner’s license. First, the trial judge found by a preponderance of the evidence that Petitioner was arrested upon probable cause to believe that he had committed an alcohol-related traffic offense. That finding is supported by substantial evidence. Second, the Director produced evidence that Petitioner’s blood alcohol concentration was .244 percent by weight at the time of his arrest. See Lawson v. Director of Revenue, 145 S.W.3d 443, 446 (Mo.App.2004).

Once the Director made a pri-ma facie case, it created a presumption that Petitioner was intoxicated. See Verdoorn v. Director of Revenue, 119 S.W.3d 543, 545 (Mo. banc 2003); Clark v. Director of Revenue, 132 S.W.3d 272, 275 (Mo.App.2004). Petitioner was then entitled to rebut the Director’s prima facie case with evidence that his blood alcohol level did not exceed the legal limit. See Verdoorn, 119 S.W.3d at 546; Clark, 132 S.W.3d at 275. The only rebuttal evidence adduced by Petitioner was his own testimony that he had gum in his mouth when the Breathalyzer test was administered. Based on that testimony, the trial court concluded that “the presence of the gum contaminated the results of the blood alcohol test.” There is simply no evidentiary basis for that finding because Petitioner presented no scientific or medical testimony tending to prove that his blood alcohol concentration would have been below the legal limit of .08 percent by weight if he had been given the Breathalyzer test without the presence of gum in his mouth. See Duing v. Director of Revenue, 59 S.W.3d 537, 540 (Mo.App.2001) (trial court had no evidentiary basis to assume that chewing tobacco in driver’s mouth contaminated the Breathalyzer test results). Therefore, Petitioner failed to rebut the Director’s prima facie case. Because the trial court’s contrary finding is not supported by substantial evidence, Director’s point is granted.

The judgment setting aside the Director’s suspension of Petitioner’s driver’s license is reversed. The case is remanded with directions to enter a judgment sustaining the Director’s suspension of Petitioner’s license. See Weber v. Director of Revenue, 137 S.W.3d 563, 567 (Mo.App.2004).

PARRISH, P.J., and BARNEY, J„ concur.

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

      . All references to rules are to the Missouri Court Rules (2004). Murphy interpreted the provisions of former Rule 73.01(c). The provisions of that rule were transferred, in essentially the same form, to Rule 84.13(d) effective January 1, 2000.

      . This packet of documents consisted of: (1) Petitioner’s Missouri Driver Record; (2) a citation issued to Petitioner on September 4, 2002, for failing to drive within a single lane; (3) a citation issued to Petitioner on September 4, 2002, for driving while intoxicated; (4) an Alcohol Influence Report; (5) an Incident Report from the Springfield Police Depart-men!:; (6) a BAC DataMaster evidence ticket showing Petitioner had a .244 blood alcohol content; (7) a Datamaster maintenance report; (8) a certificate of analysis for the certified alcohol reference solution; and (9) a notice of suspension issued to Petitioner by the Springfield Police Department.

      . In Duing, the case was remanded for further proceedings to permit additional evidence to be presented on the limited issue of whether the tobacco in the driver’s mouth during the breath analysis test had any effect on its outcome. Id. at 540. Judge Hoff dissented from this part of the opinion. In her view, once the Director made a prima facie case for suspension, it was the driver’s burden to present evidence to rebut this conclusion by a preponderance of the evidence. She did not agree that a remand should occur because "Driver had the opportunity to present such evidence at trial but failed to do so.” Id. In Verdoorn, the Supreme Court of Missouri adopted Judge Hoff’s view by holding "a director’s prima facie case shifts the burden of production to the driver to adduce evidence that his blood alcohol level did not exceed the legal limit.” Verdoorn, 119 S.W.3d at 546 (italics in original). In the case at bar, Petitioner had the opportunity to meet that burden of production by adducing evidence that his blood alcohol level did not exceed the legal limit, but he failed to do so. Under these circumstances, a remand for further evidentiary development of this issue would be inappropriate and unwarranted.


author: PER CURIAM.

text:
    In the Interest of I.E.D. and I.Z.D.
    No. ED 85278.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 5, 2005.

      John K. Tucci, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Trevor Bossert, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before LAWRENCE E. MOONEY, P.J. and LAWRENCE G. CRAHAN, J. and MARY K. HOFF, J.
   ORDER

PER CURIAM.

James Andrew Jones (Father) appeals from the family court’s judgment terminating his parental rights to I.E.D. and I.Z.D., pursuant to Section 211.447 RSMo 2000. We affirm.

We have reviewed the briefs of the parties and the record on appeal. The judgment is supported by substantial evidence and is not against the weight of the evidence. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. The judgment is affirmed in accordance with Rule 84.16(b).

The parties have been furnished with a memorandum for their information only, setting forth reasons for the order affirming the judgment pursuant to Rule 84.16(b).


text:
    In the Interest of R.R.L.
    No. ED 85098.
    Missouri Court of Appeals, Eastern District, Division One.
    April 5, 2005.
    James Forrest Lemon, Hannibal, MO, for Appellant.
    Jacqueline Butler, Joshua M. Raaz, New London, MO, for Respondent.
    Philip Jon McIntosh, Guardian Ad Li-tem, Kirksville, MO, for Juvenile.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J. and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Appellant, Tammy Lynn Lacy (“Mother”), appeals from the judgment of the Circuit Court of Ralls County terminating her parental rights to R.R.L. (“Child”). 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.


text:
    In the Interest of T.M.D., Jr. and T.M.D., minors. Juvenile Officer, Petitioner/Respondent, v. B.J.W., Respondent, and T.M.D., Respondent/Appellant.
    Nos. ED 85066, ED 85067.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 5, 2005.
    Chris N. Weiss, Jackson, MO, for appellant.
    Matthew J. Koetting, Cape Girardeau, MO, for respondent Juvenile Officer.
    Jeffrey P. Dix, Jackson, MO, Guardian Ad Litem.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J. and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Father appeals from the trial court’s judgments terminating his parental rights to his two minor children pursuant to Section 211.447 RSMo (2000). The judgments are supported by substantial evidence and are not against the weight of the evidence. No error of law appears. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

An opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties have been furnished with a memorandum opinion, for their information only, setting forth the facts and reasons for this order.

The judgments are affirmed in accordance with Rule 84.16(b).


text:
    Robert L. LIDDELL, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84782.
    Missouri Court of Appeals, Eastern District, Division One.
    April 5, 2005.
    Mark A. Grothoff, Assistant Public Defender, Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Dora A. Fichter, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before GARY M. GAERTNER, Sr., P.J., SHERRI B. SULLIVAN, J. and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Appellant, Robert L. Liddell (“Movant”), appeals from the judgment of the Circuit Court of Marion County denying his Rule 29.15 motion after an evidentiary hearing. Following a jury trial, Movant was convicted of assault in the first degree, section 565.050 RSMo 2000, armed criminal action, section 571.015, unlawful use of a weapon, section 571.030, and robbery in the first degree, section 569.020. Movant was sentenced to twenty years imprisonment for assault in the first degree, ten years imprisonment for armed criminal action, five years imprisonment for unlawful use of a weapon, and twenty years imprisonment for robbery in the first degree. The court ordered the sentences for assault in the first degree and armed criminal action to run consecutively to each other, but concurrently to the sentences for unlawful use of a weapon and robbery in the first degree. 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.

      . All statutory references are to RSMo 2000 unless otherwise indicated.


text:
    Glynnis BREWSTER, Petitioner/Appellant, v. Douglas WAGONER, Respondent/Respondent.
    No. ED 84571.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 5, 2005.
    Kayla Vaughan, Chris Rollins, Legal Services of Eastern Missouri, St. Louis, MO, for appellant.
    Lawrence B. Wittels, Law Offices of Lawrence B. Wittels, St. Louis, MO, for respondent.
    Terri Johnson, St. Louis, MO, for Guardian Ad Litem.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J. and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Mother appeals from the dismissal of her motion to modify child custody. The judgment is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

An 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.

The judgment is affirmed in accordance with Rule 84.16(b).


text:
    The HAWKINS LIMITED PARTNERSHIP, Greg and Stephanie Smith, as tenants by the entireties, James S. Stratil, and Alan H. Stone v. AON RISK SERVICES, INC. OF NEW YORK, Defendant/Appellant.
    No. ED 84421.
    Missouri Court of Appeals, Eastern District, Division Three.
    April 5, 2005.
    Ann K. Covington, St. Louis, MO, for appellant.
    Neal F. Perryman, St. Louis, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Aon Risk Services, Inc. of New York (“Aon”) appeals from the judgment of the Circuit Court of St. Louis County after a jury verdict that awarded the Hawkins Limited Partnership, Greg Smith and Stephanie Smith, James Strath, and Alan H. Stone (“plaintiffs”) $2,000,000 in damages for their claims of negligence, negligent misrepresentation, and negligence per se.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the trial court is affirmed in accordance with Rule 84.16(b).


text:
    Brent E. EVANS, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 83989.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 5, 2005.
    Gwenda R. Robinson, District Defender, Office B, St. Louis, MO, for appellant.
    Daniel N. McPherson, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J., and ROBERT G. DOWD, JR., J.
   ORDER

PER CURIAM.

Movant, Brent E. Evans, appeals from the judgment denying on the merits without an evidentiary hearing his Rule 24.035 motion for post-conviction relief. We have reviewed the briefs of the parties and the record on appeal and conclude that the motion court’s judgment is based on findings of facts and conclusions of law that are not clearly erroneous. Rule 24.035(k). An extended opinion would have no prece-dential value. We have, however, provided a memorandum opinion for the use of the parties only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.160?).


text:
    ALLSTATE INSURANCE COMPANY, Plaintiff/Respondent, v. Daniel METTS and St. Louis County Cab Company, Inc., Defendants/Appellants.
    No. ED 83853.
    Missouri Court of Appeals, Eastern District, Division Four.
    April 5, 2005.
    Timothy E. Hogan, St. Louis, MO, for appellants.
    Kurt J. Dolan, St. Louis, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN and MARY K. HOFF, JJ.
   ORDER

PER CURIAM.

The defendants, Daniel Metts and St. Louis County Cab Co., appeal from the trial court’s judgment awarding $3,013 to the plaintiff, Allstate Insurance Co., on this action arising from an automobile accident. The judgment of the trial court is supported by substantial evidence and is not against the weight of the evidence. No error of law appears and an opinion would have no precedential value. The judgment is affirmed. Rule 84.16(b).

      . The defendants’ motions to strike the plaintiff's brief are denied.


text:
    Deondre JILES, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84987.
    Missouri Court of Appeals, Eastern District, Division One.
    April 5, 2005.
    Lisa M. Stroup, Assistant Public Defender, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lacey R. Searfoss, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J. and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Appellant, Deondre Jiles (“Movant”), appeals from the judgment of the Circuit Court of the City of St. Louis denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. After a jury trial, Movant was convicted of second degree murder, section 565.021 RSMo (2000), and armed criminal action, section 571.015. Movant was sentenced as a prior offender to twenty years imprisonment for second degree murder and a concurrent term of three years for armed criminal action. 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.

      . All statutory references are to RSMo 2000 unless otherwise indicated.


text:
    STATE of Missouri, Plaintiff/Respondent, v. Anthony FINERSON, Defendant/Appellant.
    No. ED 85295.
    Missouri Court of Appeals, Eastern District, Division Two.
    April 5, 2005.
    Richard A. Starnes, Assistant Attorney General, Jefferson City, MO, for respondent.
    Anthony Finerson, Bowling Green, pro se.
    Before PATRICIA L. COHEN, P.J., KATHIANNE KNAUP CRANE, J. and ROBERT G. DOWD, JR, J.
   PER CURIAM.

Defendant, Anthony Finerson, appeals the denial of his pro se motion to have a mistake in judgment, sentence, and commitment corrected pursuant to Rule 29.12(b) and (c) by orders “Nunc Pro Tunc.” Because defendant did not file a timely notice of appeal, we dismiss.

The court denied defendant’s motion on March 25, 2004. Defendant did not file a notice of appeal until April 8, 2004, fourteen days later.

A judgment denying a Rule 29.12(c) nunc pro tunc motion becomes final on the date it is filed. State v. Lawrence, 139 S.W.3d 573, 576 (Mo.App.2004). Rule 30.01(d) requires a defendant to file a notice of appeal not later than ten days after the judgment or order appealed from becomes final. Thus, defendant was required to file a notice of appeal no later than ten days after his nunc pro tunc motion had been denied. Lawrence, 139 S.W.3d at 576 (holding notice of appeal filed 23 days after the motion court denied nunc pro tunc motion to be untimely).

Because defendant’s notice of appeal was not filed within ten days after his nunc pro tunc motion was denied, it was untimely. “A timely filing of a notice of appeal is a jurisdictional requirement.” Id. at 576; see also McGee v. Allen, 929 S.W.2d 278, 280 (Mo.App.1996). Accordingly, we have no jurisdiction to review defendant’s appeal.

Defendant’s motion to strike the state’s brief is denied.

Appeal dismissed.


text:
    Leisa Rosha WILLIAMS, Respondent, v. Gary Lee WILLIAMS, Appellant.
    No. WD 63928.
    Missouri Court of Appeals, Western District.
    April 5, 2005.
    Allan D. Siedel, Trenton, MO, for appellant.
    Kenneth D. Hassler, Kansas City, MO, for respondent.
    Before: SPINDEN, P.J., HOWARD and NEWTON, JJ.
   Order

PER CURIAM.

Gary Lee Williams (“Father”) appeals from a judgment modifying a Decree of Dissolution entered upon his divorce from Leisa Rosha (Williams) Meinecke (“Mother”). In Father’s sole point on appeal, he claims that the trial court erred in denying him any visitation or contact with his son. Specifically, Father claims that the trial court’s finding that his visitation and contact with the child would endanger the child’s physical health or impair the child’s emotional development is not supported by competent and substantial evidence and is against the weight of the evidence.

We have reviewed the parties’ briefs and the record on appeal. No error of law appears. A written opinion would serve no jurisprudential purpose. We have, however, prepared a memorandum for the use of the parties only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Andrew S. BROWN, Appellant.
    No. WD 63748.
    Missouri Court of Appeals, Western District.
    April 12, 2005.
    Craig Allan Johnston, Asst. Public Defender, Columbia, MO, joins on the briefs for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shawn L. Naccarato, Asst. Attorney General, Jefferson City, MO, joins on the briefs for Respondent.
    Before ROBERT G. ULRICH, P.J., JAMES M. SMART, JR., and JOSEPH M. ELLIS, JJ.
   Order

PER CURIAM.

Andrew Brown appeals his conviction of one count of the class B felony of distribution of a controlled substance, § 195.211, RSMo 2000. He contends the trial court erred in allowing evidence of uncharged crimes to be introduced. Having considered the contentions on appeal, we find no ground for reversing the conviction. A formal opinion would lack jurisprudential value. We affirm. Rule 30.25(b).