author: GLENN A. NORTON, Judge.

text:
    Judith Ann BURNS, Appellant, v. James Thomas BURNS, Respondent.
    No. ED 83917.
    Missouri Court of Appeals, Eastern District, Division Five.
    May 17, 2005.

      Marion H. Pines, St. Louis, MO, for appellant.
    Christopher R. Wegner, Michele Hammond (co-counsel) St. Louis, MO, for respondent.
   OPIJV/ON

GLENN A. NORTON, Judge.

The trial court denied a motion for contempt filed by Judith Burns (“Mother”), in which she alleged that James Burns (“Father”) had failed to pay certain obligations encompassed in the parties’ dissolution judgment. Mother appeals that portion of the judgment relating to Father’s obligation to pay for the student loan debt of their son, Kevin Burns (“Son”). We reverse and remand.

I. BACKGROUND

The parties dissolved their marriage in 1991, at which time Son was attending college. The parties’ two children were placed primarily under Mother’s custody, and Father was ordered to pay child support and maintenance. In the dissolution judgment, under a section labeled “Child Support,” the court ordered Father to pay some of the student loan debt incurred by Son:

In lieu of payment of [SonJ’s college tuition and expense past, present and future, [Father] shall repay the balance of [Son]’s Guaranteed Student Loans incurred to date and for the loans he shall incur to complete four (4) years of college, not to exceed $2,625.00 for each year. Payment shall be per the terms of such loans and shall commence after the time that [Son] ceases to be a full-time student.

The following year, Father filed for bankruptcy under Chapter 7 of the United States Bankruptcy Code. In 1993, the bankruptcy court held that certain debts that Father owed to Mother and her attorney as a result of the dissolution proceeding were not dischargeable because the judge in the dissolution proceedings intended them to operate as maintenance. See In re Burns, 149 B.R. 578, 581-83 (Bankr.E.D.Mo.1993) (citing 11 U.S.C. section 523(a)(5)). Some of Father’s other debts, however, were discharged.

In 2003, Mother filed the instant motion for contempt in the dissolution case in state court. She alleged that Father owed her maintenance and child support and had failed to repay the student loan debt as required under the dissolution judgment. In response to the motion, Father simply denied the allegations without raising any affirmative defenses. The trial court held a hearing at which Mother, Father and Son testified. Father testified that his obligation to pay the student loan debt had been discharged during his bankruptcy, and the trial court admitted into evidence certain documents relating to the bankruptcy. None of this evidence is included in the record on appeal, so we cannot determine which of Father’s debts were purportedly discharged during those proceedings and must rely on information included in the reported decisions of the bankruptcy court from 1993 and 2004. See In re Burns, 149 B.R. 578 (Bankr.E.D.Mo.1993); In re Burns, 306 B.R. 274 (Bankr.E.D.Mo.2004). Further, it appears that neither party offered any evidence or made any argument about whether the student loan debt was nondisehargeable. It was undisputed that Mother and Son were both aware of Father’s bankruptcy, but did not object to the discharge of the student loan debt during the bankruptcy proceedings. It was also undisputed that Son had incurred at least $2,625 in student loan debt each year during his four years of college and that Father had not made any of the payments or reimbursed Son or Mother for the student loan debt.

The trial court denied Mother’s motion for contempt, finding, among other things, that Father had listed Son as a creditor with respect to the student loan debt during Father’s bankruptcy and that Son had been “sent formal notice by the Bankruptcy Court,” but neither he nor Mother took any action “to prevent the discharge” of the student loan debt. The trial court concluded that “[biased upon the evidence adduced, the Court finds that [Fatherj’s obligation to repay the student loans of [Son] was discharged” by Father’s bankruptcy. It is this conclusion that Mother challenges on appeal. In her post-trial motion, Mother argued, apparently for the first time, that the trial court could still “make its own determination as to whether the [student loan debt] was an order for child support” that was not discharged by Father’s bankruptcy.

Following the contempt judgment, Mother and Son filed a motion in the bankruptcy court, seeking to reopen Father’s bankruptcy case. See In re Burns, 306 B.R. at 275-76. They sought to file an adversary complaint to have the bankruptcy court determine that the student loan debt is in the nature of support and is therefore excepted from discharge under section 523(a)(5). Id. at 276. But the bankruptcy court denied their motion, finding that “the Rooker-Feldman doctrine would deprive [the bankruptcy court] of subject matter jurisdiction over [the] proposed adversary complaint.” Id. at 277 (citing Gisslen v. City of Crystal, 345 F.3d 624, 627 (8th Cir.2003)). The bankruptcy court indicated that the state trial court had “explicitly found that [the student loan debt] was discharged at the conclusion of [Father’s] bankruptcy case” and that the only way it could rule in favor of Mother and Son was if it were to find that the state court had wrongly decided that the student loan debt was discharged. In re Burns, 306 B.R. at 278. Although the bankruptcy court hinted that the premise for the state court’s decision was erroneous, it concluded that because of the Rooker-Feldman doctrine, Mother and Son must press their claim (that the state court erred in finding that the student loan debt was discharged) before this Court. Id.

II. DISCUSSION

Our review of this court-tried case is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We must affirm the judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Kaelin v. Kaelin, 988 S.W.2d 657, 660 (Mo.App. E.D.1999). We view the evidence and reasonable inferences from that evidence' in a light most favorable to the judgment and disregard contrary evidence. Id. Unless the trial court abused its discretion in ruling on this motion for civil contempt, we will not reverse the judgment. Id.

“Child support and maintenance obligations have a ‘special status’ in bankruptcy proceedings, as they are not dis-chargeable.” Timmons v. Timmons, 132 S.W.3d 906, 915 (Mo.App. W.D.2004); see also 11 U.S.C. section 523(a)(5). Divisions of marital property, on the other hand, do not necessarily possess the same special status. See, e.g., In re Williams, 703 F.2d 1055, 1056-57 (8th Cir.1983). State courts and federal bankruptcy courts have concurrent jurisdiction to determine whether a certain obligation constitutes a maintenance or support debt owed to a former spouse or child, and thus is excepted from discharge under section 523(a)(5). Timmons, 132 S.W.3d at 915; In re Burns, 306 B.R. at 277. Although only the bankruptcy court can decide whether to grant a discharge in bankruptcy, the effect of such a discharge may be determined by any court in which the issue is properly raised. Timmons, 132 S.W.3d at 915. Nevertheless, the state court’s original characterization of an award in its divorce decree is not binding on a bankruptcy court. In re McKinnis, 287 B.R. 245, 251 (Bankr.E.D.Mo.2002). Federal bankruptcy law— not state law — governs the determination of dischargeability. Timmons, 132 S.W.3d at 915; In re Williams, 703 F.2d at 1056-57.

The party objecting to a discharge bears the burden of proving, by a preponderance of the evidence, every element of an exception to dischargeability under section 523(a). In re Waltner, 271 B.R. 170, 174 (Bankr.W.D.Mo.2001) (citing Grogan v. Garner, 498 U.S. 279, 286-91, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991)). Whether an award in a dissolution judgment can properly be characterized as a “nondischargeable maintenance or support debt ‘depends primarily on the function the award was intended to serve at the time it was awarded.’ ” Timmons, 132 S.W.3d at 915 (quoting In re Burton, 242 B.R. 674, 679 (Bankr.W.D.Mo.1999)). We discern the dissolution court’s intent based on the totality of the circumstances at the time it made the award. Timmons, 132 S.W.3d at 915; Burton, 242 B.R. at 679. Several factors are relevant, including: (1) the language and substance of the dissolution judgment itself, (2) the relative financial circumstances of the parties at the time of the dissolution and (3) “ ‘the degree to which the obligation enables the recipient to maintain daily necessities.’ ” Timmons, 132 S.W.3d at 915 (quoting Burton, 242 B.R. at 679).

Mother argues that the court erroneously declared or applied the law by concluding that the student loan debt was discharged by Father’s bankruptcy. Specifically, she contends that the evidence showed that this debt was in the nature of child support, making it nondischargeable under section 523(a)(5), and that a challenge to the dischargeability of a debt may be raised at any time, even after the debtor is discharged. Father argues that the issue of dischargeability rests with the bankruptcy court and that Mother waived this argument by failing to raise it before the trial court.

A. The Trial Court was an Appropriate Forum to Address Dischargeability

Father argues that the trial court’s finding that the student loan debt was discharged presents this Court with “no reviewable issue,” citing Price v. Price, 921 S.W.2d 668 (Mo.App. W.D.1996). There, the trial court had stated in a dissolution decree that certain debts would be nondischargeable in bankruptcy. Id. at 671. On appeal, one of the parties argued that the trial court abused its discretion by including such language. Id. at 674. The Western District noted that “[a] state court’s characterization of an award as support or as part of a property settlement is not binding on a bankruptcy court” and was “significant only in determining whether the court intended the awards to function as support.” Id. at 647-75. Since a bankruptcy court would not be bound by the characterization, and Missouri law did not require the trial court to characterize its awards one way or another, the court concluded that the trial court’s statement had “no ultimate effect” and presented “no reviewable issue.” Id.

Here, however, the trial court’s statement was more than an indication of intent; it was a specific finding made in the context of determining the effect of Father’s prior discharge in bankruptcy. Under these circumstances, the trial court’s conclusion about whether the debt was discharged does have an ultimate effect and presents a reviewable issue. As noted above, when the issue is properly raised before a state court, it has jurisdiction to determine the effect of a discharge and to decide whether an obligation is in the nature of child support, thereby meeting the exception from discharge under section 523(a)(5). Timmons, 132 S.W.3d at 915.

B. The Basis for the Trial Court’s Ruling is Unclear

The sole basis for the trial court’s ruling with respect to Father’s non-payment of the student loan debt was the discharge of the debt in bankruptcy. In that regard, the trial court concluded that “[b]ased upon the evidence adduced, the Court finds that [Father]’s obligation to repay the student loans of [Son] was discharged” by Father’s bankruptcy. From this finding, and without knowing what evidence was presented in the contempt proceeding regarding the bankruptcy, we cannot determine whether the trial court denied Mother’s motion for contempt because (1) neither Mother nor Son objected to the discharge of the student loan debt during Father’s bankruptcy proceedings, (2) Mother simply failed to argue or prove that the student loan debt met the exception to dischargeability under section 523(a)(5), or (3) the trial court believed that the student loan debt was not in the nature of child support and therefore was properly discharged in bankruptcy. The bankruptcy court surmised that the trial court used the first rationale, while Father argues that it used the second, and Mother’s arguments primarily relate to the third rationale. Based on the record, we simply cannot tell.

If the trial court intended to use the first rationale and found that the student loan debt had been discharged based on Mother and Son’s failure to object during Father’s prior bankruptcy proceeding, then it misapplied the law and abused its discretion. As the bankruptcy court indicated, a creditor may seek a determination that a certain debt “was excepted from discharge under [section] 523(a)(5) at any time.” In re Burns, 306 B.R. at 278 n. 1; see also Fed. R. Bankr.P. 4007(b).

As to the second rationale, it is simply not clear from the record whether Mother adequately raised and proved any exception to dischargeability and, until clarified by the trial court, we cannot exercise meaningful appellate review as to whether the motion for contempt was properly denied on this basis. Clarification of this issue also might impact Mother’s ability to address the merits of her argument in the bankruptcy court. Similarly, as to the third rationale, we cannot review whether there is a factual basis in the record for finding that the student loan debt had been discharged and was not in the nature of child support without a more complete record on appeal. The trial court is in a better position to determine whether Mother properly raised the exception to dischargeability under section 523(a)(5) and, if so, whether she met her burden of proving every element of that exception by a preponderance of the evidence. Therefore, remand is necessary.

III. CONCLUSION

The judgment is reversed, and the case is remanded. We direct the trial court to clarify its ruling with respect to the student loan debt and, if necessary, hold further proceedings consistent with this opinion.

GEORGE W. DRAPER III, C.J. and CLIFFORD H. AHRENS, J. concurring.

      . All federal statutory references are to Title 11 of the United States Code (1993). Federal rule references are to the Federal Rules of Bankruptcy Procedure (2003), and state rule references are to the Missouri Court Rules (2003).

      . The trial court also found insufficient evidence of unpaid arrearages of maintenance and insufficient evidence that Father intentionally failed to pay attorney fees. Mother does not challenge these rulings.

      . The bankruptcy court described this doctrine as holding “that lower federal courts do not have subject matter jurisdiction to review an order issued by a state court.” In re Burns, 306 B.R. at 277 (citing Gisslen, 345 F.3d at 627). Further, “the Rooker-Feldman doctrine deprives the bankruptcy court of subject matter jurisdiction over a claim that attacks a state court judgment relating to a dischargeability issue provided that the state court had subject matter jurisdiction over the claim.” In re Burns, 306 B.R. at 277. This doctrine "applies not only to issues that were directly before a state court but also any issue that is inextricably intertwined with the state court ruling.” Id. at 278.
      The bankruptcy court found that the state court had concurrent jurisdiction to determine whether the student loan debt was excepted from discharge under section 523(a)(5). Id. at 277. And it rejected three arguments as to why the Rooker-Feldman doctrine should not apply, namely that Son was not a party to the motion for contempt, that the issue of dischargeability was not before the state court, and that the bankruptcy court is in a better position to decide the issue. Id. at 277-78.

      . The bankruptcy court stated that “[i]t appears that the State Court premised its con-elusion that [the student loan debt] was discharged on the fact that [Son] did not bring an action to determine whether the obligation was excepted from discharge as child support under [section] 523(a)(5).” In re Burns, 306 B.R. at 278 n. 1. It then advised that “a creditor may seek a determination that a particular debt was excepted from discharge under [section] 523(a)(5) at any time.” Id. (citing Fed. R. Bankr.P. 4007(b)).

      . The bankruptcy court further stated that it would not exercise its wide discretion to reopen Father's case because the proposed adversary complaint was "facially deficient,” again, based on the Rooker-Feldman doctrine. In re Burns, 306 B.R. at 279.

      . A party makes a prima facie case of civil contempt by proving that the obligor has failed to make payments as required under a judgment. Nance v. Nance, 880 S.W.2d 341, 346 (Mo.App. E.D.1994). The other party then bears the burden of proving an inability to make the payments and that "being in that position did not occur intentionally and contumaciously.” Id.; see also Brown v. Brown, 670 S.W.2d 167, 168-71 (Mo.App. W.D.1984) (in action for contempt for failure to pay child support, former spouse's evidence of bankruptcy and financial problems "was probative of affirmative defense of inability to pay”).

      . The parties’ pleadings were of little assistance to the trial court in framing the issues, as neither party expressly raised the issues of whether the student loan debt had been discharged in bankruptcy or whether it met one of the exceptions to dischargeability under section 523(a). That is not to say, however, that one or both of these issues might not have been tried by the implied consent of the parties. See Rule 55.33(b) (“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.”); Wallace v. Grasso, 119 S.W.3d 567, 575-76 (Mo.App. E.D.2003) (noting that such implied consent must be based on evidence that relates solely to the proposed new issue and is not relevant to other issues already in the case).

      . Under the Federal Rules of Bankruptcy Procedure, both debtors and creditors are entitled to "file a complaint to obtain a determination of the dischargeability of any debt.” Rule 4007(a). Such complaints, other than those filed under section 523(c), "may be filed at any time.” Rule 4007(b). The Advisory Committee Notes to this rule specifically state that "[s]ubsection (b) does not contain a time limit for filing a complaint to determine the dischargeability of a type of debt listed as nondischargeable under [certain statutory provisions including section 523(a)(5) ].”

      . If the trial court used the second rationale, then the bankruptcy court should be able to render a decision on the dischargeability issue without conflicting with a state court judgment. See In re Burns, 306 B.R. at 278 (finding that the state trial court explicitly found that the student loan debt was discharged during Father's bankruptcy case and that in order to find such debt nondischargeable under section 523(a)(5), it would have to say that the state court wrongly decided the issue).

      . Given the language and substance of the dissolution judgment, Mother may be correct that the student loan debt was in the nature of child support and was therefore not discharged in Father’s bankruptcy based on section 523(a)(5). While courts often consider obligations to pay college or educational expenses to be excepted from discharge because they are in the nature of support, whether such an obligation was intended to function as support is a question of fact. See, e.g., Draper v. Draper, 790 F.2d 52, 53-54 (8th Cir.1986); Boyle v. Donovan, 724 F.2d 681, 682-83 (8th Cir.1984). As indicated by the Bankruptcy Appellate Panel of the First Circuit, the "determination that an obligation constitutes (or does not constitute) support for [section] 523(a)(5)’s purposes is a case-specific, factual determination. The critical issue is the function the (court’s) award or the (parties’) agreement was intended to serve.” In re Hale, 289 B.R. 788, 791 (1st Cir.BAP2003) (citations omitted). The court "recognize[d] that most courts addressing the issue [of] whether tuition responsibility agreements between divorced spouses create obligations excepted from discharge under [section] 523(a)(5) have held that they do.” Id. at 798 n. 32. But it found those decisions to be case specific, noting that "the deciding courts uniformly analyze the facts and circumstances extant at the obligation’s creation in reaching their decisions.” Id. Nevertheless, under "the peculiar state of the record" in that case (where the mother adopted the facts set forth in the father’s summary judgment motion), the court found that it was clear "that the obligation to pay education expenses was sourced in an intention to settle property division issues, rather than to supply support for [their child].” Id. at 790, 798.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Bobby KIMBROUGH, Appellant.
    No. ED 83928.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 17, 2005.
    Ellen H. Flottman, Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Leslie E. McNamara, Asst. Attorney General, Jefferson City, MO, for Respondent.
    Before PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ.
   ORDER

PER CURIAM.

Bobby Kimbrough (Defendant) appeals from the judgment upon his convictions by a jury of stealing a motor vehicle, Section 570.030, RSMo 2000, assault of a law enforcement officer in the second degree, Section 565.082, RSMo 2000, armed criminal action, Section 571.015, RSMo 2000, property damage in the first degree, Section 569.100, RSMo 2000, leaving the scene of an accident, Section 577.060, RSMo 2000, and resisting arrest, Section 575.150, RSMo 2000. Defendant was sentenced, as a prior and persistent offender, to a term of fifteen years’ imprisonment for stealing a motor vehicle, thirty years’ imprisonment for armed criminal action, thirty years’ imprisonment for assault of a law enforcement officer in the second degree, seven years’ imprisonment for property damage in the first degree, seven years’ imprisonment for leaving the scene of an accident, and seven years’ imprisonment for resisting arrest, all to be served concurrently. On appeal, Defendant argues the trial court plainly erred in allowing the automobile theft victim to testify that Defendant previously threatened him with a gun.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion reciting the detailed facts and restating principles of law would have no precedential value. 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 30.25(b).


text:
    Connie PAIR, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84010.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 17, 2005.
    Henry Cummings, St. Charles, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel N. McPherson, 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.

Connie Pair (Movant) appeals from the judgment denying her Rule 24.035 motion for post-conviction relief following an evi-dentiary hearing.

Movant pleaded guilty to one count of murder in the second degree in violation of Section 565.021 RSMo 1986. The trial court sentenced Movant to a term of imprisonment for twenty-five years. Movant thereafter filed a motion for post-conviction relief pursuant to Rule 24.035. This appeal follows.

We have reviewed the briefs of the parties, the legal file, and the record on appeal, and find the claim of error to be without merit. The judgment of the motion court is based on findings of fact and conclusions that are not clearly erroneous. Rule 84.16(b)(2); Rule 24.035(k). No error of law appears. An extended opinion would have no precedential value. We affirm the judgment pursuant to Rule 84.16(b).

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


text:
    STATE of Missouri, Respondent, v. Kenneth I. WEBB, Defendant/Appellant.
    No. ED 84059.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 17, 2005.
    S. Kristina Starke, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Kennedy, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN and MARY K. HOFF, JJ.
   ORDER

PER CURIAM.

The defendant, Kenneth Webb, appeals the judgment entered upon his convictions by a jury for one count of the class A felony of first-degree assault and one count of the class B felony of first-degree assault, Section 565.050 RSMo.2000, two counts of armed criminal action, section 571.015, one count of the class A felony of unlawful use of a weapon, section 571.030, and one count of leaving the scene of a shooting, section 57'7.068.

We have reviewed the parties’ briefs and the record on appeal and find no error. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties, however, have been furnished with a memorandum, for their information only, setting forth the reasons for our decision.

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

      . All statutory references are to RSMo.2000.


author: ROBERT G. DOWD, JR., Judge.

text:
    Stephen C. ROZIER, Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Appellant.
    No. ED 84103.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 17, 2005.
    James A. Chenault, III, Special Asst. Attorney General, Missouri Department of Revenue, Jefferson City, MO, for appellant.
    Craig D. Brewer, Perryville, MO, for respondent.
   ROBERT G. DOWD, JR., Judge.

The Director of Revenue (the Director) appeals from the judgment in an expungement action brought by Stephen C. Rozier (Rozier). The circuit court ordered the Director to expunge Rozier’s administrative alcohol suspension pursuant to Section 577.054, RSMo 2000. On appeal, the Director contends the circuit court lacked the authority to expunge Rozier’s administrative alcohol suspension, because the administrative suspension is not subject to expungement under the statute. We reverse.

On September 23, 2003, Rozier filed a “Motion for Expungement” with the circuit court seeking to be “restored to the status he occupied prior to” his arrest for driving while intoxicated (DWI) on February 27, 1993, and to have the court “expunge from all records all recordations of [Rozier’s] arrest, plea, trial, and/or convictions.” Records filed by Rozier indicated that he was arrested on February 27, 1993 and subsequently issued a summons for DWI. On May 3, 1993, Rozier pleaded guilty to the charge of DWI, for which Rozier received a suspended imposition of sentence and was placed on two years unsupervised probation. The Director filed an answer to Rozier’s motion asserting that Rozier was not eligible to receive an expungement of the administrative alcohol suspension.

The circuit court heard the motion. At the hearing, Rozier testified he had completed his two years of probation and was seeking to have the administrative alcohol suspension arising from his arrest expunged. Thereafter, the circuit court entered a judgment finding that Rozier had satisfied the requirements of Section 577.054 and ordered the Director to expunge the record of Rozier’s administrative suspension. The Director now appeals.

In her sole point, the Director contends the circuit court erred in ordering the expungement of Rozier’s administrative alcohol suspension because the administrative suspension is not subject to expungement under Section 577.054. We agree.

In reviewing a court tried case, we will affirm the judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Here, the Director asserts and we agree that the circuit court erroneously applied the law in Section 577.054 in granting expungement to Rozier.

Section 577.054 provides:

After a period of not less than ten years, an individual who has pleaded guilty or has been convicted for a first alcohol-related.driving offense which is a misdemeanor or a county or city ordinance violation and which is not a conviction for driving a commercial motor vehicle while under the influence of alcohol and who since such date has not been convicted of any other alcohol-related driving offense may apply to the court in which he pled guilty or was sentenced for an order to expunge from all official records all recordations of his arrest, plea, trial or conviction. If the court determines, after hearing, that such person has not been convicted of any alcohol-related driving offense in the ten years prior to the date of the application for expungement, and has no other alcohol-related enforcement contacts as defined in section 302.525, RSMo, during that ten-year period, the court shall enter an order of expungement. The effect of such order shall be to restore such person to the status he occupied prior to such arrest, plea or conviction and as if such event had never taken place. No person as to whom such order has been entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of his failure to recite or acknowledge such arrest, plea, trial, conviction or expungement in response to any inquiry made of him for any purpose whatsoever and no such inquiry shall be made for information relating to an expungement under this section. A person shall only be entitled to one expungement pursuant to this section. Nothing contained in this section shall prevent the director from maintaining such records as to ensure that an individual receives only one ex-pungement pursuant to this section for the purpose of informing the proper authorities of the contents of any record maintained pursuant to this section.

This court has previously held that Section 577.054 does not authorize the expungement of an administrative alcohol suspension. McNally v. St. Louis County Police Dept., 17 S.W.3d 614, 616 (Mo.App. E.D.2000). In McNally, the Director appealed from the trial court’s judgment finding Section 577.054 applied to an administrative suspension and ordering the Director to expunge the records of the driver’s administrative suspension of driving privileges. McNally, 17 S.W.3d at 616. This court held that Section 577.054 provides for expungement from all records of an individual’s arrest, plea, trial or conviction but not expungement of the records of a driver’s administrative suspension. Id. The court recognized that the legislature enacted Section 302.545 to deal specifically with expungement of Department of Revenue records. Id. Section 302.545 authorizes the expungement of Department of Revenue records of suspension or revocation with respect to persons under twenty-one years of age who meet certain conditions. The McNally court noted Section 302.545 excludes expungement of Department of Revenue records for persons who do not fall within the purview of that statute. McNally, 17 S.W.3d at 616-17.

Under the precedent of McNally, Rozier’s was not entitled to have his administrative alcohol suspension expunged from his record under Section 577.054. See also Director of Revenue v. Klenke, 29 S.W.3d 391 (Mo.App. E.D.2000) (applying McNally to find there was no statutory basis to authorize expungement of the driver’s administrative suspension).

There is no statutory basis to authorize the expungement of Rozier’s administrative suspension. The circuit court erred in entering a judgment ordering the ex-pungement of Rozier’s administrative alcohol suspension. The judgment of the circuit court is reversed.

PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE, J., concur.

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

      . The record reflects that Rozier was born on October 4, 1951, and was forty-one at the time of his arrest in 1993. Rozier is not entitled to expungement under Section 302.545.


text:
    HOLLY TREE ENTERPRISES, INC., Respondents, v. SIDRO’S, L.L.C., et al., Appellants.
    Nos. ED 84303, ED 84393.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 17, 2005.
    Geoffrey L. Pratte, Farmington, MO, for appellants.
    Clinton B. Roberts, Farmington, MO, for respondents.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Appellant James Smith (“Smith”), an individual doing business as Sidro’s, L.L.C. (“Sidro’s”), appeals from the judgment of his action for forcible entry and conversion against Holly Tree Enterprises, Inc. (“Holly Tree”) and the judgment of the action of Holly Tree against Smith for Unlawful De-tainer. Both judgments were ruled in favor of Holly Tree. The two cases were consolidated into one for purposes of this appeal.

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 84.16(b).


author: PATRICIA L. COHEN, Presiding Judge.

text:
    Rodney CLAYTON, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84929.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 17, 2005.
    Edward S. Thompson, Assistant Public Defender, St. Louis, MO, for appellant.

      Deborah Daniels, Assistant Attorney-General, Jefferson City, MO, for respondent.
   PATRICIA L. COHEN, Presiding Judge.

Introduction

Rodney Clayton (“Movant”) appeals from the judgment of the circuit court denying his post-conviction motion for DNA testing -without an evidentiary hearing. Because we hold that the motion court clearly erred when it failed to issue findings of fact and conclusions of law, we reverse and remand.

Statement of the Facts and Proceedings Below

On the morning of May 13, 1990, the owner of a vacant tavern discovered the body of Norma Graves (“Victim”), a woman who had been living in the apartment above the tavern, nude from the waist down, with blood smeared around her vaginal area. Victim had an electrical cord wrapped around her neck and a massive head injury. Blood covered Victim’s front and hands and bloody footprints surrounded her dead body as did broken glass and wood pieces from broken chairs. Investigation later revealed that Victim’s skull and facial bones were extensively fractured and that Victim suffered numerous cut and stab wounds, some of which contained glass fragments. Vaginal and thigh smears revealed the presence of sperm heads.

Days later, police escorted Movant to the police station for questioning. When officers realized that tread from tennis shoes that they seized from Movant matched the bloody footprints found on Victim’s shirt, police interviewed Movant a second time. During the second interview Movant cried and stated that he needed to tell the truth.

Movant revealed that on the morning of the murder, he gave Victim $200.00 to buy cocaine for him. According to Movant, Victim left the tavern with the money but returned without either the money or the cocaine. Movant then told Victim he was going to take her television at which point Victim tried to put an extension cord around Movant’s neck. Movant admitted that he took the extension cord from Victim, put it around her neck and strangled her until she bled from the mouth. When Movant released Victim, she swung a bottle at him. Movant took the broken bottle from Victim and proceeded to stab her numerous times. Movant then hit Victim several times over the head with a chair and ran from the tavern.

Movant was charged with one count of murder in the first degree and one count of armed criminal action. In its case, the State called numerous witnesses and played Movant’s videotaped confession for the jury. Movant did not testify on his own behalf and called no witnesses to testify in his defense. At the close of evidence, the jury found Movant guilty of both offenses as charged. The court sentenced Movant, as a prior offender, to life imprisonment without the possibility of parole and life imprisonment consecutively.

Movant filed a Rule 29.15 motion for post-conviction relief, which the motion court denied after an evidentiary hearing. Movant appealed both his conviction as well as the motion court’s denial of his Rule 29.15 motion. We affirmed the denial of Movant’s post-conviction motion, affirmed the judgment of the trial court and remanded Movant’s case for an evidentiary hearing on his Batson claims in State v. Clayton, 849 S.W.2d 259 (Mo.App. E.D.1993). We later affirmed Movant’s convictions and sentences in State v. Clayton, 891 S.W.2d 551 (Mo.App. E.D.1995).

In January of 2003, Movant filed a pro se post-conviction motion for DNA testing pursuant to Section 547.035, RSMo Supp. 2001. Specifically, Movant alleged that: (1) evidence collected in connection with the crimes for which he was convicted still existed; (2) that evidence was not previously tested because DNA technology was not in existence at the time of trial; (3) there is a reasonable probability that Mov-ant would not have been convicted if exculpatory results had been obtained through DNA testing. Pursuant to Section 547.035.4, the motion court ordered the State to show cause why DNA testing should not be conducted. Thereafter, the State filed a Motion to Dismiss alleging that Movant failed to state a claim for which relief could be granted under Section 547.035. Specifically, the State argued, inter alia, that circumstantial evidence of guilt was strong, and: (1) DNA testing was reasonably available at the time of trial; (2) identity was not an issue at trial because Movant alleged self-defense; (3) an exculpatory result from the DNA test would not exonerate Movant because, as a prostitute, Victim likely had other men’s DNA on her person; and (4) a DNA test result that fails to match Mov-ant’s profile could be the result of Movant wearing a condom.

Appointed counsel filed a response on behalf of Movant arguing that: (1) the availability of testing and technology in 1991 was a question of fact, which is the proper subject of a hearing; (2) identity was an issue at trial; and (3) because the State argued that the Victim died in a sex-related homicide, an exculpatory result from the DNA test might have exonerated Movant.

The motion court issued its Order denying Movant’s motion and request for hearing. This appeal followed.

Standard of Review

Our review of the motion court’s denial of a post-conviction motion for DNA testing is limited to a determination of whether the findings of facts and conclusion of law are clearly erroneous. Weeks v. State, 140 S.W.3d 39, 43-44 (Mo. banc 2004). “The motion court’s findings and conclusions are clearly erroneous only if, after the review of the record, the appellate court is left with the definite and firm impression that a mistake has been made.” Id.

Discussion

In his first point, Movant contends that the motion court clearly erred when it denied his post-conviction motion for DNA testing without an evidentiary hearing. In his second, closely related point, Movant alleges that the motion court clearly erred when it denied his request for DNA testing without issuing findings of fact and conclusions of law in violation of Section 547.035.8 In its combined response, the State argues that: (1) the motion court properly denied Movant’s motion for DNA testing because Movant failed to satisfy the statutory prerequisites for a hearing in that Movant failed to demonstrate a reasonable probability that he would not have been convicted if a DNA test were performed; and (2) a remand for more precise findings of fact and conclusions of law would be futile. Because our resolution of Movant’s second point is dispositive, we need not address Movant’s first point.

By way of background, we note that Section 547.035 provides a mechanism by which a person committed to the department of corrections may request post-conviction DNA testing to demonstrate innocence of the crime for which he or she has been convicted and incarcerated. A person seeking post-conviction DNA testing must file a motion with the sentencing court seeking DNA testing and alleging:

(1) There is evidence upon which DNA testing can be conducted; and
(2) The evidence was secured in relation to the crime; and
(3) The evidence was not previously tested by the movant because:
(a) The technology for the testing was not reasonably available to the mov-ant at the time of the trial;
(b) Neither the movant nor his or her trial counsel was aware of the existence of the evidence at the time of trial; or
(c) The evidence was otherwise unavailable to both the movant and movant’s trial counsel at the time of trial; and
(4) Identity was an issue in the trial; and
(5) A reasonable probability exists that the movant would not have been convicted if exculpatory results had been obtained through the requested DNA testing.

Section 547.035.2.

In accordance with Section 547.035, Movant filed his pro se post-conviction motion for DNA testing alleging that: (1) evidence collected in connection with the crimes for which he was convicted still existed; (2) that evidence was not previously tested because DNA technology was not in existence at the time of trial; (3) there is a reasonable probability that Mov-ant would not have been convicted if exculpatory results had been obtained through DNA testing. Movant marked a box indicating that identity was not an issue at his trial, however this notation contradicts other specific allegations in his pro se motion.

In response to Movant’s motion for post-conviction relief and in accordance with Section 547.035.4, the motion court ordered the State to show cause why DNA testing should not be conducted. In response to the motion court’s show cause order, the State filed a Motion to Dismiss alleging that Movant failed to state a claim for which relief could be granted under Section 547.035. Specifically, the State argued, inter alia, that circumstantial evidence of guilt was strong, and: (1) DNA testing was reasonably available at the time of trial; (2) identity was not an issue at trial because Movant argued self-defense; (3) an exculpatory result from the DNA test would not exonerate Movant because, as a prostitute, Victim likely had other men’s DNA on her person; and (4) a DNA test result that fails to match Mov-ant’s profile could be the result of Movant wearing a condom.

Appointed counsel filed a response on behalf of Movant contending that: (1) the availability of testing and technology in 1991 was a question of fact, which is the proper subject of a hearing; (2) identity was an issue at trial; and (3) because the State argued that the Victim died in a sex-related homicide, an exculpatory result from the DNA test might have exonerated Movant.

In its Order denying Movant’s motion and request for hearing, the motion court held:

This Court now having carefully considered Respondent State of Missouri’s Motion to Dismiss, Petitioner’s Response to Respondent’s Motion to Dismiss, and argument of counsel, finds that Respondent/Movant’s motion and the files and records of the case conclusively show that Petitioner/Movant is not entitled to relief pursuant to Missouri Revised Statute § 547.035, and that a hearing shall not be held. It is further ordered that Respondent’s Motion to Dismiss is sustained.

Movant argues that Section 547.035.8 requires the motion court to “issue findings of fact and conclusions of law whether or not a hearing is held.” Accordingly, Mov-ant asserts we must remand to the motion court for findings of fact and conclusions of law. In response, the State argues that remand would be futile because when the motion court stated that “the files and records of the case conclusively show that Petitioner/Movant is not entitled to relief,” it made the precise finding required by Section 547.035.6 and, therefore, we have sufficient findings upon which to base our appellate review.

Acknowledging that there are no Missouri cases analyzing and interpreting the findings of fact and conclusions of law requirement found in Section 547.035.8, both parties urge us to apply interpretations of similar language in Rules 29.15 and 24.035. To that end, both parties rely on Crews v. State, 7 S.W.3d 563, 567 (Mo.App. E.D.1999).

In Crews, the movant asserted that the motion court’s denial of his Rule 29.15 motion for post-conviction relief without issuing findings of fact and conclusions of law on all allegations in the motion denied him meaningful appellate review. We found that there is no ambiguity in the requirement that the motion court issue findings of fact and conclusions of law on all issues in both Rule 24.035 and Rule 29.15 motions, and the “directive and its requirements are not a mere formality.” Id. at 567.

Much like Rule 29.15(j), there is no ambiguity in Section 547.035.8 and its requirements are not a mere formality. Although there is no requirement that the motion court issue specific itemized findings of facts and conclusions of law, the findings of fact and conclusions of law must allow meaningful appellate review. Crews, 7 S.W.3d at 567. Absent findings explaining the motion court’s actions we cannot discern the reasons for the motion court’s decision and we are left with con-clusory statements and nothing to review. Id. Moreover, we are not permitted to supplement the record by implication from the motion court’s ruling. Id.

The State, relying on Crews, contends that not every failure by the motion court to issue the requisite findings of fact and conclusions of law requires reversal and remand. Specifically, the State references five exceptions to the findings of fact and conclusions of law requirement of Rules 29.15 and 24.035 and argues that we should apply these exceptions to Section 547.035 cases. Even assuming, arguendo, that these exceptions are generally applicable to Section 547.035 cases, none of the exceptions are applicable here.

The first exception provides that a remand for findings of fact is not necessary where the only issue is one of law. Crews, 7 S.W.3d at 568. Notably, however, if the only issue is one of law, the motion court must still enter its conclusion of law. Id. In this case, the motion court failed to enter either findings of fact or conclusions of law as to Movant’s allegations. Accordingly, this exception does not apply.

The second exception provides that an appellate court should not issue a useless remand to direct the motion court to issue proper conclusions of law on an isolated issue that was merely overlooked by the motion court when it is clear that the movant is not entitled to relief as a matter of law and no prejudice will be suffered as a result of being denied such a remand. Id. However, this exception is reserved for instances where only one of many issues is merely overlooked. Fountain-Bey v. State, 24 S.W.3d 716, 718 (Mo.App. E.D.1999). In this case, the motion court did not make findings of fact and conclusions of law on any of Movant’s allegations.

The third exception provides that a remand is not necessary if at the hearing on the motion the movant failed to present sufficient evidence to support his allegation. Crews, 7 S.W.3d at 568. Here, it is undisputed that the motion court summarily dismissed Movant’s motion without a hearing. As a result, this exception does not apply.

The fourth exception provides that a remand is not required to address issues that were improperly raised or not cognizable in a post-conviction motion. Id. This exception is not applicable because issues in Movant’s motion are properly before the court and cognizable in a post-conviction motion for DNA testing.

The fifth exception provides that a remand is not required for failure to issue findings of fact and conclusions of law if the motion itself was insufficient and thus ineffective. Id. We have reviewed Mov-ant’s motion for post-conviction DNA testing and, on its face, it complies with the pleading requirements of Section 547.035. Accordingly, this exception is inapplicable.

Moreover, contrary to the State’s contention otherwise, in this case, a remand to the motion court would not be futile. While there is no exact formula that a motion court need follow in providing findings and conclusions of a motion court in a post-conviction proceeding, to be deemed sufficient, they must permit review of the judgment. See Gilliland v. State, 882 S.W.2d 322, 326 (Mo.App. S.D.1994). We have reviewed the motion court’s order and we cannot determine the basis for the motion court’s ruling. Point granted.

Conclusion

The judgment of the motion court is reversed, and the cause is remanded for issuance of findings of fact and conclusions of law as required by Section 547.035.8.

KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ., Concur.

      . "Batson " refers to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      . Although the State argued that Victim was murdered in a sex-related homicide, rape was not charged.

      . Section 547.035.8 specifically provides, "[t]he court shall issue findings of fact and conclusions of law whether or not a hearing is held.”

      . Section 547.035.6 provides, "[i]f the court finds that the motion and the files and records of the case conclusively show that the movant is not entitled to relief, a hearing shall not be held. If a hearing is ordered, counsel shall be appointed to represent the movant if the mov-ant is indigent. The hearing shall be on the record. Movant need not be present at the hearing. The court may order that testimony of the movant shall be received by deposition. The movant shall have the burden of proving the allegations of the motion by a preponderance of the evidence.”

      . Because our resolution of this point is dis-positive, we do not reach Movant’s additional point.


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    Hunter WOODARD, Appellant, v. STATE of Missouri, Respondent.
    No. ED 84404.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 17, 2005.
    Lisa Stroup, St. Louis, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Alison K. Brown, Asst. Attorney General, Jefferson City, MO, for Respondent.
    Before PATRICIA L. COHEN, P.J., and KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ.
   ORDER

PER CURIAM.

Hunter Woodard (Movant) appeals from the denial, without an evidentiary hearing, of his motion to vacate sentence under Rule 24.035. The sentences sought to be vacated are for first-degree assault, Section 569.080, RSMo 2000; armed criminal action, Section 571.015, RSMo 2000; first-degree burglary, Section 569.160, RSMo 2000; two counts of first-degree robbery, Section 569.020, RSMo 2000; resisting arrest, Section 575.150, RSMo 2000; second-degree trafficking, Section 195.223, RSMo 2000; and possession of a controlled substance heroin, Section 195.202, RSMo 2000, for which Movant was sentenced to twenty-five years, twenty-five years, fifteen years, twenty-five years, twenty-five years, five years, fifteen years, and seven years imprisonment, respectively. All sentences were to run concurrently for a total of twenty-five years imprisonment. On appeal, movant argues the motion court clearly erred in denying, without an evi-dentiary hearing, his Rule 24.035 claim that Counsel provided ineffective assistance for failing to prepare to litigate a motion to suppress based on an allegedly illegal search that was conducted at Mov-ant’s brother’s apartment. We affirm.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion would have no precedential value nor serve any jurisprudential purpose. The parties have been furnished with a memorandum for then’ information only, setting forth the reasons for this order pursuant to Rule 84.16(b).


text:
    William J. CLAYBON, Jr., Appellant, v. STATE of Missouri, Respondent.
    No. ED 84935.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 17, 2005.
    Gwenda R. Robinson, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Victorine R. Mahon, Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

William Claybon, Jr. (“movant”) appeals the judgment of the motion court denying his motion for post-conviction relief pursuant to Missouri Supreme Court Rule 24.035 on the merits without evidentiary hearing. Movant argues that his guilty plea was involuntarily entered, and he was denied effective assistance of counsel.

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:
    Matthew WILKINS, Respondent/Employee, v. MATHEWS ROOFING CO., Appellant/Employer, and Treasurer of the State of Missouri, Custodian of the Second Injury Fund, Appellant/Additional Party.
    No. ED 85037.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 17, 2005.
    Martin A. Klug, Jeremiah W. (Jay) Nixon, Atty. Gen., Diana L. Bartels, Asst. Attorney General, St. Louis, MO, for Appellant.
    Thomas J. Gregory, St. Louis, MO, for Respondent.
    Before PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ.
   ORDER

PER CURIAM.

Mathews Roofing Company (Employer) and the Second Injury Fund (Fund) appeal from the decision of the Labor and Industrial Relations Commission (Commission) awarding 40 percent permanent partial disability, temporary total disability benefits, and future medical benefits against Employer for injuries Mathew Wilkins (Claimant) sustained in the course of his employment with Employer, and finding the Fund liable for permanent total disability.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. After reviewing the whole record, we find the Commission’s award is supported by competent and substantial evidence and is not contrary the overwhelming weight of the evidence. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003). An opinion reciting the detailed facts and restating principles of law would have no precedential value. 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).


author: KATHIANNE KNAUP CRANE, Judge.

text:
    Mimi FOWLER, Plaintiff/Appellant, v. Gary SCOTT, Defendant/Respondent.
    No. ED 84820.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 17, 2005.
    Mimi Fowler, Ferguson, MO, pro se.

      Daniel L. Goldberg, St. Charles, MO, for respondent.
   KATHIANNE KNAUP CRANE, Judge.

Plaintiff, Mimi Fowler, filed a breach of contract action against defendant, Gary Scott, to recover damages for breach of contract, alleging that defendant had failed to do all of the work she had paid him to do in constructing a room addition on her home. Defendant filed a counterclaim that included a count in quantum meruit to recover the reasonable value of the goods and services he supplied in constructing the room addition. After a bench trial, the trial court entered judgment in quantum meruit in defendant’s favor and awarded him $11,776.00. It also entered judgment in defendant’s favor on plaintiffs breach of contract action. Plaintiff appeals only from the trial court’s judgment on her claim for breach of contract. We affirm.

Plaintiff does not challenge the trial court’s judgment in defendant’s favor on his counterclaim. In fact, in her brief, she has advised that she has paid this judgment.

Because plaintiff has not appealed from the trial court’s adjudication of defendant’s counterclaim, that judgment is final. As a result, principles of collateral estoppel estop her from disputing the findings necessarily encompassed by that judgment on appeal of a different claim. Boswell v. American Ins. Co., 835 S.W.2d 454, 460 (Mo.App.1992); Arnold v. Fletcher, 761 S.W.2d 261, 262 (Mo.App.1988); Franksen v. George, 725 S.W.2d 878, 880 (Mo.App.1987). We must therefore determine whether the findings the court necessarily made in entering judgment in defendant’s favor on his quantum meruit claim collaterally estop plaintiff from appealing the denial of her breach of action claim.

Quantum meruit is a remedy for enforcement of quasi-contractual obligations. Rolla Lumber Company v. Evans, 482 S.W.2d 519, 522 (Mo.App.1972). The elements of a quasi-contract claim are “1) a benefit conferred upon the defendant by the plaintiff; 2) appreciation by the defendant of the fact of such benefit; 3) acceptance and retention by the defendant of that benefit under circumstances in which retention without payment would be inequitable.” Johnson Group, Inc. v. Grasso Bros., Inc., 939 S.W.2d 28, 30 (Mo.App.1997) (quoting Erslon v. Vee-Jay Cement Contracting Co., 728 S.W.2d 711, 713 (Mo.App.1987)). To recover under quantum meruit, the party bringing the claim must plead and prove: 1) that it provided materials or services to the defending party at the request of or with the acquiescence of the defending party; 2) that those materials or services had a certain reasonable value, and 3) that the defending party, despite demands of the party bringing the claim, has failed and refused to pay the reasonable value of those materials and labor. Little Joe’s Asphalt v. C.W. Luebbert Const, 74 S.W.3d 830, 833 (Mo.App.2002).

At trial, defendant adduced evidence that he provided goods and services to plaintiff for the room addition with a value in the amount of $39,067.00, that plaintiff had paid $27,000, but failed to pay the remainder. Plaintiff testified to items that she purchased for the project and work she and friends did on the project that she claimed she had paid for under the contract and other complaints she had with defendant’s work.

In a quasi-contract case based on quantum meruit, the measure of recovery is the reasonable value of goods or services furnished . to the other party. Johnson Group, 939 S.W.2d at 30. It was undisputed that plaintiff had paid $27,000. By rendering a judgment for $11,776.00, the trial court necessarily determined that defendant had furnished goods and services to plaintiff with a value of $38,776.00, and only required plaintiff to pay for the goods and services furnished to her. That finding bars plaintiff from contending in this appeal that she paid for goods and services that she did not receive.

Further, the judgment bars plaintiff from claiming in this appeal that she paid for services that were not performed in a workmanlike manner. A claim in quantum meruit may be defeated or reduced by proof of any matter that affects the value of the materials or services, including evidence that the work was unskillfully performed. Otte v. McAuliffe, 441 S.W.2d 738, 736 (Mo.App.1969); Fitzgerald v. Schaefer, 216 S.W.2d 939, 940 (Mo.App.1949). The judgment in defendant’s favor necessarily determined that the labor performed and materials supplied had value and were provided in a workmanlike manner. See Little Joe’s, 74 S.W.3d at 835.

Because all of plaintiffs claims in this appeal are based on factual contentions found against her in the final judgment on the counterclaim, the judgment in defendant’s favor in the amount of $11,776.00 collaterally estops her from pursuing her breach of contract claim based on her contentions that she paid for goods and services that she did not receive or that the work was not done in a workmanlike manner. As a result, she may not raise defendant’s breach of contract on appeal. Arnold, 761 S.W.2d at 262.

The judgment of the trial court is affirmed.

PATRICIA L. COHEN, P.J. and ROBERT G. DOWD, JR., J., concur.

      . Defendant’s motions to dismiss and for sanctions are denied.


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    John P. BROWN, Petitioner/Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Respondent/Appellant.
    No. ED 84749.
    Missouri Court of Appeals, Eastern District, Division Two.
    May 24, 2005.

      Sidney A. Thayer, Jr., Politte & Thayer, Washington, MO, for respondent.
    Nicole L. Loethen, Asst. Atty. Gen., Jefferson City, MO, for appellant.
   KATHIANNE KNAUP CRANE, Judge.

The Director of Revenue (Director) appeals from the trial court’s judgment reinstating the driving privileges of petitioner, John P. Brown, after judicial review of the revocation based on his refusal to submit to a chemical test under section 577.041 RSMo (2000). We reverse and remand.

In the early morning hours on February 11, 2004, Trooper Jeffrey Gertsen of the Missouri State Highway Patrol responded to an accident scene on Highway 50, east of Danz Road in Gasconade County. When he arrived at the scene, he observed a black Dodge Dakota pickup track that had rolled over several times in a ditch on the north side of the road. He saw several beer cans lying in the area of the accident.

Trooper Gertsen made contact with the driver of the vehicle, the petitioner, who was in the back of the ambulance, strapped to a backboard. He identified himself and told Trooper Gertsen that he had hit some black ice and wrecked. Trooper Gertsen observed that petitioner’s breath had a strong odor of intoxicants and that his speech was slurred. He noticed that petitioner’s eyelids were swollen and his eyes were bloodshot, but his pupils were normal. He had an oxygen mask, but it was not on.

Trooper Gertsen asked petitioner exactly what happened, and petitioner told him that he could speak to his attorney. Trooper Gertsen asked petitioner for his address, to which he replied, “You know what, you can talk to my lawyer.” At this point, petitioner put his oxygen mask over his face and closed his eyes. Trooper Gertsen asked petitioner if he could hear him, and petitioner ignored the officer’s question.

Trooper Gertsen informed petitioner that he was under arrest and advised him of his Miranda rights and the implied consent law warning, which included a request that he submit to a blood test to determine his blood alcohol content. Petitioner’s eyes were closed while the officer administered the Miranda warnings and implied consent law warning. However, petitioner then opened his eyes and said he was not going to take any of the tests.

Petitioner again opened his eyes and said, “Sir, I was just taking my friend home. I wasn’t doing anything wrong.” When Trooper Gertsen asked petitioner if he had been drinking, petitioner stated, “Sir, I’ve been drinking, but I’m more worried about my friend.” Petitioner closed his eyes again.

Trooper Gertsen asked petitioner for a blood sample to determine his blood alcohol content. Petitioner ignored the question. Trooper Gertsen testified that petitioner appeared to be unconscious at the time he asked petitioner to take a blood test. Trooper Gertsen'told the ambulance technician that petitioner looked unconscious and asked the ambulance technician to take a sample of petitioner’s blood. Trooper Gertsen testified that he made this statement to the ambulance technician in order to “jar” petitioner, “to see if he was actually unconscious.” Petitioner then opened his eyes and said he wasn’t going to be taking any tests.

When the ambulance technician subsequently tried to start an IV in petitioner’s arm, petitioner told the technician “not to stick him with that fing needle” or he would sue him. Trooper Gertsen told petitioner he was not going to request a test because petitioner had already refused. He did not ask petitioner to take any other chemical tests. Petitioner was taken to a hospital in Washington, Missouri, but he refused to be admitted.

Trooper Gertsen completed an Alcohol Influence Report. In the Implied Consent section he put an “X” in the “NO” box next to the question, “will you take the test(s).” He also put an “X” in the box “CHEMICAL TEST REFUSAL,” which the officer is required to mark if the subject refused the test. He wrote “REFUSED” in the box for blood alcohol concentration.

As a result of petitioner’s refusal to submit to a chemical test, Director revoked petitioner’s license for one year beginning on February 27, 2004, pursuant to section 577.041 RSMo (2000). On February 20, 2004, petitioner filed a Petition to Review Revocation of Driver’s License pursuant to section 577.041 RSMo (2000).

At trial, Director offered into evidence a certified copy of her records, which included the Alcohol Influence Report and the arresting officer’s narrative, and called Trooper Gertsen to testify. Petitioner cross-examined Trooper Gertsen and called one witness, his father, Paul Brown. Petitioner’s father testified that when he picked up petitioner at the hospital, petitioner had a scrape from his eye to his ear, blood was running out of one ear and out of both corners of his eyes, glass was stuck to his ear, and petitioner was disoriented. Petitioner told his father that his head hurt and he wanted to go home to his own bed.

The trial court entered a judgment setting aside Director’s order revoking petitioner’s driving privileges, based on its finding that:

because of petitioner’s injuries, it is unlikely that petitioner could have refused to take the chemical test and it is unlikely that petitioner was given the Implied Consent warning as the officer testified petitioner ignored him when he gave petitioner the Miranda and Implied Consent. The officer further testified that it appeared Brown was unconscious when he requested Brown to give a blood sample. Petitioner has sustained his burden of proof that he did not refuse to submit to a chemical test.

Director appeals.

For his sole point on appeal, Director contends that the trial court erred in reversing the revocation of petitioner’s license because Director made a prima facie case of refusal under section 577.041, which petitioner did not rebut.

In an appeal from a judgment reinstating driving privileges under section 577.041, we affirm the trial court’s judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or the trial court erroneously declares or applies the law. Hinnah v. Director of Revenue, 77 S.W.3d 616, 620 (Mo. banc 2002); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We defer to the trial court’s determinations of credibility. Hinnah, 77 S.W.3d at 620. “If 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.

Section 577.014.4 allows a person whose license has been revoked to request a hearing before a court in a county in which the arrest occurred. At the hearing, the Director must establish a prima facie case that (1) the petitioner was arrested or stopped; (2) that the arresting officer had reasonable grounds to believe that the petitioner was driving a motor vehicle in an intoxicated condition; and (3) that the petitioner refused to submit to the test. Section 577.041.4; Hinnah, 77 S.W.3d at 620. Director has the burden of proof. Id. If the trial court finds any issue not to be in the affirmative, it must order Director to reinstate the license. Section 577.041.5; Hinnah, 77 S.W.3d at 620. Once Director establishes a prima facie case for revocation, petitioner may rebut Director’s case by a preponderance of the evidence. Hamor v. Director of Revenue, State, 153 S.W.3d 869, 872 (Mo.App.2004). Director argues that she established a pri-ma facie case and that petitioner did not rebut it.

1. Arrest or Stop

Director must establish that petitioner was arrested or stopped. Section 577.041.4(1). “Arrest” is defined as “an actual restraint of the person of the defendant, or by his submission to the custody of the officer, under authority of a warrant or otherwise.” Section 544.180. Merely informing a person that he or she is under arrest is not enough absent proof of physical restraint or submission to authority. Smither v. Director of Revenue, 136 S.W.3d 797, 799 (Mo. banc 2004). However, further physical restraint is impractical and unnecessary if the person is already physically immobilized or incapacitated. Id.

Here, Trooper Gertsen told petitioner that he was under arrest and advised him of his Miranda rights and the implied consent law warnings while petitioner was strapped to a backboard in the back of an ambulance. Although the officer did not physically restrain petitioner, further physical restraint was not required to constitute a lawfully effectuated arrest in light of the fact that petitioner was already strapped to a backboard when the officer told him he was under arrest. Id. See also Saladino v. Director of Revenue, 88 S.W.3d 64, 69 (Mo.App.2002). Director made a prima facie case that petitioner was under arrest within the meaning of section 577.041.4(1).

2. Reasonable Grounds to Believe That Petitioner was Driving While Intoxicated

Director must also establish that the arresting officer had reasonable grounds to believe that petitioner was driving while intoxicated. Section 577.041.4(2)(a). “Reasonable grounds” is virtually synonymous with “probable cause” for arrest for driving while intoxicated. Hinnah, 77 S.W.3d at 620. “Probable cause to arrest for driving while intoxicated exists when a police officer observes an unusual or illegal operation of a motor vehicle and observes indicia of intoxication upon coming into contact with the motorist.” Newsham v. Director of Revenue, 142 S.W.3d 207, 209 (Mo.App.2004) (quoting Rain v. Director of Revenue, 46 S.W.3d 584, 587 (Mo.App.2001)). A probable cause determination is fact-dependent. Newsham, 142 S.W.3d at 209-10. “There is a ‘vast gulf between the quantum of information necessary to establish probable cause and the quantum of evidence required to prove guilt beyond a reasonable doubt.” Rain, 46 S.W.3d at 588. The court examines the situation through the eyes of a cautious, trained, and prudent officer at the time of arrest, in determining whether reasonable grounds exist. Id. at 587.

Trooper Gertsen established that petitioner was the driver of a vehicle that had overturned in a one-vehicle accident. He smelled a strong odor of intoxicants on petitioner’s breath at the accident scene. He noticed that petitioner’s eyes were bloodshot and his speech was slurred. Further, petitioner told the officer that he had been drinking.

The odor of alcohol and slurred speech are both indicia of intoxication. Clark v. Director of Revenue, 132 S.W.3d 272, 275-76 (Mo.App.2004); Rain, 46 S.W.3d at 588. In this case, the officer observed a one-vehicle accident, established that petitioner was driving, and observed that petitioner exhibited indicia of intoxication. Director made a prima facie case that the officer had reasonable grounds to believe that petitioner was driving while intoxicated. See Berry v. Director of Revenue, 885 S.W.2d 326, 328 (Mo. banc 1994).

3. Refusal

Last, Director must establish refusal under section 577.041.4(3). Director argues that petitioner did not produce evidence at the hearing that he was unconscious at the time Trooper Gertsen read the implied consent law warning and asked him to submit to a blood test. The trial court’s finding that it was unlikely that petitioner was given the implied consent law warning because petitioner ignored the officer while he was giving the warning and because he appeared unconscious when the officer asked for a blood sample is not supported by substantial evidence and misapplies the law.

An arresting officer’s narrative combined with the Alcohol Influence Report constitutes sufficient evidence of a refusal to submit to a chemical test. Lyons v. Director of Revenue, 36 S.W.3d 409, 411 (Mo.App.2001); Marsey v. Director of Revenue, 19 S.W.3d 176, 178 (Mo.App.2000). In this case, there was substantial evidence from the officer’s testimony and the Alcohol Influence Report that the officer read the implied consent law warning to petitioner and petitioner voiced his refusal to take a chemical test several times. Director adduced sufficient evidence of refusal to make a prima facie case. See Lyons, 36 S.W.3d at 411; Winston v. Director of Revenue, 137 S.W.3d 502, 506 (Mo.App.2004).

We next consider whether petitioner rebutted this evidence with evidence that he was unconscious when he was given the implied consent law warning. There was no evidence that a reasonable person would have concluded that petitioner was unconscious when the officer read the implied consent law warning or requested a blood test. As with his other conversations with the officer at the time, petitioner’s statements refusing to take the test were coherent, lucid, logical, and contextually appropriate. His statements indicated that he had heard the warning and the request. His verbal responses to the officer’s comments and requests were un-controverted. Petitioner’s sole witness did not testify that petitioner was unconscious at any time he saw him. Petitioner’s injuries do not lead to the conclusion that petitioner had been unconscious at the time the implied consent law warning was read. There were no medical records supporting a conclusion that petitioner was unconscious at that time. Unlike the driver in Nace v. Director of Revenue, 123 S.W.3d 252, 257 (Mo.App.2003), petitioner did not adduce any evidence that he was injured to the point that he was incapable of refusing to submit to the test.

A reasonable person would have perceived petitioner’s actions as a refusal. Under these circumstances, no substantial evidence supported the trial court’s conclusion that petitioner was unconscious when he was given the implied consent law warning or when he refused to take the test. See Berry, 885 S.W.2d at 327-28. The trial court’s conclusion that the implied consent law warning was not given to petitioner because petitioner ignored the warning and “appeared” to be unconscious, when he was not, misapplied the law.

We reverse and remand the cause to the trial court to enter a judgment reinstating the revocation of petitioner’s driving privileges.

PATRICIA L. COHEN, P.J. and ROBERT G. DOWD, JR., J., concur.

      . Petitioner has not filed a respondent’s brief.


text:
    STATE of Missouri, Respondent, v. Tranell L. STEWART, Appellant.
    No. ED 84546.
    Missouri Court of Appeals, Eastern District, Division One.
    May 24, 2005.
    Irene Earns, Assistant Public Defender, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shawn L. Naccarato, Asst. Atty. Gen., 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, Tranell Stewart (“Defendant”), appeals from the judgment of Circuit Court of St. Louis County convicting him of first degree robbery, section 569.020 RSMo (2000), and armed criminal action, section 571.015, after a jury trial. Defendant was sentenced to thirteen years imprisonment for the first degree robbery and a concurrent term of five years imprisonment 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 30.25(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, Respondent, v. Pedro LUIS, Appellant.
    No. ED 84416.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 24, 2005.
    Jessica Hathaway, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Jefferson City, MO, for respondent.
    Before CLIFFORD H. AHRENS, P.J., GLENN A. NORTON, J., and NANNETTE A. BAKER, J.
   ORDER

PER CURIAM.

Pedro Luis (“Defendant”) appeals from his conviction of voluntary manslaughter and armed criminal action. Defendant was charged with murder in the second degree, Section 565.021, and armed criminal action, Section 571.015. After a jury trial, Defendant was convicted of the lesser included offense of voluntary manslaughter and armed criminal action. He was sentenced to ten years for voluntary manslaughter and five years for armed criminal action, to be served consecutively. 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).

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


text:
    HERITAGE ROOFING, LLC, Respondent, v. Martin FISCHER, Appellant.
    No. ED 84390.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 24, 2005.

      Brian D. Klar, St. Louis, MO, for appellant.
    Mitchell D. Jacobs, St. Louis, MO, for respondent.
   OPINION

GLENN A. NORTON, Judge.

Heritage Roofing, LLC sued Martin Fischer, seeking to recover money owed for roofing work that Heritage had performed at Fischer’s request. Heritage filed a suit on account, but following a bench trial, the trial court amended the pleadings to conform to the evidence and entered judgment in favor of Heritage on a breach of contract theory. It awarded damages, attorney fees and interest. Fischer appeals. We affirm.

I. BACKGROUND

At Fischer’s request, Heritage sent Fischer a document that outlined its proposal to repair the roof of each of several historic buildings that Fischer owned for a total price of $24,500. This written proposal described the work to be done and provided for the collection of interest and attorney fees in the event that Fischer failed to pay. Fischer spoke with Heritage’s manager and orally agreed to have Heritage perform the roofing work. But Fischer never signed the written proposal, and the parties never specifically discussed the provisions relating to interest and attorney fees.

Heritage completed the work, but accidentally caused some damage to one of the buildings when its truck collided with a decorative terra-cotta building tile, creating “a domino effect” that resulted in further damage. Heritage purchased some new fiberglass replica tiles and offered to have them installed in place of any original tiles that could not be salvaged or repaired, which it claimed would cost approximately $750. Fischer refused and instead decided to sell the buildings. But the new owners purchased the tiles from Heritage and installed them. Although Fischer made several payments to Heritage for the roofing work, he never paid the final invoice for $9,200.

Heritage sued Fischer in the associate division of the circuit court of St. Louis County, seeking to recover the balance owed on this final invoice plus interest. Heritage filed a suit on account and did not allege the existence or breach of any contract. Fischer filed no answer, affirmative defense, or counterclaim. Heritage’s manager and its primary roofer testified at trial, and Fischer testified on his own behalf. It was undisputed that the roofing work was completed and that Fischer paid for all but $9,200 of the work. Instead of disputing those charges, Fischer claimed that he sold the buildings at a loss due to the damaged tiles, which Heritage would not replace with like materials, and he estimated that this loss exceeded his debt to Heritage. Fischer presented no other witnesses or evidence regarding the value of the building or the damaged tiles.

The parties did not request or expressly consent to an amendment of the pleadings, but in its judgment the trial court found that “neither party would be surprised by permitting the pleadings to be amended to conform” to the evidence presented at trial and that “justice so requires.” The court found that the parties had entered into a binding oral contract based upon the terms and conditions of Heritage’s written proposal. It ordered Fischer to pay Heritage $9,200 in actual damages, but subtracted $750 to reflect the estimated expense of replacing the damaged tiles. It awarded Heritage $3,550 in interest (at one percent interest per month) and $4,000 in attorney fees (one third of the combined total of damages and interest).

II. DISCUSSION

Our review of this court-tried case is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We must affirm the judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Id. at 32. Substantial evidence means “competent evidence from which the trial court could reasonably decide the case.” Bauer v. Bauer, 38 S.W.3d 449, 455 (Mo.App. W.D.2001). We exercise our power to set aside a judgment on the basis that it is “against the weight of the evidence” with caution, and only upon “a firm belief that the decree or judgment is wrong.” Murphy, 536 S.W.2d at 32. We view the evidence and reasonable inferences from that evidence in a light most favorable to the judgment and disregard contrary evidence. Kaelin v. Kaelin, 988 S.W.2d 657, 660 (Mo.App. E.D.1999). We defer to the trial court on the credibility of witnesses, and the trial court is free to believe all, part, or none of a witness’s testimony. State ex rel. Moore v. Brewster, 116 S.W.3d 630, 639 (Mo.App. E.D.2003).

A. Amendment of the Pleadings

Fischer argues that the trial court erred in amending Heritage’s petition from a suit on account to a breach of contract claim. Heritage responds that the pleadings were amended to conform to the evidence presented, which , in this case supported the existence of an oral contract embodying the terms of Heritage’s written proposal.

Rule 55.33(b) permits the amendment of pleadings to conform to the evidence presented when issues not raised in the pleadings are tried by the express or implied consent of the parties. With respect to trial by implied consent, Rule 55.33(b) “gives direction to the trial court both in situations where no objection is made to evidence of unpleaded facts or claims and in situations where objection is made.” Rombach v. Rombach, 867 S.W.2d 500, 503 (Mo. banc 1993). If there is an objection, then the trial court has substantial discretion in determining whether to allow the pleadings to be amended. Id. at 504.

But where, as here, there is no objection, the trial court’s discretion is limited to the determination of “whether the issue was tried by ‘implied consent’ of the parties. If so, the pleadings ‘shall’ be treated as if the issues had been properly raised.” Id. at 503 (quoting Rule 55.33(b)). “The implied consent rule only applies when the evidence introduced at trial bears on a new issue and is not pertinent to issues already in the case.” Medicine Shoppe International, Inc. v. Mehra, 882 S.W.2d 709, 714 (Mo.App. E.D.1994); see also Metro Waste Systems, Inc. v. A.L.D. Services, Inc., 924 S.W.2d 335, 339 (Mo.App. E.D.1996). In other words, if evidence that raises issues beyond the scope of the pleadings is relevant to another issue already before the trial court, then failure to object to its admission does not constitute implied consent to amend the pleadings to conform to the new issue.

In this case, the action was brought as a suit on account, but there was evidence tending to show that the parties had entered into an oral contract based upon the terms of the written proposal. Heritage’s manager testified that although Fischer never signed the written proposal, he orally agreed to it by telling her “I approve it, I want you to go ahead and do the work.” The manager also testified that the written proposal included provisions regarding the payment of interest and attorney fees, but she acknowledged that Fischer never specifically agreed to those terms. Fischer did not object to any of this testimony, nor did he object when the written proposal was admitted into evidence. This proposal described the work to be done by Heritage, listed a price of $24,500 and provided for a one percent monthly finance charge and the assessment of attorney fees if Fischer failed to pay for the roofing work. Since Fischer failed to object to this evidence, his consent to amend the petition to allege breach of contract can only be implied if this evidence was relevant solely to the breach of contract claim and not to any other issue that was already before the trial court. See City of St. Joseph v. St. Joseph Riverboat Partners, 141 S.W.3d 513, 516-17 (Mo.App. W.D.2004).

The petition indicated only that the action was a suit on account, and there was no responsive pleading or counterclaim. “A suit on account is an action at law to recover money for services performed or property sold and delivered.” Helmtec Industries, Inc. v. Motorcycle Stuff, Inc., 857 S.W.2d 334, 336 (Mo.App. E.D.1993). An action on an account is based in contract; it requires proof of an offer, an acceptance, consideration, the correctness of the account and the reasonableness of the charges. Id. at 335. Specifically, the plaintiff must prove that the defendant requested the plaintiff to furnish goods or services, that the plaintiff accepted the defendant’s offer by furnishing those goods or services and that the charges were reasonable. Id.; see also Missouri Approved Instructions — Civil 6th 26.03 (1969 New). If contested, then the plaintiff must also prove that a “meeting of the minds” occurred. Massac Environmental Technologies, Inc. v. Futura Coatings, Inc., 929 S.W.2d 318, 320 (Mo.App. E.D.1996).

Under this theory, the offer was Fischer’s request that Heritage furnish roofing services, and the acceptance was Heritage’s furnishing those services. Neither the written proposal nor the testimony regarding its provisions for interest and attorney fees relate to these two elements of a suit on account. Nor does this evidence relate to the existence of consideration, the correctness of the account or the reasonableness of the charges. Although the manager’s testimony that Fischer orally accepted the proposal may have been relevant to establish that the parties had a meeting of the minds as to the essential terms of their agreement, neither the unsigned written proposal nor the testimony regarding its contents helps establish that both parties assented to the terms of an agreement on which an action on account would be based. Under these eircum-stances, this evidence was not relevant to Heritage’s suit on account theory. Nor was it relevant to any other issue that Fischer raised at trial regarding the damage to his property.

Mehra, on which Fischer relies, is distinguishable because there, the plaintiff had pled both a breach of contract claim and a suit on account. 882 S.W.2d at 711. Thus, the defendant could not properly object to the admission of the contract on the basis that it would be outside the pleadings, and such failure to object did not constitute implied consent to amend the petition. Id. at 714. In this case, however, Heritage did not plead a breach of contract claim. The trial court did not err in recognizing that the parties tried that issue by implied consent, and it properly amended the pleadings to conform to the evidence.

B. Terms of the Parties’ Contract

Fischer argues that he did not sign or orally accept any specific contractual terms, including the provisions for interest and attorney fees, and that the trial court erred in finding to the contrary. We disagree.

A signature is not required in order to show mutuality or assent to the terms of a writing. Thomas v. O’Brien, 791 S.W.2d 4, 6 (Mo.App. S.D.1990). Assent can be shown in other ways, such as by the parties’ conduct. Id. The issues of whether the parties entered into a contract and, if so, what terms are included in that contract, depend on what the parties actually said and did and not upon one party’s own understanding. White v. Pruiett, 39 S.W.3d 857, 862 (Mo.App. W.D.2001). Whether an unsigned writing constitutes a binding contract depends upon the intention of the parties, which is a question of fact that is seldom capable of direct proof. Robinson v. Powers, 777 S.W.2d 675, 679 (Mo.App. S.D.1989). It is possible for a written offer to be orally accepted, resulting in “an oral contract embodying the terms of the writing.” Moore v. Kuehn, 602 S.W.2d 713, 718 (Mo.App. E.D.1980).

Fischer cites several cases in which an unsigned writing was found not to constitute a binding contract. But ascertaining the terms of an oral contract is a fact-specific inquiry, and statements similar to the one Fischer made previously have been held to constitute sufficient proof of an oral contract that embodies the terms of a written proposal. For example, in Moore, the defendant responded to a written proposal by saying that “[t]he roof ought to be fixed, so get on it,” which constituted an acceptance of the terms of that proposal. 602 S.W.2d at 718. And the phrase “let’s go to work” was sufficient to constitute acceptance of the proposed list of prices in Environmental Waste Management, Inc. v. Industrial Excavating & Equipment, Inc., 981 S.W.2d 607, 611-12 (Mo.App. W.D.1998).

Here, there was evidence that Fischer stated, in reference to the written proposal, “I approve it, I want you to go ahead and do the work.” This evidence supported the trial court’s conclusion that by approving “it” and indicating his desire for Heritage to begin working, Fischer agreed to the terms of the written proposal as a whole and, therefore, the parties’ contract included each of its terms. Proof that Fischer specifically and separately manifested his assent to each one of the terms in Heritage’s written proposal was not required. Given the absence of any specific discussion regarding those terms and the general nature of Fischer’s response, it may have been permissible for the trial court to find that Fischer never agreed to them. But the trial court made a factual finding to the contrary, and this finding was supported by substantial evidence and was not against the weight of the evidence.

C. Amount of Attorney Fees and Interest

Fischer also contends that there was no evidence of the attorney fees actually incurred and that the amount awarded was excessive considering the nature of the case and the lack of pretrial discovery. But trial courts have broad discretion in awarding attorney fees, and we will not overturn their award unless the trial court abused its discretion. Volk Const. Co. v. Wilmescherr Drusch Roofing Co., 58 S.W.3d 897, 901 (Mo.App. E.D.2001) (citing Consolidated Public Water Supply Dist. v. Kreuter, 929 S.W.2d 314, 316 (Mo.App. E.D.1996)). As an expert on the cost of attorney fees, the trial court is presumed to understand “ ‘the character of the services rendered in duration, zeal, and ability’ ” and it does not need evidence in order to set the amount of attorney fees. H.S. v. Board of Regents, Southeast Missouri State University, 967 S.W.2d 665, 674 (Mo.App. E.D.1998) (quoting Nelson v. Hotchkiss, 601 S.W.2d 14, 21 (Mo. banc 1980)). Here, the trial court awarded $4,000 in attorney fees, which constituted one-third of the combined total of damages and interest. Fischer fails to demonstrate how this award amounted to an abuse of discretion.

Fischer similarly challenges the court’s award of interest, claiming that it awarded 12 percent interest per year from the date of Heritage’s invoice, which exceeds the nine percent rate allowed under section 408.020 RSMo 2000. But this statute is inapplicable where, as here, a different rate is agreed upon by the parties. A.C. Jacobs and Co., Inc. v. Union Elec. Co., 17 S.W.3d 579, 585 (Mo.App. W.D.2000); Estate of Bruce v. Bruce, 767 S.W.2d 598, 601 (Mo.App. E.D.1989). The written proposal provided for a one percent monthly finance charge on overdue balances. The trial court appears to have awarded that amount, and Fischer does not challenge the trial court’s mathematical calculations.

D. Amount of Damages

Fischer challenges the amount that the trial court awarded to Heritage as damages. He argues that the trial court should have given him a credit toward the amount he owed Heritage that equaled either the full cost of repairing or replacing the terra-cotta tiles that Heritage damaged or the overall diminution in property value that resulted from this damage.

At trial, Heritage introduced evidence that it would have cost about $750 to install the replacement tiles that it had already purchased and acknowledged that it was willing to give Fischer a credit for that amount. Instead of disputing that figure, Fischer testified that because of the damage to the tiles, he sold the property in “as-is condition” for $275,000, which was about $50,000 less than he believed it would sell for if the tiles had not been damaged.

The trial court rejected Fischer’s evidence about the property having a diminished value and instead credited his balance by $750 — based on the only available evidence of the cost of repairing or replacing the tiles. This was the appropriate measure of damages under these circumstances, since Fischer failed to present convincing evidence about how much the tile damage reduced the value of his property. Even if Fischer was qualified to give his opinion about the diminished value of his property, the trial court specifically found that his testimony lacked credibility, noting that Fischer could not remember how long it took him to sell the property or whether he obtained any other offers for it. The trial court was free to disbelieve this testimony. See Brewster, 116 S.W.3d at 639.

Fischer further argues that he was entitled to the value of the replacement fiberglass tiles, which he claims were worth at least $2,100. But he fads to cite to any evidence in the record about this alleged value. Based on our own review of the record, it appears that the $750 figure was the only evidence presented to the trial court as to the cost of replacing the tiles.

All points are denied.

III. CONCLUSION

The judgment is affirmed.

CLIFFORD H. AHRENS, J. and NANNETTE. A. BAKER, J., concurring.

      . Rule 55.33(b) applies to actions before the associate circuit division. Medve Group v. Sombright, 2005 WL 701048, slip op. at *3 n.3 (Mo.App.E.D. March 29, 2005) (citing Rule 41.01(d) and sections 517.011.1(3) and 517.021 RSMo 2000). Unless otherwise indicated, all rule references are to the Missouri Court Rules (2004).

      . In Rombach, the Court relied on an older version of Rule 55.33(b). 867 S.W.2d at 503. Although minor changes to the rule have been made since then, those differences are unimportant for purposes of this appeal.

      . Although the written proposal is not included in the legal file, the appendix to Heritage's respondent’s brief includes a document marked "Plaintiffs Exhibit 1” that appears to be the written proposal. Fischer does not object to the inclusion of this material. Additionally, Heritage’s witness testified as to the relevant portions of the written proposal at trial, and the transcript reflects that it was admitted into evidence.

      . On appeal, the parties primarily argue about whether Fischer was prejudiced by the amendment of the petition and whether the court's timing and method of amending the pleadings was proper. Although the existence of prejudice is relevant when a parly objects to evidence that goes beyond the scope of the pleadings, since Fischer did not object, the issue for us to review is whether the pleadings were amended by the parties’ implied consent. See Rombach, 867 S.W.2d at 503-504. Also, contrary to Fischer's assertions, it was not error for the trial court to amend the pleadings to conform to the evidence sua sponte after the case had been submitted. See McNear v. Rhoades, 992 S.W.2d 877, 880-81 (Mo.App. S.D.1999) (finding that the trial court is able to amend the pleadings to conform to the evidence presented sua sponte, as long as it would have been permissible if a party had so requested); Wilson v. River Market Venture, I, L.P., 996 S.W.2d 687, 698 n. 5 (Mo.App. W.D.1999) ("an amendment of the pleadings to conform to the evidence may be raised at any time, even on appeal, and a party is not precluded from raising this claim simply because it did not seek leave to amend prior to submission”); Rule 55.33(b) ("[s]uch amendment ... may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues”) (emphasis added). The principle, cited by Fischer, that a trial court is not required to grant a party leave to amend a pleading sua sponte does not mean that the trial court is prohibited from doing so. See Lindner Fund v. Abney, 770 S.W.2d 437, 439 (Mo.App. E.D.1989).

      . See Robinson, 777 S.W.2d at 679-80; Thomas, 791 S.W.2d at 6; White, 39 S.W.3d at 862.