text:
    F.W. DISPOSAL SOUTH, LLC, Respondent, v. ST. LOUIS COUNTY, Appellant.
    No. ED 84765.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 24, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 18, 2005.
    Application for Transfer Denied Aug. 30, 2005.

      Jeffrey B. Hunt, St. Louis, MO, for respondent.
    Robert D. Arthur II, Clayton, MO, for appellant.
   OPINION

GLENN A. NORTON, Judge.

This case concerns the validity of section 607.805 of the St. Louis County Revised Ordinances, which requires certain solid waste facilities to be located at least 1,000 feet away from churches and other residential buildings. FW Disposal South, LLC (“FWD South”) sought a declaratory judgment to prevent St. Louis County from enforcing the ordinance. The trial court found that the ordinance was an invalid zoning ordinance and granted summary judgment in favor of FWD South. The County appeals. We affirm.

I. BACKGROUND

A. The County’s Licensing and Zoning Procedures

St. Louis County is a charter county. Schmoll v. Housing Authority of St. Louis County, 321 S.W.2d 494, 498 (Mo.1959) (citing Mo. Const, art. 6, section 18). Its Charter gives the St. Louis County Council power to license and regulate the collection and disposal of solid waste by enacting ordinances. CHARTER art. II, sections 2.180.11-.lla. These ordinances are found in the County’s “Waste Management Code.” See Chapter 607, St. Louis County Revised Ordinances. The term “solid waste processing facility” includes a “transfer station,” which is “a site or facility which accepts solid waste for temporary storage, or consolidation and further transfer to a waste disposal, processing or storage facility.” Section 607.040, SLCRO. In order to construct and operate a solid waste processing facility, one must apply for a license with the Director of the County Department of Health. Section 607.380, SLCRO If the Department denies the application, then the applicant may appeal to the Council, which can uphold or reverse the Department’s decision after a hearing. Section 607.450, SLCRO.

The County also has the power to enact zoning ordinances relating to unincorporated areas. CHARTER art. II, section 2.180.23. The County’s “Zoning Ordinance” sets forth detailed procedures that the County must follow when amending its zoning regulations. Section 1003.300, SLCRO. These procedures include holding a public hearing and obtaining a report from the County Planning Commission. Section 1003.300.2, SLCRO.

B. FWD South and the Enactment of the Ordinance

The material facts of this case are not in dispute. FWD South currently seeks to build a transfer station in unincorporated St. Louis County. Genesis Solid Waste Group, Inc. initially filed the application for a license to operate the transfer station with the Department, stating that it was applying on behalf of F.W. Disposal, L.L.C. (“FWD LLC”), which is a different entity than FWD South. After this application was filed, FWD South was created as a limited liability company, and a separate holding company conveyed to FWD South a limited interest in the property where the transfer station was to be built.

At all relevant times, this property has been located in an “M-l” Industrial District under the County’s zoning ordinance. See section 1003.151, SLCRO. The County admits that a transfer station is a permitted use in this district, subject to the County’s licensing procedures. While FWD South’s application was pending before the Department, the County enacted the ordinance at issue in this case, which the parties agree would prohibit FWD South from building its proposed transfer station on the property because it is located within 1,000 feet of a church:

607.805 Location of solid waste processing facilities. No person may establish any transfer station or waste processing facility in unincorporated St. Louis County, which is located less than 1000 feet from a residence, church, school, child care center, nursery school or nursing home located in St. Louis County; provided, however, a transfer station or waste processing facility located on nine or more contiguous acres in an industrial area may be located within 1000 feet but no closer than 800 feet of a residence, church, school, child care center, nursery school or nursing home located in St. Louis County.

Section 607.805, SLCRO. It is undisputed that the County enacted this ordinance without following its own procedures for amending its zoning regulations. Shortly after the ordinance was enacted, the Department denied the application to build the transfer station, finding, among other things, that the proposed facility would not comply with the ordinance.

FWD South filed a declaratory judgment action against the County, seeking to prevent enforcement of the ordinance. FWD South alleged, among other things, that the ordinance was actually a zoning ordinance and that the County had failed to follow its own zoning procedures and requirements. The trial court denied the County’s motion to dismiss for lack of standing and later granted summary judgment in favor of FWD South, finding the ordinance to be invalid and unenforceable because it had been illegally enacted. The court permanently enjoined and restrained the County from enforcing the ordinance. The County appeals.

II. DISCUSSION

A. Standing

The County argues that FWD South lacks standing to challenge the ordinance because FWD LLC — not FWD South — applied for the license to build the transfer station and FWD South was not created until after the application was filed. Additionally, the County contends that FWD South lacks standing because instead of owning the property outright, FWD South only has an estate for ten years in the property. FWD South counters that it has standing because it filed an amended application in the name of FWD South, its fee estate of ten years constitutes an ownership interest in the property and the County has in fact applied the ordinance to FWD South.

Our review of whether a litigant has standing is de novo. Home Builders Association of Cheater St. Louis, Inc. v. City of Wildwood, 32 S.W.3d 612, 614 (Mo. App. E.D.2000). “We determine standing as a matter of law based on the petition and any other non-contested facts accepted as true by the parties at the time of the motion to dismiss.” Crumbaker v. Zadow, 151 S.W.3d 94, 96-97 (Mo.App. E.D.2004).

“Reduced to its essence, standing roughly means that the parties seeking relief must have some personal interest at stake in the dispute, even if that interest is attenuated, slight or remote.” Ste. Genevieve School District R II v. Board of Aldermen of City of Ste. Genevieve, 66 S.W.3d 6, 10 (Mo. banc 2002). In the context of a declaratory judgment action, the plaintiff must “have a legally protecta-ble interest at stake in the outcome of the litigation.” Id. This test is met if there is a statutory basis for standing or if the plaintiff has been “directly and adversely affected by the action in question.” Id. Whether a party has standing is determined by the particular facts of each case. Citizens for Safe Waste Management v. St. Louis County, 810 S.W.2d 635, 639 (Mo.App. E.D.1991).

Although the parties dispute whether certain documents that were submitted to the Department effectively amended the application to reflect FWD South as the applicant instead of FWD LLC, we need not resolve this dispute in order to address the issue of standing. Even if FWD South did not properly amend the application, it is undisputed that at the time of the motion to dismiss, FWD South was the legal entity seeking to construct the transfer station described in that application. The Department’s rejection of the application had nothing to do with the identity of the applicant. Instead it was based, at least in part, on the ordinance.

Nor does the fact that FWD South has only a limited interest in the property defeat its standing. One need not show an ownership interest at all in order to have standing; a “legally cognizable interest” is sufficient. Id. at 640 n.l (tenant living within one mile of landfill had standing to challenge approval of development plan relating to landfill). In the context of challenging a zoning decision, a party has standing as long as the decision operates “more distinctly and directly on the interest of the person claiming standing than on the public generally.” Lenette Realty & Inv. Co. v. City of Chesterfield, 35 S.W.3d 399, 405 (Mo.App. E.D.2000).

Here, FWD South seeks to build a transfer station on property in which it has a limited property interest. Because this property is located within 1,000 feet of a church, the ordinance directly and adversely affects FWD South by purporting to prohibit the construction of the transfer station there. The County’s use of the ordinance to deny the application affects FWD South more distinctly and directly than the public generally. Under these circumstances, FWD South’s interest in constructing the transfer station goes above and beyond the “attenuated, slight or remote” interest necessary to confer standing. See Ste. Genevieve, 66 S.W.3d at 10.

Point denied.

B. Validity of the Ordinance

The propriety of summary judgment is a question of law, and therefore our review is de novo. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The criteria for testing the propriety of summary judgment on appeal are the same as those employed by the trial court. Id. We review the record in a light most favorable to the County, against whom judgment was entered. See id. The facts set forth in support of FWD South’s motion for summary judgment are taken as true unless contradicted by the County’s response. See id. FWD South, as the party seeking summary judgment, must establish an undisputed right to judgment as a matter of law. Id. at 380.

It is undisputed that the County did not follow its own procedures for amending its zoning regulations when it enacted the ordinance. Therefore, the only remaining question is whether the ordinance constitutes a zoning ordinance. FWD South argues that it is a zoning ordinance because it imposes new location and setback restrictions on the placement of solid waste processing facilities and it effectively prohibits a land use that previously had been permitted. The County contends that the ordinance’s effect on the placement of these facilities does not automatically make it a zoning ordinance. Instead, the County argues, the ordinance is designed to address the health, safety and welfare concerns of the citizens of St. Louis County and therefore is a valid exercise of the County’s police powers.

The term “zoning ordinance” is not defined by statute, but it generally includes ordinances that regulate “the use of land and buildings according to districts, areas, or locations.” City of Green Ridge v. Kreisel, 25 S.W.3d 559, 563 (Mo.App. W.D.2000). Zoning ordinances also have been described as dividing land into zones and regulating both the nature of land usage and the physical dimensions of uses, such as height restrictions, setbacks and minimum area requirements. Id. But the mere fact that an ordinance affects where certain structures may be placed does not necessarily make it a zoning ordinance. Id. at 564.

Ordinances relating to zoning and those relating to public health, safety and welfare are not mutually exclusive categories. See id. at 563-64. “[W]hile zoning ordinances may address health and safety issues, other types of ordinances may also address health and safety issues without becoming zoning ordinances.” Id. In determining whether an ordinance is a zoning ordinance, we must look at its primary purpose: “where the purpose of an ordinance is primarily to regulate for health concerns rather than to provide for uniform development of real estate, then the ordinance will not be held to be a zoning ordinance, but rather an ordinance related to health and welfare.” Id. at 564 (emphasis added) (citing Borrow, v. Far-renkopf, 5 S.W.3d 618, 622 (Mo.App. W.D. 1999)). There are at least three relevant factors to consider in determining whether an ordinance was primarily enacted for zoning purposes: (1) whether the face of the ordinance expressly states its purpose, (2) whether the provisions of the ordinance are in fact directed toward the regulation of public health and safety or instead toward providing for the uniform development of real estate and (3) whether the ordinance has the effect of amending the zoning rales by disallowing a previously-permitted land use. See Kreisel, 25 S.W.3d at 565-66.

The ordinance at issue in this case affects where solid waste processing facilities may be located by excluding them from particular areas of the County. While this might arguably bring it within the definition of a zoning ordinance, the mere fact that the ordinance affects where these facilities may be placed does not automatically make it a zoning ordinance. See id. at 563-64. Instead, we must determine whether the primary purpose of the ordinance was to regulate for health and safety concerns or to impose zoning requirements and provide for the uniform development of real estate. See id.

The ordinance does not expressly articulate its purpose, but by its terms it prevents the establishment of certain solid waste processing facilities within 1,000 feet of specified residential structures in unincorporated areas of the County. See section 607.805, SLCRO. This setback requirement places no restrictions on the operation of those facilities or on the manner in which solid waste should be handled, processed, or stored. Although the ordinance was codified under the County’s Waste Management Code, which sets forth detailed requirements pertaining to the licensing of solid waste processing facilities, the ordinance itself simply limits the permissible locations where those facilities may be placed. The only conceivable manner in which the ordinance can be said to regulate the environmental impact of these facilities is by requiring a buffer zone between them and the enumerated residential structures. But if there are specific health or safety concerns that will be alleviated by requiring these facilities to be 1,000 feet away from those structures, then the ordinance does not explicitly state those concerns and the County has failed to adequately explain them. Although these facilities deal with “solid waste,” the County’s definition of that term “does not include hazardous waste or special waste.” Section 604.040.38, SLCRO. There may be inherent health concerns relating to the proposed transfer station because, as the County asserts, it would accept “a wide variety of filth.” But the County does not explain how those concerns are inadequately addressed by pre-existing substantive regulations, and we are not convinced that the primary purpose of the ordinance’s 1,000 foot setback was to protect the public health and welfare.

Instead, it appears as though the ordinance primarily attempts to minimize or avoid potential “not in my backyard” complaints from nearby citizens. Under these circumstances, it appears that the primary purpose of the ordinance is to restrict where solid waste processing facilities may be located in an effort to promote the uniform development of real estate, not to protect the health, safety and welfare of the citizens of St. Louis County. Additionally, the ordinance has the effect of precluding the operation of a transfer station on FWD South’s property, where that use had been permitted before the County enacted the ordinance. By explicitly disallowing this previously-permitted land use in the affected areas, the ordinance has the effect of amending the County’s zoning rules. See Kreisel, 25 S.W.3d at 565-66 (citing City of Louisiana v. Branham, 969 S.W.2d 332, 337 (Mo.App. E.D.1998)). Each of these factors supports the conclusion that the ordinance was enacted primarily for zoning purposes.

Both parties argue that Kreisel supports their position. There, the ordinance governed the operation of junkyards. Kreisel, 25 S.W.3d at 561-62. In enacting the ordinance, the city did not follow the notice and hearing requirements applicable to the enactment of zoning ordinances. Id. at 561. The Western District found that the ordinance was not a zoning ordinance directed toward the uniform development of real estate, but was instead directed toward the regulation of health and safety. Id. at 560.

Kreisel is distinguishable, however, because the terms of that ordinance were different than the terms of this ordinance and had a different effect. Unlike the County’s ordinance in this case, the ordinance in Kreisel established requirements for the operation of junkyards and expressly provided that failure to comply with those requirements would render the junkyard a public nuisance. Id. at 562-63. While the express purpose of the junkyard ordinance was to prevent nuisances, the ordinance at issue here contains no stated purpose, and the County does not argue that solid waste processing facilities inherently constitute a public nuisance. See id. at 565.

The ordinance in Kreisel applied uniform requirements to all junkyards within the city, regardless of their location. Id. at 563. It did not restrict junkyards to particular areas of the city and it did not limit how many junkyards could be located in a particular area. Id. Instead of regulating junkyards by district, the ordinance regulated their activities. Id. It required junkyards to be maintained in a sanitary condition, to be enclosed by a solid vertical wall of a certain height, to prevent junk from protruding onto public property or streets, to have and display state licenses and to maintain records open for inspection. Id. at 562, 565. Further provisions addressed concerns about preventing mosquitoes, fires, noise and foul odors. Id. The court in Kreisel concluded that these provisions were “directed toward issues which do, in fact, concern the prevention of nuisances and their abatement as a means of regulating businesses so as to promote the public health.” Id. at 565. The ordinance at issue here, however, prohibits solid waste processing facilities in certain locations, but it does not impose any substantive requirements to govern their operation and it does not regulate how solid waste should be handled or stored.

The junkyard ordinance in Kreisel did not effectively preclude the operation of junkyards either. That ordinance did not explicitly “make a prior permitted land use improper,” it did not indicate what property could be used as a junkyard, it did not restrict junkyards to certain locations and it imposed no requirements that “would be so difficult to comply with that it would effectively preclude the operation of a junkyard.” Kreisel, 25 S.W.3d at 565-66. Here, on the other hand, the County’s ordinance expressly precludes the operation of solid waste processing facilities in certain locations where they previously have been allowed. The effect of this ordinance is more like the effect of the ordinance in Branham.

In Branham, even though the ordinance at issue ordinarily would not seem to constitute a zoning law because it simply contained a definition of the term “mobile home trailer park,” this Court refused to allow labels to prevail over substance. 969 S.W.2d at 337. Before the ordinance was enacted, mobile homes could be placed on adjoining lots, but under the terms of the ordinance such an arrangement was prohibited because it would constitute a mobile home park. Id. at 334-37. Although the parties did not argue that the mobile home ordinance was related to public health or safety, this Court found that since the ordinance had the effect of prohibiting the existence of a mobile home park where one would have been allowed before, it constituted an amendment to the city’s general zoning ordinance. Id. at 337. Since the city had failed to comply with the notice and hearing requirements applicable to amending its zoning ordinances, the ordinance was invalid. Id. at 336-37. As in Branham, the ordinance in this case effectively disallows a land use that was permitted before the ordinance was enacted. See id. at 337.

For these reasons, the County was required to follow its own procedural safeguards relating to zoning changes when it enacted this ordinance, and its failure to do so renders the ordinance invalid. Therefore, the County cannot use the ordinance as a basis for denying the application for a license to build a transfer station on FWD South’s property, and summary judgment was proper.

Point denied.

III. CONCLUSION

The judgment is affirmed.

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

      . FWD South explains that the new entity was created and used because of a request by the Missouri Department of Natural Resources, which needed to use a different name for the “South Transfer Station” because FWD LLC had already applied for a construction permit for another transfer station elsewhere. FWD South asserts that it amended the application to reflect that FWD South was the applicant, but the County asserts that no such amendment was made.

      . The Department cited other potential problems as well, including health hazards, violation of the County’s noise rules, detrimental environmental effects, past failures in complying with the Department's requirements and conditions for other existing facilities, and the fact that the County was "in the process of considering zoning regulations for waste transfer facilities.” The Department wanted to avoid "approving] this waste facility plan pending a determination of what regulations may finally be imposed.” It appears that separate litigation regarding some of these other aspects of the Department’s decision is still pending in the trial court.

      . In both Kreisel and Branham, the notice and hearing requirements were based on Missouri statutes governing the zoning power given to certain local governments. See Kreisel, 25 S.W.3d at 560-61; Branham, 969 S.W.2d at 336-37. In this case, the County is a charter county and its own ordinances are the source of the procedural requirements at issue. Despite the County's suggestion to the contraiy, this distinction does not alter our analysis of this case.

      . Nothing in this opinion prevents the County from denying the application on some other basis. Nor is the County prohibited from taking the proper steps in the future to enact ordinances that regulate the location of solid waste management facilities, which is a power it would have even if it were not a charter county. See L.C. Development Co., Inc. v. Lincoln County, 26 S.W.3d 336, 340 (Mo.App. E.D.2000) (citing section 260.215.2 RSMo 1994). Indeed, if the ordinance had been enacted simultaneously with other provisions that directly regulated solid waste processing facilities, so that, as a whole, the enactment had regulated both the location of those facilities and also imposed substantive restrictions on the manner in which they were operated, then our conclusion may have been different. See Borron, 5 S.W.3d at 619-22 (purpose of ordinance relating to concentrated animal feeding operations that included building and setback requirements as well as other requirements relating to soil, water and air quality "was to regulate for health concerns rather than for a uniform development of real estate”). But where, as here, an ordinance is primarily enacted for zoning purposes, the procedural safeguards relating to zoning changes are triggered.


source: Caselaw Access Project

author: MARY K. HOFF, Judge.

license: Public Domain

text:
    Chad CLIPPARD, Plaintiff/Appellant, v. Jamie PFEFFERKORN, Defendant/Respondent.
    No. ED 85111.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 31, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 28, 2005.
    Application for Transfer Denied Aug. 30, 2005.

      Nathan S. Cohen, Clayton, MO, for appellant.
    Travis Lawrence Statler, Cape Girar-deau, MO, for respondent.
   MARY K. HOFF, Judge.

Chad Clippard (Plaintiff) appeals from the judgment of the trial court ruling in favor of Jamie Pfefferkorn (Defendant) on Plaintiffs petition for the return of personal property and for damages. We affirm the judgment of the trial court.

Facts

The facts viewed in the light most favorable to the judgment are as follows: Plaintiff and Defendant dated for approximately four or five months in late 2002. On or about December 23, 2002, Plaintiff proposed marriage to Defendant and presented Defendant with a 2.02 carat diamond engagement ring (ring) valued at approximately $13,500. Defendant accepted Plaintiffs proposal and the engagement ring. A few days later, Defendant gave Plaintiff some Christmas gifts, including a full-length dress coat and a workout suit. In return, Plaintiff gave Defendant compact discs containing music and treated her to a dinner.

During the weeks following Christmas 2002, the couple experienced difficulties in their relationship. On or about February 8, 2003, approximately six weeks after the couple were engaged, Plaintiff terminated the engagement. Plaintiff attributed his decision not to marry Defendant to a belief that Defendant was not the “right” person and to the influence of his brother, sisters, and parents.

In July 2003, Plaintiff filed his petition, which alleged that Plaintiff made a conditional gift of the ling in contemplation of the parties’ marriage. Plaintiff requested the trial court to order Defendant to return the ring or, in the alternative, to pay Plaintiff damages in the amount of $13,500, the approximate value of the ring, plus court costs and attorney’s fees. Defendant filed an answer to the petition, which generally denied Plaintiff’s allegations.

At trial, Plaintiff testified that, although Plaintiff proposed marriage to Defendant only two days prior to Christmas in 2002, the ring was not a Christmas gift but a symbol of the couple’s engagement. Plaintiff further testified that during the parties’ engagement, there were periods in which the engagement was “off’ and Defendant returned the ring to Plaintiff, but, when the parties renewed their engagement, he gave the ring back to Defendant. Plaintiff testified that when the couple finally broke up, he demanded that Defendant return the ring, but she refused. On cross-examination, Plaintiff admitted that he terminated the engagement with Defendant because he “knew [he] didn’t want to marry her” and his thoughts on the matter were influenced by his family. Plaintiff also testified that he had an extensive conversation with Defendant about his reasons for terminating the engagement at the time he ended their relationship. However, on redirect examination, Plaintiff testified that the breakup was a mutual decision.

Defendant testified that the ring was a Christmas gift and an engagement ring from Plaintiff. Defendant also testified that she loved Plaintiff and intended to marry him at the time Plaintiff called off their engagement. Defendant further testified that, when Plaintiff terminated their engagement, Plaintiff explained that he could not go through with the marriage because of “pressure” from his family.

After a bench trial, the trial court ruled in favor of Defendant. This appeal follows.

Standard of Review

We will affirm the trial court’s judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Flooring Sys., Inc. v. Staat Const. Co. and DLJ Properties, 100 S.W.3d 835, 837 (Mo.App. E.D.2003), citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We do not retry the case but accept as true the evidence and reasonable inferences therefrom in the light most favorable to the prevailing party while disregarding all contrary evidence. In re Marriage of T.B.G. v. C.A.G., 772 S.W.2d 653, 654 (Mo. banc 1989). We defer to the trial court’s determinations as to the credibility of the witnesses. Flooring Sys., Inc., 100 S.W.3d at 837. The judgment in a court-tried case is presumptively correct; thus, to prevail, the appellant must demonstrate that the judgment is erroneous. Id. Because we are primarily concerned with the correctness of the trial court’s judgment, not the route the trial court took to reach that judgment, we will affirm the judgment if it is cognizable under any theory, regardless of whether the reasons advanced by the trial court are wrong or insufficient. Business Men’s Assurance Co. of Am. v. Graham, 984 S.W.2d 501, 506 (Mo. banc 1999).

In this case, the trial court did not issue findings of fact and conclusions of law; therefore, we will presume all fact issues were found in accordance with the judgment. Rule 73.01(c); In re Marriage of T.B.G., 772 S.W.2d at 654.

Discussion

In his sole point on appeal, Plaintiff argues that the trial court erred in ruling in favor of Defendant because the ruling was against the weight of the evidence and contrary to Missouri law. Plaintiff specifically argues that the ring was a gift made in contemplation of marriage and was, therefore, a conditional gift. Plaintiff further argues that, because the marriage did not occur, upon the termination of the parties’ engagement, Plaintiff was entitled to the return of the ring.

In her brief, Defendant counter argues that she was entitled to retain the ring because the ring constituted either: 1) an inter vivos gift, which was absolute when she received it; or 2) a conditional gift, which became absolute when Plaintiff terminated the engagement.

Under Missouri law, the essential elements of an inter vivos gift are: 1) the donor’s present intent to make a gift; 2) the donor’s delivery of the property to the donee; and 3) the donee’s acceptance of the gift, whose ownership takes effect immediately and absolutely. Wantuck v. United Savings & Loan Assoc., 461 S.W.2d 692, 694 (Mo. banc 1971); Donnelly v. Donnelly, 951 S.W.2d 650, 653 (Mo. App. E.D.1997); Duvall v. Henke, 749 S.W.2d 714, 716 (Mo.App. E.D.1988); Estate of Thompson v. Hicks, 148 S.W.3d 32, 35 (Mo.App. W.D.2004); Smith v. Smith, 797 S.W.2d 879, 881 (Mo.App. S.D.1990). The party claiming an inter vivos gift was made must prove all the elements by clear, cogent, and convincing evidence. Donnelly, 951 S.W.2d at 653; Duvall, 749 S.W.2d at 716; Chism v. Steffens, 797 S.W.2d 553, 558 (Mo.App. W.D.1990). Whether an inter vivos gift was made is a question of fact; therefore, we defer to the trial court’s determination of the credibility of the witnesses based on its superior position to evaluate their sincerity, character, and other intangibles that were observed at trial but are not apparent from the record. Estate of Thompson, 148 S.W.3d at 36.

A completed inter vivos gift cannot be revoked by the donor once the gift is delivered and accepted by the donee. Donnelly, 951 S.W.2d at 653; Franklin v. Moss, 101 S.W.2d 711, 714 (Mo.1937), citing Meyer v. Koehring, 129 Mo. 15, 31 S.W. 449, 451 (1895). On the other hand, it is well settled that, if the donor makes a gift subject to a condition, the donee’s failure or refusal to perform the condition or violation of the condition constitutes grounds for revocation of the gift by the donor. Franklin, 101 S.W.2d at 714. In other words, the donor retains the right to revoke the gift unless or until the condition is satisfied. Id. Missouri courts have held that a gift given in contemplation of marriage is made upon the implied condition that the gift will become absolute when the marriage takes place. Smith, 797 S.W.2d at 881; Lumsden v. Arbaugh, 207 Mo.App. 561, 227 S.W. 868, 868 (1921). Thus, a gift given in contemplation of marriage, though absolute in form, is a conditional gift and may be revoked by the donor if the marriage engagement is breached by the do-nee. Franklin, 101 S.W.2d at 714; Lumsden, 227 S.W. at 868.

In cases concerning gifts made in contemplation of marriage, Missouri courts have utilized a fault-based approach when applying the conditional gift rule to determine which party is entitled to the property. For example, in Lumsden, an action in replevin, the plaintiff-donor sought the return of a piano he had given to his former fiancée. Lumsden, 227 S.W. at 868. The plaintiff-donor there, like Plaintiff here, alleged that he had made the gift in contemplation of marriage, and, therefore, the gift was not absolute but conditioned upon the marriage taking place. Id. The plaintiff-donor further alleged that he was entitled to the piano because his former fiancée broke the engagement. Id. The fiancée, however, like Defendant here, claimed that the piano was a Christmas gift and was not conditioned on a pending marriage. Id. In affirming the lower court’s judgment for the plaintiff-donor and ordering the return of the piano to him, the court of appeals applied the conditional gift rule and adopted the fault-based approach:

If the piano was given to defendant by plaintiff in contemplation of marriage, and she broke the engagement for no fault of plaintiff, then he can recover.... A gift to a person to whom the donor is engaged to be married, made in contemplation of marriage, although absolute in form, is conditional; and upon breach of the marriage engagement by the donee the property may be recovered by the donor.... If an intended husband make[s] a present, after the treaty of marriage has been negotiated, to his intended wife, and the inducement for the gift is the fact of her promise to marry him, if she break[s] off the marriage, he may recover from her the value of such a present.

Id. (internal quotations omitted). See also Jeude v. Eiben, 338 Mo. 373, 89 S.W.2d 960 (1935) (Supreme Court affirmed lower court’s judgment allowing donee to retain gifts from donor where gifts were not conditioned upon marriage in that donee had not accepted marriage proposal from donor in conjunction with gifts); Catanzaro v. Duzer, 329 S.W.2d 257 (Mo.App.1959) (court of appeals affirmed trial court’s judgment allowing donor to recover value of gifts made to donee in contemplation of marriage where evidence established that donee broke engagement without justification or explanation).

In this case, Defendant did not prove all the elements of a valid inter vivos gift. At trial, both Plaintiff and Defendant testified that the ring was presented by Plaintiff to Defendant in combination with a marriage proposal. Although Defendant also testified that the ring was a Christmas gift from Plaintiff, she admitted that the ring was, in fact, an engagement ring. Clearly, the evidence in the record established that the ring was a conditional gift made in contemplation of the parties’ marriage and not merely a Christmas gift.

However, under Missouri’s fault-based approach to determining a party’s rights to gifts made in contemplation of marriage, we find that the trial court properly ruled in favor of Defendant by allowing her to retain the ring. As the donor of the conditional gift in contemplation of marriage, Plaintiff would have been entitled to the return of the ring if the engagement had been terminated by Defendant for no fault of Plaintiff. Lumsden, 227 S.W. at 868. Logically, the reverse also applies: as donee of the conditional gift in contemplation of marriage, Defendant was entitled to retain the ring because the engagement was terminated by Plaintiff for no fault of Defendant. The record reveals that, at trial, Plaintiff testified he no longer wished to marry Defendant because he thought she was not the “right” person. Both Plaintiff and Defendant testified that Plaintiff terminated the relationship due to the influence of Plaintiffs family. Although Plaintiff also testified that the parties’ breakup was mutual, we defer to the trial court’s superior position to determine the sincerity and credibility of the witnesses. Flooring Sys., Inc., 100 S.W.3d at 837. Point denied.

We also note that Defendant was entitled to retain the ring because, by terminating the engagement, Plaintiff breached his promise to marry Defendant. Plaintiffs proposal of marriage and giving of the ring and Defendant’s acceptance of the ring and proposal was symbolic of their agreement to an exclusive relationship and intention to marry. If Plaintiff had not breached his promise to marry Defendant and the marriage had taken place, there is no question that Defendant would have been entitled to retain the ring as her own non-marital property. Smith, 797 S.W.2d at 881.

Accordingly, we hold that, in light of our standard of review and Missouri’s fault-based approach to the recovery of or retaining of conditional gifts made in contemplation of marriage, Defendant is entitled to retain the ring. The judgment of the trial court is affirmed.

Judge LAWRENCE E. MOONEY, Presiding Judge, and LAWRENCE G. CRAHAN, Judge, concur.

      . According to the record, Defendant requested findings of fact and conclusions of law prior to the start of trial but later withdrew the request.

      . In an action to recover property based on a superior right or title, a defendant who claims the property was a valid inter vivos gift need not affirmatively plead and prove such a gift as long as he asserts a general denial to the plaintiff’s petition. Chism, 797 S.W.2d at 558. While the burden of evidence concerning the defendant’s claim of gift may shift to the defendant, the burden of proof concerning the ownership of the property remains with the plaintiff throughout trial. Id.


author: LAWRENCE G. CRAHAN, Judge.

text:
    STATE of Missouri ex rel. Wayne KILLINGSWORTH, et al., Respondents, v. Sherman GEORGE, Appellant.
    No. ED 85262.
    Missouri Court of Appeals, Eastern District, Division Four.
    May 31, 2005.
    Application for Transfer to Supreme Court Denied July 28, 2005.
    Application for Transfer Denied Aug. 30, 2005.

      Donald L. Wolff, Clayton, MO, for appellant.
    Jerome A. Diekemper, Janine M. Martin, St. Louis, MO, for respondent.
   LAWRENCE G. CRAHAN, Judge.

City of St. Louis Fire Chief Sherman George appeals the judgment granting the petition of Relators Wayne Killingsworth, John Fischer, James Willie, Gail Simmons, Russ Richter, Daniel Fog (collectively “Eligible Candidates”) and the St. Louis Firefighters Association Local 73 for a writ of mandamus compelling him to make appointments under the Civil Service Rules of the City of St. Louis (“City”). We reverse.

In early 2004, the City’s Department of Personnel administered competitive promotional examinations for the positions of fire captain and battalion fire chief in the City’s Fire Department. Based on the examination results, the Department of Personnel prepared a ranked list of candidates for promotion to the positions. The Eligible Candidates successfully completed the examination process for promotion and were placed on the pertinent promotion list for one of the positions.

In July 2004, Chief George, as the appointing authority for positions within the City’s Fire Department, submitted a request for certification to the Director of Personnel to fill two vacancies in the position of battalion fire chief and eight vacancies in the position of fire captain. The Department of Personnel filled the request and sent Chief George certified lists of eligible candidates for the job vacancies. The same day, the Department of Personnel sent letters to the Eligible Candidates alerting them to the imminent promotions. The Director of Personnel later extended the time period for appointing candidates from the certified list for an extra thirty days beyond its expiration date of August 2, 2004, as authorized by Civil Service Rule VII, Section 4. Thus, the certified list was in effect until September 1, 2004.

As of September 1, 2004, Chief George had not made any selections from the certified list. Relators filed a petition in mandamus requesting a permanent writ directing Chief George to make appointments from the certified list in effect on September 1, 2004. The trial court granted Rela-tors’ petition. This appeal follows.

In his sole point on appeal, Chief George argues that the trial court erred by issuing a writ of mandamus because, as appointing authority, he has discretionary power under the Civil Service Rules (“Rules”) to appoint and promote or not to appoint and not promote from the lists of eligible candidates provided by the Department of Personnel. He further contends that because the power to appoint and promote is discretionary, the trial court’s grant of a writ of mandamus was improper.

The grant or refusal of a writ of mandamus is reviewed under an abuse of discretion standard. Jones v. Carnahan, 965 S.W.2d 209, 213 (Mo.App.1998). A court may issue the extraordinary relief of mandamus to compel the performance of a ministerial duty but not to compel the performance of a discretionary duty. Id. at 212-13. A ministerial act is an act that the law directs the official to perform upon a given set of facts, independent of what the officer may think of the propriety or impropriety of doing the act in a particular case. Id. at 213. A discretionary act is one requiring the exercise of reason in determining how or whether the act should be done. Id.

A court may issue mandamus only where there is an unequivocal showing that the public official failed to perform a ministerial duty imposed by law. Id. The applicant for relief must prove that he has a clear, unequivocal, specific and positive right to have performed the act demanded, and the remedy will not he if the right is doubtful. Id. To determine whether the right to mandamus is clearly established and presently existing, we examine the statute under which the relator claims a right. Id. If the statute involves a determination of facts or a combination of law and facts, a discretionary act rather than a ministerial act is involved, and this discretion cannot be coerced by the courts. Id.

In determining the meaning of a city ordinance, courts apply the same rules that are used in construing a state statute. Matthews v. City of Jennings, 978 S.W.2d 12, 15 (Mo.App.1998). We generahy seek to ascertain the intention of the lawmakers by giving the words used their ordinary meaning, by considering the entire act and its purposes, and by seeking to avoid unjust, absurd, unreasonable, confiscatory or oppressive results. State ex rel. Jackson County v. Spradling, 522 S.W.2d 788, 791 (Mo. banc 1975). Further, in ascertaining the meaning of a particular statute, resort may be had to the established policy of the legislature as disclosed by a general course of legislation. Id.

Article XVIII of the St. Louis City Charter (“Charter”) governs appointments and promotions to classified service. The stated purpose of Article XVIII is as follows:

[T]o provide a modern and comprehensive system of personnel administration for the [C]ity, whereby economy and effectiveness in the personal services rendered to the [C]ity, and fairness and equity to the employees and the taxpayers of the [C]ity, alike, may be promoted. To accomplish this end the provisions of this article shall be liberally construed....

Charter, Article XVIII, Section 2. To accomplish the Charter’s purpose, among other principles and policies, Section 2(a) of the Charter requires the City to apply the following principle and policy:

Merit and fitness. All appointments and promotions to positions in the service of the [C]ity and all measures for the control and regulation of employment in such positions, and separation therefrom, shall be on the sole basis of merit and fitness, which, so far as practicable, shall be ascertained by means of competitive tests, or service ratings, or both.

Id. The Charter sets forth specific provisions for the testing and promotion process, including competitive examinations, certification and appointment of eligible candidates, filling vacancies, and promotions. Id. at section 3(c)-(e). The Charter delegates to the Director of Personnel the duty and power to hold examinations, to pass upon the qualifications of applicants, to establish eligible lists as needed, and to certify names of eligible candidates to appointing authorities for filling vacancies in competitive positions. Id. at section 9(g). The appointing authority is defined as any person or group of persons having power by law or ordinance, or by lawfully delegated authority, to make appointments to any position in the City service. Id. at section 1(a).

The Rules describe the specific procedures that City officials, including the Director of Personnel and the appointing authority, must follow to achieve the Charter’s purpose. In particular, Rule VI explains in detail the procedures the Director of Personnel must follow to properly examine applicants for positions or promotions as City employees. Rule VI, Section 15(d), of the Rules provides that after each promotional examination, the Director of Personnel shall prepare and keep available a promotional employment list of persons successfully passing the examination, arranged in order of final weighted ratings received. When an appointing authority desires to fill a vacancy, Rule VII, Section 2, directs the appointing authority to notify the Director of Personnel. In response to the appointing authority’s request, Rule VII, Section 2, requires the Director of Personnel to determine who may be available for appointment and establish a list of eligible candidates. After establishing a list of eligible candidates, under Rule VII, Section 3, the Director of Personnel shall certify to the appointing authority the names of the highest ranking available candidates. Finally, Rule VII, Section 4, explains what action follows an appointing authority’s receipt of a certified list of eligible candidates. It states in relevant part:

The appointing authority or his designee shall interview each available eligible who is certified. Within twenty-one (21) days after such names are certified, the appointing authority shall appoint one of those whose names are certified to each vacancy he or she is to fill. In the event that an appointment is not made to the position within twenty-one (21) days after such names are certified, or the appointing authority is unable to make a selection, the Director of Personnel may grant an extension of a maximum of an additional thirty (30) days. If no selection is made within the prescribed or authorized period, the certification shall be null and void. Appointing authorities shall make each selection from the top three eligibles available and willing to accept appointment, except, 1.) any eligible who has had three considerations for appointment from the same certification may be considered removed from further consideration if the appointing authority so desires as if their names were removed from the certification, or 2.) their names are removed from the eligible list during the effective period of the certification in accordance with Civil Service Rule VT, Section 18....

Rule VII, Section 4.

Chief George contends that his duty to appoint is not ministerial because Rule VII, Section 4, renders a certified list null and void after a period of no more than fifty-one days. Because he can, consistent with the Rule, wait until the expiration of the appointment period and allow the list to become null and void, Chief George reasons that he has the discretion to choose not to appoint any eligible candidates. We agree.

By its express terms, Rule VII, Section 4, directs that any vacancies that are filled must be filled by one of those certified as eligible. However, nothing in Rule VII, Section 4, requires the appointing authority to fill any particular position. The discretion to fill or not to fill any particular position remains vested in the appointing authority. By providing that the list becomes null and void if no selection is made within the authorized period, the Rule clearly contemplates that there will be situations in which the appointing authority will choose, for budgetary, management or other reasons, not to fill a given position. In that event, the position simply remains vacant. To fill the position, the appointing authority must re-institute the process by requesting a new list.

Contrary to the trial court’s conclusion, this construction of Rule VII, Section 4 does not frustrate the intent of the Rules. It promotes economy and effectiveness in the personnel services rendered to the City by allowing appointing authorities to decide whether filling available positions would be in the best interest of the department and the City. It also preserves equity and fairness to employees by assuring that any vacancies that are filled are based on merit and fitness for the positions. More importantly, any other construction would be contrary to the principles of statutory construction because it would render meaningless the provisions with respect to what is to occur if the appointing authority decides not to fill a position within the specified time. It is presumed that every word, clause, sentence and provision of a statute have effect and that idle verbiage or superfluous language was not inserted into a statute. St. Louis County v. B.A.P., Inc., 25 S.W.3d 629, 631 (Mo.App.2000).

For the foregoing reasons, we hold that Rule VII, Section 4, of the City’s Civil Service Rules give Chief George the discretion not to fill any particular positions in the department and that mandamus will not lie. Accordingly, we reverse the judgment and quash the writ of mandamus.

LAWRENCE E. MOONEY, C.J., and MARY K. HOFF, J., concur.


author: NANNETTE A. BAKER, Judge.

text:
    John C. PATY, Respondent, v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Appellant.
    No. ED 84646.
    Missouri Court of Appeals, Eastern District, Division Three.
    May 31, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied July 18, 2005.
    Application for Transfer Denied Aug. 30, 2005.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Robert L. Ortbals, Jr., Jefferson City, MO, for appellant.

      Carl M. Ward, Chesterfield, MO, for respondent.
   NANNETTE A. BAKER, Judge.

The Director of Revenue (“Director”) revoked the license of John Paty (“Driver”) pursuant to Section 302.505 after Driver was involved in a single vehicle accident. Driver filed a Petition for Trial De Novo and his case was considered on March 5, 2004. The trial court found that the officer did not have probable cause to arrest Driver and reinstated his driving privileges. The Director appealed.

Background

On May 5, 2003, at approximately 3:12 pm, Driver was involved in a single vehicle accident that occurred in Osage County, Missouri. Two local citizens arrived at the scene within minutes of the accident. Kenneth Foster was the first to arrive, followed by Gary Maasen. Trooper Bruce Baker (“Trooper Baker”), of the Missouri Highway Patrol, responded to the scene at approximately 3:33 pm. Upon arriving at the scene, Trooper Baker observed a Dodge pickup lying on its passenger side in a ditch on the right side of the road, and an Osage County ambulance. Driver admitted he had been driving the vehicle.

There is contradictory evidence regarding whether Trooper Baker asked Driver what and how much alcohol he had consumed. Trooper Baker testified that he asked Driver whether he had been drinking and that Driver said “yes.” However, the alcohol influence report indicates that Driver said “No” when asked if he was under the influence of alcohol. During trial, Trooper Baker, in response to the question “Did he say how much he had been drinking?” testified “At that time, I didn’t ask him how much, I don’t believe.” Later, Driver’s counsel asked Trooper Baker: “Prior to telling [Driver] he was under arrest at the scene, did you specifically ask him what he’d had to drink that day and when?” Trooper Baker replied: “I believe so. I misanswered earlier. Generally, when I ask someone, I don’t ask them if they’ve been drinking. I ask them how much they’ve had to drink.” Trooper Baker was then asked what Driver’s answer was, and Trooper Baker replied that he did not recall what his answer was. Trooper Baker referenced the alcohol influence report form, and said Driver said he had three beers. However, the alcohol influence report form indicates that Driver was interviewed at the station after the arrest. Furthermore, the narrative written by Trooper Baker states “During processing, Mr. Paty insisted he had only drank [sic] three beers on an empty stomach ...” There is no indication in the narrative that Driver mentioned if or how much he had been drinking before he was arrested. The trial court concluded that Trooper Baker did not ask Driver what or how much he had to drink prior to arrest.

There was also controverted evidence regarding whether driver appeared to be intoxicated following the accident. Trooper Baker testified that he noticed a strong odor of intoxicants about Driver. Trooper Baker testified that he observed that Driver’s speech was slurred and that Driver swayed as he walked. Driver presented the testimony of Kenneth Foster, who arrived at the accident scene within five minutes of the crash. Foster testified that Driver was not slurring his speech, did not smell of alcohol, and did not stumble or stagger. Driver also presented the testimony of Gary Maasen, who also arrived shortly after Driver’s accident. Maasen testified that Driver was not slurring his speech and did not have trouble with his balance. Trooper Baker testified that he did not know if Driver was swaying back and forth or side to side and he did not know the degree to which Driver was swaying, although he was trained to make notes to that regard. Trooper Baker also testified that there was nothing unusual about the condition of Driver’s eyes, in that they were not bloodshot, watery or glassy, and that his pupils were not dilated or contracted.

Driver also presented the testimony of Sam Gearhart who was working with Driver at the Marine Corps League the day of the crash. Gearhart testified that Driver consumed two beers while at the Marine Corps League, and that when Driver left, he was not slurring his speech or having any difficulty balancing. Driver testified himself that he was driving the truck and the crash was caused by the shifting of concrete blocks in the bed of his truck. He also stated that he was in the process of drinking an O’Doul’s nonalcoholic beer when the crash occurred. Driver further testified that he had consumed three beers, that he had told Trooper Baker that he consumed three beers, and that he did not have any trouble with his speech or balance.

The trial court determined that Foster and Maasen were credible witnesses and that Driver did not slur his speech or have trouble with his balance. Furthermore, the trial court noted that Driver was evaluated by ambulance personnel on the scene, and there was no indication in the ambulance report to suggest that driver had any problems with balance or speech, nor were there indications that Driver’s breath smelled of alcohol.

Trooper Baker administered the horizontal gaze nystagmus test, but he administered the test improperly and the results were not considered by the trial court. Trooper Baker then administered a preliminary breath test (PBT) using a portable breath testing device known as the Alco-Sensor III. Trooper Baker testified that he had been using the Alco-Sensor III since January 2001, and had used it around 100 times. Trooper Baker testified that he had come to rely on the PBT in making probable cause determinations and that he had found the PBT results to be consistent with subsequent breath or blood tests. The results of the PBT indicated that Driver’s blood alcohol content was over the legal limit of .08%.

Trooper Baker did testify that he did not know how PBTs worked internally or whether the Alco-Sensor III was an infrared or a fuel-cell device. Trooper Baker also stated that he did not hold a Type II permit that would authorize him to work on his PBT unit. He further testified that he had not completely read the operator’s manual and that he had not personally performed any calibration checks on the PBT. There was no evidence presented by Director to establish that the device in question had ever been calibrated. Trooper Baker testified that he couldn’t say how many hours of training he actually had when he learned about the PBT in 1998, and that he could not say for sure which type of PBT instrument he had been trained on.

Trooper Baker admitted that he did not have Driver under his continuous observation prior to giving him the PBT. When he returned to the patrol car and administered the PBT, he did not ask Driver when he had last consumed any beverages of any kind or when he had last smoked. The operator’s manual for the PBT, admitted without objection, states that “A recent drink of an alcoholic beverage, a dose of medication containing alcohol or regurgitation could introduce ‘mouth alcohol’ to a breath sample thus causing an exaggerated reading. A 15-20 minute deprivation period prior to testing 'will insure ‘mouth alcohol’ has not influenced the breath alcohol reading.” The manual also states that: “CAUTION: To assure a correct result, no alcohol should be consumed within 15 minutes of a test, and the subject should not be allowed to smoke.” The operator’s manual also indicates that if a positive reading is obtained, the operator is to wait 2 to 5 minutes and take a second test. Trooper Baker testified that the results of the PBT indicated that Driver’s blood alcohol content was over the legal limit of .08%.

The trial court found that a reasonably prudent, cautious, trained police officer would not rely on the results of the PBT in this case. The trial court did not admit the PBT results into evidence. The trial court also concluded that even if the PBT test result had been admitted, the court “would otherwise give little or no weight to the PBT evidence because the lack of evidence of proper training, use and accuracy.”

Driver was placed under arrest and transported to the Osage County Jail. At the jail, Driver was informed of his rights under the Missouri Implied Consent Law, and Trooper Baker asked for a sample of his breath. Driver then agreed to take the breath test, and his blood alcohol content (“BAC”) was .095%.

At trial, Driver presented the testimony of a toxicologist, Dr. Terry Martinez. Dr. Martinez testified that based upon the amount Driver reported drinking and the times he reported drinking, that Driver’s blood alcohol content was .044% with a 15 percent margin of error at the time of the accident, basing this conclusion upon a pharmacokinetic calculation which took various factors into account. Finally, Dr. Martinez testified that at .10% an individual is not obviously drunk. The court concluded that Trooper Baker did not have probable cause to arrest Driver. The trial court made no findings as to Driver’s BAC.

In her first point, the Director maintains that the trial court erred in excluding the results of the preliminary breath test (“PBT”). The Director contends that the trial court erroneously declared and applied the law in requiring the officer to have reasonable suspicion prior to administering the PBT, in requiring due process protections prior to administration of a PBT and in holding that a reasonable officer would not rely on the results of a PBT under the circumstances of this case. In her second point, the Director claims that the trial court erred in finding that Trooper Baker did not have probable cause to arrest Driver. As her third point, the Director states that the trial court erred in failing to make a finding regarding Driver’s blood alcohol content.

Standard of Review

An appellate court will affirm the trial court’s judgment unless there is no substantial evidence to support it, it is contrary to the weight of the evidence, or if it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Where a trial court makes a specific finding that it did not believe the arresting officer’s testimony in a driver’s license case, the appellate court must defer to the trial court’s prerogative to determine credibility. Thurmond v. Dir. of Revenue, 759 S.W.2d 898, 899 (Mo.App. E.D.1988). In addition, when assessing whether there is substantial evidence, we must defer to the trial court on factual issues. Id. Such deference is not limited to the issue of credibility of witnesses, but also to the conclusions of the trial court. Hawk v. Dir. of Revenue, 943 S.W.2d 18, 22 (Mo.App. S.D.1997). Appellate courts view the evidence in the light most favorable to the trial court’s judgment. Thurmond, 759 S.W.2d at 899. On appeal, the judgment of the trial court is presumed to be correct and shall be affirmed under any reasonable theory supported by the evidence. Jarrell v. Dir. of Revenue, 41 S.W.3d 42, 46 (Mo.App.S.D.2001).

Finally, a trial court’s decision to admit or exclude evidence is reviewed for an abuse of discretion. Vernon v. Dir. of Revenue, 142 S.W.3d 905, 909 (Mo.App. S.D.2004). We will find an abuse of discretion only when the trial court’s ruling is clearly against the logic of the circumstances, is so arbitrary and unreasonable as to shock the sense of justice, and shows a lack of careful consideration. Id. at 909. We must view the evidence in the light most favorable to the trial court’s judgment. Thurmond, 759 S.W.2d at 899.

Discussion

The statutory scheme for suspended or revoked driver’s license cases requires the Director to initially present evidence to establish 1) probable cause for arrest, and 2) that the driver was driving with a blood alcohol level of .08% or greater. Verdoorn v. Dir. of Revenue, 119 S.W.3d 543, 545 (Mo. banc 2003). “Probable cause exists when the facts and circumstances warrant a person of reasonable caution to believe that an offense has been or is being committed, based on the circumstances as they appear to a prudent, cautious and trained police officer.” Walker v. Dir. of Revenue, 137 S.W.3d 444, 446 (Mo. banc 2004). The trial court must assess the facts by viewing the situation as it would have appeared to a prudent, cautious and trained police officer. Brown v. Dir. of Revenue, 85 S.W.3d 1, 4 (Mo. banc 2002).

In this case, Driver did admit that he had been driving the truck at the time of the accident, and this evidence was uncon-troverted. However, after hearing contradictory testimony regarding Driver’s intoxication, the trial court found in Driver’s favor on all evidence presented. The court determined that Driver’s speech was not slurred, he did not have difficulty with his balance, his eyes were not bloodshot, glassy or watery, his breath did not smell of alcohol, and no indicators of intoxication were present.

The Director contends that even absent that evidence, Trooper Baker still had probable cause to arrest Driver because Driver’s admission of consuming three beers was sufficient alone to support a finding of probable cause. In support of this claim, the Director cites Soest v. Dir. of Revenue, wherein there was uncontested evidence that the driver admitted that she had one beer, several hours earlier. 62 S.W.3d 619, 621 (Mo.App.E.D.2001). This court held that the driver’s “admission justified the officer in offering [the driver] the chance for an accurate measuring of her alcohol level so that it could be compared to the statutory standard.” Id.

The Director contends the testimony regarding Driver’s admission to having three beers is un-contradicted. This is not so. Trooper Baker was questioned twice about whether he had asked Driver if he had consumed alcohol and his answers were inconsistent. The first time Trooper Baker was questioned, he stated that he did not ask how much Driver had been drinking. The second time, Trooper Baker stated that he had previously answered incorrectly and that he had asked how much Driver had consumed. He could not recall Driver’s answer, but his memory was refreshed with the Alcohol Influence Report, which indicated that Driver answered that he had consumed three beers. However, this is noted in the “interview” section of the Report, and the Report indicates that the interview occurred after Driver was arrested. The narrative also indicates that “during processing,” after Driver was arrested, Driver stated that he had consumed three beers. Thus, there was substantial evidence from which the trial court could determine that Trooper Baker did not ask how much or if Driver had been drinking until after he arrested Driver. Accordingly, Trooper Baker could not have used that information when calculating probable cause.

Because the trial court also disbelieved Trooper Baker’s testimony that Driver had slurred speech, a wobbling gait, had watery, glassy, bloodshot eyes and smelled of intoxicants, the only evidence from which an argument could be made that Trooper Baker had probable cause to arrest Driver is the result of the PBT test administered pursuant to Section 577.021. The trial court determined that the PBT test is a field sobriety test and that the results were unreliable in this case. In its order, the court cites Brown, in which the trial court disregarded evidence of improperly administered field sobriety tests when making its determination of probable cause. See Brown, 85 S.W.3d 1.

In Brown, the trial court, after hearing evidence regarding the proper administration of three field sobriety tests, determined that the Officer had improperly administered all three field sobriety tests and that a reasonably prudent, trained, or eau-tious police officer would not have relied on the tests in determining probable cause. Id. at 3. The trial court found that the officer did not have probable cause when he arrested Brown, and reinstated Brown’s license. Id. The Supreme Court found that other evidence, such as the officer’s observations of Brown swaying and an odor of intoxicants about him, supported a determination that the officer had probable cause to arrest Brown. Id. at 7. However, the Court also found that the trial court properly disregarded the improperly administered field sobriety tests. Id. at 4.

Under Brown, a court can disregard the results of an improperly administered field sobriety test. Because the reliability of field sobriety tests is a factual issue, we must give deference to the determinations made by the trial court. See Hawk, 943 S.W.2d at 22. In this case, the trial judge found that Trooper Baker did not receive any training in the use of the device in question and that he did not properly administer the test. Trooper Baker did not know the make and model of the unit at the time he used it. Trooper Baker did not know generally how the device worked internally. In addition, he had not completely read the manual. He did not observe Driver for 15-20 minutes before administration of the test to make sure he did not do anything that would affect the accuracy of the test. Trooper Baker did not know when Driver had last consumed any beverages or smoked prior to administering the test and did not observe Driver to see if he regurgitated or put anything into his mouth. Furthermore, the court determined that the device had probably not been checked for accuracy since January of 2001 when it was acquired, although the manual recommended that the device be checked for accuracy on a monthly basis.

There was substantial evidence from which the trial court could determine that the results of the PBT test should have been disregarded. There was no uncon-tradicted evidence of Driver’s intoxication, and the trial court found the facts in favor of Driver. Thus, Trooper Baker did not have had probable cause to arrest Driver.

This court is primarily concerned with the trial court reaching the correct result as opposed to the route taken by the trial court to reach that result. Bus. Men’s Assurance Co. of Am. v. Graham, 984 S.W.2d 501, 506 (Mo. banc 1999). Therefore, we will affirm the judgment under any tenable theory regardless of whether the trial court advances wrong or insufficient reasons. Id. Because the issue of probable cause is determinative of the case, and the trial court ultimately reached the correct result, we will not reach the remainder of the Director’s points. Judgment affirmed.

CLIFFORD H. AHRENS, P.J., and GLENN A. NORTON, J., concur.

      . RSMo.2000.

      . The Report indicates that Driver was advised of his Miranda rights at 3:50 PM, and the interview in which Driver admitted to having three beers started at 4:18 PM. The narrative written by Trooper Baker indicates that he arrested Driver at the same time he read him his Miranda rights, and thus Driver was already arrested when Trooper Baker started the interview.

      . Section 577.021 states:
      "Any state, county or municipal law enforcement officer who has the power of arrest for violations of section 577.010 or 577.012 and who is certified pursuant to chapter 590, RSMo, may, prior to arrest, administer a chemical test to any person suspected of operating a motor vehicle in violation of section 577.010 or 577.012. A test administered pursuant to this section shall be admissible as evidence of probable cause to arrest and as exculpatory evidence, but shall not be admissible as evidence of blood alcohol content. The provisions of section 577.020 shall not apply to a test administered prior to arrest pursuant to this section.”
      Mo.Rev.Stat. Section 577.021 (2004).


author: JOHN E. PARRISH, Presiding Judge.

text:
    In the Interest of A.K.F., D.A.F., D.J.F., and K.D.F., Minors. Jacqueline Denise Fort, Appellant, v. Greene County Juvenile Office, Respondent.
    No. 26330.
    Missouri Court of Appeals, Southern District, Division Two.
    May 31, 2005.
    Application for Transfer to Supreme Court Denied June 22, 2005.
    Application for Transfer Denied Aug. 30, 2005.
    John E. Kelly, Springfield, MO, for appellant.

      Bill Prince, Springfield, for respondent.
   JOHN E. PARRISH, Presiding Judge.

Jacqueline Denise Fort (mother) appeals a judgment terminating her parental rights to A.K.F., born July 14, 1993, D.A.F., born July 8, 1995, D.J.F., born August 6, 1996, and K.D.F., born October 25, 1999. The parental rights of the children’s father, Kitarra Daniel James Fort (father), were also terminated. He appeals separately. This court affirms.

The appeals of mother and father were consolidated only for purposes of the record on appeal. One petition was filed in the trial court in which termination of both parents’ parental rights was sought. A single evidentiary hearing was held after which parental rights were terminated.

The facts adduced from the evidence are set forth in this court’s opinion in In the Interest of A.K.F., 164 S.W.3d 149 (Mo.App.S.D.2005) (father’s appeal). The facts recited in the opinion rendered in father’s appeal are apropos to mother’s appeal. They will not be restated except as necessary to address mother’s point on appeal. The opinion in father’s appeal should be read in conjunction with this opinion in order to understand the circumstances that led to termination of mother’s parental rights.

In addition to the findings set forth in the opinion in father’s appeal, the trial court found that when D.A.F. “woke up” after the incident he recited to Officer Patrick Carey of the Springfield, Missouri, Police Department and Ms. Emilie Dortch, an investigator for the Children’s Division of the Missouri Division of Family Services (DFS), mother applied a cold rag to his face. Officer Carey told the trial court:

[D.A.F.] said that [mother] did not see this and was asleep when it occurred. Okay. Yes. [D.A.F.] said that when he came back — and again, his words — from the choking, he heard [father] yelling at [mother]. He said he tried to get up, but could not, and that [mother] then came into the room and put a cold rag on his face because she said that his face was red.

Mother told Officer Carey that she was asleep during the incident that D.A.F. described. She told him she works at night and sleeps during the day. Mother and father claimed that D.A.F. choked himself; that his injuries were a result of his having choked himself and of an allergy to plants outside the family’s home.

The petition to terminate parental rights was filed one year after the children had been taken into protective custody on the basis of a petition alleging abuse and neglect, which allegations were found by the juvenile court to have occurred. The petition to terminate parental rights that is the subject of this appeal asserted that the children had been adjudicated to have been physically abused by father under conditions that indicated mother knew or should have known that such abuse occurred. It alleged that the children had been under the jurisdiction of the juvenile court in excess of one year without conditions that led to the assumption of jurisdiction being rectified; that there was little likelihood these conditions would be remedied at an early date; that continuation of the parent-child relationship greatly diminished the children’s prospects for early integration into a stable and permanent home.

Mother presents one point on appeal. She argues the trial court erred in terminating her parental rights because it erroneously found that “(1) the biological mother was responsible for the abuse and/or neglect of the minor children and (2) the biological mother failed to rectify the conditions which led to assumption of jurisdiction”; that the trial court’s determination was against the weight of the evidence. Mother further alleges that the trial court’s determination that termination of her parental rights was in the children’s best interest was an abuse of discretion. She asserts that she had done nothing to warrant the children coming into alternative care and that she had “substantially complied with her service agreement”; that the children were bonded to her and wanted to come home to live with her.

Mother does not contest the trial court’s finding that there had been an adjudication of abuse. Rather, she argues she was not responsible; that she did nothing to warrant the children’s placement in foster care. She does not assert that she met the obligations placed on her by the service agreement that was ordered. She merely claims she “substantially complied” with it.

Section 211.447.4(2), RSMo 2000, provides for termination of parental rights when:

The child has been abused or neglected. In determining whether to terminate parental rights pursuant to this subdivision, the court shall consider and make findings on the following conditions or acts of the parent:
(c) A severe act or recurrent acts of physical, emotional or sexual abuse toward the child or any child in the family by the parent ... or by another under circumstances that indicate that the parent knew or should have known that such acts were being committed toward the child or any child in the family; .... [Emphasis added.]
Our courts have consistently found that, in situations where the non-abusive parent has had their rights terminated, it is enough that they knew or should have known about the abuse by the other parent, but failed to take corrective action. See In re E.D.M., 126 S.W.3d 488, 496 (Mo.App.W.D.2004) (holding that termination of father’s rights was proper where he knew of mother’s drug use, failed to be concerned about it, and failed to take steps to remove the children from her influence); In the Interest of M.H., 859 S.W.2d 888, 895 (Mo.App. S.D.1993) (holding that termination of father’s parental rights was in error where there was no showing that father knew or should have known, of the acts of abuse committed by mother); In the Interest of N.D., 857 S.W.2d 835, 840 (Mo.App. W.D.1993) (termination of parental rights was proper where mother knew of father’s sexual abuse of the children and failed to prevent further abuse).

In re C.M.K., 140 S.W.3d 219, 226 n. 11 (Mo.App.2004).

Mother’s failing was in doing nothing to prevent or correct father’s abuse of D.A.F. although she knew or should have known that the abuse occurred. It was that abuse that led to the placement of the children in foster care and the adjudication that D.A.F. had been abused. In determining that abuse occurred, the trial court found the testimony of mother and father not credible with respect to their claims that D.A.F. was injured by his own acts and by reason of an allergic reaction. The trial court’s findings included:

The Court in making this finding also considered that testimony of [mother] and of [father], both of whom indicated that [D.A.F.’s] injuries were the result of a combination of an allergic reaction along with the child’s choking of himself, even though [father] acknowledged having pinned the child against the wall on a previous occasion. The Court, having had the opportunity to observe the parent and hear their testimony, finds the testimony of [mother] and [father] not to be credible as it relates to the injuries sustained by the minor child.

Considering the facts and reasonable inferences therefrom in a light most favorable to the judgment, the evidence supports the findings and the decision of the trial court. Based on the record before it, this court does not “firmly believe that the judgment [was] wrong.” In re C.M.D., 18 S.W.3d 556, 560 (Mo.App.2000). Neither does this court, considering the totality of the circumstances revealed by the evidence adduced, find that the trial court abused its discretion in determining that termination of mother’s parental rights was in the children’s best interest. This court will not reweigh the evidence presented at trial. See In re D.L.W., 133 S.W.3d 582, 585 (Mo.App.2004). Mother’s point is denied. The judgment terminating mother’s parental rights is affirmed.

BATES, C.J., and BARNEY, J., concur.