author: ROBERT S. BARNEY, Judge.

text:
    STATE of Missouri, Respondent, v. Elmer L. TYRA, Appellant.
    No. 26173.
    Missouri Court of Appeals, Southern District, Division Two.
    Jan. 21, 2005.

      Ellen H. Flottman, Columbia, appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Kennedy, Asst. Atty. Gen., Jefferson City, respondent.
   ROBERT S. BARNEY, Judge.

Elmer Tyra (“Appellant”) was convicted by a jury of statutory sodomy in the first degree, pursuant to section 566.062. Appellant was sentenced by the trial court to thirty years imprisonment in the Missouri Department of Corrections.

On appeal, Appellant posits two points of trial court error, discussed more fully below, relating to the trial court’s admission of certain testimony given by the State’s expert witness, Dr. Steve Larsen (“Dr.Larsen”). We affirm the sentence and judgment of the trial court.

Appellant does not challenge the sufficiency of the evidence to support his conviction. State v. Clark, 136 S.W.3d 582, 584 (Mo.App.2004). On review, this Court views the facts and evidence in the light most favorable to the jury’s verdict. Id.

The record reveals that Appellant was charged with “insert[ing] his penis into the anus of [B.P.],” an eleven-year-old male who was also his step-grandson. According to B.P.’s trial testimony, on August 15, 2001, the day he started the sixth grade, B.P. went to Appellant’s house after school. He was in the front room of Appellant’s home when Appellant “grabbed [him] up” and took him down the hallway toward the bathroom. In an effort to free himself, B.P. began “kicking,” “screaming,” and yelling “Let me go! Let me go!” but Appellant was nevertheless able to force him into the bathroom. Appellant took B.P.’s clothes off and “made [B.P.] take [Appellant’s] clothes off’ of him. Appellant then put his penis in B.P.’s anus. After the incident, Appellant gave B.P. $6.00, “[s]o [he] wouldn’t tell” anyone what had happened. Appellant also threatened to kill him if he told.

B.P. admitted Appellant had sodomized him on five or six earlier occasions, commencing when he was either five or six years of age and usually when Appellant was intoxicated. He related that he loves Appellant because he is his grandfather, but he is “disappointed with him ... [because [he] trusted him.”

B.P. did not immediately tell anyone what had happened at Appellant’s home. He related he was scared. The day following the incident in question, when B.P.’s mother (“Mother”) left to play bingo, B.P. and his “brother got in a fight, and [B.P.] grabbed a knife and threatened to kill [him]self.” B.P. stated that, at the time, he had been upset with Appellant and his “brother [had] just made [him] mad.” This prompted Mother to take him to the Missouri Delta Medical Center for observation. The next morning, B.P. was sent to Bootheel Mental Health and then to Kennett First Steps, an inpatient psychiatric hospital, where he stayed for four days.

As detailed above, following a jury trial, Appellant was convicted of one count of sodomy in the first degree. This appeal followed.

Trial courts have broad discretion in determining whether to admit or exclude testimony, and an appellate court will reverse only upon a showing of a clear abuse of discretion. State v. Simmons, 944 S.W.2d 165, 178 (Mo. banc 1997). A trial court will be found to have abused its discretion when a ruling is “ ‘clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration ....”’ State v. Brown, 939 S.W.2d 882, 883 (Mo. banc 1997) (quoting Shirrell v. Missouri Edison Co., 535 S.W.2d 446, 448 (Mo. banc 1976)). The trial court’s action cannot be considered an abuse of discretion if reasonable persons could differ about the propriety of those actions. Id.

“We review trial court decisions regarding the admissibility of evidence ‘for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial.’ ” State v. Santillan, 1 S.W.3d 572, 579 (Mo.App.1999) (quoting State v. Tokar, 918 S.W.2d 753, 761 (Mo. banc 1996)). A conviction will not be reversed because of improper admission of testimony which is not prejudicial to defendant. State v. Nastasio, 957 S.W.2d 454, 459 (Mo.App.1997). “The burden is on defendant to show both error and the resulting prejudice before reversal is merited.... ” State v. Leisure, 796 S.W.2d 875, 879 (Mo. banc 1990). “[A] conviction will be reversed due to admission of improper evidence only if the defendant proves prejudice by showing a reasonable probability that in the absence of such evidence the verdict would have been different.” Nastasio, 957 S.W.2d at 459.

In his first point on appeal, Appellant asserts the trial court abused its discretion in allowing certain testimony by Dr. Larson. Specifically, Appellant maintains Dr. Larsen should not have been allowed to testify that Mother “told him that she remembered that someone in the vicinity of their home had a history of sexually abusing people and [B.P.] had contact with this person on a regular basis.... ” According to Appellant, Dr. Larsen’s testimony was “hearsay and inadmissible propensity evidence which was more prejudicial than probative.”

Dr. Larsen offered extensive testimony at trial regarding his treatment of B.P. Dr. Larsen testified that when he was first treating B.P., he administered a Rorschach test to determine if B.P. was really hearing voices as he had claimed. Dr. Larsen interpreted B.P.’s test answers as “being very, very guarded” and typical of those given by children who are hiding some type of secret. When B.P.’s mental stability did not improve with the use of medication, Dr. Larsen talked with Mother about the “up and down” status of B.P.’s mental health.

Dr. Larsen again spoke with Mother following B.P.’s admission to inpatient care in Saint Charles, Missouri, in September of 2001. In relating what he had discussed with Mother in that meeting, Dr. Larsen stated, “In that session, she reported remembering that someone in the vicinity — .” At that time, Dr. Larsen was interrupted by an objection from Appellant’s counsel. Defense counsel objected based on the belief that Dr. Larsen was making a veiled reference to Appellant as being “someone in the vicinity,” and such testimony would be a violation of a pre-trial motion in limine. The trial court overruled the objection on the basis that the testimony was “not hearsay;” was part of Dr. Larsen’s treatment of B.P.; and, was “part of his diagnosis of the child.” The trial court further stated he would allow the statement as long as Dr. Larsen did not specifically refer to Appellant.

Thereafter, the State asked Dr. Larsen if he had “learn[ed] something ... regarding possible other reasons ... why [B.P.] may be acting the way he was?”

Dr. Larsen replied, “His mother reported to me that she remembered that somebody in the vicinity of their home had a history of sexually abusing people, and that [B.P.] had contact with this person on a regular basis.”

As a result of his discussion with Mother, Dr. Larsen called the inpatient facility where B.P. was being treated and advised “them that there was a possibility that” B.P. had been sexually abused.

Hearsay is an out-of-court statement offered to prove the truth of the mattered asserted. State v. Sutherland, 939 S.W.2d 373, 376 (Mo. banc 1997). Courts generally exclude hearsay statements because of the inherent lack of trustworthiness accompanying such testimony. State v. Link, 25 S.W.3d 136, 145 (Mo. banc 2000). “[T]he hearsay rule is designed to protect a party from out-of-court declarations of other persons who cannot be cross-examined as to the bases of their perceptions, the reliability of them observations, and the degree of their biases.” State v. Brown, 833 S.W.2d 436, 438 (Mo.App.1992). Hearsay testimony is generally not trustworthy because the out-of-court statement is not offered under oath, and neither the judge nor the jury is able to judge the declarant’s demeanor in assessing witness credibility. Link, 25 S.W.3d at 145.

However, not all out-of-court statements are hearsay. It is important to note that “[i]f the statement is not offered for the truth of the matter asserted, there is no basis for requiring the proponent of the testimony to fit within an exception to the hearsay rule because the testimony is not hearsay.” State v. Foust, 920 S.W.2d 949, 954 (Mo.App.1996). Accordingly, “ ‘[ejvidence is hearsay only if its eviden-tiary value depends on drawing an inference from the truth of the statement.’ ” Sutherland, 939 S.W.2d at 377 (quoting John C. O’Brien & Roger L. Goldman, federal criminal trial evidence 345 (1989) (emphasis omitted)). “ ‘If the relevance of the statement lies in the mere fact that it was made, no reliance is placed on the truth of the statement or the credibility of the out-of-court declarant, and the statement is not hearsay.’ ” Id.

Here, Dr. Larsen’s statement was not “classic hearsay” as asserted by Appellant. We observe that the statement was not being offered to prove that Mother’s statement to Dr. Larsen was true, and, accordingly, was not hearsay. See Foust, 920 S.W.2d at 954. The statement was being offered to explain the subsequent conduct of Dr. Larsen as related to the potential treatment of B.P.’s mental health issues. A statement offered to explain the subsequent conduct of one who heard the statement is not inadmissible hearsay. Leisure, 796 S.W.2d at 880.

We acknowledge, of course, that a criminal defendant has a right to be tried only for the offense for which he is charged. State v. Pennington, 24 S.W.3d 185, 189 (Mo.App.2000). “The general rule concerning the admission of evidence of uncharged crimes, wrongs, or acts is that evidence of prior uncharged misconduct is not admissible for the purpose of showing the propensity of the defendant to commit such crimes.” State v. Burns, 978 S.W.2d 759, 761 (Mo. banc 1998). “ ‘Proffered evidence will run afoul of th[is] rule ... if it shows that the defendant has committed, been accused of, been convicted of or definitely associated with another crime or crimes.’ ” State v. Wallace, 952 S.W.2d 395, 397 (Mo.App.1997) (quoting State v. Hornbuckle, 769 S.W.2d 89, 96 (Mo. banc 1989)). “The necessary nexus between the defendant and the uncharged crime does not exist when the defendant’s involvement in the other crime is speculative, when the defendant is not identified as the perpetrator, or when the other crime is attributed to someone other than the defendant.” Briscoe, 913 S.W.2d at 814-15. It is Appellant’s burden to show that the challenged testimony constituted evidence of other crimes. Wallace, 952 S.W.2d at 397.

Here, Dr. Larsen’s statement neither mentioned Appellant by name nor even vaguely referenced him. Dr. Larsen simply stated that Mother remembered “somebody in the vicinity of their home had a history of sexually abusing people.” Further, there was simply no “necessary nexus” between Appellant and Dr. Larsen’s mention that Mother believed B.P. had been exposed to an abuser. See Briscoe, 913 S.W.2d at 814-15. Similarly, Dr. Larsen’s statement contained no “clear evidence associating [A]ppellant with other crimes.” Hombuckle, 769 S.W.2d at 96. Appellant has not met his burden of proving that the challenged testimony constituted evidence of other crimes. See Wallace, 952 S.W.2d at 397. Point denied.

Appellant’s second point on appeal alleges the trial court abused its discretion in overruling defense counsel’s objection to a portion of Dr. Larsen’s testimony which “improperly bolstered [B.P.’s] credibility.” Appellant maintains Dr. Larsen’s testimony amounted to “an impermissible opinion of another witness’ credibility,” thus “usurping the function of the jury.”

At trial, B.P. testified that he came into contact with a young man named R.W. during his six day stay at St. Joseph Mental Hospital in September of 2001. According to B.P.’s trial testimony, he and R.W. engaged in consensual anal and oral sex because he “didn’t know that it was bad.” However, B.P. admitted that when he first talked about the incident to Dr. Larsen he stated that R.W. forced him to engage in the aforementioned activity. B.P. said that he made those allegations “[b]ecause [he] was scared everyone would be mad at [him].”

Dr. Larsen testified in regard to B.P.’s encounter with R.W. that B.P. did, indeed, initially tell him that R.W. forced him to engage in certain sexual activity. At trial, Dr. Larsen stated he had been surprised to learn B.P. had not told him the truth about the incident. At that time, Appellant’s counsel objected to Dr. Larsen’s statement on the basis that the State was “asking [Dr. Larsen] to comment on the credibility of another [witness, B.P.].” The trial court overruled the objection.

Dr. Larsen went on to state that:
[although [B.P.] had been extremely guarded with [him] in the past, there had only been one situation where he had not told [him] the truth about something. ... So, this [incident with R.W. was] the first time that [he] had any evidence of [a] blatant untrue story from [B.P.] in [their] counseling.

He further testified that with children who “have a history of being abused, it’s very common for them to change their stories and to — to not tell the truth about things ... [b]eeause there is a lot of fear and a lot of confusion behind that particular issue .... ” Dr. Larsen recalled that when he confronted B.P. about the situation with R.W., he informed B.P. that if the information he had received from Bootheel Mental Health was true, then he was “concerned about where [someone B.P.’s age] learned to do th[at] type of behavior.” Dr. Larsen stated he had been concerned because “children at that age typically do not anally penetrate another person, especially another boy, unless they’ve been taught that behavior in some way.”

“Generally, it is within the trial court’s sound discretion to admit or exclude an expert’s testimony.” Johnson v. State, 58 S.W.3d 496, 499 (Mo. banc 2001). “The purpose of expert testimony is to assist the jury in areas which are outside of everyday experience or lay expertise.” State v. Sensabaugh, 9 S.W.3d 677, 680 (Mo.App.1999). Due to the fact that “ ‘expert testimony is always fraught with questions of relevancy and competency, the decision to admit expert conclusions is a matter of trial court discretion that will not be overturned on appeal absent an abuse of discretion.’ ” State v. Knese, 985 S.W.2d 759, 768 (Mo. banc 1999) (quoting State v. Skillicorn, 944 S.W.2d 877, 891 (Mo. banc 1997)).

As a general rule, expert testimony is inadmissible if it relates to the credibility of witnesses. State v. Middleton 998 S.W.2d 520, 527 (Mo. banc 1999). “Expert testimony that comments directly on a particular witness’ credibility, as well as expert testimony that expresses an opinion with respect to the credibility or truthfulness of witnesses of the same type under consideration invests ‘scientific cachet’ on the central issue of credibility and should not be admitted.” State v. Williams, 858 S.W.2d 796, 800 (Mo.App.1993). “Expert testimony presents the danger that jurors may be over-awed by the evidence, or may defer too quickly to the expert’s opinion.” Id.

It has been found that there are generally two types of expert testimony challenged in child sexual abuse cases:

1) general testimony describing behaviors and other characteristics commonly observed in sexually abused victims (often called general ‘profile’ testimony); and 2) particularized testimony concerning the alleged victim’s credibility. While the trial court has great discretion in admitting the former, the latter usurps the province of the trier of fact and is inadmissible.

Williams, 858 S.W.2d at 798-99 (citation omitted). Our courts allow that “[g]eneral profile evidence of child sexual abuse victims can be a proper topic of expert testimony, because such testimony assists the jury in understanding the behavior of sexually abused children, a subject beyond the range of knowledge of the ordinary juror.” State v. Bowler, 892 S.W.2d 717, 720 (Mo.App.1994).

Appellant argues the present expert testimony is akin to that found in Williams. We disagree. In Williams, an expert gave testimony related not only to the typical behaviors associated with a child that has been sexually abused, but he also personalized his testimony by stating, . in this case ... [t]he nurse asked her, and she spontaneously [indicated] who had sexually abused her.... Incidents of lying among children [are] very low, less than three percent. And as I said, the physical findings and the behavioral indicators can only support what the child says.... ” Williams, 858 S.W.2d at 800. In reversing the defendant’s conviction, the Williams court held that the expert’s testimony “went beyond admissible testimony concerning general, behavioral characteristics of sexually abused children;” “vouch[ed] too much for the victim’s credibility;” and, “included improper quantification of the probability of the complaining witness’ [sic] credibility.” Id. at 801.

The present situation differs from that found in Williams. Here, Dr. Larsen’s testimony that B.P. was generally truthful in his treatment sessions with him was in no way a direct comment on the veracity of B.P.’s trial testimony or overall credibility as a witness. His statements largely consisted of observances of several behavioral indicators in B.P. that were consistent with sexual abuse and helped to explain B.P.’s ongoing behavioral problems. The primary conclusion drawn by Dr. Larsen was that, in his opinion, B.P. exhibited several behavioral indicators consistent with a child that has been sexually abused. As stated in Williams, it is “appropriate for an expert to testify that a child demonstrates age-inappropriate sexual knowledge or awareness, and that a child’s behaviors are consistent with a stressful sexual experience.” Williams, 858 S.W.2d at 800. This latter type of testimony falls squarely within the rule that “general testimony describing behaviors and other characteristics commonly observed in sexually abused victims (often called general ‘profile’ testimony)” is admissible. Id. at 798.

In our view, Dr. Larsen’s testimony did not “invade[ ] the province of the jury” and was allowable expert testimony. Link, 25 S.W.3d at 143. The jury was free to give Dr. Larsen’s testimony the weight they thought it deserved and to draw the inferences they believed should be drawn from the evidence presented. See State v. Calvert, 879 S.W.2d 546, 549 (Mo.App.1994). As such, the trial court did not abuse its discretion in allowing the testimony. Point two is denied.

We affirm the judgment of the trial court.

PARRISH, P.J., and BATES, C.J., concur.

      . Statutory references are to'RSMo 2000, unless otherwise specified.

      . Due to the sensitivity of the issues in this matter, we use the initials of the victim in order to protect his identity.

      .At the time of trial, B.P. was fourteen years old.

      . Thereafter, on September 7, 2001, B.P. was sent to St. Joseph Mental Hospital in Saint Charles, Missouri, for six days for threatening to kill himself and his classmates with a pencil.

      . The record reveals that Dr. Larsen had first seen B.P. in January of 2001. B.P. had been referred to Dr. Larsen for counseling by his family doctor because he was having behavioral problems at school. He was on medication for attention deficit hyperactivity disorder, had a history of throwing temper tantrums, was not performing well at school, and was having difficulty making friends.

      . Prior to trial, the trial court sustained defense counsel’s motion in limine to preclude reference to any previous uncharged acts of sexual misconduct on the part of Appellant.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Phillip HATCH, Appellant, v. STATE of Missouri, Respondent.
    No. WD 63494.
    Missouri Court of Appeals, Western District.
    Jan. 25, 2005.
    Sarah W. Patel, Kansas City, MO, for Appellant.
    Deborah Daniels, Jefferson City, MO, for Respondent.
    Before NEWTON, P.J., LOWENSTEIN and HOLLIGER, JJ.
   ORDER

PER CURIAM.

Movant appeals the denial, without an evidentiary hearing, of his Rule 24.035 motion. Affirmed. Rule 84.16(b).


text:
    Paul DAY, Appellant Pro Se, v. MISSOURI DEPARTMENT OF CORRECTIONS, DIVISION OF the BOARD OF PROBATION & PAROLE, and, Fannie Gaw, Member Division of Board of Probation and Parole, Respondents.
    No. WD 63650.
    Missouri Court of Appeals, Western District.
    Jan. 25, 2005.
    Paul Day, Jefferson City, pro se.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Deborah Daniels, Office of Attorney General, Jefferson City, for Respondent.
    Before RONALD R. HOLLIGER, Presiding Judge, PATRICIA A. BRECKENRIDGE, Judge, and JOSEPH M. ELLIS, Judge.
   ORDER

Paul Day and his parents brought a declaratory judgment action alleging that Day was entitled to a new parole hearing and that he was improperly denied jail time credit by the Missouri Department of Corrections. The circuit court granted summary judgment to the defendants and the Days appeal. We have reviewed the briefs of the parties and the record, and find no error of law. A written opinion reciting the detailed facts and restating the applicable principles of law would have no precedential or jurisprudential value. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

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


text:
    Karl R. SCHULZE, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64071.
    Missouri Court of Appeals, Western District.
    Jan. 25, 2005.
    Susan L. Hogan, Kansas City, MO, for appellant.
    Deborah Daniels, Jefferson City, MO, for respondent.
    Before: ROBERT G. ULRICH, P.J., JAMES M. SMART, JR., and JOSEPH M. ELLIS, JJ.
   ORDER

PER CURIAM.

Karl Schulze appeals the judgment denying his Rule 24.035 motion for postcon-viction relief without an evidentiary hearing. He sought to vacate his convictions and sentences for tampering in the first degree, section 569.080, RSMo 2000, burglary in the second degree, section 569.170, RSMo 2000, and robbery in the second degree, section 569.030, RSMo 2000. Mr. Schulze claims on appeal that his plea was not entered knowingly and voluntarily because plea counsel misled him to believe that he would be sentenced to a long-term drug treatment program if he pleaded guilty to the charges. The judgment of the motion court is affirmed. Rule 84.16(b).


text:
    In the Interest of L.W., L.W., B.W., A.A. and J.A. Juvenile Officer, Respondent, v. A.A. (Natural Mother); R.W. (Natural Father), Appellants, W.A., III (Presumed Father), Defendant.
    Nos. WD 64122, WD 64123, WD 64124, WD 64148, WD 64149, WD 64150, WD 64151, WD 64152.
    Missouri Court of Appeals, Western District.
    Jan. 25, 2005.
    Audrey H. McIntosh, Jefferson City, MO, for L.W., L.W., B.W., A.A., J.A., and A.A.
    Jeanne M. Gordon, Jefferson City, MO, for Juvenile Officer.
    William R. Rapps, Holts Summit, MO, for R.W.
    Before HARDWICK, P.J., ULRICH and NEWTON, JJ.
   ORDER

PER CURIAM.

R.W. (Father) appeals from judgments terminating parental rights to his three daughters, L.R.W., L.W., and B.W. A.A. (Mother) also appeals from judgments terminating her parental rights to the three daughters and her two sons, A.A. and J.A. Upon review of the record, we find no error and affirm the judgments. We have provided the parties with a Memorandum explaining the reasons for our decision because a published opinion would have no precedential value.

AFFIRMED. Rule 84.16(b).


text:
    STATE of Missouri, Appellant, v. Xavier D. JOHNSON, Respondent.
    No. WD 64505.
    Missouri Court of Appeals, Western District.
    Jan. 25, 2005.
    Maureen M. Monaghan, Jefferson City, MO, for appellant.
    Mark R. Feldhaus, Jefferson City, MO., for respondent.
    Before: LISA WHITE HARDWICK, P.J., ROBERT G. ULRICH and THOMAS H. NEWTON, JJ.
   ORDER

PER CURIAM.

The State appeals the trial court’s judgment to suppress evidence because the search was not compliant with section 544.193 RSMo. (2000). For the reasons explained in the memorandum furnished to the parties, we affirm. Rule 30.25(b).


text:
    STATE of Missouri, Appellant, v. Xavier D. JOHNSON, Respondent.
    No. WD 64506.
    Missouri Court of Appeals, Western District.
    Jan. 25, 2005.
    Maureen M. Monaghan, Jefferson City, MO, for Appellant.
    Mark R. Feldhaus, Jefferson City, MO, for Respondent.

      Before LISA WHITE HARDWICK, P.J., ROBERT G. ULRICH and THOMAS H. NEWTON, JJ.
   ORDER

PER CURIAM.

The State appeals the trial court’s judgment to suppress evidence because the search violated Mr. Xavier D. Johnson’s Fourth Amendment rights under the United States Constitution and Article I, Section 15 of the Missouri Constitution. For the reasons explained in the memorandum furnished to the parties, we affirm. Rule 30.25(b).


author: PATRICIA BRECKENRIDGE, Judge.

text:
    Richard P. POLZIN, et al., Appellants, v. BANK OF HOLDEN, et al., Respondents.
    No. WD 63420.
    Missouri Court of Appeals, Western District.
    Jan. 25, 2005.

      Jeffery A. Hanna, Warrensburg, MO, for appellants.
    Douglas Harris, Warrensburg, MO, for respondents.
    Before BRECKENRIDGE, P.J., HOWARD and SMART, JJ.
   PATRICIA BRECKENRIDGE, Judge.

Richard P. Polzin and other owners of real estate (Landlords) appeal the trial court’s grant of summary judgment in favor of the Bank of Holden on their petition for declaratory judgment seeking a determination of the ownership of monies held in two bank accounts under the name of J.P. McNally, L.L.C., a property management company. Landlords assert that they are the owners of the monies in the two accounts that were seized by the Bank because McNally used the accounts to deposit monthly tenant deposits and security deposits on behalf of Landlords. On appeal, Landlords argue that the trial court erred in finding that the Bank was entitled to seize the monies in the accounts under its right of set-off. Landlords assert that they were not “adverse claimants” under section 362.375, RSMo 2000, and, therefore, the trial court erred in granting summary judgment in favor of the Bank because Landlords failed to comply with that section’s notice requirement before the Bank exercised its right of set-off. Section 362.375 is not applicable in this case, and there are disputed facts regarding whether the Bank had knowledge of facts relating to the Landlords’ interest in the accounts that would preclude its right of set-off. The trial court’s judgment is reversed and the cause is remanded.

Factual and Procedural Background

In July 2000, McNally purchased Carefree Property Management. In December 2000, McNally purchased Total Property Management. To finance these purchases, Aaron Keating, president and chief officer of McNally, obtained loans for McNally from the Bank of Holden. Both property management companies were in the sole business of managing real estate owned by Landlords and others. On December 31, 2000, McNally consolidated its two loans with the Bank by executing a promissory note and a commercial security agreement. As collateral, McNally pledged “all monies, instruments, and savings, checking or other deposit accounts that are now or in the future in Lender’s custody or control (excluding IRA, Keogh, trust accounts, and deposits subject to tax penalties if so assigned).”

Four days after consolidation of the loans, McNally opened two accounts with the Bank (account numbers 300-207-7 and 300-222-0). Both accounts were under the name “J.P. McNally, LLC d/b/a Carefree Property Management and/or d/b/a Total Property Management.” McNally used the two accounts solely for the purpose of depositing monies received from the tenants of the parcels of real estate that it was managing for Landlords and others. Thus, the monies deposited into the two accounts belonged to Landlords and others for whom McNally was managing property. Virtually all of the checks written by McNally on the two accounts were preprinted with the notation “Rental Escrow Account.”

On October 9 and 10, 2001, the Bank informed McNally that it was in default on its loan and that it was seizing all of the monies in the two accounts, as per its right of set-off. The Bank seized a total of $96,399.75 from the two accounts. On February 7, 2002, Landlords filed a petition for declaratory judgment against the Bank seeking an order declaring that the monies seized in the two accounts by the Bank were the property of Landlords. Thereafter, the Bank filed a motion for summary judgment. In its motion, the Bank claimed that it was entitled to seize the monies in the two accounts because Landlords were “adverse claimants” under section 362.375 and Landlords had failed to comply with the notice provision of that section prior to the time the Bank exercised its right of set-off. Therefore, the Bank argued, it was entitled to keep the seized money.

Following a hearing on the Bank’s motion, the trial court granted summary-judgment in favor of the Bank and against Landlords, based on its finding that Landlords were “adverse claimants” under section 362.375 and Landlords failed to comply with that section before the Bank exercised its right of set-off. This appeal by Landlords followed.

Standard of Review

Appellate review of a summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Review of the record is in the light most favorable to the party against whom judgment was entered. Id. This court’s criteria for ascertaining the propriety of summary judgment are the same as those that a trial court uses initially. Id. This court does not defer to the trial court’s order granting summary judgment because the trial court’s initial judgment is based on the record submitted and amounts to a decision on a question of law. Id. Summary judgment is appropriate when the moving party establishes a right to judgment as a matter of law and no genuine dispute as to any material fact exists. Id. at 378.

For movants who are the defending parties in a lawsuit, the prima facie showing required by Rule 74.04 is “necessarily different.” Id. at 381. A defending party may establish a right to judgment, as a matter of law, by showing:

(1) facts that negate any one of the claimant’s elements facts, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant’s elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant’s properly-pleaded affirmative defense.

Id.

Adverse-Claim Statute Inapplicable

The Bank, in its motion for summary judgment, claimed that it had a statutory defense to Landlords’ claim, that is, Landlords’ failure to assert a claim to the monies deposited in the two accounts under the adverse-claim statute, section 362.375. The trial court found that the Bank was entitled to summary judgment, as a matter of law, because Landlords are adverse claimants under section 362.375 and failed to comply with that section before the Bank exercised its right of set-off. Landlords contend that section 362.375 is inapplicable in this case because Landlords and McNally are not “adverse claimants” to each other, since McNally is in agreement with Landlords that the monies deposited in the two bank accounts are the property of Landlords.

Subsection 1 of section 362.375 provides:
1. Notice to any bank or trust company doing business in this state of an adverse claim to a deposit standing on its books to the credit of any person shall not be effectual to cause the bank or trust company to recognize the adverse claimant unless the adverse claimant shall also either procure a restraining order, injunction or appropriate process against the bank or trust company from a court of competent jurisdiction in a cause therein instituted by him wherein the person to whose credit the deposit stands is made a party and served with summons, or shall execute to the bank or trust company, in form and with sureties acceptable to it, a bond indemnifying the bank or trust company from any and all liability, loss, damage, cost and expenses for and on account of the payment of the adverse claim or the dishonor of the check or other order of the person to whose credit the deposit stands on the books of the bank or trust company; provided, that this law shall not apply in any instance where the person to whose credit the deposit stands is a fiduciary for the adverse claimant, and the facts constituting the relationship, as also the fact showing reasonable cause of belief on the part of the claimant that the fiduciary is about to misappropriate the deposit, are made to appear by the affidavit of the claimant.

When considering the meaning of section 362.375, the primary rule “is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider the words used in their plain and ordinary meaning.” Wolff Shoe Co. v. Dir. of Revenue, 762 S.W.2d 29, 31 (Mo. banc 1988). There is no need to construe legislative provisions when the language is clear and unambiguous. Id. “In determining whether the language is clear and unambiguous, the standard is whether the statute’s terms are plain and clear to one of ordinary intelligence.” Id. The plain and ordinary meaning of statutory language not expressly defined by statute is typically found in the dictionary. Westrope & Assocs. v. Dir. of Revenue, 57 S.W.3d 880, 883 (Mo.App.2001). “Only when the language is ambiguous or if its plain meaning would lead to an illogical result will the court look past the plain and ordinary meaning of a statute.” Lonergan v. May, 53 S.W.Sd 122, 126 (Mo.App.2001).

Section 362.375 provides that a bank is not required to give effect to an “adverse claim” to a deposit standing on its books to the credit of any person, unless the “adverse claimant” procures a court order or executes a proper bond in favor of the bank. Since “adverse claimant” is not defined by the statute, it is helpful to consider the dictionary definition of that term. The dictionary definition of “adverse” is “[ajgainst; opposed (to)”; “[hjaving an opposing or contrary interest, concern, or position”; or “[cjontrary (to) or in opposition (to).” Black’s Law DICTIONARY 58 (8th ed.2004). The dictionary definition of “claimant” is “[ojne who asserts a right or demand.” Black’s Law Dictionary 265 (8th ed.2004). Thus, based on the plain and ordinary language of the statute, an “adverse claimant” to a “deposit standing on” a bank’s “books to the credit of any person” is “one who claims that a deposit belongs to him instead of to the one to whose credit it stands on the books of the bank.” Baden Bank of St. Louis v. Trapp, 180 S.W.2d 755, 759 (Mo.App.1944). Thus, to have an adverse claim, there must be a claimed right to the deposited funds in opposition to the asserted right of the named owner of the account.

An undisputed fact in this case is that McNally, to whose credit the monies stand on the bank’s book, disclaimed any interest in the accounts at issue in this case and stated that the funds belong to Landlords. Thus, under the plain and ordinary meaning of “adverse claimant,” because Landlords do not claim a right to the deposits in opposition to McNally, Landlords would not be “adverse claimants” with respect to McNally, the depositor. Nor is there an “adverse claimant” under the statute because the Landlords claim an interest in the monies in the accounts that is adverse to the interest of the Bank or because the Bank claims an interest that is adverse to McNally, the named owner of the accounts. The statute only requires notice to the Bank of a claim that is adverse to “the person to whose credit the deposit stands.” The Bank is not “the person to whose credit the deposit stands.” Additionally, there is nothing in section 362.375 to suggest that the bank in which the funds are deposited can itself be an “adverse claimant.” Section 362.375 begins with the phrase “[n]otice to any bank.” A bank would not need to provide notice to itself if it were claiming an interest in any deposited funds standing on its books. To interpret section 362.375 to provide that a bank can be an adverse claimant and, therefore, must provide itself with notice of its own adverse claim, would lead to an illogical result that the plain and ordinary meaning of the statute does not support.

This limitation on the application of section 362.375 to the circumstance where there is a claim adverse to the rights of the named owner of the account is consistent with the problem the legislature sought to remedy by enacting the adverse-claim statute. See State ex rel. Whiteco Indus., Inc. v. Bowers, 965 S.W.2d 203, 207 (Mo.App.1998) (in determining legislative intent, court is to consider the context in which the language of the statute is used and the “problem the legislature sought to address with the statute’s enactment”). The problem section 362.375 sought to address can best be illustrated by describing a possible dilemma that a bank may face. As a general rule, a bank is required to honor the order of a depositor. See Gaffney v. Cmty. Fed. Sav. & Loan Ass’n, 706 S.W.2d 530, 534 (Mo.App.1986) (bank and depositor have debtor/creditor relationship based on contract and bank has contractual duty to charge depositor’s account only on depositor’s order). If, however, a bank receives notice that funds in an account belong to someone other than the depositor, the bank is faced with a dilemma. Ariz. Bank v. Wells Fargo Bank, 148 Ariz. 136, 713 P.2d 337, 339 (1985). If the bank honors the demands of the adverse claimant, and the claim subsequently turns out to be invalid, the bank may be held liable to the depositor. Id. On the other hand, if the bank pays the funds to the depositor, and the adverse claimant’s claim subsequently turns out to be valid, the bank may be held liable to the adverse claimant. Id. “In 1940, the American Bankers Association formulated a model statute to protect banks from just such a dilemma.” Id. See also Gendler v. Sibley State Bank, 62 F.Supp. 805, 811 (N.D.Iowa 1945); C.C. Marvel, Annotation, Construction, Application, and Effect of Statute Relating to Notice to Bank of Adverse Claim to Deposit, 62 A.L.R.2d 1116 (1958). This uniform adverse-claim statute has been adopted by a majority of states. Section 362.375 is the uniform adverse-claim statute that Missouri adopted.

Thus, the purpose of section 362.375 “is to afford the bank immediate and complete protection when [] a[n adverse] claim is made, where otherwise it would be required, upon receipt of notice of the claim, to hold the funds long enough to give the claimant a reasonable opportunity to substantiate his claim.” Trapp, 180 S.W.2d at 759 (interpreting section 7982, the predecessor to section 362.375). In other words, the adverse-claim statute protects “a bank from deciding at its peril which contesting claimant is entitled to the proceeds of an account it holds for one of them.” Domain Indus., Inc. v. First Sec. Bank & Trust Co., 230 N.W.2d 165, 169 (Iowa 1975). Specifically, section 362.375 provides that when a bank is notified of an adverse claim, the bank is not required to recognize the adverse claimant, unless it is directed to do so by a court order or unless a bond is furnished to the bank. See Gendler, 62 F.Supp. at 811.

Here, by claiming that Landlords are “adverse claimants,” the Bank attempts to use section 362.375 to improve its position to the disadvantage of Landlords. The adverse-claim statute, however, “was not intended to afford a bank the opportunity to improve its own position to the disadvantage” of either the depositor or an adverse claimant. Domain Indus., 230 N.W.2d at 169. See also Bank of W. Orange v. Assocs. Disc. Corp., 197 So.2d 858, 862 (Fla.Dist.Ct.App.1967) (adverse-claim statute inapplicable under facts of case where the adverse claim was that of the bank for a debt due it from the depositor).

Rather, the purpose of the statute is merely to protect a bank from potential double liability, that is, liability to its depositor should it refuse to honor his order and liability to an adverse claimant should his claim prove valid. Here, the Bank is not open to double liability as contemplated by the adverse-claim statute because the depositor in this case, McNally, is in agreement with Landlords that the monies in the two accounts belong to Landlords. Consequently, Landlords are not “adverse claimants” relative to the rights of McNally, and the statute was not intended to govern a claim adverse to the Bank’s claimed rights to the deposited funds. Therefore, section 362.375 is inapplicable in this case. Accordingly, the trial court erred in sustaining the Bank’s motion for summary judgment on the basis that Landlords failed to comply with the notice requirement of section 362.375.

Disputed Facts Exist Regarding Whether Bank Entitled to Set-Off

Despite the inapplicability of section 362.375, the Bank would still be entitled to summary judgment if there were no disputed facts regarding whether the Bank was entitled to seize the monies in the two McNally accounts under its claimed right of set-off. Landlords assert, on appeal, however, that the Bank is not entitled to summary judgment based on its right of set-off because Landlord presented evidence, in response to the Bank’s motion for summary judgment, that the Bank knew or had sufficient facts to put it on inquiry to determine whether the monies in the two accounts were held by McNally in a fiduciary capacity. This evidence is contrary to the Bank’s evidence from its president that no representations were made to it that McNally held the accounts on behalf of third parties and no other conduct by McNally was sufficient to put it on inquiry to ascertain the nature of McNally’s interest in the account. Landlords claim that its evidence creates'a genuine dispute as to these material facts that must be resolved by the trier of fact, precluding summary judgment.

In general, “a bank may look to deposits in its hands for the repayment of any indebtedness to it on the part of the depositor and may apply a debtor’s deposits to his debts as they become due.” Reynolds County Mem’l Hosp. v. Sun Bank of Am., 974 S.W.2d 663, 665 (Mo.App.1998). An exception to this general right of set-off exists, however, when the bank has knowledge that the money does not belong to the depositor or has “sufficient knowledge of facts relating to the interest of others in the account as to put the bank on inquiry to ascertain the trust character of the account.” N. Ins. Co. of N.Y. v. Traders Gate City Nat’l Bank of Kansas City, Mo., 239 Mo.App. 132, 186 S.W.2d 491, 497 (1945). A bank’s knowledge of the “trust character” of a deposit can be shown by direct or indirect evidence, or by showing that the bank would have sufficient information to put it on inquiry as to the trust character of the deposit. Id. at 497-98.

In response to the Bank’s motion for summary judgment, Landlords presented evidence that, if true, would defeat the Bank’s right of set-off because the evidence showed that the Bank had actual knowledge of the trust character of the two McNally accounts. Specifically, in the affidavit of Mr. Keating, President of McNally, he stated that he personally informed the Bank’s President, Michael Terry, that he was going to be opening two bank accounts to be used in connection with J.P. McNally. He said he told Mr. Terry that he would be using one account for monthly tenant deposits and the other account for tenant security deposits. In their response to the Bank’s motion for summary judgment, Landlords also presented evidence that the Bank was told the nature of McNally’s business, which was a property management company. Finally, Landlords’ response included evidence that the Bank had notice of the trust or fiduciary nature of the accounts because at the top of virtually all of the checks used by McNally to draw on the two accounts was the notation “Rental Escrow Account.” Consequently, this evidence creates a genuine issue of material fact concerning whether the Bank’s right of set-off in the two McNally accounts was precluded by notice to the Bank of the trust character of the accounts.

Conclusion

Because Landlords are not “adverse claimants,” section 362.375 is inapplicable. Thus, Landlords’ failure to comply with section 362.375’s notice requirement is not a statutory defense available to the Bank, and the trial court erred in granting summary judgment in favor of the Bank on that basis. In addition, the Bank is not entitled to summary judgment because disputed facts exist regarding whether the Bank had a right of set-off because it had sufficient knowledge of facts relating to the trust character of the accounts. Therefore, the trial court’s summary judgment is reversed and the cause is remanded.

All concur.

      . The other real estate owners joining Mr. Polzin in the petition for declaratory judgment are Patricia J. Polzin, Salvatore A. Las-cuola, Russell R. Woods, Brenda J. Woods, Michael Gilbert, Paul Polychronis, William R, Zilliot, Corradina A. Zilliot, Michelle Kemp-painen, Edwin O. Stark, Vickie L. Stark, Lee Younce, Maty Ann Younce, Lynne M. Reynolds, Betty Reynolds, James A. Stone, Deana M. Stone, Catina Coleman, and Curtis Coleman, Haneric II Apartments, L.L.C., Haneric III Apartments, L.L.C., Haneric IV Apartments, L.L.C., Sicat Properties, L.L.C., and the Sicat Family Partnership, L.L.C.

      . All statutory references are to the Revised Statutes of Missouri 2000.


author: PHILLIP R. GARRISON, Presiding Judge.

text:
    Nick and Donna STOM, Plaintiffs-Appellants, v. ST. CLAIR CORPORATION, Defendant-Respondent.
    No. 26198.
    Missouri Court of Appeals, Southern District, Division One.
    Jan. 26, 2005.

      Andrew J. Hardwick, Gregory D. Williams, Sunrise Beach, for appellant.
    Daniel C. Mizell, Lake Ozark, for respondent.
   PHILLIP R. GARRISON, Presiding Judge.

Nick and Donna Stom (“Appellants”) appeal from the judgment of the Circuit Court of Camden County finding in their favor on a breach of contract claim against St. Clair Corporation (“Respondent”) but awarding them no damages. We reverse and remand.

Appellants contracted with Respondent to construct a sunroom on their home in Sunrise Beach, Missouri. Respondent completed construction and was paid $9,250. Appellants were dissatisfied with the windows in the sunroom because they had wanted double pane thermal windows instead of the single pane windows that were installed. The contract between Appellants and Respondent, however, had not called for double pane thermal windows. Nonetheless, when Appellants informed Respondent of their complaint, Respondent returned to their home and replaced the windows with double pane thermal windows, using the same frames that were used for the single pane windows.

After the double pane windows were installed, Appellants complained of water leakage in the sunroom when wind blew rain against the windows. Appellant Nick Stom (“Nick”) testified at trial that the windows were not sitting squarely in the frames, causing water leakage. Nick stated that the windows were “cocked” and that Mike McCarroll (“McCarroll”), Respondent’s production supervisor, told him that was because the adjusting screws in the windows were stripped. Appellants notified Respondent- about the leakage problem, but when they received no response, they contracted with Harold Haines, Inc. (“Haines”) to remedy the problem. Haines’s work consisted of replacing the windows and the wall pieces which held the tracking hardware for the window frames, for which Appellants paid a total contract price of $7,895.27. Nick testified that the sunroom was basically the same sunroom after Haines’s work as that which Appellants had ordered from Respondent, but the evidence also indicated that after Haines’s work the sunroom contained more windows than had been installed by Respondent.

Appellants filed suit and were granted a default judgment against Respondent. Respondent filed a motion to set aside the judgment and a request to file responsive pleadings out of time. It appears that the trial court granted this motion, although the record does not contain any responsive pleadings that may have been filed by Respondent. After a bench trial, the trial court entered judgment for the plaintiff stating,

[Tjhe Court finds the issue of liability in favor of [Appellants]. As to the issue of damages the Court finds that [Appellants] have failed to prove damages in that no evidence was introduced re diminished value only cost of repair. Therefore, the Court enters judgment for [Appellants] as to liability. Awards damages of zero. Costs of this action assessed to [Respondent]. Clerk to send copy of this docket sheet to Attorneys of record. [Signed/Bruce E. Col-yer Judge.] Also all exhibits to be returned to attorneys. BEC.

Appellants’ motion for new trial was overruled. This appeal followed.

The evidence indicated that McCarroll oversaw the construction of a standard sunroom at Appellants’ home. He testified that although Respondent only sells one type of sunroom, individual sunrooms differ because of the number of doors, the roof, and the color. Respondent accommodated Appellants’ request for a different door and also returned and put in the double pane windows as requested by Appellants. Although MeCarroll said, that the sunrooms are designed to be more of an enclosed patio and are not really designed to be completely waterproof, he admitted that it is not normal for water to “pool up on the inside of the sunroom after a rain.” By way of explanation of Appellants’ problems, MeCarroll stated that the double pane windows were heavier than the single pane windows usually used by Respondent and that this could affect the tracking that held the windows. Furthermore, the heavier windows could cause the window adjusting screws to strip and this would make it difficult to keep the window square in the frame and watertight. He testified, however, that the least invasive way of fixing the problem of stripped screws, if that was the cause of the window leakage, would be to replace the screws at a cost of 20 cents each. It would not be necessary to replace all of the windows, which Appellants did at a cost of more than $7,000. MeCarroll concluded that the sunroom completed by Haines was not substantially the same sunroom as that constructed by Respondent.

Appellants present one point on appeal, claiming that the trial court erred in finding zero damages for Appellants “because the burden of presenting evidence [that] the cost of repairing or replacing property is disproportionate to the diminution in value of property is on the contractor,” and the trial court placed this burden on Appellants. In support of their contention, Appellants cite Ken Cucchi Const., Inc. v. O’Keefe, 973 S.W.2d 520, 527 (Mo.App. E.D.1998), for the proposition that once a landowner presents evidence of the cost of repair or replacement, the contractor then has the burden of presenting evidence that this cost is disproportionate to the diminution in value of the property. Appellants claim that they produced evidence of cost of repair or replacement, and that Respondent did not produce any evidence regarding diminished value. Therefore, Appellants contend that they are entitled to the cost of repair or replacement as their damages, in the amount of $7,895.27.

Respondent agrees that Ken Cucchi Const, Inc. is factually similar to the present case and that it presents the general rule for calculating damages in a breach of contract case. Respondent contends, however, that in this case it substantially complied with the contract and that in such instances, the proper measure of damages is an amount that “will reasonably compensate [Appellants] for defects in the building due to unskillful labor or defective materials and for items omitted by [Respondent] in the performance of the agreement.” Mathis v. Glover, 714 S.W.2d 222, 228 (Mo.App.S.D.1986). Appellants alleged that the double pane windows were “cocked”, due to a stripped adjusting screw, allowing water to get blown into the sunroom when it rained. MeCarroll testified that the least invasive way to fix the problem was to replace the adjusting screws in the windows at a cost of 20 cents each. Furthermore, Respondent contends that Appellants failed to produce evidence that replacement of the windows was necessary or to contradict McCarroll’s testimony on the cost of repairing the stripped screws. According to Respondent, it would be unconscionable to allow Appellants to recover their cost of reconstruction “if this would involve unreasonable economic waste” when it could be “fixed for a de minimus [sic] sum.”

We will sustain the judgment of the trial court in a court-tried case unless there is no substantial evidence to support its decision, its judgment is against the weight of the evidence, or it erroneously declares or applies the law. Pruitt v. Pruitt, 94 S.W.3d 429, 431 (Mo.App. E.D.2003). “All evidence and permissible inferences therefrom are considered in the light most favorable to the trial court’s decision and all contrary evidence and inferences are disregarded.” Id.

Neither party requested that the trial court make specific findings of fact and conclusions of law. In such situations, “all issues of fact on which no specific findings were made are considered to have been found in accordance with the judgment.” Ankrom v. Roberts, 126 S.W.3d 798, 800 (Mo.App. S.D.2004). The trial court’s judgment will be sustained “ ‘on any reasonable theory within the pleadings and supported by the evidence.’ ” State ex rel. E.A. Martin Machinery Co. v. Line One, Inc., 111 S.W.3d 924, 927 (Mo.App. S.D.2003) (quoting Schaefer v. Rivers, 965 S.W.2d 954, 956 (Mo.App. S.D.1998)). Here, the trial court’s judgment contained no specific findings of fact, only determinations as to liability and that not enough evidence had been produced to award damages because Appellants did not produce evidence of diminished value.

Because the trial court found the issue of liability in favor of Appellants, it must have found that Respondent breached its contract with Appellants. The appropriate measure of damages is the only issue on appeal. As indicated, Respondent asserts this is a case of substantial compliance with the contract, and that the measure of damages should therefore be an amount to compensate for the defects in the building due to unskillful labor or defective materials. Mathis, 714 S.W.2d at 228. In situations where there is substantial but defective performance by a contractor, there are two standards for the measure of damages: cost of repair or replacement, and diminution of value. County Asphalt Paving Co. v. 1861 Group, Ltd., 908 S.W.2d 184, 186 (Mo.App. E.D.1995); White River Dev. Co. v. Meco Sys., Inc., 806 S.W.2d 735, 741 (Mo.App. S.D.1991). The particular facts and circumstances of the case determine which measure of damages is appropriate. McLane v. Wal-Mart Stores, Inc., 10 S.W.3d 602, 606 (Mo.App. E.D.2000).

“The general rule in calculating damages for a breach of contract is that the non-breaching party is entitled to the cost of repairing or replacing the defective work.” Ken Cucchi Const., Inc., 973 S.W.2d at 527. But, when the cost of repair or replacement would constitute an economic waste, then the proper measure of damages is the diminished value of the property because of the defective work. Id.; Dubinsky v. U.S. Elevator Corp., 22 S.W.3d 747, 751-52 (Mo.App. E.D.2000). Economic waste exists when the cost of repair or replacement of the defective property is disproportionate to the diminution in value of the property. Ken Cucchi Const., Inc., 973 S.W.2d at 527. When the homeowner presents evidence of the cost of repair or replacement, “the contractor has the burden of presenting evidence that the cost of repairing or replacing the property is disproportionate to the diminution in value of the property.” Id.; see Erney v. Freeman, 84 S.W.3d 529, 536 (Mo.App. S.D.2002). If the contractor fails to present any evidence of the value of the property, it fails to meet its burden of production. Ken Cucchi Const., Inc., 973 S.W.2d at 527.

The trial court, in its judgment, appears to have favored the diminished value rule for determining damages over the general rule of cost of repair or replacement when it said, “As to the issue of damages the Court finds that [Appellants] have failed to prove damages in that no evidence was introduced re diminished value only cost of repair.” Both Appellants and Respondent presented evidence of cost of repair, albeit wildly different sums of $7,895.27 and approximately 20 cents per window. Neither party presented any evidence on diminished value. Under the Ken Cucchi Const, Inc. case, the trial court erred in applying the law by improperly placing the burden of production of evidence as to diminished value on Appellants and not Respondent after Appellants produced evidence of cost of repair or replacement. Furthermore, the trial court is not required to apply the diminished value measure of damages where the contractor does not meet its burden of production. See Id. at 527. In such situations, the appellate courts have found that the cost of repair or replacement is the appropriate damages measure, when homeowners have produced evidence of such cost of repair or replacement. See Id.

Since both parties presented evidence on the cost of repair or replacement, “[i]t is up to the trier of fact to judge the credibility and weight to be given to the evidence at trial.” Walker v. Hanke, 992 S.W.2d 925, 932 (Mo.App. W.D.1999). The trial court, in its judgment as to damages, found only that Appellants had produced evidence of cost of replacement or repair. Respondent attempted to rebut this evidence by presenting evidence that it would cost 20 cents to repair each stripped screw. Since the trial court incorrectly found that Appellants were required to introduce evidence of diminished value, we cannot, from our reading of the judgment, make a determination as to whose evidence on cost of repair the trial court might have found more credible. We will not invade the trial court’s province, as the trier of fact, to determine the weight and credibility of the evidence as to damages. We are therefore forced to reverse the trial court’s judgment as to damages and remand for a factual determination of the appropriate cost of repair or replacement consistent with this opinion. The trial court’s judgment is otherwise affirmed.

PREWITT, J., and RAHMEYER, J., concur.


author: HERSCHEL PICKENS FRANKS, P.J.,

text:
    The REALTY STORE, INC., et al v. TARL PARTNERSHIP, L.P., et al.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    May 10, 2004 Session.
    July 19, 2004.
    Permission to Appeal Denied by Supreme Court Dec. 20, 2004.

      D. Scott Hurley, Knoxville, Tennessee, for appellants.
    Boyd W. Venable, III, Sevierville, Tennessee, for appellee, The Realty Store, Inc., and Judy Jones.
   OPINION

HERSCHEL PICKENS FRANKS, P.J.,

delivered the opinion of the court,

in which CHARLES D. SUSANO, JR., J., and D. MICHAEL SWTNEY, J., joined.

The Trial Court awarded plaintiffs commission for lease of real estate pursuant to Agreement between the parties. Defendants appealed — we affirm.

In this action defendants dispute the amount of the commission claimed by plaintiff for the lease of real estate.

The Complaint alleged that the parties entered into a General Listing Agreement, whereby plaintiffs would attempt to lease or sell the property owned by defendants, and that the property was leased with an option to purchase which entitled plaintiffs to a commission under the terms of the Contract between the parties.

Defendant answered, stating that they “admit that a written contract and listing agreement was entered into and that the Contract is attached to the Complaint, as exhibit A These defendants have at all times been willing and ready to pay a commission to the plaintiff, The Realty Store, Inc., in conformance with the contracts and oral agreements between the parties. These defendants admit that a commission is owed, and they have offered to pay a commission to plaintiff, however The Realty Store had demanded commission in excess of what was agreed by the parties. Specifically, the plaintiff has demanded a commission of $25,000.00, even though the price of the property had to be lowered substantially in order to lease the property.”

The General Listing Agreement signed by the parties provides:

IN CONSIDERATION OF the mutual agreements contained herein, TARL Partnership, LP, (called “Seller”) hires and appoints The Realty Store, Inc., (called “Broker”) as exclusive agent and authorizes and grants Broker the sole, exclusive right, without reservations, for a period commencing on April 16, 2001 and expiring at midnight on October 31, 2001 to sell the following described property:

The Agreement further provides, in pertinent part:

Term. The expiration date of this agreement is as set forth. The carry over period is defined as 365 days after the termination of this agreement and any extension thereof. Should the Seller contract to sell or exchange, or contract to lease with option to buy, the property within the carry over period to any buyer (or anyone acting on buyer’s behalf) who has been introduced to the property directly or indirectly, during the term hereof, as extended, the Seller agrees to pay the commission as set forth above. This paragraph shall not apply if the property is listed with another licensed real estate Broker at the time of such contract.

The Agreement further provides:

Basis of Commission. Seller (jointly and severally, if more than one) agrees to pay Broker the commission in cash at time of the closing if Seller sells, leases, exchanges or contracts to sell, lease, or exchange the Property, or any portion thereof, during the term of this agreement or any extension thereof....

The General Listing Agreement was executed by the parties on April 16, 2001, and on the 23rd of April 2001, the parties entered into an addendum to the Agreement, which provides that if the property is leased the commission will be $25,000.00 per year. The addendum also provided:

Excluded, Parties: A list of persons/parties currently working with owners to purchase the property is excluded from this contract and no commission would be earned or due should the property sell to any of these persons/parties

The list of excluded parties was attached as Addendum B. The names of Howard Auman and Auman Productions, LLC, who leased the property, were not included on the Addendum B “Exclusion List”.

Plaintiff filed a Motion for Summary Judgment, and attached the affidavit of Judy Jones, a broker for The Realty Store, who states plaintiffs were owed a commission under the terms of the listing agreement, due to Auman Productions, LLC entering into an agreement with Tari Partnership, LP for the lease and purchase of the subject property by a Lease/Purchase Agreement dated November 7, 2001.

In response to the Motion, defendant said:

The Defendants have indicated in their Answer their willingness to pay the Plaintiffs commission, but deny that the Plaintiff is entitled to the commission sued for.
The Defendants would show the Court that the listing agreement makes no provision for the amount of the commission in the event that the property was leased for an amount other than originally contemplated in the listing agreement.

Defendants filed the affidavit of Howard Frank Auman, Jr., which states that Au-man Productions, LLC leased the property in dispute on November 7, 2001, and that he first inquired about leasing or purchasing the property 18 months prior to entering into the lease, and that first contact was made with Teddy Phillips, general partner of defendant partnership, and that his negotiations were with Teddy Phillips. Further, that he did not learn of any involvement of plaintiffs with the property until the summer of 2001, when about July 2001, he asked Phillips for access to the interior of the theater, and arrangements were made for access, and Judy Jones met him at the theater and gave him access to the interior of the building. He further stated he did not conduct negotiations through defendants.

Defendant Phillips filed an affidavit to the effect that he was a general partner of the partnership and that he was contacted by Frank Auman in the summer of 2000 about the possibility of purchasing or leasing the property, and that in discussions with Judy Jones of The Realty Store, Inc., about listing the property for sale through that agency, that he informed Jones that he was licensed to sell real estate in the State of Tennessee and had been in discussions with numerous parties about the possibility of a lease or sale, and that Jones agreed that if the purchaser or lessee of the theater was obtained through my contacts, that the commission would be reduced as if any other real estate broker had produced the contact leading up to the sale of the theater. He further said “The listing contract that was ultimately executed contained a co-broker commission provision in the addendum to the listing agreement. However, Judy Jones told me that if I produced the purchaser/lessee of the theater, and the purchase of the sale occurred during the term of her commission or any extension thereof, that the commission charge for The Realty Store would be only one half of that amount provided by the listing agreement”.

The Chancellor granted plaintiffs Motion for Summary Judgment, holding that they were entitled to the full commission set forth in the Contract. Defendants have appealed.

Summary Judgments are reviewed on appeal as questions of law, with no presumption of correctness of the Trial Court’s findings. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997). Defendant’s first issue posits that because the final deal struck with Auman Productions, LLC was substantially less than the offering price stated in the Listing Agreement, the broker’s commission must be somehow adjusted accordingly. There is no provision in the plain language of the listing agreement and no authority cited that would permit such a result. Defendants admit the Contract states a flat $25,000.00 per year commission if a lease is executed, but argue that it was not the parties’ intent that a flat rate which results in a disproportionately large fee as a percentage of any deal, that is less than the offering terms in the listing agreement. It is insisted that the percentage commission’s terms applicable to the sale of the property demonstrate that the commission on such a lease should also be a percentage.

The commission term for a lease is completely straightforward and unambiguous. There is no possible way to construe the phrase “$25,000.00 per year” other than what it states. Defendants cannot create an ambiguity where none exists by resorting to strained constructions. Hillsboro Plaza Enters. v. Moon, 860 S.W.2d 45, 47-48 (Tenn.Ct.App.1993). When the document is susceptible of only one reasonable interpretation, the Court is compelled “to give effect to the intention expressed by the language used, whatever may be thought about the harshness of the result.” E.O. Bailey & Co., Inc. v. Union Planters Title Guaranty Co., 33 Tenn.App. 439, 232 S.W.2d 309, 314 (Tenn.Ct.App.1949).

Defendants conceded that they owe plaintiff some commission, but that the amount in the Contract is unwarranted. Under the Contract, there is no basis for the court to order a commission paid on a quantum merit basis. Pacesetter Properties, Inc., v. Hardaway, 635 S.W.2d 382, 391 (Tenn.Ct.App.1981).

Defendants also contend that Auman Productions, LLC was omitted from the Exclusion list, but that the term “full and comprehensive list” on the Addendum was not intended to be “a detailed listing of each and every individual and company” or “an exhaustive list.” Under the provision of the Addendum, defendants are excused from paying a commission only of those appearing on the list. Any other construction would render the list meaningless.

Defendants argue that there was an oral collateral agreement with plaintiff that the commission would be one-half if defendant produced a buyer during the contract term. The parol evidence rale does not exclude oral testimony if the parties have an underlying agreement or collateral contract, but “[p]arol proof of ‘inducing representations’ or ‘collateral agreements’ to the written contract must be limited to subject matter which does not contradict or very terms which are plainly expressed in the writing.” Malone v. Probasco, 2004 WL 40530 (Tenn.Ct.App. 2004), citing Whelchel Co., Inc., v. Ripley Tractor Co., Inc., 900 S.W.2d 691 (Tenn.Ct.App.1995).

The test for an admissible collateral agreement is “whether the oral agreement considering the parties eircum-stances, the subject matter of the agreement, and the nature of the writing, would ordinarily have been included in a written agreement.” In re Media Cent. Inc., 190 B.R. 316, 321 (E.D.Tenn.1994).

Defendants’ Statement of Additional Facts and supporting Affidavit filed in response to the motion states that prior to or contemporaneously with executing the contract, Jones agreed to one-half the stated commission if appellant produced the ultimate buyer. There is no language in the contract to support such agreement, and it directly contradicts the Listing Agreement. The rights and obligations of the parties are governed by the. terms of the written contract. Hillsboro Plaza Enters, at 47, not by the parties’ statements during their negotiations or drafts of the final contract. Faithful v. Gardner, 799 S.W.2d 232, 235 (Tenn.Ct.App.1990). Also see, GRW Enters, Inc. v. Davis, 797 S.W.2d 606, 610 n. 2, (Tenn.Ct.App.1990). This issue is without merit.

Defendants argue in their Reply Brief that W.T. Phillips, its representative was a co-broker and acting as a “Facilitator/Transaction Broker”. The Contract states that the plaintiff is authorized to negotiate a division of commissions with such brokers.' Based on this clause, defendants insist they are entitled to a reduction in the commission because appellant’s representative- is a licensed real estate broker himself. The Facilitator/Transaction Broker represents the interest of neither seller nor buyer. Tenn.Code Ann. § 62-13-102 defines “Facilitator” and “Transaction Broker”. Defendant does not meet the statutory definition because he was not acting as a neutral, but as a party advancing his own interest. Pursuant to Tenn. Code Ann. § 62-13-401, a broker cannot be a facilitator, once a written agency agreement is involved. The issue is without merit.

Finally, defendants argue that the broker’s involvement and efforts do not fall within the provisions of the carry over clause, and therefore are not entitled to a commission. This position is contra to the answer and position taken below. However, the Chancellor found that plaintiffs actions complied with the conditions set forth in the Carry Over Agreement. The carry over clause provides that should the seller “contract to sell ... the property within the carry over period to any buyer ... who has been introduced to the property directly or indirectly ... the seller agrees to pay the commission.” The record establishes that plaintiff broker met with Auman at the property in July of 2001 and gave him “access to the interior of the building”. The record demonstrates that Auman’s “introduction to the property” occurred through the actions of the broker. Plaintiffs position is bolstered by the phrase “directly or indirectly”, which modifies the concept of introduction to the property. Moreover, the carry over clause does not state by whom the buyer is to be introduced to the property. We conclude this issue is without merit.

For the foregoing reasons, we affirm the Judgment of the Trial Court and remand, with the cost of the appeal assessed to Tari Partnership, L.P., and W.T. Phillips, Jr.

      . The listing agreement offered this property for sale at 5.5 million, or a lease at $357,000.00 per year, with an option to purchase during the lease period. The property was leased at $250,000.00 per year with an option to purchase for five million. There was an option to renew the lease for a second year at $27,500.00 monthly, and an option to renew a third year for $30,000.00 monthly.

      . (9) “Facilitator” means any licensee:
      (A) Who assists one (1) or more parties to a transaction who has not entered into a specific written agency agreement representing one (1) or more of the parties; or
      (B) Whose specific written agency agreement provides that if the licensee or someone associated with the licensee also represents another party to the same transaction, such licensee shall be deemed to be a facilitator and not a dual agent; provided, that notice of assumption of facilitator status is provided to the buyer and seller immediately upon such assumption of facilitator status,
      to be confirmed in writing prior to execution of the contract. A facilitator may advise either or both of the parties to a transaction but cannot be considered a representative or advocate of either party. "Transaction broker” may be used synonymously with, or in lieu of, "facilitator” as used in any disclosures, forms or agreements under this chapter; T.C.A. § 62-13-102

      . Tenn.Code Ann. § 62-13-401: Until such time as a licensee enters into a specific written agreement to establish an agency relationship with one (1) or more parties to a transaction, such licensee shall be considered a facilitator and shall not be considered an agent or advocate of any party to the transaction.